AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 18, 2005
among
CEC ENTERTAINMENT CONCEPTS, L.P.,
as the Borrower,
CEC ENTERTAINMENT, INC.,
as a Guarantor
BANK OF AMERICA, N.A.,
as Administrative Agent
and
L/C Issuer,
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent,
SUNTRUST BANK,
as Documentation Agent,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Section Page
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS................................2
1.01 Defined Terms...................................................2
1.02 Other Interpretive Provisions..................................19
1.03 Accounting Terms...............................................20
1.04 Rounding.......................................................20
1.05 Times of Day...................................................20
1.06 Letter of Credit Amounts.......................................21
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS..........................21
2.01 Committed Loans................................................21
2.02 Borrowings, Conversions and Continuations of Committed Loans...21
2.03 Letters of Credit..............................................23
2.04 Intentionally Omitted..........................................31
2.05 Prepayments....................................................31
2.06 Termination or Reduction of Commitments........................32
2.07 Repayment of Loans. ...........................................32
2.08 Interest.......................................................32
2.09 Fees...........................................................33
2.10 Computation of Interest and Fees...............................34
2.11 Evidence of Debt...............................................34
2.12 Payments Generally; Administrative Agent's Clawback............34
2.13 Sharing of Payments by Lenders.................................36
2.14 Intentionally Omitted..........................................37
2.15 Increase in Commitments........................................37
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY.........................38
3.01 Taxes..........................................................38
3.02 Illegality.....................................................40
3.03 Inability to Determine Rates...................................41
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.............41
3.05 Compensation for Losses........................................43
3.06 Mitigation Obligations; Replacement of Lenders.................43
3.07 Survival.......................................................44
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS......................44
4.01 Conditions of Initial Credit Extension.........................44
4.02 Conditions to all Credit Extensions............................45
ARTICLE V. REPRESENTATIONS AND WARRANTIES.................................46
5.01 Existence, Qualification and Power; Compliance with Laws.......46
5.02 Authorization; No Contravention................................46
5.03 Governmental Authorization; Other Consents.....................46
5.04 Binding Effect.................................................47
5.05 Financial Statements; No Material Adverse Effect;
No Internal Control Event......................................47
5.06 Litigation.....................................................47
5.07 No Default.....................................................48
5.08 Ownership of Property; Liens...................................48
5.09 Environmental Compliance.......................................48
5.10 Insurance......................................................48
5.11 Taxes..........................................................48
5.12 ERISA Compliance...............................................48
5.13 Subsidiaries; Equity Interests.................................49
5.14 Margin Regulations; Investment Company Act;
Public Utility Holding Company Act.............................49
5.15 Disclosure.....................................................50
5.16 Compliance with Laws...........................................50
5.17 Intellectual Property; Licenses, Etc...........................50
ARTICLE VI. AFFIRMATIVE COVENANTS..........................................50
6.01 Financial Statements...........................................50
6.02 Certificates; Other Information................................51
6.03 Notices........................................................53
6.04 Payment of Obligations.........................................53
6.05 Preservation of Existence, Etc.................................53
6.06 Maintenance of Properties......................................54
6.07 Maintenance of Insurance.......................................54
6.08 Compliance with Laws...........................................54
6.09 Books and Records..............................................54
6.10 Inspection Rights..............................................54
6.11 Use of Proceeds................................................55
6.12 Additional Guarantors..........................................55
ARTICLE VII. NEGATIVE COVENANTS.............................................55
7.01 Liens.........................................................55
7.02 Investments...................................................56
7.03 Indebtedness..................................................57
7.04 Fundamental Changes...........................................58
7.05 Dispositions..................................................58
7.06 Restricted Payments...........................................59
7.07 Change in Nature of Business..................................60
7.08 Transactions with Affiliates..................................60
7.09 Burdensome Agreements.........................................60
7.10 Use of Proceeds...............................................60
7.11 Financial Covenants...........................................60
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES................................61
8.01 Events of Default.............................................61
8.02 Remedies Upon Event of Default................................63
8.03 Application of Funds..........................................63
ARTICLE IX. ADMINISTRATIVE AGENT..........................................64
9.01 Appointment and Authority.....................................64
9.02 Rights as a Lender............................................64
9.03 Exculpatory Provisions........................................65
9.04 Reliance by Administrative Agent..............................65
9.05 Delegation of Duties..........................................66
9.06 Resignation of Administrative Agent...........................66
9.07 Non-Reliance on Administrative Agent and Other Lenders........67
9.08 No Other Duties, Etc..........................................67
9.09 Administrative Agent May File Proofs of Claim.................67
9.10 Guaranty Matters..............................................68
ARTICLE X. MISCELLANEOUS.................................................69
10.01 Amendments, Etc...............................................69
10.02 Notices; Effectiveness; Electronic Communication..............70
10.03 No Waiver; Cumulative Remedies................................72
10.04 Expenses; Indemnity; Damage Waiver............................72
10.05 Payments Set Aside............................................74
10.06 Successors and Assigns........................................74
10.07 Treatment of Certain Information; Confidentiality.............77
10.08 Right of Setoff...............................................78
10.09 Interest Rate Limitation......................................78
10.10 Counterparts; Integration; Effectiveness......................79
10.11 Survival of Representations and Warranties....................79
10.12 Severability..................................................79
10.13 Replacement of Lenders........................................80
10.14 Governing Law; Jurisdiction; Etc..............................80
10.15 Waiver of Jury Trial..........................................81
10.16 USA PATRIOT Act Notice........................................82
10.17 Time of the Essence...........................................82
10.18 Renewal, Amendment, Restatement and Extension.................82
10.19 ENTIRE AGREEMENT..............................................82
SCHEDULES
1.01 Existing Letters of Credit
2.01 Commitments and Applicable Percentages
4.01 List of Jurisdictions
5.05 Supplement to Interim Financial Statements
5.06 Litigation
5.13 Subsidiaries; Other Equity Investments
7.01 Existing Liens
7.03 Existing Indebtedness
10.02 Administrative Agent's Office; Certain Addresses for Notices
10.06 Processing and Recordation Fees
EXHIBITS
Form of
A Committed Loan Notice
B Intentionally Deleted
C Note
D Compliance Certificate
E Assignment and Assumption
F Guaranty
G Opinion Matters
H New Lender Agreement
I Guaranty for Parent
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is entered into as
of July 18, 2005, among CEC ENTERTAINMENT CONCEPTS, L.P., a Texas limited
partnership (the "Borrower"), CEC ENTERTAINMENT, INC., as a Guarantor, each
lender from time to time party hereto (collectively, the "Lenders" and
individually, a "Lender"), and BANK OF AMERICA, N.A., as Administrative Agent
and L/C Issuer.
R E C I T A L S
On December 3, 2002, ShowBiz Merchandising, L.P., a Texas limited
partnership, as Borrower, CEC Entertainment, Inc., a Kansas corporation, as a
Guarantor, Bank One, N.A., as a Lender and Syndication Agent, U.S. Bank National
Association, as a Lender and Co-Documentation Agent, Fleet National Bank, as a
Lender and Co-Documentation Agent, and Bank of America, N.A., as a Lender and
Administrative Agent and L/C issuer entered into that certain Credit Agreement
(the "Existing Credit Agreement").
As of February 28, 2003, CEC Entertainment Concepts, L.P., a Texas limited
partnership (formerly known as ShowBiz Merchandising, L.P.), as Borrower, CEC
Entertainment, Inc., CEC Entertainment Holdings, LLC, SPT Distribution Company,
Inc. and TJH Restaurant Group, Inc., guarantors, and Bank of America, N.A., as a
Lender and Administrative Agent, and the Lenders which are parties thereto
entered into a First Amendment to Credit Agreement (the "First Amendment"),
which among other things reflected the name change of the Borrower.
As of July 16, 2003, Bank of America, N.A., as a Lender and Administrative
Agent, CEC Entertainment Concepts, L.P., as Borrower, CEC Entertainment, Inc.,
CEC Entertainment Holdings, LLC, SPT Distribution Company, Inc. and TJH
Restaurant Group, Inc., as guarantors and the Lenders which are parties thereto
entered into a Second Amendment to Credit Agreement (the "Second Amendment"),
which among other things, reflected a covenant change to the Credit Agreement.
As of August 27, 2003, Bank of America, N.A., as a Lender and
Administrative Agent, CEC Entertainment Concept, L.P., a Texas limited
partnership, as Borrower, CEC Entertainment, Inc., CEC Entertainment Holdings,
LLC, SPT Distribution Company, Inc. and TJH Restaurant Group, Inc., as
guarantors and the Lenders which are parties thereto entered into a Third
Amendment to Credit Agreement (the "Third Amendment") under which certain
provisions of the Credit Agreement were changed.
As of August 19, 2004, Bank of America, N.A., as a Lender and
Administrative Agent, CEC Entertainment Concepts, L.P., as Borrower, CEC
Entertainment, Inc., CEC Entertainment Holdings, LLC, SPT Distribution Company,
Inc. and TJH Restaurant Group, Inc., guarantors and the Lenders which are
parties thereto entered into a Fourth Amendment to Credit Agreement (the "Fourth
Amendment") under which one provision of the Credit Agreement was changed.
Now, the Borrower has requested that the Administrative Agent and Lenders
(remaining and new) amend and restate the Existing Credit Agreement (as amended
by the First Amendment, the Second Amendment, the Third Amendment and the Fourth
Amendment) governing the revolving credit facility made for the benefit of the
Borrower and the Guarantors to reflect certain changes to the terms of the
credit facility and to admit new lenders, through the execution and delivery of
this Agreement and the Loan Documents executed and delivered in connection
herewith. This Agreement and the Loan Documents are executed and delivered in
amendment, restatement and modification of the existing Loan Documents, but not
in extinguishment thereof.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Amended and Restated Credit Agreement.
"Applicable Percentage" means with respect to any Lender at any time, the
percentage (carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender's Commitment at such time. If the Commitment of each
Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or if the Aggregate
Commitments have expired, then the Applicable Percentage of each Lender shall be
determined based on the Applicable Percentage of such Lender most recently in
effect, giving effect to any subsequent assignments. The initial Applicable
Percentage of each Lender is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.
"Applicable Rate" means the following basis points per annum, based upon
the Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.02(b):
Applicable Rate
----------------------------------------------------------------------------------------------
Applicable Rate
to be added to
Eurodollar Rate
----------------- Applicable
Rate to Commercial
Consolidated Standby Letters be added to Letters
Pricing Level Leverage Ratio Commitment Fee of Credit Base Rate of Credit
--------------- ---------------- ---------------- ----------------- ------------- ------------
1 < 0.75:1 10 bps 50 bps 0 bps 37.50 bps
2 = 0.75:1 but 12.5 bps 75 bps 0 bps 56.25 bps
< 1.50:1
3 = 1.50:1 but 20 bps 100 bps 0 bps 75 bps
< 2.25:1
4 = 2.25:1 25 bps 125 bps 0 bps 93.75 bps
Any increase or decrease in the Applicable Rate resulting from a change in
the Consolidated Leverage Ratio shall become effective as of the first Business
Day immediately following the date a Compliance Certificate is delivered
pursuant to Section 6.02(b); provided, however, that if a Compliance Certificate
is not delivered when due in accordance with such Section, then Pricing Level 4
shall apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered until the first Business Day
after the date on which such Compliance Certificate is actually delivered,
whereupon the Applicable Rate shall be determined by the Consolidated Leverage
Ratio reflected therein. The Applicable Rate in effect from the Closing Date
through the first Business Day immediately following the date the first
Compliance Certificate is required to be delivered pursuant to Section 6.02(b)
shall be determined based upon Pricing Level 1.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignee Group" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b)), and accepted by the Administrative
Agent, in substantially the form of Exhibit E or any other form approved by the
Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance sheet
of the Parent and its Subsidiaries for the fiscal year ended January 2, 2005,
and the related consolidated statements of income or operations, shareholders'
equity and cash flows for such fiscal year of the Parent and its Subsidiaries,
including the notes thereto, audited by independent public accountants of
recognized national standing and prepared in accordance with GAAP.
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination
of the commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means a Committed Borrowing.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such
person or its subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan) becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that a person or group shall be deemed to have
"beneficial ownership" of all securities that such person or group has the right
to acquire (such right, an "option right"), whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of 35%
or more of the equity securities of the Parent entitled to vote for members of
the board of directors or equivalent governing body of the Parent on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right).
"Closing Date" means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as to each Lender, its obligation to (a) make Committed
Loans to the Borrower pursuant to Section 2.01, and (b) purchase participations
in L/C Obligations in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender's name on Schedule 2.01
or in the Assignment and Assumption or New Lender Agreement pursuant to which
such Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Lenders pursuant to Section
2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a continuation
of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing,
shall be substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit D.
"Consolidated EBITDA" means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following to the extent deducted in calculating
such Consolidated Net Income: (i) Consolidated Interest Charges for such period,
(ii) the provision for Federal, state, local and foreign income taxes payable by
the Parent and its Subsidiaries for such period, (iii) depreciation and
amortization expense and (iv) other non-recurring expenses of the Parent and its
Subsidiaries reducing such Consolidated Net Income which do not represent a cash
item in such period or any future period and minus (b) all non-cash items
increasing Consolidated Net Income for such period.
"Consolidated EBITR" means, for any period, for Parent and its Subsidiaries
on a consolidated basis, an amount equal to Consolidated Net Income for such
period plus (a) the following to the extent deducted in calculating such
Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii)
the provision for Federal, state, local and foreign income taxes payable by the
Parent and its Subsidiaries for such period, and (iii) any other non-recurring
expenses of the Parent and its Subsidiaries reducing such Consolidated Net
Income which do not represent a cash item in such period or any future period
plus (b) Consolidated Rent Expense for such period, and minus (c) all non-cash
items increasing Consolidated Net Income for such period.
"Consolidated Fixed Charge Coverage Ratio" means, as of the date of
determination, with the period being considered, the last four fiscal quarters
ending with the final day of the most recent quarter, the ratio of (a)
Consolidated EBITR for Parent and its Subsidiaries for such period to (b) the
sum of (i) Consolidated Interest Charges during such period, plus (ii)
Consolidated Rent Expense during such period.
"Consolidated Funded Indebtedness" means, as of any date of determination,
for the Parent and its Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder) and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments, (b) all purchase money Indebtedness, (c) all direct obligations
arising under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments, (d) all
obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business), (e)
Attributable Indebtedness in respect of capital leases and Synthetic Lease
Obligations, (f) without duplication, all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (a) through (e) above of Persons
other than the Parent or any Subsidiary, and (g) all Indebtedness of the types
referred to in clauses (a) through (f) above of any partnership or joint venture
(other than a joint venture that is itself a corporation or limited liability
company) in which the Parent or a Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to the Parent
or such Subsidiary.
"Consolidated Interest Charges" means, for any period, for the Parent and
its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of the Parent and
its Subsidiaries in connection with borrowed money or in connection with the
deferred purchase price of assets, in each case to the extent treated as
interest in accordance with GAAP, and (b) the portion of rent expense of the
Parent and its Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP.
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA for the period of the four fiscal quarters most recently
ended.
"Consolidated Net Income" means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, the net income of the Parent and its
Subsidiaries (excluding extraordinary gains but including extraordinary losses)
for that period.
"Consolidated Net Worth" means, as of any date of determination, for the
Parent and its Subsidiaries on a consolidated basis, Shareholders' Equity of
Parent and its Subsidiaries on that date.
"Consolidated Rent Expense" means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, the sum of all rent expense of the Parent
and its Subsidiaries determined in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extension" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;
provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used
with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus
2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans, or participations in L/C Obligations required to
be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by
it hereunder within one Business Day of the date when due, unless the subject of
a good faith dispute, or (c) has been deemed insolvent or become the subject of
a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent and the L/C Issuer, and (ii) unless an
Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, "Eligible Assignee" shall not include the
Borrower or the Parent or any of the Borrower's or Parent's Affiliates or
Subsidiaries.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, Parent, any other Loan Party or any
of their respective Subsidiaries directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Parent within the meaning of Section 414(b) or (c)
of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or Parent or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or Parent or any
ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer
Plan is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Sections 4041 or 4041A
of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or Parent or any ERISA Affiliate.
"Eurodollar Rate" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Rate Loan" means a Committed Loan that bears interest at a rate
based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the United States of America (or
any political subdivision thereof) or by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable Lending Office is located, (b) any branch profits taxes imposed
by the United States or any similar tax imposed by any other jurisdiction in
which the Borrower is located and (c) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Borrower under Section 10.13), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party hereto (or designates a new Lending
Office) or is attributable to such Foreign Lender's failure or inability (other
than as a result of a Change in Law) to comply with Section 3.01(e), except to
the extent that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 3.01(a).
"Existing Credit Agreement" means that certain Credit Agreement dated as of
December 3, 2002 among Showbiz Merchandising, L.P., a Texas limited partnership,
Bank of America, N.A., as Administrative Agent, and a syndicate of lenders,
together with all amendments thereto.
"Existing Letters of Credit" means collectively, the letters of credit
specifically described on Schedule 1.01.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the letter agreement, dated June 8, 2005, among the
Borrower, the Administrative Agent and the Arranger.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or any
other nation, or of 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 (including
any supra-national bodies such as the European Union or the European Central
Bank).
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Guarantors" means, collectively, (i) at all times, the Required
Guarantors, and (ii) any other entity which has executed a Guaranty, and such
Guaranty has not been released.
"Guaranty" means the Guaranties made by the Guarantors in favor of the
Administrative Agent and the Lenders, substantially in the forms of Exhibit F
and Exhibit I.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers' acceptances,
bank guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price
of property or services (other than trade accounts payable in the ordinary
course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations; and
(g) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Information" has the meaning specified in Section 10.07.
"Intangible Assets" means assets that are considered to be intangible
assets under GAAP, including customer lists, goodwill, computer software,
copyrights, trade names, trademarks, patents, franchises, licenses, unamortized
deferred charges, unamortized debt discount and capitalized research and
development costs.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each
March, June, September and December and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Committed Loan Notice;
provided that:
(i) any Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Investment" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute a business unit. For purposes of covenant compliance, the amount of
any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"IP Rights" has the meaning specified in Section 5.17.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
of Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and the Borrower or Parent (or any Subsidiary) or by the
Borrower or Parent (or any Subsidiary) in favor the L/C Issuer and relating to
any such Letter of Credit.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Applicable
Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when due or
refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any letter of credit issued hereunder and shall
include the Existing Letters of Credit. A Letter of Credit may be a commercial
letter of credit or a standby letter of credit.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.03(i).
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Committed Loan.
"Loan Documents" means this Agreement, each Note, each Issuer Document, the
Fee Letter, the Guaranty and Swap Contracts of the Borrower to which a Lender or
its Affiliates is a party.
"Loan Parties" means, collectively, the Borrower, the Parent and each
Guarantor.
"Margin Capital Stock" means capital stock issued by Parent that
constitutes "margin stock" within the meaning of such term under Regulation U,
12 CFR Section 221.1 et seq., as now or from time to time hereinafter in effect.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), operations or condition (financial or otherwise) of the
Parent and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of any Loan Party to perform its obligations under any Loan Document to
which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.
"Maturity Date" means the later of (a) five years from the Closing Date and
(b) if maturity is extended pursuant to Section 2.14, such extended maturity
date as determined pursuant to such Section.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or Parent or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Note" means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit C.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding, including under Swap Contracts of
the Borrower to which a Lender or its Affiliate is a party.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to Committed Loans on any date,
the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Committed Loans, as the case may be,
occurring on such date; and (ii) with respect to any L/C Obligations on any
date, the amount of such L/C Obligations on such date after giving effect to any
L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result
of any reimbursements by the Borrower of Unreimbursed Amounts.
"Parent" shall mean CEC Entertainment, Inc., a Kansas corporation.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
Parent or any ERISA Affiliate or to which the Borrower or Parent or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a
multiple employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or Parent or, with respect to
any such plan that is subject to Section 412 of the Code or Title IV of ERISA,
any ERISA Affiliate.
"Platform" has the meaning specified in Section 6.02.
"Register" has the meaning specified in Section 10.06(c).
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of the Borrower as prescribed by the
Securities Laws.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, and (b)
with respect to an L/C Credit Extension, a Letter of Credit Application.
"Required Guarantor" means the Parent, TJH Restaurant Group, Inc., SPT
Distribution Company, Inc., CEC Entertainment Holdings, LLC, and any other
Subsidiary which is or is required to be a Guarantor. A Subsidiary is required
to be a Guarantor if the failure to provide such Guaranty results or would
result in a breach of Section 7.02(f), Section 7.02(g), Section 7.02(h) and/or
Section 7.02(i).
"Required Lenders" means, as of any date of determination, Lenders having
more than 50% of the Aggregate Commitments or, if the commitment of each Lender
to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions
have been terminated pursuant to Section 8.02, Lenders holding in the aggregate
more than 50% of the Total Outstandings (with the aggregate amount of each
Lender's risk participation and funded participation in L/C Obligations being
deemed "held" by such Lender for purposes of this definition); provided that the
Commitment of, and the portion of the Total Outstandings held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.
"Responsible Officer" means the chief executive officer, president, chief
financial officer or controller of a Loan Party and for CEC Entertainment
Holdings, LLC, TJH Restaurant Group, Inc. and SPT Distribution Company, Inc.,
the vice president. Any document delivered hereunder that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the
part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
Equity Interest of the Borrower or Parent or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other
Equity Interest, or on account of any return of capital to the Borrower's
stockholders, partners or members (or the equivalent Person thereof).
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securities Laws" means the Securities Act of 1933, the Securities Exchange
Act of 1934, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the Public Company Accounting Oversight Board, as each of the
foregoing may be amended and in effect on any applicable date hereunder.
"Shareholders' Equity" means, as of any date of determination, consolidated
shareholders' equity of the Parent and its Subsidiaries as of that date
determined in accordance with GAAP.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Parent.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Threshold Amount" means $15,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of all Loans
and all L/C Obligations.
"Type" means, with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan. "Unfunded Pension Liability" means the
excess of a Pension Plan's benefit liabilities under Section 4001(a)(16) of
ERISA, over the current value of that Pension Plan's assets, determined in
accordance with the assumptions used for funding the Pension Plan pursuant to
Section 412 of the Code for the applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
1.02 Other Interpretive Provisions. With reference to this Agreement and each
other Loan Document, unless otherwise specified herein or in such other Loan
Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. 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 phrase "without limitation." The word "will"
shall be construed to have the same meaning and effect as the word "shall."
Unless the context requires otherwise, (i) any definition of or reference
to any agreement, instrument or other document (including any Organization
Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein or in any other Loan Document), (ii) any
reference herein to any Person shall be construed to include such Person's
successors and assigns, (iii) the words "herein," "hereof" and "hereunder,"
and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document
in which such references appear, (v) any reference to any law shall include
all statutory and regulatory provisions consolidating, amending, replacing
or interpreting such law and any reference to any law or regulation shall,
unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words "asset"
and "property" shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words
"to" and "until" each mean "to but excluding;" and the word "through" means
"to and including."
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms. (a) Generally. All accounting terms not specifically
or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein, and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.
(c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Parent and its Subsidiaries or to the
determination of any amount for the Parent and its Subsidiaries on a
consolidated basis or any similar reference shall, in each case, be deemed to
include each variable interest entity that the Parent is required to consolidate
pursuant to FASB Interpretation No. 46 - Consolidation of Variable Interest
Entities: an interpretation of ARB No. 51 (January 2003) as if such variable
interest entity were a Subsidiary as defined herein.
1.04 Rounding.Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 Times of Day. Unless otherwise specified, all references herein to
times of day shall be references to Central time (daylight or standard, as
applicable).
1.06 Letter of Credit Amounts. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such
time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make loans (each such loan, a "Committed Loan")
to the Borrower from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed at any time outstanding the amount
of such Lender's Commitment; provided, however, that after giving effect to any
Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of
any Lender, plus such Lender's Applicable Percentage of the Outstanding Amount
of all L/C Obligations, shall not exceed such Lender's Commitment. Within the
limits of each Lender's Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.01, prepay under
Section 2.05, and reborrow under this Section 2.01. Committed Loans may be Base
Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Committed Loans.
(a) Each Committed Borrowing, each conversion of Committed Loans from one
Type to the other, and each continuation of Eurodollar Rate Loans shall be made
upon the Borrower's irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans
or of any conversion of Eurodollar Rate Loans to Base Rate Committed Loans, and
(ii) on the requested date of any Borrowing of Base Rate Committed Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a) must be
confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof. Except as provided in Sections 2.03(c)
and 2.04(c), each Borrowing of or conversion to Base Rate Committed Loans shall
be in a principal amount of $100,000 or a whole multiple of $100,000 in excess
thereof. Each Committed Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a Committed Borrowing, a
conversion of Committed Loans from one Type to the other, or a continuation of
Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or continued, (iv)
the Type of Committed Loans to be borrowed or to which existing Committed Loans
are to be converted, and (v) if applicable, the duration of the Interest Period
with respect thereto. If the Borrower fails to specify a Type of Committed Loan
in a Committed Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Committed Loans
shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans. If the Borrower requests a Borrowing of, conversion to, or continuation
of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify
an Interest Period, it will be deemed to have specified an Interest Period of
one month.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount of its Applicable Percentage of
the applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans
described in the preceding subsection. In the case of a Committed Borrowing,
each Lender shall make the amount of its Committed Loan available to the
Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 12:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section 4.02 (and, if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date the Committed Loan Notice with respect to such
Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then
the proceeds of such Borrowing, first, shall be applied to the payment in full
of any such L/C Borrowings, and second, shall be made available to the Borrower
as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. At any time that Base Rate
Loans are outstanding, the Administrative Agent shall notify the Borrower and
the Lenders of any change in Bank of America's prime rate used in determining
the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions of
Committed Loans from one Type to the other, and all continuations of Committed
Loans as the same Type, there shall not be more than ten Interest Periods in
effect with respect to Committed Loans.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C
Issuer agrees, in reliance upon the agreements of the Lenders set forth in
this Section 2.03, (1) from time to time on any Business Day during the
period from the Closing Date until the Letter of Credit Expiration Date, to
issue Letters of Credit for the account of the Borrower, the Parent or its
Subsidiaries, and to amend or extend Letters of Credit previously issued by
it, in accordance with subsection (b) below, and (2) to honor drawings
under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of the Borrower,
the Parent or its Subsidiaries and any drawings thereunder; provided that
after giving effect to any L/C Credit Extension with respect to any Letter
of Credit, (x) the Total Outstandings shall not exceed the Aggregate
Commitments, and (y) the aggregate Outstanding Amount of the Committed
Loans of any Lender, plus such Lender's Applicable Percentage of the
Outstanding Amount of all L/C Obligations, shall not exceed such Lender's
Commitment. Each request by the Borrower for the issuance or amendment of a
Letter of Credit shall be deemed to be a representation by the Borrower
that the L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Borrower's
ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters
of Credit to replace Letters of Credit that have expired or that have been
drawn upon and reimbursed. All Existing Letters of Credit shall be deemed
to have been issued pursuant hereto, and from and after the Closing Date
shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last extension, unless the Required Lenders
have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good ▇▇▇▇▇
▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial stated amount
less than $10,000, in the case of a commercial Letter of Credit, or
$10,000, in the case of a standby Letter of Credit;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars; or
(E) such Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of
Credit if (A) the L/C Issuer would have no obligation at such time to issue
such Letter of Credit in its amended form under the terms hereof, or (B)
the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith,
and the L/C Issuer shall have all of the benefits and immunities (A)
provided to the Administrative Agent in Article IX with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in Article IX included the L/C Issuer with
respect to such acts or omissions, and (B) as additionally provided herein
with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Borrower delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of
the Borrower. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the Administrative Agent and
the L/C Issuer may agree in a particular instance in their sole discretion)
prior to the proposed issuance date or date of amendment, as the case may
be. In the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary
in case of any drawing thereunder; (F) the full text of any certificate to
be presented by such beneficiary in case of any drawing thereunder; and (G)
such other matters as the L/C Issuer may require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer
(A) the Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may require.
Additionally, the Borrower shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Unless the L/C Issuer
has received written notice from any Lender, the Administrative Agent or
any Loan Party, at least one Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article IV shall not then be satisfied,
then, subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the
Borrower or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such Letter
of Credit in an amount equal to the product of such Lender's Applicable
Percentage times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree
to issue a Letter of Credit that has automatic extension provisions (each,
an "Auto-Extension Letter of Credit"); provided that any such
Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any
such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a Business Day (the "Non-Extension
Notice Date") in each such twelve-month period to be agreed upon at the
time such Letter of Credit is issued. Unless otherwise directed by the L/C
Issuer, the Borrower shall not be required to make a specific request to
the L/C Issuer for any such extension. Once an Auto-Extension Letter of
Credit has been issued, the Lenders shall be deemed to have authorized (but
may not require) the L/C Issuer to permit the extension of such Letter of
Credit at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that the L/C Issuer shall not permit
any such extension if (A) the L/C Issuer has determined that it would not
be permitted, or would have no obligation, at such time to issue such
Letter of Credit in its revised form (as extended) under the terms hereof
(by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Borrower that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied, and
in each such case directing the L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing in compliance with the requirements under such Letter
of Credit, the L/C Issuer shall notify the Borrower and the Administrative
Agent thereof. Not later than 1:00 p.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an "Honor Date"), the
Borrower shall reimburse the L/C Issuer through the Administrative Agent in
an amount equal to the amount of such drawing; provided that the
Administrative Agent has provided notice to the Borrower prior to 11:00
a.m. on such day that such payment is due. In the event such notice is
received after 11:00 a.m. on a Business Day, such payment shall be due not
later than 11:00 a.m. on the next succeeding Business Day. If the Borrower
fails to so reimburse the L/C Issuer by such time, the Administrative Agent
shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the "Unreimbursed Amount"), and the amount of such
Lender's Applicable Percentage thereof. In such event, the Borrower shall
be deemed to have requested a Committed Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02 for
the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set
forth in Section 4.02 (other than the delivery of a Committed Loan Notice)
and the delivery of prior notice of such request for a Committed Borrowing
to the Borrower. Any notice given by the L/C Issuer or the Administrative
Agent pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i)
make funds available to the Administrative Agent for the account of the L/C
Issuer at the Administrative Agent's Office in an amount equal to its
Applicable Percentage of the Unreimbursed Amount not later than 12:00 p.m.
on the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender
that so makes funds available shall be deemed to have made a Base Rate
Committed Loan to the Borrower in such amount. The Administrative Agent
shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Committed Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Lender's payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until each Lender funds its Committed Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount
drawn under any Letter of Credit, interest in respect of such Lender's
Applicable Percentage of such amount shall be solely for the account of the
L/C Issuer.
(v) Notwithstanding anything contained herein to the contrary, each
Lender's obligation to make Committed Loans or L/C Advances to reimburse
the L/C Issuer for amounts drawn under Letters of Credit, as contemplated
by this Section 2.03(c), shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the
L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B)
the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender's obligation to make Committed Loans
pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 4.02 (other than delivery by the Borrower of a Committed Loan
Notice). No such making of an L/C Advance shall relieve or otherwise impair
the obligation of the Borrower to reimburse the L/C Issuer for the amount
of any payment made by the L/C Issuer under any Letter of Credit, together
with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent
for the account of the L/C Issuer any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section 2.03(c) by the
time specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled to
recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately
available to the L/C Issuer at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by the L/C Issuer in accordance
with banking industry rules on interbank compensation. A certificate of the
L/C Issuer submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive
absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C Advance
in respect of such payment in accordance with Section 2.03(c), if the
Administrative Agent receives for the account of the L/C Issuer any payment
in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Applicable Percentage thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's L/C Advance was outstanding) in
the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Applicable Percentage thereof on demand of
the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per
annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders under this clause shall survive the payment in
full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be acting),
the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit
or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit; or any payment made by the L/C Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower, the Parent or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer shall
be liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if
the L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of
the Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrower shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations. Sections 2.05 and 8.02(c)
set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.03, Section 2.05 and Section 8.02(c), "Cash
Collateralize" means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the
L/C Obligations, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders). Derivatives of such
term have corresponding meanings. The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.
(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the
L/C Issuer and the Borrower when a Letter of Credit is issued (including any
such agreement applicable to an Existing Letter of Credit), (i) the rules of the
ISP shall apply to each standby Letter of Credit, and (ii) the rules of the
Uniform Customs and Practice for Documentary Credits, as most recently published
by the International Chamber of Commerce at the time of issuance shall apply to
each commercial Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage a Letter of Credit fee (the "Letter of Credit Fee") (i) for each
commercial Letter of Credit equal to the Applicable Rate under the column
"Commercial Letters of Credit "for the then applicable pricing level on a per
annum basis times the daily maximum amount available to be drawn under such
Letter of Credit, (whether or not such maximum amount is then in effect under
such Letter of Credit), provided, however, that the Letter of Credit Fee shall
be no less than $200 for each commercial Letter of Credit, and (ii) for each
standby Letter of Credit equal to the Applicable Rate under the column
"Applicable Rate for Eurodollar Base Loans and Standby Letters of Credit" for
the then applicable pricing level, on a per annum basis, times the daily maximum
amount available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit), provided,
however, that the Letter of Credit Fee shall be no less than $350 for each
standby Letter of Credit. For purposes of computing the daily amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.06. Letter of Credit Fees shall
be (i) computed on a quarterly basis in arrears and (ii) due and payable on the
last Business Day of each March, June, September and December, commencing with
the first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. If there is any
change in the Applicable Rate during any quarter, the daily maximum amount of
each Letter of Credit shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein, upon the
request of the Required Lenders, while any Event of Default exists, all Letter
of Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee (i) with respect to each commercial Letter of Credit, at the rate
specified in the Fee Letter, computed on the amount of such Letter of Credit,
and payable upon the issuance thereof, (ii) with respect to any amendment of a
commercial Letter of Credit increasing the amount of such Letter of Credit, at a
rate separately agreed between the Borrower and the L/C Issuer, computed on the
amount of such increase, and payable upon the effectiveness of such amendment,
and (iii) with respect to each standby Letter of Credit, at the rate per annum
specified in the Fee Letter, computed on the daily amount available to be drawn
under such Letter of Credit on a quarterly basis in arrears. Such fronting fee
shall be due and payable on the last Business Day of each March, June, September
and December in respect of the most recently-ended quarterly period (or portion
thereof, in the case of the first payment), commencing with the first such date
to occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06. In
addition, the Borrower shall pay directly to the L/C Issuer for its own account
the individual customary issuance, presentation, amendment and other processing
fees, and other reasonable standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) Letters of Credit Issued for Parent or Subsidiaries. Notwithstanding
that a Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, the Parent or a Subsidiary, the
Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and
all drawings under such Letter of Credit. The Borrower hereby acknowledges that
the issuance of Letters of Credit for the account of the Parent or Subsidiaries
inures to the benefit of the Borrower, and that the Borrower's business derives
substantial benefits from the businesses of the Parent and such Subsidiaries.
2.04 Intentionally Omitted.
2.05 Prepayments.
(a) The Borrower may, upon notice to the Administrative Agent, at any time
or from time to time voluntarily prepay Committed Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior
to any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurodollar Rate
Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof; and (iii) any prepayment of Base Rate Committed
Loans shall be in a principal amount of $100,000 or a whole multiple of $100,000
in excess thereof or, in each case, if less, the entire principal amount thereof
then outstanding. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Committed Loans to be prepaid. The Administrative
Agent will promptly notify each Lender of its receipt of each such notice, and
of the amount of such Lender's Applicable Percentage of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied
by all accrued interest on the amount prepaid, together with any additional
amounts required pursuant to Section 3.05. Each such prepayment shall be applied
to the Committed Loans of the Lenders in accordance with their respective
Applicable Percentages.
(b) If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, the Borrower shall immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal
to such excess; provided, however, that the Borrower shall not be required to
Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b) unless
after the prepayment in full of the Loans the Total Outstandings exceed the
Aggregate Commitments then in effect.
2.06 Termination or Reduction of Commitments. The Borrower may, upon notice
to the Administrative Agent, terminate the Aggregate Commitments, or from time
to time permanently reduce the Aggregate Commitments; provided that (i) any such
notice shall be received by the Administrative Agent not later than 11:00 a.m.
five Business Days prior to the date of termination or reduction, (ii) any such
partial reduction shall be in an aggregate amount of $10,000,000 or any whole
multiple of $1,000,000 in excess thereof, and (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments. The Administrative Agent will promptly notify the
Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be applied to the
Commitment of each Lender according to its Applicable Percentage. All fees
accrued until the effective date of any termination of the Aggregate Commitments
shall be paid on the effective date of such termination.
2.07 Repayment of Loans. The Borrower shall repay to the Lenders on the
Maturity Date the aggregate principal amount of Committed Loans outstanding on
such date.
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Rate; and (ii) each Base Rate Committed Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate.
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by the
Borrower under any Loan Document is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration
or otherwise, then upon the request of the Required Lenders, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iii) While any Event of Default exists and is continuing, the
Administrative Agent may determine, in its sole judgment, that it is
appropriate that the Borrower shall pay interest on the principal amount of
all outstanding Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 Fees. In addition to certain fees described in subsections (i) and (j)
of Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Applicable Percentage, a
commitment fee equal to the Applicable Rate times the actual daily amount by
which the Aggregate Commitments exceed the sum of (i) the Outstanding Amount of
Committed Loans and (ii) the Outstanding Amount of L/C Obligations. The
commitment fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article IV
is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the Maturity Date. The
commitment fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.
(b) Other Fees. (i) The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letter. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified.
Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever.
2.10 Computation of Interest and Fees. All computations of (i) interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" and (ii) fees shall be made on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed. All other computations of interest
shall be made on the basis of a 360-day year and actual days elapsed (which
results in more interest being paid than if computed on the basis of a 365-day
year). Interest shall accrue on each Loan for the day on which the Loan is made,
and shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on the same
day on which it is made shall, subject to Section 2.12(a), bear interest for one
day. Each determination by the Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit. In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error.
2.12 Payments Generally; Administrative Agent's Clawback.
(a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 1:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Applicable Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such
Lender's Lending Office. All payments received by the Administrative Agent after
1:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made
by the Borrower shall come due on a day other than a Business Day, payment shall
be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Committed Borrowing of Eurodollar Rate Loans (or, in the
case of any Committed Borrowing of Base Rate Loans, prior to 11:00 a.m. on the
date of such Committed Borrowing) that such Lender will not make available to
the Administrative Agent such Lender's share of such Committed Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with Section 2.02 (or, in the case of a Committed
Borrowing of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may, in reliance
upon such assumption, make available to the Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable
Committed Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount in immediately available funds
with interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (A) in the case of a payment to be made by such Lender,
the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation and (B) in the case of a payment to be made by the Borrower, the
interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Committed Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender's
Committed Loan included in such Committed Borrowing. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender
that shall have failed to make such payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders or the L/C Issuer hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the
amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees
to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the L/C Issuer, in immediately available funds
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds are not
made available to the Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Committed Loans, to fund participations in Letters of Credit
Loans and to make payments pursuant to Section 10.04(c) are several and not
joint. The failure of any Lender to make any Committed Loan, to fund any such
participation or to make any payment under Section 10.04(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any
other Lender to so make its Committed Loan, to purchase its participation or to
make its payment under Section 10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Committed Loans made by it, or the
participations in L/C Obligations held by it resulting in such Lender's
receiving payment of a proportion of the aggregate amount of such Committed
Loans or participations and accrued interest thereon greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b)
purchase (for cash at face value) participations in the Committed Loans and
subparticipations in L/C Obligations of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Committed Loans and
other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations or subparticipations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to
(x) any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Committed Loans or subparticipations in L/C Obligations to any assignee
or participant, other than to the Borrower or any Subsidiary thereof (as to
which the provisions of this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
2.14 Intentionally Omitted.
2.15 Increase in Commitments.
(a) Request for Increase. Provided no Default has occurred and is
continuing, upon notice to the Administrative Agent (which shall promptly notify
the Lenders), the Borrower may make not more than four requests for an increase
in the Aggregate Commitments by an amount not less than $25,000,000 each and in
the aggregate not to exceed $100,000,000. At the time of sending such notice,
the Borrower (in consultation with the Administrative Agent) shall specify the
time period within which each Lender is requested to respond (which shall in no
event be less than ten Business Days from the date of delivery of such notice to
the Lenders).
(b) Lender Elections to Increase. Each Lender shall notify the
Administrative Agent in writing within such time period whether or not it agrees
to increase its Commitment and, if so, whether by an amount equal to, greater
than, or less than its Applicable Percentage of such requested increase
("Increasing Lender"). Any Lender not responding within such time period shall
be deemed to have declined to increase its Commitment. Any Lender which declines
to increase its Commitment shall not be entitled to any fees attributable and
payable in connection with such increase in the Aggregate Commitments. To
achieve the full amount of a requested increase, the Borrower may invite
additional lenders approved by the Administrative Agent in its reasonable
discretion to become Lenders (each a "New Lender"). Borrower and each New Lender
shall have executed and delivered to the Administrative Agent a New Lender
Agreement (the "New Lender Agreement") substantially in the form of Exhibit H
and the Administrative Agent shall, if acceptable in its reasonable discretion,
execute the same. In the event the entire amount of the requested increase is
greater than the new Loans the New Lenders and Increasing Lenders are willing to
make, Borrower may elect to accept the increase in the Aggregate Commitments in
such lesser amount. In no event shall Administrative Agent have any obligation
to ensure that the amount of the requested increase is provided by New Lenders
or Increasing Lenders. Any New Lender which agrees to become a Lender under this
Agreement for the purpose of funding a portion of the increase in the Aggregate
Commitments shall be entitled to all rights and burdened by all obligations of
the then existing Lenders hereunder.
(c) Notification by Administrative Agent. The Administrative Agent shall
notify the Borrower and each Lender of the Lenders' responses to each request
made under this Section.
(d) Effective Date and Allocations. If the Aggregate Commitments are
increased in accordance with this Section, the Administrative Agent and the
Borrower shall determine the effective date (the "Increase Effective Date") and
the final allocation of such increase. The Administrative Agent shall promptly
provide written notice to the Borrower and the Lenders of the final allocation
of such increase, each Lender's new Applicable Percentage, and the Increase
Effective Date.
(e) Conditions to Effectiveness of Increase. As a condition precedent to
such increase, the Borrower shall deliver to the Administrative Agent a
certificate of each Loan Party dated as of the Increase Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of such Loan
Party (i) certifying and attaching the resolutions adopted by such Loan Party
approving or consenting to such increase, and (ii) in the case of the Borrower,
certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other Loan
Documents are true and correct on and as of the Increase Effective Date, except
to the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date,
and except that for purposes of this Section 2.15, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed
to refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 6.01, and (B) no Default has occurred and is
continuing. The Borrower shall prepay any Committed Loans outstanding on the
Increase Effective Date (and pay any additional amounts required pursuant to
Section 3.05) to the extent necessary to keep the outstanding Committed Loans
ratable with any revised Applicable Percentages arising from any nonratable
increase in the Commitments under this Section. Each New Lender and/or
Increasing Lender shall enable Borrower to make such prepayment by making Loans
to the Borrower, pursuant to the terms and conditions in Article II, in amounts
sufficient upon the application of such Loans by all New Lenders and Increasing
Lenders to the outstanding Loans to cause the outstanding principal balance owed
to each Lender to be in compliance with its new Applicable Percentage. The
Borrower hereby irrevocably authorizes each New Lender and/or each Increasing
Lender to fund to the Administrative Agent the Loans required to be made
pursuant to the immediately preceding sentence for application to the reduction
of the outstanding Loans held by the other Lenders. Such new Loans shall be Base
Rate Loans, subject to the Borrower's ability under Article II to convert such
Loans to Eurodollar Rate Loans after the Increase Effective Date. Upon the
Increase Effective Date and funding of the Loans described in Section 2.15(b),
each New Lender and/or Increasing Lender shall be deemed to have irrevocably and
unconditionally purchased and received, without recourse or warranty, an
undivided participation in all outstanding Letters of Credit in accordance with
its Applicable Percentage.
(f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.13 or 10.01 to the contrary.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if the Borrower shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
L/C Issuer, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall timely pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the provisions
of subsection (a) above, the Borrower shall timely pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the Administrative Agent or the Borrower) on or
prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the Borrower or
the Administrative Agent, but only if such Foreign Lender is legally entitled to
do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a "controlled foreign corporation" described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue
Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal withholding
tax duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower to determine the
withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender
or the L/C Issuer determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon the
request of the Administrative Agent, such Lender or the L/C Issuer, agrees to
repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make available
its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.
3.02 Illegality. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, any obligation of such Lender
to make or continue Eurodollar Rate Loans or to convert Base Rate Committed
Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted.
3.03 Inability to Determine Rates. If the Required Lenders determine that
for any reason in connection with any request for a Eurodollar Rate Loan or a
conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the London interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan , or
(c) the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Committed Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in
by, any Lender (except any reserve requirement contemplated by Section
3.04(e)) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurodollar Rate Loan made by it,
or change the basis of taxation of payments to such Lender or the L/C
Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate
of, any Excluded Tax payable by such Lender or the L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurodollar Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, the Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that
any Change in Law affecting such Lender or the L/C Issuer or any Lending Office
of such Lender or such Lender's or the L/C Issuer's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the L/C Issuer's capital or on the capital of such
Lender's or the L/C Issuer's holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or the L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer or
such Lender's or the L/C Issuer's holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof. At the Borrower's request, such Lender
shall provide to the Borrower such supporting information related to such claim
for compensation as may reasonably be requested, provided, however, that no
Lender shall be required to provide any information that it deems confidential.
(d) Delay in Requests. Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender's or the L/C Issuer's right
to demand such compensation, provided that the Borrower shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
nine months prior to the date that such Lender or the L/C Issuer, as the case
may be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or the L/C Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).
3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by the Borrower
pursuant to Section 10.13; or
(d) in addition to any similar obligations hereunder, within 180 days from
the date hereof, any breakage costs, charges or fees incurred with respect to a
Eurodollar Rate Loan because of the syndication of this revolving credit
facility.
The Borrower shall also pay any customary and reasonable administrative fees
charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the London interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan was
in fact so funded.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, the Borrower may replace such Lender in accordance with Section
10.13.
3.07 Survival. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension. The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and each of the
Lenders.
(i) executed counterparts of this Agreement and the Guaranties,
sufficient in number for distribution to the Administrative Agent, Lead
Arranger, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each Loan
Party as the Administrative Agent may require evidencing the identity,
authority and capacity of each Responsible Officer thereof authorized to
act as a Responsible Officer in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or
formed, and that each of the Borrower and Guarantors is validly existing,
in good standing and qualified to engage in business in each jurisdiction
where its ownership, lease or operation of properties or the conduct of its
business requires such qualification, which are listed on Schedule 4.01,
except to the extent that failure to do so would not likely be expected to
have a Material Adverse Effect;
(v) a favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C., counsel
to the Loan Parties, addressed to the Administrative Agent and each Lender,
as to the matters set forth in Exhibit G and such other matters concerning
the Loan Parties and the Loan Documents as the Required Lenders may
reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Party either
(A) attaching copies of all consents, licenses and approvals required in
connection with the execution, delivery and performance by such Loan Party
and the validity against such Loan Party of the Loan Documents to which it
is a party, and such consents, licenses and approvals shall be in full
force and effect, or (B) stating that no such consents, licenses or
approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower
certifying (A) that the conditions specified in Sections 4.02(a) and (b)
have been satisfied; (B) that there has been no event or circumstance since
April 3, 2005 that has had or would likely be expected to have, either
individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Compliance Certificate as of the last day of
the fiscal quarter of the Borrower ended on April 3, 2005, signed by a
Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to
the Loan Documents has been obtained and is in effect;
(x) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer or the Required
Lenders reasonably may require, including information regarding litigation,
tax, labor, pension liabilities (actual or contingent), debt agreements,
insurance, environmental matters, contingent liabilities and management of
Parent and its Subsidiaries.
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid
all reasonable fees, charges and disbursements of external legal counsel to the
Administrative Agent to the extent invoiced prior to or on the Closing Date.
(d) The Closing Date shall have occurred on or before July 31, 2005.
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02 Conditions to all Credit Extensions. The obligation of each Lender to
honor any Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of the Borrower and Parent and each
other Loan Party contained in Article V or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this Section
4.02, the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 6.01.
(b) No Default has occurred and is continuing, or would result from such
proposed Credit Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer shall have
received a Request for Credit Extension in accordance with the requirements
hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed
to be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the applicable
Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower and Parent jointly and severally represent and warrant to the
Administrative Agent and the Lenders that:
5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan
Party (a) is duly organized or formed, validly existing and in good standing, if
applicable, under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own or
lease its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents to which it is a party, (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, (all such
jurisdictions are listed on Schedule 4.01) and (d) is in compliance with all
Laws; except in each case referred to in clause (b)(i), (c) or (d), to the
extent that failure to do so would not likely be expected to have a Material
Adverse Effect.
5.02 Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any material Contractual Obligation to which such
Person is a party or affecting such Person or the properties of such Person or
(ii) any order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which such Person or its property is subject; or (c) violate
any Law. Each Loan Party is in compliance with all Contractual Obligations
referred to in clause (b)(i), except to the extent that failure to do so would
not likely be expected to have a Material Adverse Effect.
5.03 Governmental Authorization; Other Consents. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.
5.04 Binding Effect. This Agreement has been, and each other Loan Document,
when delivered hereunder, will have been, duly executed and delivered by each
Loan Party that is party thereto. This Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is party
thereto in accordance with its terms, except as it is hypothetically affected by
(a) the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium, or other similar laws affecting the rights and remedies of creditors
generally and (b) the effect of general principles of equity.
5.05 Financial Statements; No Material Adverse Effect; No Internal Control
Event.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Parent and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Parent and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated balance sheet of the Parent and its
Subsidiaries dated April 3, 2005, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for the fiscal quarter
ended on that date (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present the financial condition of the Parent and
its Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments. Schedule 5.05
sets forth all material indebtedness and other liabilities, direct or
contingent, of the Parent and its consolidated Subsidiaries as of the date of
such financial statements, including liabilities for taxes, material commitments
and Indebtedness.
(c) Since the date of the Audited Financial Statements, there has been no
event or circumstance, either individually or in the aggregate, that has had or
would likely be expected to have a Material Adverse Effect.
5.06 Litigation. Except as specifically disclosed in Schedule 5.06, there
are no actions, suits, investigations, proceedings, claims or disputes pending
or, to the knowledge of the Borrower or Parent after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrower or Parent or any
of its Subsidiaries or against any of their properties or revenues that (a)
purport to affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby, or to the ability of the Borrower
or Parent and its Subsidiaries or any Guarantor to perform their respective
obligations under this Agreement, or (b) either individually or in the
aggregate, if determined adversely, would likely be expected to have a Material
Adverse Effect, and there has been no adverse change in the status, or financial
effect on any Loan Party or any Subsidiary thereof, of the matters described on
Schedule 5.06.
5.07 No Default. Neither the Borrower nor the Parent nor any Subsidiary is
in default under or with respect to any Contractual Obligation that would,
either individually or in the aggregate, likely be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08 Ownership of Property; Liens. Each of the Borrower and Parent and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as would not,
individually or in the aggregate, likely be expected to have a Material Adverse
Effect. The property of the Borrower and its Subsidiaries is subject to no
Liens, other than Liens permitted by Section 7.01.
5.09 Environmental Compliance. The Borrower and Parent and its Subsidiaries
conduct in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof the Borrower and Parent have reasonably
concluded that such Environmental Laws and claims would not, individually or in
the aggregate, likely be expected to have a Material Adverse Effect.
5.10 Insurance. The properties of the Borrower and Parent and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Borrower or Parent, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
the Borrower or Parent or the applicable Subsidiary operates.
5.11 Taxes. The Borrower and Parent and its Subsidiaries have filed all
Federal, state and other material tax returns and reports required to be filed,
and have paid all Federal, state and other material taxes, assessments, fees and
other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for
which adequate reserves have been provided in accordance with GAAP. There is no
proposed tax assessment against the Borrower or Parent or any Subsidiary that
would, if made, have a Material Adverse Effect. Neither any Loan Party nor any
Subsidiary thereof is party to any tax sharing agreement.
5.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state Laws, except to the
extent that non-compliance would not likely be expected to have a Material
Adverse Effect. Each Plan that is intended to qualify under Section 401(a) of
the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Borrower and Parent, nothing
has occurred which would prevent, or cause the loss of, such qualification. The
Borrower and Parent and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower and
Parent, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that would likely be expected to have a
Material Adverse Effect. There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan that has resulted
or would likely be expected to result in a Material Adverse Effect.
(c) (i) No material ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
the Borrower nor Parent nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any material liability under Title IV of ERISA with respect to
any Pension Plan (other than premiums due and not delinquent under Section 4007
of ERISA); (iv) neither the Borrower nor Parent nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any material liability (and no event
has occurred which, with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Sections 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Borrower nor Parent nor any ERISA
Affiliate has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA.
5.13 Subsidiaries; Equity Interests. The Borrower and Parent have no
Subsidiaries other than those specifically disclosed in Part (a) of Schedule
5.13, and all of the outstanding Equity Interests in such Subsidiaries have been
validly issued, are fully paid and nonassessable and are owned by a Loan Party
in the amounts specified on Part (a) of Schedule 5.13 free and clear of all
Liens. Neither the Borrower nor Parent has any equity investment in any other
corporation or entity other than those specifically disclosed in Part (b) of
Schedule 5.13 or as permitted by Section 7.02. The Borrower shall deliver to the
Administrative Agent an updated Schedule 5.13 each time the annual financial
statement is delivered or when a required Guarantor is formed or acquired, which
upon delivery shall become the new Schedule 5.13.
5.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act; Use of Proceeds.
(a) The Borrower and Parent are not engaged and will not engage,
principally or as one of their important activities, in the business of
purchasing or carrying margin stock (within the meaning of Regulation U issued
by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock.
(b) None of the Borrower, Parent, any Person Controlling the Borrower, or
any Subsidiary (i) is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, or (ii) is or is required to be registered as an
"investment company" under the Investment Company Act of 1940.
(c) Borrower is in compliance with Section 6.11.
5.15 Disclosure. No report, financial statement, certificate or other
information furnished (whether in writing or orally by a Responsible Officer) by
or on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of this
Agreement or delivered hereunder or under any other Loan Document (in each case,
as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Parent and Borrower represent only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.
5.16 Compliance with Laws. Each of the Borrower and Parent and each
Subsidiary is in compliance in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to
its properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, would not likely be expected
to have a Material Adverse Effect.
5.17 Intellectual Property; Licenses, Etc.The Parent and its Subsidiaries
own, or possess the right to use, all of the trademarks, service marks, trade
names, copyrights, patents, patent rights, franchises, licenses and other
intellectual property rights (collectively, "IP Rights") that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person, except to the extent that failure to do so
would not likely be expected to have a Material Adverse Effect. To the best
knowledge of the Borrower and Parent, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Borrower or Parent or any Subsidiary
infringes upon any rights held by any other Person. No claim or litigation
regarding any of the foregoing is pending or, to the best knowledge of the
Borrower and Parent, threatened, which, either individually or in the aggregate,
would likely be expected to have a Material Adverse Effect.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall cause the Parent and each of
its Subsidiaries (except in the case of the covenants set forth in Sections
6.01, 6.02, and 6.03) to:
6.01 Financial Statements. Deliver to the Administrative Agent for
distribution to each Lender, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Parent, a consolidated balance sheet of the Parent and
its Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, such consolidated statements to be audited and accompanied by a report and
opinion of a Registered Public Accounting Firm of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion shall be
prepared in accordance with generally accepted auditing standards and applicable
Securities Laws and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the scope of
such audit; and
(b) as soon as available, but in any event within 45 days after the end of
each of the first three fiscal quarters of each fiscal year of the Parent, a
consolidated balance sheet of the Parent and its Subsidiaries as at the end of
such fiscal quarter, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal quarter and for
the portion of the Borrower's fiscal year then ended, setting forth in each case
in comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail, certified by a Responsible Officer of the Borrower as
fairly presenting the financial condition, results of operations, shareholders'
equity and cash flows of the Borrower and its Subsidiaries in accordance with
GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes.
As to any information contained in materials furnished pursuant to Section
6.02(d), the Parent shall not be separately required to furnish such information
under clause (a) or (b) above, but the foregoing shall not be in derogation of
the obligation of the Parent to furnish the information and materials described
in clauses (a) and (b) above at the times specified therein.
6.02 Certificates; Other Information. Deliver to the Administrative Agent
for distribution to each Lender, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to
in Section 6.01(a), a certificate of its independent certified public
accountants certifying such financial statements;
(b) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a
Responsible Officer of the Borrower and the Parent;
(c) promptly after any request by the Administrative Agent or any Lender,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of the Parent by independent accountants in connection with the
accounts or books of the Parent or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of the Parent, and copies of all annual, regular, periodic and
special reports and registration statements which the Parent may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto; and
(e) [Intentionally omitted];
(f) [Intentionally omitted].
(g) reasonably promptly, such additional reasonable information regarding
the business, financial or corporate affairs of the Borrower or Parent or any
Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Parent posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Parent's behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Borrower shall deliver paper
copies of such documents to the Administrative Agent or any Lender that requests
the Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Borrower shall notify the Administrative Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and provide
to the Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(b) to the Administrative Agent.
Except for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Arranger will make available to the Lenders and the L/C Issuer materials
and/or information provided by or on behalf of the Borrower or Parent hereunder
(collectively, "Borrower Materials") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the "Platform") and (b) certain
of the Lenders may be "public-side" Lenders (i.e., Lenders that do not wish to
receive material non-public information with respect to the Borrower or its
securities) (each, a "Public Lender"). The Borrower hereby agrees that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that
the word "PUBLIC" shall appear prominently on the first page thereof; (x) by
marking Borrower Materials "PUBLIC," the Borrower and Parent shall be deemed to
have authorized the Administrative Agent, the Arranger, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.07); (y) all Borrower Materials marked
"PUBLIC" are permitted to be made available through a portion of the Platform
designated "Public Investor;" and (z) the Administrative Agent and the Arranger
shall be entitled to treat any Borrower Materials that are not marked "PUBLIC"
as being suitable only for posting on a portion of the Platform not designated
"Public Investor." Notwithstanding the foregoing, the Borrower shall be under no
obligation to ▇▇▇▇ any Borrower Materials "PUBLIC."
6.03 Notices. Promptly notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or would likely be expected to result
in a Material Adverse Effect, including (i) breach or non-performance of, or any
default under, a material Contractual Obligation of the Borrower or Parent or
any Subsidiary; (ii) any material dispute, material litigation, material
contingent liabilities, material investigation, material proceeding or
suspension between the Borrower or Parent or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or Parent or any Subsidiary,
including pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event; and
(d) of any material change in accounting policies or financial reporting
practices by the Borrower or Parent or any Subsidiary.
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer of the Borrower or Parent setting forth details of the
occurrence referred to therein and stating what action the Borrower or Parent
has taken and proposes to take with respect thereto. Each notice pursuant to
Section 6.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
6.04 Payment of Obligations. Pay and discharge as the same shall become due
and payable, all its material obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the Borrower or Parent or such Subsidiary; (b)
all lawful claims which, if unpaid, would by law become a Lien upon its
property; and (c) all material Indebtedness, as and when due and payable, on or
before the expiration of the applicable cure and grace periods, but subject to
any subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in
full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 7.04 or 7.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so would
not likely be expected to have a Material Adverse Effect; and (c) preserve or
renew all of its registered patents, trademarks, trade names and service marks,
the non-preservation of which would likely be expected to have a Material
Adverse Effect.
6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear excepted; and (b)
make all necessary repairs thereto and renewals and replacements thereof except
where the failure to do so would not likely be expected to have a Material
Adverse Effect; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.
6.07 Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower or Parent,
insurance with respect to its properties and business against loss or damage of
the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons and providing for not less than 30
days' prior notice to the Administrative Agent of termination, lapse or
cancellation of such insurance.
6.08 Compliance with Laws. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith would not likely be expected to have a Material
Adverse Effect.
6.09 Books and Records. (a) Maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower or such Subsidiary, as the case may be; and
(b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Parent such Subsidiary, as the case may be.
6.10 Inspection Rights. Permit representatives and independent contractors
of the Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at the expense of the Borrower or Parent, as the case may be, and at such
reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Borrower or Parent, as the case
may be; provided that as long as no Default or Event of Default has occurred and
is continuing, such inspection visits shall be limited to once a year.
6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for working
capital, capital expenditures, to finance permitted share repurchases, to
refinance existing indebtedness, to finance permitted acquisitions and for
general corporate purposes not in contravention of any Law or of any Loan
Document.
6.12 Additional Guarantors. Notify the Administrative Agent prior to any
Person becoming a Required Guarantor, and promptly thereafter (and in any event
within 30 days), cause such Person to (a) become a Guarantor by executing and
delivering to the Administrative Agent a counterpart of the Guaranty or such
other document as the Administrative Agent shall reasonably deem appropriate for
such purpose, and (b) deliver to the Administrative Agent documents of the types
referred to in clauses (iii) and (iv) of Section 4.01(a) and favorable opinions
of counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in
clause (a)), all in form, content and scope reasonably satisfactory to the
Administrative Agent.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower and Parent shall not, nor shall
they permit any Subsidiary to, directly or indirectly:
7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to this Agreement;
(b) Liens existing on the date hereof and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that the property covered thereby is
not changed, (other than after acquired title in or on such property and
proceeds of existing collateral) and any renewal or extension of the obligations
secured or benefited thereby is permitted by Section 7.03(b);
(c) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlord's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or which are being contested
in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person;
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases
(other than Indebtedness or synthetic leases), statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances
affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting an
Event of Default under Section 8.01(h);
(i) Liens securing Indebtedness permitted under Section 7.03(f); provided
that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (ii) the Indebtedness secured thereby
does not exceed the cost or fair market value, whichever is lower, of the
property being acquired on the date of acquisition;
(j) any interest or title of a licensor, lessor, or sublessor under any
license or lease and any interest or title of a licensee, lessee, or sublessee
under any license, cross-license or lease in any event entered into in the
ordinary course of business and not otherwise prohibited by the terms of the
Loan Documents;
(k) Liens against equipment arising from precautionary UCC financing
statement filings regarding operating leases entered into by such Person in the
ordinary course of business;
(l) nonconsensual Liens in favor of banking institutions arising as a
matter of law and encumbering the deposits (including the right of set-off) held
by such banking institutions in the ordinary course of business; and
(m) Liens on Margin Capital Stock that is held by the Parent as treasury
stock.
7.02 Investments. Make any Investments, except
(a) Investments held by the Parent or such Subsidiary in the form of cash
equivalents, U.S. government obligations with maturities of less than one (1)
year, and other similar investments approved by Administrative Agent;
(b) advances to officers, directors and employees of the Parent and
Subsidiaries for travel, entertainment, relocation and analogous ordinary
business purposes;
(c) Investments of the Parent in the Borrower and in any Subsidiary which
is a Guarantor and Investments of any Subsidiary in the Borrower or in another
Guarantor; provided that all inter-company Indebtedness owed to the Borrower or
Parent shall be subordinate in all respects to the Obligations;
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss;
(e) Guarantees permitted by Section 7.03;
(f) Investments of the Borrower and Guarantors in (i) the International
Association of CEC Entertainment, Inc. and (ii) any Subsidiary which is not a
Guarantor, in an aggregate amount (including (i) and (ii)), not to exceed
$50,000,000 (provided that all Investments in the form of inter-company
Indebtedness owed to the Borrower or Parent shall be subordinate in all respects
to the Obligations);
(g) Investments of the Borrower and Guarantors in CEC Entertainment Canada,
Inc., any other Subsidiaries organized under the laws of Canada, and any other
foreign Subsidiary up to an aggregate amount at any time outstanding of not more
than ten percent (10%) of the Consolidated assets of Parent and its domestic and
foreign Subsidiaries (without duplication) as of the most recently ended fiscal
quarter;
(h) other Investments of the Borrower and Guarantors not exceeding
$10,000,000 in the aggregate in any fiscal year of Parent, including investments
in Affiliates (except for investments in the International Association of CEC
Entertainment, Inc. and TJH Restaurant Group, Inc.); and
(i) acquisitions of (a) any existing franchisee of Parent or a Subsidiary,
or (b) all of the assets of or equity interests in a non-Affiliate company in
substantially similar lines of business as conducted by the Borrower and Parent
and its Subsidiaries, provided the purchase price (including cash and any credit
or non-equity financing extended by or on behalf of Borrower or Parent or a
Subsidiary) in any single acquisition under this clause (b) shall not exceed
$50,000,000 and the aggregate purchase price (including cash and any credit or
non-equity financing extended by or on behalf of Borrower or Parent or a
Subsidiary) in any series of acquisitions under this clause (b) shall not exceed
$100,000,000; and provided further that in the case of any acquisition pursuant
to this Section 7.02(i), (i) no Default or Event of Default exists or would
reasonably be expected to occur as a result of the proposed acquisition, and
(ii) both as of the date of any such acquisition and immediately following such
acquisition the Parent is and on a pro forma basis projects that it will
continue to be, in compliance with the financial covenants of this Agreement.
7.03 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.03
and any refinancings, refundings, renewals or extensions thereof; provided that
the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder;
(c) Guarantees of the Borrower or Parent or any Subsidiary in respect of
Indebtedness otherwise permitted hereunder of any Loan Party or any Subsidiary;
(d) non-speculative obligations (contingent or otherwise) of the Borrower
or Parent or any Subsidiary existing or arising under any Swap Contract with any
Lender, provided that (i) such obligations are (or were) entered into by such
Person in the ordinary course of business for the purpose of directly mitigating
risks associated with liabilities, commitments, investments, assets, or property
held or reasonably anticipated by such Person, or changes in the value of
securities issued by such Person, and not for purposes of speculation or taking
a "market view;" and (ii) such Swap Contract does not contain any provision
exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;
(e) unsecured Indebtedness of the Borrower or Parent or any Subsidiary,
provided that such Indebtedness (i) is on terms no more restrictive than the
terms contained in this Agreement, (ii) has a maturity date beyond the Maturity
Date hereof, and (iii) permits no amortization of such Indebtedness prior to the
Maturity Date hereof.
(f) Indebtedness of the Borrower or Parent or any Subsidiary in respect of
capital leases, Synthetic Lease Obligations and purchase money obligations for
fixed or capital assets within the limitations set forth in Section 7.01(i) and
other unsecured Indebtedness; provided, however, that the aggregate amount of
all such Indebtedness at any one time outstanding shall not exceed $35,000,000;
(g) inter-company debt between the Borrower and Parent and its Subsidiaries
as permitted by the Investment limitations outlined above; and
(h) Indebtedness in respect of accounts payable, accrued liabilities and
deferred taxes incurred in the ordinary course of business.
7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default has occurred and is continuing or would result therefrom:
(a) Parent or any Subsidiary may merge with (i) the Borrower or Parent,
provided that the Borrower or Parent shall be the continuing or surviving
Person, or (ii) any one or more other Subsidiaries, provided that when any
Guarantor is merging with another Subsidiary, the Guarantor shall be the
continuing or surviving Person or such surviving Person shall promptly become a
Guarantor hereunder; and
(b) any Subsidiary may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or to the Parent or to
another Subsidiary; provided that if the transferor in such a transaction is a
Guarantor, then the transferee must either be the Borrower or a Guarantor or
promptly become a Guarantor.
7.05 Dispositions. Make any Disposition or enter into any agreement to make
any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such
property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by the Parent or any Subsidiary to the Parent
or Borrower or to a direct or indirect wholly-owned Subsidiary; provided that if
the transferor of such property is a Guarantor, the transferee thereof must
either be the Borrower or a Guarantor or shall promptly become a Guarantor;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions by the Borrower and the Parent and its Subsidiaries not
otherwise permitted under clauses (a) through (e) of this Section 7.05; provided
that (i) at the time of such Disposition, no Event of Default shall have
occurred and be continuing or would result from such Disposition and (ii) the
aggregate book value of all property Disposed of in reliance on this clause (f)
(other than Discovery Zone real property held specifically for disposition) in
any fiscal year shall not exceed five percent (5%) of the Consolidated assets of
Parent and its domestic and foreign Subsidiaries (without duplication) as of the
end of the most recently completed fiscal year; and
(g) Dispositions of Margin Capital Stock that is held as treasury stock by
the Parent.
provided, however, that any Disposition pursuant to clauses (a) through (c) and
clause (f) shall be for fair market value in an arms length transaction.
7.06 Restricted Payments.Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that, so long as no Event of Default shall have occurred and be
continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower, to the
Parent and to any Guarantor which is a Subsidiary;
(b) the Borrower and the Parent and each Subsidiary may declare and make
dividend payments or other distributions payable solely in the common stock or
other common Equity Interests of such Person to the Borrower or the Parent or
any Guarantor which is a Subsidiary;
(c) the Borrower, Parent and each Guarantor which is a Subsidiary may
purchase, redeem or otherwise acquire Equity Interests issued by it with the
proceeds received from the substantially concurrent issue of new shares of its
common stock or other common Equity Interests;
(d) the Parent may declare or pay cash dividends to its stockholders and
purchase, redeem or otherwise acquire for cash Equity Interests issued by it;
and
(e) the Parent may purchase, redeem or otherwise acquire shares of its
preferred stock, provided, however, that the aggregate amount of all such
purchases, redemptions or acquisitions shall not exceed $3,000,000.
7.07 Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by the Borrower
and the Parent and its Subsidiaries on the date hereof or any business
substantially related or incidental thereto.
7.08 Transactions with Affiliates. Enter into any transaction of any kind
with any Affiliate of the Borrower or of the Parent, whether or not in the
ordinary course of business, other than on fair and reasonable terms
substantially as favorable to the Borrower or the Parent or such Subsidiary as
would be obtainable by the Borrower or the Parent or such Subsidiary at the time
in a comparable arm's length transaction with a Person other than an Affiliate,
provided that the foregoing arm's length restriction shall not apply to
transactions between or among the Borrower or Parent and International
Association of CEC Entertainment, Inc. or to transactions between and among the
Borrower and Parent and any Subsidiary which is a Guarantor.
7.09 Burdensome Agreements. Enter into any Contractual Obligation (other
than this Agreement or any other Loan Document) that limits the ability (i) of
any Subsidiary to make Restricted Payments to the Borrower or any Guarantor or
to otherwise transfer property to the Borrower or any Guarantor, (ii) of any
Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of the
Borrower or the Parent or any Subsidiary to create, incur, assume or suffer to
exist Liens on property of such Person; provided, however, that this clause
(iii) shall not prohibit any negative pledge incurred or provided in favor of
any holder of purchase money Indebtedness solely to the extent any such negative
pledge relates to the property financed by purchase money Indebtedness.
7.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose, except as
permitted under Section 7.06(d), provided, however, that any action taken under
Section 7.06(d) shall at all times be in compliance with Regulation U of the
FRB.
7.11 Financial Covenants.
(a) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed
Charge Coverage Ratio as of the end of any fiscal quarter to be less than the
ratio of 1.5 to 1.0.
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as
of the end of any fiscal quarter to be greater than the ratio of 3.00 to 1.00:
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when
and as required to be paid herein, any amount of principal of any Loan or any
L/C Obligation, or (ii) within five (5) Business Days after the same becomes
due, any interest on any Loan or on any L/C Obligation, or any fee due
hereunder, or (iii) within seven (7) Business Days after the same becomes due,
any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower or the Parent fails to perform or
observe any term, covenant or agreement contained in any of Section 6.01, 6.02,
6.03, 6.05, 6.10, 6.11 or 6.12 or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or the Parent or any other Loan Party herein, in any other Loan
Document, or in any document delivered in connection herewith or therewith shall
be incorrect or misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) The Borrower or the Parent or any Subsidiary (A)
fails to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness
or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than the Threshold Amount and
all grace or cure periods have lapsed, or (B) fails to observe or perform any
other agreement or condition relating to any such Indebtedness or Guarantee of
more than the Threshold Amount or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect
of which default or other event is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded, provided, however, if Borrower or the Parent or any
Subsidiary elects to contest through judicial process the validity of a
non-financial contractual claim against it, then the determination of a default
in such matter shall be controlled by Section 8.01(h), provided, further,
however, that a non-financial contract shall not include financial contracts
such as notes, bonds, swaps, debentures, loan agreements or other similar
instruments; or (ii) there occurs under any Swap Contract an Early Termination
Date (as defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which the Borrower or the Parent or any
Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which the
Borrower of the Parent or any Subsidiary is an Affected Party (as so defined)
and, in either event, the Swap Termination Value owed by the Borrower of the
Parent or such Subsidiary as a result thereof is greater than the Threshold
Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged
or unstayed for 90 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 90 calendar days, or an order for relief is entered in any such
proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or the Parent or
any Subsidiary becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant of
attachment or execution or similar process is issued or levied against all or
any material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against the Borrower or the Parent or any
Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage), or (ii) any one or more non-monetary final judgments that have, or
would likely be expected to have, individually or in the aggregate, a Material
Adverse Effect and, in either case, (A) enforcement proceedings are commenced by
any creditor upon such judgment or order, or (B) there is a period of 10
consecutive days during which a stay of enforcement of such judgment, by reason
of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or would likely be expected to result in
liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any provision of any Loan Document, at
any time after its execution and delivery and for any reason other than as
expressly permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party or any
other Person contests in any manner the validity or enforceability of any
provision of any Loan Document; or any Loan Party denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any provision of any Loan Document; or
(k) Change of Control. There occurs any Change of Control.
8.02 Remedies Upon Event of Default. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an
amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower or the Parent under the Bankruptcy
Code of the United States, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable, and
the obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
8.03 Application of Funds. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including reasonable fees, charges and
disbursements of external legal counsel to the Administrative Agent and amounts
payable under Article III) payable to the Administrative Agent in its capacity
as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal, interest and Letter of
Credit Fees) payable to the Lenders and the L/C Issuer (including reasonable
fees, charges and disbursements of external legal counsel to the respective
Lenders and the L/C Issuer and amounts payable under Article III), ratably among
them in proportion to the respective amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings, Swap
Contracts of the Borrower to which a Lender or its Affiliates is a party, and
other Obligations, ratably among the Lenders, L/C Issuer and such Affiliates in
proportion to the respective amounts described in this clause Third payable to
them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, ratably among the Lenders and the L/C
Issuer in proportion to the respective amounts described in this clause Fourth
held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuer, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority.
Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of
America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article
are solely for the benefit of the Administrative Agent, the Lenders and the L/C
Issuer, and the Borrower shall not have rights as a third party beneficiary of
any of such provisions.
9.02 Rights as a Lender.The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
9.03 Exculpatory Provisions.The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document
or applicable law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower,
Parent, a Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the
Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
9.05 Delegation of Duties. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other
Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
9.06 Resignation of Administrative Agent. The Administrative Agent may at
any time give notice of its resignation to the Lenders, the L/C Issuer and the
Borrower. If, at any time, Bank of America assigns all of its Commitment and
Loans, Bank of America shall upon 30 days' notice to the Borrower and Lenders,
resign as Administrative Agent provided, under Section 10.06(h) it is also able
to resign as L/C Issuer pursuant to the procedures set forth therein. Upon
receipt of any such notice of resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor, which shall be
a bank with an office in the United States, or an Affiliate of any such bank
with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the Lenders
and the L/C Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall
notify the Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the
Loan Documents, the retiring Administrative Agent shall continue to hold such
collateral security until such time as a successor Administrative Agent is
appointed) and (2) all payments, communications and determinations provided to
be made by, to or through the Administrative Agent shall instead be made by or
to each Lender and the L/C Issuer directly, until such time as the Required
Lenders appoint a successor Administrative Agent as provided for above in this
Section. Upon the acceptance of a successor's appointment as Administrative
Agent hereunder, such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Administrative
Agent's resignation hereunder and under the other Loan Documents, the provisions
of this Article and Section 10.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this
Section shall also constitute its resignation as L/C Issuer. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, (a) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer, (b) the retiring L/C Issuer
shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (c) the successor L/C Issuer
shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements reasonably
satisfactory to the retiring L/C Issuer to effectively assume the obligations of
the retiring L/C Issuer with respect to such Letters of Credit.
9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding,
none of the Bookrunners, Arrangers, Documentation Agent, or Syndication Agent
listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except
in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C
Issuer hereunder.
9.09 Administrative Agent May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any Loan Party, the Administrative Agent (irrespective of whether the principal
of any Loan or L/C Obligation shall then be due and payable as herein expressed
or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders, the L/C Issuer and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders, the
L/C Issuer and the Administrative Agent under Sections 2.03(i) and (j),
2.09 and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.09
and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the L/C Issuer any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
9.10 Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize
the Administrative Agent, at its option and in its discretion, to release any
Guarantor from its obligations under the Guaranty if such Person ceases to be a
Required Guarantor as a result of a transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release any
Guarantor from its obligations under the Guaranty pursuant to this Section 9.10.
9.11 Other Agents, Arrangers and Managers. None of the Lenders or other
Persons identified on the facing page or signatures pages of this Agreement as a
"syndication agent," "documentation agent," "cc agent," "book manager," "lead
manager," "arranger," "lead arranger," or "cc arranger," shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than, in the case of such Lenders, those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders or other Persons as
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely on
any of the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment or mandatory prepayment of principal, interest, fees or other
amounts due to the Lenders (or any of them) or any scheduled or mandatory
reduction of the Aggregate Commitments hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (iii) of the second proviso to
this Section 10.01) any fees or other amounts payable hereunder or under any
other Loan Document, or change the manner of computation of any financial ratio
(including any change in any applicable defined term) used in determining the
Applicable Rate that would result in a reduction of any interest rate on any
Loan or any fee payable hereunder without the written consent of each Lender
directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary to (i) amend the definition of "Default
Rate," (ii) waive any obligation of the Borrower to pay interest or Letter of
Credit Fees at the Default Rate or (iii) amend any financial ratio or
requirement as described in Section 1.03(b);
(e) change Section 2.13 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder without the written
consent of each Lender; or
(g) release all or substantially all of the value of the Guaranties without
the written consent of each Lender, except as permitted under Section 9.10;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iii) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
10.02 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to the Borrower, the Parent, the Administrative Agent, or the
L/C Issuer, to the address, telecopier number, electronic mail address or
telephone number specified for such Person on Schedule 10.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its Administrative
Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to the Borrower, any Lender, the L/C Issuer
or any other Person for losses, claims, damages, liabilities or expenses of any
kind (whether in tort, contract or otherwise) arising out of the Borrower's or
the Administrative Agent's transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrower, the Administrative Agent
and the L/C Issuer may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other parties
hereto. Each other Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the Borrower, the
Administrative Agent and the L/C Issuer. In addition, each Lender agrees to
notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices
and other communications may be sent and (ii) accurate wire instructions for
such Lender.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Committed Loan Notices)
purportedly given by or on behalf of the Borrower even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof.
The Borrower shall indemnify the Administrative Agent, the L/C Issuer, each
Lender and the Related Parties of each of them from all losses, costs, expenses
and liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower. All telephonic notices to and
other telephonic communications with the Administrative Agent may be recorded by
the Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.03 No Waiver; Cumulative Remedies. No failure by any Lender, the L/C
Issuer or the Administrative Agent to exercise, and no delay by any such Person
in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law. The Borrower
shall not be deemed to have waived any right, remedy, power or privilege unless
such waiver is in writing.
10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of external legal
counsel for the Administrative Agent), in connection with the syndication of the
credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the reasonable fees, charges and disbursements of any
legal counsel for the Administrative Agent, any Lender or the L/C Issuer) in
connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under
this Section, or (B) in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses (including
the reasonable fees, charges and disbursements of any external counsel for any
Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder, the consummation of the transactions
contemplated hereby or thereby, or, in the case of the Administrative Agent (and
any sub-agent thereof) and its Related Parties only, the administration of this
Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the
use or proposed use of the proceeds therefrom (including any refusal by the L/C
Issuer to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto, in all cases, whether or not caused by or
arising, in whole or in part, out of the comparative, contributory or sole
negligence of the Indemnitee; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim
brought by the Borrower or any other Loan Party against an Indemnitee for breach
in bad faith of such Indemnitee's obligations hereunder or under any other Loan
Document, if the Borrower or such Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section shall be payable not later
than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation
of the Administrative Agent and the L/C Issuer, the replacement of any Lender,
the termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
10.05 Payments Set Aside. To the extent that any payment by or on behalf of
the Borrower is made to the Administrative Agent, the L/C Issuer or any Lender,
or the Administrative Agent, the L/C Issuer or any Lender exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.
10.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section, or (iii) by way of pledge
or assignment of a security interest subject to the restrictions of subsection
(f) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations) at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount
of the assigning Lender's Commitment and the Loans at the time owing to it
or in the case of an assignment to a Lender or an Affiliate of a Lender or
an Approved Fund with respect to a Lender, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the Commitment is not then in effect, the principal outstanding
balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if
"Trade Date" is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000 and each assigning Lender shall
retain no less than $5,000,000, unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed); provided, however, that concurrent assignments to
members of an Assignee Group and concurrent assignments from members of an
Assignee Group to a single Eligible Assignee (or to an Eligible Assignee
and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met;
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned;
(iii) any assignment of a Commitment must be approved by (i) the
Administrative Agent, (ii) the L/C Issuer, and (iii) so long as no Event of
Default has occurred and is continuing, the Borrower (such approval by the
Borrower not to be unreasonably withheld); and
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount, if any, required as set forth
in Schedule 10.06, and the Eligible Assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each of the Borrower and the L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or substantive change to
the Loan Documents is pending, any Lender may request and receive from the
Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or the Parent or any of the
Borrower's or the Parent's Affiliates or Subsidiaries) (each, a "Participant")
in all or a portion of such Lender's rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender's participations in L/C Obligations) owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were a
Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 3.01(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the Texas Uniform Electronic Transaction Act or any other
similar state laws based on the Uniform Electronic Transactions Act.
(h) Resignation as L/C Issuer after Assignment. Notwithstanding anything to
the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of America may, upon
30 days' notice to the Borrower and the Lenders, resign as L/C Issuer. In the
event of such resignation as L/C Issuer, the Borrower shall be entitled to
appoint from among the Lenders a successor L/C Issuer hereunder; provided,
however, that no failure by the Borrower to appoint any such successor shall
affect the resignation of Bank of America as L/C Issuer. If Bank of America
resigns as L/C Issuer, it shall retain all the rights, powers, privileges and
duties of the L/C Issuer hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as L/C Issuer and all
L/C Obligations with respect thereto (including the right to require the Lenders
to make Base Rate Committed Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). Upon the appointment of a successor L/C
Issuer, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer, and (b) the
successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.
10.07 Treatment of Certain Information; Confidentiality.
Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates' respective partners, directors, officers, employees, agents,
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the consent of the Borrower or (h) to
the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.
For purposes of this Section, "Information" means all information received
from the Borrower, Parent or any Subsidiary relating to the Borrower, Parent or
any Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the L/C
Issuer on a nonconfidential basis prior to disclosure by the Borrower, Parent or
any Subsidiary, provided that, in the case of information received from the
Borrower, Parent or any Subsidiary after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrower, Parent or a Subsidiary, as the case may be,
(b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public
information in accordance with applicable Law, including Federal and state
securities Laws.
10.08 Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement or any other Loan Document to such
Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C
Issuer shall have made any demand under this Agreement or any other Loan
Document and although such obligations of the Borrower may be contingent or
unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
the Borrower and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
10.09 Interest Rate Limitation. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). This Agreement has been
executed under, and shall be construed and enforced in accordance with, the laws
of the State of Texas, except as such laws are preempted by federal law. To the
extent that the Administrative Agent or a Lender is relying on Chapter 303 of
the Texas Finance Code to determine the Maximum Rate payable on the Obligations,
such Person will utilize the weekly ceiling from time to time in effect as
provided in such Chapter 303. To the extent federal law permits the
Administrative Agent or a lender to contract for, charge or receive a greater
amount of interest, such Person will rely on federal law instead of such
article, as amended, for the purpose of determining the Maximum Rate. In no
event shall the provisions of Chapter 346 of the Texas Finance Code (which
regulates certain revolving credit loan accounts and revolving tri-party
accounts) apply to the Obligations. If the Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
10.10 Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
10.11 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12 Severability. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13 Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if any Lender is a Defaulting Lender, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 10.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the assignment
fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
10.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF TEXAS.
(b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF TEXAS SITTING IN DALLAS COUNTY AND OF
THE UNITED STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF TEXAS LOCATED IN
DALLAS COUNTY, TEXAS, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT
OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH TEXAS STATE
COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT
THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
10.17 Time of the Essence. Time is of the essence in the performance of the
Loan Documents.
10.18 Renewal, Amendment, Restatement and Extension. This Agreement is
executed in renewal, amendment, restatement, and extension (but not in
extinguishment) of the Existing Credit Agreement.
10.19 ENTIRE AGREEMENT.THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWER:
CEC ENTERTAINMENT CONCEPTS, L.P.,
a Texas limited partnership
By: CEC Entertainment, Inc.,
a Kansas corporation,
its general partner
By:
--------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President and CFO
PARENT:
CEC ENTERTAINMENT, INC.,
a Kansas corporation
By:
-----------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President and CFO
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as
Administrative Agent
By:
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
LENDERS:
BANK OF AMERICA, N.A., as a Lender and as
L/C Issuer
By:
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President
JPMORGAN CHASE BANK, N.A., as a Lender
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
SUNTRUST BANK, as a Lender
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
WACHOVIA BANK, NA, as a Lender
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
▇▇▇▇▇ FARGO BANK, N.A., as a Lender
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
SCHEDULE 1.01
EXISTING LETTERS OF CREDIT
1. Irrevocable Standby Letter of Credit No. ▇▇▇▇▇▇▇ issued by Bank of America,
N.A. in the face amount of $250,000.00 in favor of ACE American Insurance
Company.
2. Irrevocable Standby Letter of Credit No. ▇▇▇▇▇▇▇ issued by Bank of America,
N.A. in the face amount of $3,161,277.00 in favor of ACE American Insurance
Company.
3. Irrevocable Standby Letter of Credit No. ▇▇▇▇▇▇▇ issued by Bank of America,
N.A. in the face amount of $4,079,691.00 in favor of ACE American Insurance
Company.
4. Irrevocable Standby Letter of Credit No. ▇▇▇▇▇▇▇ issued by Bank of America,
N.A. in the face amount of $3,428,944.50 in favor of ACE American Insurance
Company.
SCHEDULE 2.01
COMMITMENTS
AND APPLICABLE PERCENTAGES
Lender Commitment Applicable Percentage
------------------------------- --------------- ---------------------
Bank of America, N.A. $65,000,000 32.5%
JPMorgan Chase Bank, N.A. $35,000,000 17.5%
SunTrust Bank $35,000,000 17.5%
Wachovia Bank, NA $25,000,000 12.5%
▇▇▇▇▇ Fargo Bank, N.A. $20,000,000 10%
U.S. Bank National Association $20,000,000 10%
Total $200,000,000 100.000000000%
SCHEDULE 4.01
LIST OF JURISDICTIONS WHERE BORROWER AND SUBSIDIARIES ARE DOING
BUSINESS AND/OR ARE REQUIRED TO QUALIFY TO DO BUSINESS
----------------------------------------------------------------------------------------------------------------
CEC CEC
Entertainment, Entertainment SPT Distribution TJH Restaurant CEC Entertainment
Inc. Concepts, L.P. Company, Inc. Group, Inc. Holdings, LLC
----------------------------------------------------------------------------------------------------------------
Doing Business In
----------------------------------------------------------------------------------------------------------------
Alabama X
----------------------------------------------------------------------------------------------------------------
Alaska X
----------------------------------------------------------------------------------------------------------------
Arizona X
----------------------------------------------------------------------------------------------------------------
Arkansas X
----------------------------------------------------------------------------------------------------------------
California X
----------------------------------------------------------------------------------------------------------------
Colorado X
----------------------------------------------------------------------------------------------------------------
Connecticut X
----------------------------------------------------------------------------------------------------------------
D.C., Washington X
----------------------------------------------------------------------------------------------------------------
Delaware X
----------------------------------------------------------------------------------------------------------------
Florida X
----------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇
----------------------------------------------------------------------------------------------------------------
Hawaii X
----------------------------------------------------------------------------------------------------------------
Idaho X
----------------------------------------------------------------------------------------------------------------
Illinois X
----------------------------------------------------------------------------------------------------------------
Indiana X
----------------------------------------------------------------------------------------------------------------
Iowa X
----------------------------------------------------------------------------------------------------------------
Kansas X X
----------------------------------------------------------------------------------------------------------------
Kentucky X
----------------------------------------------------------------------------------------------------------------
Louisiana X
----------------------------------------------------------------------------------------------------------------
Maine X
----------------------------------------------------------------------------------------------------------------
Maryland X
----------------------------------------------------------------------------------------------------------------
Massachusetts X
----------------------------------------------------------------------------------------------------------------
Michigan X
----------------------------------------------------------------------------------------------------------------
Minnesota X
----------------------------------------------------------------------------------------------------------------
Mississippi X
----------------------------------------------------------------------------------------------------------------
Missouri X
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Montana X
----------------------------------------------------------------------------------------------------------------
Nebraska X
----------------------------------------------------------------------------------------------------------------
Nevada X X
----------------------------------------------------------------------------------------------------------------
New Hampshire X
----------------------------------------------------------------------------------------------------------------
New Jersey X
----------------------------------------------------------------------------------------------------------------
New Mexico X
----------------------------------------------------------------------------------------------------------------
New York X
----------------------------------------------------------------------------------------------------------------
North Carolina X
----------------------------------------------------------------------------------------------------------------
North Dakota X
----------------------------------------------------------------------------------------------------------------
Ohio X
----------------------------------------------------------------------------------------------------------------
Oklahoma X
----------------------------------------------------------------------------------------------------------------
Oregon X
----------------------------------------------------------------------------------------------------------------
Pennsylvania X
----------------------------------------------------------------------------------------------------------------
Rhode Island X
----------------------------------------------------------------------------------------------------------------
South Carolina X
----------------------------------------------------------------------------------------------------------------
South Dakota X
----------------------------------------------------------------------------------------------------------------
Tennessee X
----------------------------------------------------------------------------------------------------------------
Texas X X X X
----------------------------------------------------------------------------------------------------------------
Vermont X
----------------------------------------------------------------------------------------------------------------
Virginia X
----------------------------------------------------------------------------------------------------------------
Washington X
----------------------------------------------------------------------------------------------------------------
West Virginia X
----------------------------------------------------------------------------------------------------------------
Wisconsin X
----------------------------------------------------------------------------------------------------------------
SCHEDULE 5.05
SUPPLEMENT TO INTERIM FINANCIAL STATEMENTS
CEC ENTERTAINMENT, INC.
MATERIAL INDEBTEDNESS AND OTHER LIABILITIES
(Thousands of Dollars)
Balance at
4-3-05
------------
Current Liabilities:
Current obligation capital leases $ 563
Current portion of long-term debt 53,000
Accounts payable 20,918
Accrued expenses -
Taxes, other than income 7,728
Salaries 10,318
Interest 59
Rent 389
Other 14,936
Accrued income taxes 20,056
---------
Total Current Liabilities 127,967
---------
Long-term Liabilities:
Capital lease obligation 11,782
Deferred rent 55,996
Deferred tax liability 35,019
Insurance liability 10,750
---------
113,547
---------
Total liabilities $ 241,514
=========
Letters of credit $ 7,491
=========
SCHEDULE 5.06
LITIGATION
None.
SCHEDULE 5.13
SUBSIDIARIES
AND OTHER EQUITY INVESTMENTS
Part (a). Subsidiaries.
CEC Entertainment Concepts, L.P.
SPT Distribution Company, Inc.
TJH Restaurant Group, Inc.
CEC Entertainment Canada, Inc.
CEC Entertainment Holdings, LLC
BHC Acquisition Corporation
CEC of Gaithersburg, Inc.
CEC of ▇▇▇▇ Burnie, Inc.
CEC of Waldorf, Inc.
Hospitality Distribution Inc.
SB Hospitality Corporation
ShowBiz of Laurel, Inc.
CEC of Hagerstown, Inc.
CEC of Landover, Inc.
Part (b). Other Equity Investments.
CEC Film and Video, LLC
International Association of CEC Entertainment, Inc.
SCHEDULE 7.01
EXISTING LIENS
None.
SCHEDULE 7.03
EXISTING INDEBTEDNESS
Obligations under capital leases at 4/3/05:
Current $ 563,000
Long-term $ 11,782,000
SCHEDULE 10.02
ADMINISTRATIVE AGENT'S OFFICE,
CERTAIN ADDRESSES FOR NOTICES
BORROWERS:
CEC Entertainment Concepts, L.P.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Website Address: ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
CEC Entertainment, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Website Address: ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
ADMINISTRATIVE AGENT:
Administrative Agent's Office
(for payments and Requests for Credit Extensions):
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
ABA #▇▇▇-▇▇▇-▇▇▇
Bank of America, Dallas TX
Account No. #▇▇▇-▇▇▇▇-▇▇▇
Account Name: CORPORATE CREDIT SERVICES
Ref: CEC Entertainment Concepts, L.P.
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
▇▇▇ ▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ 1-231-08-30
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, VP
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇.▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
L/C ISSUER:
Bank of America, N.A.
Trade Operations-Los Angeles #22621
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Mail Code: CA9-703-19-23
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Tai ▇▇▇ ▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile: 213.345.6684
Electronic Mail: ▇▇▇_▇▇▇.▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
SCHEDULE 10.06
PROCESSING AND RECORDATION FEES
The Administrative Agent will charge a processing and recordation fee (an
"Assignment Fee") in the amount of $2,500 for each assignment; provided,
however, that in the event of two or more concurrent assignments to members of
the same Assignee Group (which may be effected by a suballocation of an assigned
amount among members of such Assignee Group) or two or more concurrent
assignments by members of the same Assignee Group to a single Eligible Assignee
(or to an Eligible Assignee and members of its Assignee Group), the Assignment
Fee will be $2,500 plus the amount set forth below:
Transaction Assignment Fee
First four concurrent assignments or suballocations -0-
to members of an Assignee Group (or from members of
an Assignee Group, as applicable)
Each additional concurrent assignment or $500
suballocation to a member of such Assignee Group (or
from a member of such Assignee Group, as applicable)
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement,
dated as of July 18, 2005; (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among CEC Entertainment
Concepts, L.P., a Texas limited partnership (the "Borrower"), CEC Entertainment,
Inc., as a Guarantor, Bank of America, N.A., as Administrative Agent and L/C
Issuer, Banc of America Securities LLC, as Sole Lead Arranger and Sole Bank
Manager, JPMorgan Chase Bank, N.A., as Syndication Agent and SunTrust Bank, as
Documentation Agent, and the Lenders from time to time party thereto.
The undersigned hereby requests (select one):
A Borrowing of Committed Loans A conversion or continuation of Loans
--- ---
1. On (a Business Day).
-------------------------
2. In the amount of $ .
-----------------
3. Comprised of .
----------------------------------
[Type of Committed Loan requested]
4. For Eurodollar Rate Loans: with an Interest Period of months.
----
The Committed Borrowing requested herein complies with the proviso to the
first sentence of Section 2.01 of the Agreement.
CEC Entertainment Concepts, L.P.,
a Texas limited partnership
By: CEC Entertainment, Inc.,
a Kansas corporation,
its general partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
EXHIBIT B
INTENTIONALLY OMITTED
EXHIBIT C
FORM OF NOTE
July 18, 2005
FOR VALUE RECEIVED, the undersigned (the "Borrower") hereby promises to pay
to _____________________ or registered assigns (the "Lender"), in accordance
with the provisions of the Agreement (as hereinafter defined), the principal
amount of each Loan from time to time made by the Lender to the Borrower under
that certain Amended and Restated Credit Agreement, dated as of July 18, 2005
(as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the "Agreement;" the terms defined therein being used herein
as therein defined), among the Borrower, CEC Entertainment, Inc., as a
Guarantor, Bank of America, N.A., as Administrative Agent and L/C Issuer, Banc
of America Securities LLC, as Sole Lead Arranger and Sole Bank Manager, JPMorgan
Chase Bank, N.A., as Syndication Agent and SunTrust Bank, as Documentation
Agent, and the Lenders from time to time party thereto.
The Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement. All
payments of principal and interest shall be made to the Administrative Agent for
the account of the Lender in Dollars in immediately available funds at the
Administrative Agent's Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms
and conditions provided therein. This Note is also entitled to the benefits of
the Guaranty. Upon the occurrence and continuation of one or more of the Events
of Default specified in the Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable all as
provided in the Agreement. Loans made by the Lender shall be evidenced by one or
more loan accounts or records maintained by the Lender in the ordinary course of
business. The Lender may also attach schedules to this Note and endorse thereon
the date, amount and maturity of its Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS.
CEC Entertainment Concepts, L.P.,
a Texas limited partnership
By: CEC Entertainment, Inc.,
a Kansas corporation,
its general partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of Outstanding
Principal or Principal
Type of Loan Amount of Loan End of Interest Interest Paid Balance This
Date Made Made Period This Date Date Notation Made By
-------- ---------------- ---------------- ------------------ ----------------- ---------------- --------------------
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EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ,
------------- ---
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement,
dated as of July 18, 2005 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among CEC Entertainment
Concepts, L.P., a Texas limited partnership (the "Borrower"), CEC Entertainment,
Inc., as a Guarantor, Bank of America, N.A., as Administrative Agent and L/C
Issuer, Banc of America Securities LLC, as Sole Lead Arranger and Sole Bank
Manager, JPMorgan Chase Bank, N.A., as Syndication Agent and SunTrust Bank, as
Documentation Agent, and the Lenders from time to time party thereto.
The undersigned Responsible Officer hereby certifies as of the date hereof
that he/she is the of the Parent, and that, as such, he/she
--------------------
is authorized to execute and deliver this Compliance Certificate to the
Administrative Agent on the behalf of the Parent, and that:
[Use following paragraph 1 for fiscal year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the fiscal year of
the Parent ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of the
Parent ended as of the above date. Such financial statements fairly present the
financial condition, results of operations and cash flows of the Borrower and
Parent and its Subsidiaries in accordance with GAAP as at such date and for such
period, subject only to normal year-end audit adjustments and the absence of
footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrower and the Parent during the accounting period covered by the attached
financial statements.
3. A review of the activities of the Borrower and the Parent during such
fiscal period has been made under the supervision of the undersigned with a view
to determining whether during such fiscal period the Borrower and the Parent
performed and observed all its Obligations under the Loan Documents, and
[select one:]
[to the best knowledge of the undersigned during such fiscal period, the
Borrower and Parent performed and observed each covenant and condition of the
Loan Documents applicable to it, and no Default has occurred and is continuing.]
--or--
[the following covenants or conditions have not been performed or observed
and the following is a list of each such Default and its nature and status:]
4. The representations and warranties of the Borrower and the Parent
contained in Article V of the Agreement, and any representations and warranties
of the Borrower and the Parent that are contained in any document furnished at
any time under or in connection with the Loan Documents, are true and correct on
and as of the date hereof, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this
Compliance Certificate, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 of the Agreement shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01 of the Agreement, including the statements in
connection with which this Compliance Certificate is delivered.
5. The financial covenant analyses and information set forth on Schedule 2
attached hereto are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of , .
---------------- ------------
PARENT:
CEC Entertainment, Inc.,
a Kansas corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BORROWER:
CEC Entertainment Concepts, L.P.,
a Texas limited partnership
By: CEC Entertainment, Inc.,
a Kansas corporation,
its general partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
I. Section 7.11 (a) - Consolidated Fixed Charge Coverage Ratio.
A. Consolidated EBITR for four consecutive fiscal quarters
ending on above date ("Subject Period"):
1. Consolidated Net Income for Subject Period: $
-------------
2. Consolidated Interest Charges for Subject Period: $
-------------
3. Provisions for Income Taxes incurred during
Subject Period: $
-------------
4. Other non-recurring expenses reducing
Consolidated Net Income which do not represent
a cash item for Subject Period or any
future period: $
-------------
5. Consolidated Rent Expense for Subject Period: $
-------------
6. Consolidated EBITR (Lines I.A. 1 + 2 + 3 + 4 + 5): $
-------------
B. Adjustments to EBITR:
1. Non-Cash items increasing Consolidated
Net Income for Subject Period: $
-------------
C. Adjusted EBITR (I.A.6 - I.B.1) $
-------------
D. Fixed Charges:
1. Consolidated Interest Charges made during
Subject Period: $
-------------
2. Consolidated Rent Expense made during
Subject Period: $
--------------
3. Total Fixed Charges (I.D.1 + I.D.2): $
--------------
E. Consolidated Fixed Charge Coverage Ratio
[Adjusted EBITR (I.C)/Total Fixed Charges (I.D.3)]: _______ to 1.0
Minimum Permitted: 1.5 to 1.0
II. Section 7.11 (b) - Consolidated Leverage Ratio.
A. Consolidated Funded Indebtedness for the Subject
Period: $
--------------
B. Consolidated EBITDA for the Subject Period:
1. Consolidated Net Income for Subject Period: $
--------------
2. Consolidated Interest Charges for Subject
Period: $
--------------
3. Provision for Income Taxes incurred during
Subject Period: $
--------------
4. Depreciation Expenses for Subject Period: $
--------------
5. Amortization Expenses for Subject Period: $
--------------
6. Non-Recurring non-cash reductions of Consolidated
Net Income for Subject Period. $
--------------
7. Non-Cash Items increasing Consolidated Net Income
during Subject Period $
--------------
C. Consolidated EBITDA for the Subject Period
(II.B.1+2+3+4+5+6 minus 7) $
--------------
D. Consolidated Leverage Ratio (Line II.A/Line II.C): _______ to 1.0
Maximum Permitted: 3.00 to 1.0
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Amended and Restated Credit Agreement identified
below (the "Credit Agreement"), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in
Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations as a Lender under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount
and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, the Letters of Credit included in such
facilities) and (ii) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of the Assignor (in
its capacity as a Lender) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold
and assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an Affiliate/Approved Fund
of [identify Lender]]
3. Borrower(s): ______________________________
4. Administrative Agent: Bank of America, N.A., as the administrative agent
under the Credit Agreement
5. Credit Agreement: Amended and Restated Credit Agreement, dated as of July
18, 2005, among CEC Entertainment Concepts, L.P., as Borrower, CEC
Entertainment, Inc. as a Guarantor, Bank of America, N.A., as
Administrative Agent and L/C Issuer, Banc of America Securities LLC, as
Sole Lead Arranger and Sole Bank Manager, JPMorgan Chase Bank, N.A., as
Syndication Agent and SunTrust Bank, as Documentation Agent, and the
Lenders from time to time party thereto.
6. Assigned Interest:
Aggregate
Amount of Amount of Percentage
Commitment Commitment Assigned of
Facility Assigned for all Lenders Assigned Commitment(1) CUSIP Number
----------------- --------------- ---------- ------------- ------------
$ $ %
$ $ %
$ $ %
$ $ %
[7. Trade Date: __________________](2)
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
----------------------------------
Title:
-------------------------------
ASSIGNEE
[NAME OF ASSIGNEE]
By:
----------------------------------
Title:
-------------------------------
[Consented to and](3) Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By:
---------------------------------
Title:
------------------------------
[Consented to:](4)
By:
---------------------------------
Title:
------------------------------
1 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of
all Lenders thereunder.
2 To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
3 To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
4 To be added only if the consent of the Borrower and/or other parties
(e.g. L/C Issuer) is required by the terms of the Credit Agreement.
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 18, 2005 among CEC
Entertainment Concepts, L.P., CEC Entertainment, Inc., as a Guarantor, Bank of
America, N.A., as Administrative Agent and L/C Issuer, Banc of America
Securities LLC, as Sole Lead Arranger and Sole Bank Manager, JPMorgan Chase
Bank, N.A., as Syndication Agent and SunTrust Bank, as Documentation Agent, and
the Lenders from time to time party thereto.
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of the
Borrower or Parent or any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance
by the Borrower or Parent or any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached hereto is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
2. Payments. Before the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignor for amounts which
have accrued to but excluding the Effective Date and to the Assignee for amounts
which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of Texas.
EXHIBIT F
GUARANTY
(Subsidiaries of Parent)
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of credit and/or financial accommodation heretofore or hereafter
from time to time made or granted to CEC ENTERTAINMENT CONCEPTS, L.P., a Texas
limited partnership (the "Borrower") by BANK OF AMERICA, N.A., in its capacity
as Administrative Agent ("Administrative Agent" or "Agent") for certain
financial institutions collectively (the "Lenders") which are or may become
parties to the Credit Agreement described below, and any other subsidiaries or
affiliates of Bank of America Corporation and its successors and assigns, the
undersigned Guarantors (which are subsidiaries of CEC Entertainment Inc., a
Kansas corporation, which is the general partner of Borrower and Borrower's
Parent), ("Guarantor" or "Guarantors") and if more than one jointly and
severally) hereby furnishes their guaranty of the Guaranteed Obligations (as
hereinafter defined) as follows:
This Agreement is given in connection with the Amended and Restated Credit
Agreement dated as of July 18, 2005 (as modified from time to time, the "Credit
Agreement"), among the Borrower, CEC Entertainment, Inc., (its "Parent"),
Administrative Agent, and L/C Issuer, Banc of America Securities LLC, as Sole
Lead Arranger and Sole Book Manager, JPMorgan Chase Bank, N.A., as Syndication
Agent, and SunTrust Bank, as Documentation Agent, and the Lenders from time to
time a party thereto, the defined terms of which are used herein unless
otherwise defined herein. It is a condition precedent to the obligation of the
Lenders to make any extension of credit under the Credit Agreement that the
Guarantors execute and deliver this Agreement to the Administrative Agent. Each
Guarantor is a Subsidiary of Parent and the Borrower is a Subsidiary of Parent.
Because each Guarantor receives and, as a result of its ownership by Parent
expects to continue to receive financial support from Parent, each Guarantor
will obtain substantial benefit from the extensions of credit to be made to the
Borrower under the Credit Agreement.
Therefore, to induce the Administrative Agent and Lenders to enter into the
Credit Agreement, the Guarantors, jointly and severally, agree as follows:
1. Guaranty. The Guarantors hereby, jointly and severally, absolutely and
unconditionally guarantee, as a guaranty of payment and performance and not
merely as a guaranty of collection, prompt payment when due, whether at stated
maturity, by required prepayment, upon acceleration, demand or otherwise, and at
all times thereafter, of any and all existing and future indebtedness and
liabilities of every kind, nature and character, direct or indirect, absolute or
contingent, liquidated or unliquidated, voluntary or involuntary and whether for
principal, interest, premiums, fees indemnities, damages, reasonable costs,
reasonable expenses or otherwise, of the Borrower to the Administrative Agent
and the Lenders arising pursuant to the Loan Documents, including, but not
limited to, the Credit Agreement and Swap Agreements (including all renewals,
extensions, amendments, refinancings and other modifications thereof and all
reasonable costs, attorneys' fees and expenses incurred by the Agent or Lenders
in connection with the collection or enforcement thereof), and whether recovery
upon such indebtedness and liabilities may be or hereafter become unenforceable
or shall be an allowed or disallowed claim under any proceeding or case
commenced by or against the Guarantors or the Borrower under the Debtor Relief
Laws and including interest that accrues after the commencement by or against
the Borrower of any proceeding under any Debtor Relief Laws (collectively, the
"Guaranteed Obligations"). The Agent's and Lenders' books and records showing
the amount of the Guaranteed Obligations shall be admissible in evidence in any
action or proceeding, and absent manifest error shall be binding upon the
Guarantors and conclusive evidence for the purpose of establishing the amount of
the Guaranteed Obligations. This Guaranty shall not be affected by the
genuineness, validity, regularity or enforceability of the Guaranteed
Obligations or any instrument or agreement evidencing any Guaranteed
Obligations, or by the existence, validity, enforceability, perfection,
non-perfection or extent of any collateral therefor, or by any fact or
circumstance relating to the Guaranteed Obligations which might otherwise
constitute a defense to the obligations of a Guarantor under this Guaranty, and
the Guarantors hereby irrevocably waive, jointly and severally, any defenses
they may now have or hereafter acquire in any way relating to any or all of the
foregoing. Anything contained herein to the contrary notwithstanding, the
obligations of each of the Guarantors hereunder at any time shall be limited to
an aggregate amount equal to the largest amount that would not render their
obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of the Bankruptcy Code (Title 11, United States
Code) or any comparable provisions of any similar federal or state law. If any
of the Guaranteed Obligations are not punctually paid or performed when due,
whether by maturity, acceleration, or otherwise, and the Administrative Agent
shall notify any Guarantor of such default and make demand for payment and/or
performance hereunder, such Guarantor shall immediately pay to the
Administrative Agent the full amount of the Guaranteed Obligations which are due
and payable. Each Guarantor shall make each payment to the Administrative Agent
in U.S. Dollars in immediately available funds as directed by the Administrative
Agent. The Administrative Agent is hereby authorized at any time following any
demand for payment hereunder to set off and apply any indebtedness owed by the
Administrative Agent to any Guarantor against any and all of the obligations of
such Guarantor under this Agreement. The Administrative Agent agrees to promptly
notify such Guarantor after any such setoff and application, but the failure to
give such notice shall not affect the validity of such setoff and application.
Each Guarantor is a Subsidiary of Parent and receives and, because of its
ownership by Parent, expects to continue to receive business opportunities and
financial support from Parent. The Borrower is a Subsidiary of Parent and Parent
receives and, because of its ownership of the Borrower, expects to continue to
receive business opportunities and financial benefits from the Borrower. Each
Guarantor has agreed to enter into this Agreement so that the Borrower can
receive the benefits of the Guaranteed Obligations and continue to provide these
services to Parent who provides these services to such Guarantor. Anything
contained herein to the contrary notwithstanding, the obligations of the
Guarantor hereunder at any time shall be limited to an aggregate amount equal to
the largest amount that would not render its obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of the
Bankruptcy Code (Title 11, United States Code) or any comparable provisions of
any similar federal or state law.
2. No Setoff or Deductions; Taxes; Payments. Each Guarantor represents and
warrants that it is organized and resident in the United States of America. Each
Guarantor shall make all payments hereunder without setoff or counterclaim and
free and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein unless
the Guarantor is compelled by law to make such deduction or withholding. If any
such obligation (other than one arising with respect to taxes based on or
measured by the income or profits of the Lender) is imposed upon the Guarantors
with respect to any amount payable by them hereunder, the Guarantors will pay to
the Agent, for the benefit of any Lender affected, on the date on which such
amount is due and payable hereunder, such additional amount in U.S. dollars as
shall be necessary to enable such Lenders to receive the same net amount which
such Lenders would have received on such due date had no such obligation been
imposed upon the Guarantors. Each Guarantor will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by the Guarantor hereunder. The
obligations of the Guarantors under this paragraph shall survive the payment in
full of the Guaranteed Obligations and termination of this Guaranty.
3. Rights of Lender. Each Guarantor consents and agrees that the Agent
and/or Lenders may, at any time and from time to time, without notice or demand,
and without affecting the enforceability or continuing effectiveness hereof: (a)
amend, extend, renew, compromise, discharge, accelerate or otherwise change the
time for payment or the terms of the Guaranteed Obligations or any part thereof
as permitted by the Loan Documents; (b) take, hold, exchange, enforce, waive,
release, fail to perfect, sell, or otherwise dispose of any security for the
payment of this Guaranty or any Guaranteed Obligations; (c) apply such security
and direct the order or manner of sale thereof as the Agent and/or Lenders in
its or their sole discretion may determine; and (d) release or substitute one or
more of any endorsers or other guarantors of any of the Guaranteed Obligations.
Without limiting the generality of the foregoing, the Guarantors consent to the
taking of, or failure to take, any action which might in any manner or to any
extent vary the risks of the Guarantors under this Guaranty or which, but for
this provision, might operate as a discharge of the Guarantors.
4. Certain Waivers. Each Guarantor waives (a) any defense arising by reason
of any disability or other defense of the Borrower or any other guarantor, or
the cessation from any cause whatsoever (including any act or omission of the
Lender) of the liability of the Borrower; (b) any defense based on any claim
that the Guarantor's obligations exceed or are more burdensome than those of the
Borrower; (c) the benefit of any statute of limitations affecting the
Guarantor's liability hereunder; (d) any right to require the Lender to proceed
against the Borrower, proceed against or exhaust any security for the
Indebtedness, or pursue any other remedy in the Lender 's power whatsoever; (e)
any benefit of and any right to participate in any security now or hereafter
held by the Lender; and (f) to the fullest extent permitted by law, any and all
other defenses or benefits that may be derived from or afforded by applicable
law limiting the liability of or exonerating guarantors or sureties. Each
Guarantor expressly waives all setoffs and counterclaims and all presentments,
demands for payment or performance, notices of nonpayment or nonperformance,
protests, notices of protest, notices of dishonor and all other notices or
demands of any kind or nature whatsoever with respect to the Guaranteed
Obligations, and all notices of acceptance of this Guaranty or of the existence,
creation or incurrence of new or additional Guaranteed Obligations, including
but not limited to the benefits of Chapter 34 of the Texas Business and Commerce
Code, ss.17.001 of the Texas Civil Practice and Remedies Code, and Rule 31 of
the Texas Rules of Civil Procedure, or any similar statute. The failure to give
notice of the occurrence of any of the events or actions referred to herein,
notice of any Default or Event of Default, however denominated, under the Loan
Documents, notice of intent to demand, notice of demand, notice of presentment
for payment, notice of nonpayment, notice of intent to protest, notice of
protest, notice of grace, notice of dishonor, notice of intent to accelerate,
notice of acceleration, notice of bringing of action to enforce the payment or
performance of the Guaranteed Obligations, notice of any sale or foreclosure of
any collateral for the Guaranteed Obligations, notice of any transfer of the
Guaranteed Obligations, notice of the financial condition of or other
circumstances regarding the Borrower, any Guarantor, or any other Person liable
for the Guaranteed Obligations, or any other notice of any kind relating to the
Guaranteed Obligations (and the parties intend that no Guarantor shall be
considered a "Debtor" as defined in Section 9.102 of the Texas Business and
Commerce Code for the purpose of notices required to be given to a Debtor under
such code).
5. Obligations Independent. The obligations of each Guarantor hereunder are
those of primary obligor, and not merely as surety, and are independent of the
Guaranteed Obligations and the obligations of any other guarantor, and a
separate action may be brought against such Guarantor to enforce this Guaranty
whether or not the Borrower or any other Person is joined as a party.
6. Subrogation. The Guarantors shall not exercise any right of subrogation,
contribution, indemnity, reimbursement or similar rights with respect to any
payments they make under this Guaranty until all of the Guaranteed Obligations
and any amounts payable under this Guaranty have been indefeasibly paid and
performed in full and any commitments of the Lenders or facilities provided by
the Lenders with respect to the Guaranteed Obligations are terminated. If any
amounts are paid to any Guarantor in violation of the foregoing limitation, then
such amounts shall be held in trust for the benefit of the Lenders and shall
forthwith be paid to the Agent for the benefit of the Lenders to reduce the
amount of the Guaranteed Obligations, whether matured or unmatured.
7. Termination; Reinstatement. This Guaranty is a continuing and
irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and
shall remain in full force and effect until all Guaranteed Obligations and any
other amounts payable under this Guaranty are indefeasibly paid in full in cash
and any commitments of the Lender or facilities provided by the Lenders with
respect to the Guaranteed Obligations are terminated. Notwithstanding the
foregoing, this Guaranty shall continue in full force and effect or be revived,
as the case may be, if any payment by or on behalf of the Borrower or any
Guarantor is made, or the Lenders exercise their right of setoff, in respect of
the Guaranteed Obligations and such payment or the proceeds of such setoff or
any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any Debtor
Relief Laws or otherwise, all as if such payment had not been made or such
setoff had not occurred and whether or not a Lender is in possession of or has
released this Guaranty and regardless of any prior revocation, rescission,
termination or reduction. The obligations of the Guarantors under this paragraph
shall survive termination of this Guaranty.
8. Subordination. Each Guarantor hereby subordinates the payment of all
obligations and indebtedness of the Borrower owing to such Guarantor, whether
now existing or hereafter arising, including but not limited to any obligation
of the Borrower to such Guarantor as subrogee of the Lender or resulting from
such Guarantor's performance under this Guaranty, to the indefeasible payment in
full in cash of all Guaranteed Obligations. If the Agent and/or Lenders so
requests, any such obligation or indebtedness of the Borrower to a Guarantor
shall be enforced and performance received by such Guarantor as trustee for the
Lenders and the proceeds thereof shall be paid over to the Agent on account of
the Guaranteed Obligations, but without reducing or affecting in any manner the
liability of such Guarantor under this Guaranty. With respect to each Guarantor,
all Subordinated Obligations of such Guarantor (as defined below) shall be
subordinate and junior in right of payment and collection to the payment and
collection in full of all Guaranteed Obligations as described below:
(a) As used herein, the term "Subordinated Obligations" for such Guarantor
means: (i) all present and future indebtedness, liabilities, and obligations of
any kind owed by the Borrower, any Guarantor, or any other Person liable for the
payment or performance of the Guaranteed Obligations to such Guarantor,
including debt obligations, equity obligations, and other contractual
obligations requiring payments of any kind to be made to such Guarantor and
including any right of subrogation (including any statutory rights of
subrogation under Section 509 of the Bankruptcy Code, 11 U.S.C. ss. 509, or
under Chapter 34 of the Texas Business and Commerce Code), contribution,
indemnification, reimbursement, exoneration, or any right to participate in any
claim or remedy of the Administrative Agent against the Borrower, any Guarantor,
or any Person liable for the payment or performance of the Guaranteed
Obligations, or any collateral which the Administrative Agent now has or may
acquire, and (ii) any increases, extensions, and rearrangements of the foregoing
obligations under any amendments, supplements, and other modifications of the
documents and agreements creating the foregoing obligations.
(b) Until all Guaranteed Obligations have been irrevocably paid in full
(and therefore the payment thereof is no longer subject to being set aside or
returned under the law), such Guarantor agrees not to take any action to enforce
payment of the Subordinated Obligations of such Guarantor, but this standstill
is not intended as a permanent waiver of the subrogation, contribution,
indemnification, reimbursement, exoneration, participation, or other rights of
such Guarantor.
(c) Upon any receivership, insolvency proceeding, bankruptcy proceeding,
assignment for the benefit of creditors, reorganization, arrangement with
creditors, sale of assets for creditors, dissolution, liquidation, or marshaling
of the assets of the Borrower, any Guarantor, or any other Person liable for the
payment or performance of the Guaranteed Obligations, all amounts due with
respect to the Guaranteed Obligations shall be paid in full before such
Guarantor shall be entitled to collect or receive any payment with respect to
the Subordinated Obligations of such Guarantor, and all payments to which such
Guarantor would be entitled to collect or receive on the Subordinated
Obligations of such Guarantor shall be paid over to the Administrative Agent for
application to the Guaranteed Obligations.
(d) Following written notice from the Administrative Agent to the Borrower
that a Default or an Event of Default has occurred and is continuing and that no
further payments shall be made on the Subordinated Obligations of such Guarantor
until (i) all amounts due with respect to the Guaranteed Obligations shall be
paid in full or (ii) the Administrative Agent revokes such notice, such
Guarantor shall not be entitled to collect or receive any payment with respect
to the Subordinated Obligations of such Guarantor.
(e) If applicable, any lien, security interest, or assignment securing the
repayment of the Subordinated Obligations of such Guarantor shall be fully
subordinate to any lien, security interest, or assignment, if applicable, in
favor of the Administrative Agent which secures the Guaranteed Obligations. At
the request of the Administrative Agent, such Guarantor will take any and all
steps necessary to fully evidence the subordination granted hereunder, including
amending or terminating financing statements and executing and recording
subordinations of liens.
(f) This is an absolute and irrevocable agreement of subordination and the
Administrative Agent may, without notice to such Guarantor, take any action
described herein without impairing or releasing the obligations of such
Guarantor hereunder.
(g) Such Guarantor shall not assign or otherwise transfer to any other
Person any interest in the Subordinated Obligations of such Guarantor unless
such Guarantor causes the assignee or other transferee to execute and deliver to
the Administrative Agent a subordination agreement in substantially the form of
the subordination provisions in this Agreement.
(h) If any amount shall be paid to such Guarantor in violation of this
section such amount shall be held in trust for the benefit of the Administrative
Agent and immediately turned over to the Administrative Agent, with any
necessary endorsement, to be applied to the Guaranteed Obligations.
9. Stay of Acceleration. In the event that acceleration of the time for
payment of any of the Guaranteed Obligations is stayed, in connection with any
case commenced by or against the Guarantors or the Borrower under any Debtor
Relief Laws, or otherwise, all such amounts shall nonetheless be payable by the
Guarantors immediately upon demand by the Lender except as otherwise prohibited
by applicable law or court order.
10. Expenses. Each Guarantor shall pay on demand all out-of-pocket expenses
(including reasonable attorneys' fees and expenses) in any way relating to the
enforcement or protection of the Lenders' rights under this Guaranty or in
respect of the Guaranteed Obligations, including any incurred during any
"workout" or restructuring in respect of the Guaranteed Obligations and any
incurred in the preservation, protection or enforcement of any rights of the
Lenders in any proceeding any Debtor Relief Laws. The obligations of the
Guarantors under this paragraph shall survive the payment in full of the
Guaranteed Obligations and termination of this Guaranty.
11. Miscellaneous. No provision of this Guaranty may be waived, amended,
supplemented or modified, except by a written instrument executed by the Agent,
Required Lenders and the Guarantors. No failure by the Agent or Lenders to
exercise, and no delay in exercising, any right, remedy or power hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy or power hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law or in
equity. The unenforceability or invalidity of any provision of this Guaranty
shall not affect the enforceability or validity of any other provision herein.
Unless otherwise agreed by the Agent, Lenders and the Guarantors in writing,
this Guaranty (except as provided in Section 18 hereof) is not intended to
supersede or otherwise affect any other guaranty now or hereafter given by any
Guarantor for the benefit of the Lenders or any term or provision thereof.
12. Condition of Borrower. Each Guarantor acknowledges and agrees that it
has the sole responsibility for, and has adequate means of, obtaining from the
Borrower and any other guarantor such information concerning the financial
condition, business and operations of the Borrower and any such other guarantor
as the Guarantor requires, and that the Agent and the Lenders have no duty, and
the Guarantor is not relying on the Agent and the Lenders at any time, to
disclose to the Guarantor any information relating to the business, operations
or financial condition of the Borrower or any other guarantor (the Guarantor
waiving any duty on the part of the Lender to disclose such information and any
defense relating to the failure to provide the same).
13. Setoff. If and to the extent any payment is not made when due
hereunder, any Lender may setoff and charge from time to time any amount so due
against any or all of any Guarantor's accounts or deposits with such Lender and
notify Guarantor promptly after such setoff.
14. Representations and Warranties. Each Guarantor hereby represents,
warrants, ratifies, adopts and affirms and shall comply with the
representations, warranties, and covenants made by the Borrower in the Credit
Agreement to the extent that such representations, warranties, and covenants are
applicable to such Guarantor, including all of the representations and
warranties in Article V of the Credit Agreement and all of the covenants in
Article VI of the Credit Agreement.
15. Indemnification and Survival. Each Guarantor agrees to protect, defend,
indemnify, and hold harmless the Administrative Agent, each Lender, and each of
their respective Related Parties (collectively, the "Indemnified Parties"), from
and against all demands, claims, actions, suits, damages, judgments, fines,
penalties, liabilities, and costs and expenses, including reasonable costs of
attorneys and related costs of experts such as accountants (collectively, the
"Indemnified Liabilities"), actually incurred by the Indemnified Parties which
are related to any litigation or proceeding relating to this Agreement, the Loan
Documents, or the transactions contemplated thereunder, INCLUDING INDEMNIFIED
LIABILITIES CAUSED BY ANY INDEMNIFIED PARTIES' OWN NEGLIGENCE, but not
Indemnified Liabilities which are a result of any Indemnified Parties' gross
negligence or willful misconduct. The provisions of this paragraph shall survive
any purported termination of this Agreement and the Loan Documents that does not
expressly reference this paragraph. This Agreement may be executed in multiple
counterparts each of which shall constitute one and the same agreement. All
notices shall be given in the manner required under Section 10.02 of the Credit
Agreement to the following addresses:
If to any Guarantor:
c/o CEC Entertainment, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
c/o CEC Entertainment, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Legal Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Administrative Agent:
Bank of America, N.A.,
as Administrative Agent under the Amended and Restated Credit Agreement
dated as of July 18, 2005, among
CEC Entertainment Concepts, L.P., the financial
institutions parties thereto, and the Administrative Agent
▇▇▇ ▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ 1-231-08-30
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Any present or future Required Guarantor may become a Guarantor under and a
party to this Agreement by executing and delivering to the Administrative Agent
the documents required by Section 6.12 of the Credit Agreement or by otherwise
assuming in writing in favor of the Administrative Agent the liabilities of a
Guarantor under this Agreement. Upon execution and delivery of such documents or
otherwise assuming the liabilities of a Guarantor under this Agreement such
Subsidiary shall be deemed to be a Guarantor under this Agreement and a party to
this Agreement for all purposes hereunder.
16. GOVERNING LAW; Assignment; Jurisdiction; Notices. THIS GUARANTY SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF TEXAS. This Guaranty shall (a) bind the Guarantors and their successors and
assigns, provided that no Guarantor may assign its rights or obligations under
this Guaranty without the prior written consent of the Agent and Lenders (and
any attempted assignment without such consent shall be void), and (b) inure to
the benefit of the Agent and Lenders and its successors and assigns and the
Agent and Lenders may, without notice to the Guarantors and without affecting
the Guarantors' obligations hereunder, assign, sell or grant participations in
the Guaranteed Obligations and this Guaranty, in whole or in part in accordance
with the Credit Agreement. The Guarantors hereby irrevocably (i) submit to the
non-exclusive jurisdiction of any United States Federal or State court sitting
in Dallas, Texas in any action or proceeding arising out of or relating to this
Guaranty, and (ii) waive to the fullest extent permitted by law any defense
asserting an inconvenient forum in connection therewith. Service of process by
the Lender in connection with such action or proceeding shall be binding on the
Guarantors if sent to the Guarantors by registered or certified mail at their
address specified below or such other address as from time to time notified by
the Guarantors. The Guarantors agree that the Agent or the Lenders may disclose
to any assignee of or participant in, or any prospective assignee of or
participant in, any of its rights or obligations of all or part of the
Guaranteed Obligations any and all information in the Lenders' possession
concerning the Guarantors, this Guaranty and any security for this Guaranty,
provided that such information is disclosed subject to an agreement containing
provisions substantially the same as those of Section 10.07 of the Credit
Agreement. All notices and other communications to the Guarantors under this
Guaranty shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopier to the
Guarantors at their address set forth below or at such other address in the
United States as may be specified by any Guarantor in a written notice delivered
to the Lenders at such office as the Agent or Lenders may designate for such
purpose from time to time in a written notice to the Guarantors. This Guaranty
is subject to the provisions of Section 9.10 of the Credit Agreement.
17. Time is of the Essence. Time is of the Essence in the performance of
this Guaranty.
18. Amendment and Restatement. This Guaranty is executed in amendment and
restatement (but not extinguishment) of each of the following Guaranties dated
December 2, 2002 executed by the following Guarantors, SPT Distribution Company,
CEC Entertainment Holdings, LLC and TJH Restaurant Group, Inc.
19. WAIVER OF JURY TRIAL; FINAL AGREEMENT. TO THE EXTENT ALLOWED BY
APPLICABLE LAW, THE GUARANTORS AND THE LENDERS IRREVOCABLY WAIVES TRIAL BY JURY
WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING ON, ARISING OUT OF OR
RELATING TO THIS GUARANTY OR THE GUARANTEED OBLIGATIONS. THIS GUARANTY
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Executed as of the 18th day of July, 2005.
SPT DISTRIBUTION COMPANY, INC.,
a Texas corporation
By:
----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
CEC ENTERTAINMENT HOLDINGS, LLC, a
Nevada limited liability company
By:
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
President
TJH RESTAURANT GROUP, INC., a Texas
corporation
By:
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
EXHIBIT G
OPINION MATTERS
The matters contained in the following Sections of the Credit Agreement
should be covered by the legal opinion:
o Section 5.01(a), (b) and (c)
--------------- --- ---
o Section 5.02
o Section 5.03
o Section 5.04
o Section 5.06
o Section 5.14(b)
EXHIBIT H
NEW LENDER AGREEMENT
This New Lender Agreement dated as of _____________, (this "Agreement") is
by and among CEC Entertainment Concepts, L.P., a Texas limited partnership
("Borrower"), Bank of America, N.A. ("Administrative Agent"), in its capacity as
administrative agent under the Credit Agreement described below, and
___________________ (the "New Lender"). Reference is made to the Amended and
Restated Credit Agreement dated as of July 18, 2005 (as it may be modified from
time to time, the "Credit Agreement") among Borrower, CEC Entertainment, Inc.,
as a Guarantor, Bank of America, N.A., as Administrative Agent and L/C Issuer,
Banc of America Securities LLC, as Sole Lead Arranger and Sole Bank Manager,
JPMorgan Chase Bank, N.A., as Syndication Agent and SunTrust Bank, as
Documentation Agent, and the Lenders from time to time party thereto.
Capitalized terms used herein but not defined herein shall have the meanings
specified by the Credit Agreement.
PRELIMINARY STATEMENTS
A. Pursuant to Section 2.15 of the Credit Agreement, the Borrower has the
right, subject to the terms and conditions thereof, to add to the Credit
Agreement one or more New Lenders under the Credit Agreement.
B. The Borrower has given notice to the Administrative Agent pursuant to
Section 2.15 of the Credit Agreement of its intention to add the New Lender
to the Credit Agreement as a Lender with a Commitment of $_______________,
and the Administrative Agent is willing to consent thereto.
Accordingly, the parties hereto agree as follows:
1. Addition of New Lender. Pursuant to Section 2.15 of the Credit
Agreement, the New Lender is hereby added to the Credit Agreement as a Lender
with a Commitment of $______________. The New Lender specifies as its Lending
Office the following:
--------------------------------------------
--------------------------------------------
--------------------------------------------
Attention:
----------------------------------
Telephone:
----------------------------------
Telecopy:
-----------------------------------
2. New Note. If requested by the New Lender, the Borrower agrees to
promptly execute and deliver to the New Lender a Note in the amount of its
Commitment set forth in Section 1 above ("New Note").
3. Consent. The Administrative Agent and the Borrower hereby consent to the
addition of the New Lender effectuated hereby.
4. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas.
5. Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
6. Representations and Warranties of the Borrower. The Borrower represents
and warrants as follows:
(a) The execution, delivery, and performance by the Borrower of this
Agreement and the New Note and the consummation of the transactions contemplated
thereby (i) do not contravene the Organizational Documents of the Borrower, (ii)
have been duly authorized by all necessary action of the Borrower, and (iii) are
within the Borrower's powers.
(b) This Agreement has been duly executed and delivered by the Borrower and
constitutes the legal, valid, and binding obligation of the Borrower,
enforceable against the Borrower in accordance with this Agreement's terms,
except as it is hypothetically affected by (i) the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium, or other similar laws
affecting the rights and remedies of creditors generally and (ii) the effect of
general principles of equity
(c) The execution, delivery, and performance by the Borrower of this
Agreement and the New Note and the consummation of the transactions contemplated
thereby, (i) do not and will not conflict with or result in any breach or
contravention of, or the creation of any Lien under, (x) any material
Contractual Obligation to which the Borrower is a party or (y) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which the Borrower or its property is subject, (ii) do not violate any Law,
and (iii) do not require any authorization, approval, or other action by, or any
notice to or filing with, any Governmental Authority.
(d) After giving effect to this Agreement and any other New Lender
Agreements, the Borrower will be in compliance with the limitation set forth in
the first sentence in clause (a) of Section 2.15 of the Credit Agreement.
(e) The resolutions duly adopted by the respective boards of directors of
the general partner of the Borrower and the Guarantors on [date] are sufficient
to authorize this Agreement, the New Note, and the Guaranty thereof, as
applicable, and such resolutions remain in full force and effect.
7. Representations and Warranties of the New Lender. The New Lender (a)
represents and warrants that (i) it has full power and authority, and has taken
all action necessary, to execute and deliver this New Lender Agreement and to
consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) from and after the date of the execution of this
Agreement, it shall be bound by the provisions of the Credit Agreement as a
Lender thereunder and, to the extent of its Commitment, shall have the
obligations of a Lender thereunder, (iii) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 6.01 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this New Lender Agreement on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (iv) if it is a Foreign
Lender, attached hereto is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the New Lender; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
8. Default. Without limiting any other event that may constitute an Event
of Default, in the event any representation or warranty set forth herein shall
prove to have been incorrect or misleading in any material respect when made,
such event shall constitute an "Event of Default" under the Credit Agreement.
9. Expenses. The Borrower agrees to pay on demand all reasonable costs and
expenses of the Administrative Agent in connection with the preparation,
negotiation, execution, and delivery of this Agreement and the New Note,
including, without limitation, the reasonable fees and out-of-pocket expenses of
external counsel for the Administrative Agent with respect thereto.
10. Effectiveness. When, and only when, the Administrative Agent shall have
received counterparts of, or telecopied signature pages of, this Agreement
executed by the Borrower, the Administrative Agent, and the New Lender, this
Agreement shall become effective as of the date first written above.
11. Appointment of Administrative Agent. The New Lender hereby appoints and
authorizes the Administrative Agent to take such action as Administrative Agent
on its behalf and to exercise such powers and discretion under the Credit
Documents as are delegated to the Administrative Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER:
CEC Entertainment Concepts, Inc.,
a Texas limited partnership
By: CEC Entertainment, Inc.,
a Kansas corporation,
its general partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
NEW LENDER:
NAME OF NEW LENDER]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXHIBIT I
GUARANTY
(Parent)
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of credit and/or financial accommodation heretofore or hereafter
from time to time made or granted to CEC ENTERTAINMENT CONCEPTS, L.P., a Texas
limited partnership (the "Borrower") by BANK OF AMERICA, N.A., in its capacity
as Administrative Agent ("Administrative Agent" or "Agent") for certain
financial institutions collectively (the "Lenders") which are or may become
parties to the Credit Agreement described below, and any other subsidiaries or
affiliates of Bank of America Corporation and its successors and assigns, the
undersigned Guarantor, CEC Entertainment Inc., a Kansas corporation, which is
the general partner of Borrower and Borrower's Parent ( "Guarantor") hereby
furnishes its guaranty of the Guaranteed Obligations (as hereinafter defined) as
follows:
This Agreement is given in connection with the Amended and Restated Credit
Agreement dated as of July 18, 2005 (as modified from time to time, the "Credit
Agreement"), among the Borrower, Guarantor, Administrative Agent, and L/C
Issuer, Banc of America Securities LLC, as Sole Lead Arranger and Sole Book
Manager, JPMorgan Chase Bank, N.A., as Syndication Agent, and SunTrust Bank, as
Documentation Agent, and the Lenders from time to time a party thereto, the
defined terms of which are used herein unless otherwise defined herein. It is a
condition precedent to the obligation of the Lenders to make any extension of
credit under the Credit Agreement that the Guarantor execute and deliver this
Agreement to the Administrative Agent. Guarantor is the Parent of the Borrower.
Guarantor receives and, as a result of its ownership of Borrower expects to
continue to receive financial support from Borrower, therefore Guarantor will
obtain substantial benefit from the extensions of credit to be made to the
Borrower under the Credit Agreement.
Therefore, to induce the Administrative Agent and Lenders to enter into the
Credit Agreement, the Guarantor agrees as follows:
1. Guaranty. The Guarantor hereby, jointly and severally with any other
guarantors, absolutely and unconditionally guarantees, as a guaranty of payment
and performance and not merely as a guaranty of collection, prompt payment when
due, whether at stated maturity, by required prepayment, upon acceleration,
demand or otherwise, and at all times thereafter, of any and all existing and
future indebtedness and liabilities of every kind, nature and character, direct
or indirect, absolute or contingent, liquidated or unliquidated, voluntary or
involuntary and whether for principal, interest, premiums, fees indemnities,
damages, reasonable costs, reasonable expenses or otherwise, of the Borrower to
the Administrative Agent and the Lenders arising pursuant to the Loan Documents,
including, but not limited to, the Credit Agreement and Swap Agreements
(including all renewals, extensions, amendments, refinancings and other
modifications thereof and all reasonable costs, attorneys' fees and expenses
incurred by the Agent or Lenders in connection with the collection or
enforcement thereof), and whether recovery upon such indebtedness and
liabilities may be or hereafter become unenforceable or shall be an allowed or
disallowed claim under any proceeding or case commenced by or against the
Guarantor or the Borrower under Debtor Relief Laws and including interest that
accrues after the commencement by or against the Borrower of any proceeding
under any Debtor Relief Laws (collectively, the "Guaranteed Obligations"). The
Agent's and Lenders' books and records showing the amount of the Guaranteed
Obligations shall be admissible in evidence in any action or proceeding, and
absent manifest error shall be binding upon the Guarantor and conclusive for the
purpose of establishing the amount of the Guaranteed Obligations. This Guaranty
shall not be affected by the genuineness, validity, regularity or enforceability
of the Guaranteed Obligations or any instrument or agreement evidencing any
Guaranteed Obligations, or by the existence, validity, enforceability,
perfection, non-perfection or extent of any collateral therefor, or by any fact
or circumstance relating to the Guaranteed Obligations which might otherwise
constitute a defense to the obligations of a Guarantor under this Guaranty, and
the Guarantor hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to any or all of the foregoing. Anything
contained herein to the contrary notwithstanding, the obligations of the
Guarantor hereunder at any time shall be limited to an aggregate amount equal to
the largest amount that would not render its obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of the
Bankruptcy Code (Title 11, United States Code) or any comparable provisions of
any similar federal or state law. If any of the Guaranteed Obligations are not
punctually paid or performed when due, whether by maturity, acceleration, or
otherwise, and the Administrative Agent shall notify Guarantor of such default
and make demand for payment and/or performance hereunder, Guarantor shall
immediately pay to the Administrative Agent the full amount of the Guaranteed
Obligations which are due and payable. Guarantor shall make each payment to the
Administrative Agent in U.S. Dollars in immediately available funds as directed
by the Administrative Agent. The Administrative Agent is hereby authorized at
any time following any demand for payment hereunder to set off and apply any
indebtedness owed by the Administrative Agent to Guarantor against any and all
of the obligations of Guarantor under this Agreement. The Administrative Agent
agrees to promptly notify Guarantor after any such setoff and application, but
the failure to give such notice shall not affect the validity of such setoff and
application. Guarantor is the Parent and receives and, because of its ownership
and expects to continue to receive business opportunities and financial support
from Borrower. Guarantor has agreed to enter into this Agreement so that the
Borrower can receive the benefits of the Guaranteed Obligations.
2. No Setoff or Deductions; Taxes; Payments. Guarantor represents and
warrants that it is organized and resident in the United States of America.
Guarantor shall make all payments hereunder without setoff or counterclaim and
free and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein unless
the Guarantor is compelled by law to make such deduction or withholding. If any
such obligation (other than one arising with respect to taxes based on or
measured by the income or profits of the Lender) is imposed upon the Guarantor
with respect to any amount payable by it hereunder, the Guarantor will pay to
the Agent, for the benefit of any Lender affected, on the date on which such
amount is due and payable hereunder, such additional amount in U.S. dollars as
shall be necessary to enable such Lenders to receive the same net amount which
such Lenders would have received on such due date had no such obligation been
imposed upon the Guarantor. Guarantor will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by the Guarantor hereunder. The
obligations of the Guarantor under this paragraph shall survive the payment in
full of the Guaranteed Obligations and termination of this Guaranty.
3. Rights of Lender. Guarantor consents and agrees that the Agent and/or
Lenders may, at any time and from time to time, without notice or demand, and
without affecting the enforceability or continuing effectiveness hereof: (a)
amend, extend, renew, compromise, discharge, accelerate or otherwise change the
time for payment or the terms of the Guaranteed Obligations or any part thereof
as permitted by the Loan Documents; (b) take, hold, exchange, enforce, waive,
release, fail to perfect, sell, or otherwise dispose of any security for the
payment of this Guaranty or any Guaranteed Obligations; (c) apply such security
and direct the order or manner of sale thereof as the Agent and/or Lenders in
its or their sole discretion may determine; and (d) release or substitute one or
more of any endorsers or other guarantors of any of the Guaranteed Obligations.
Without limiting the generality of the foregoing, the Guarantor consents to the
taking of, or failure to take, any action which might in any manner or to any
extent vary the risks of the Guarantor under this Guaranty or which, but for
this provision, might operate as a discharge of the Guarantor.
4. Certain Waivers. Guarantor waives (a) any defense arising by reason of
any disability or other defense of the Borrower or any other guarantor, or the
cessation from any cause whatsoever (including any act or omission of the
Lender) of the liability of the Borrower; (b) any defense based on any claim
that the Guarantor's obligations exceed or are more burdensome than those of the
Borrower; (c) the benefit of any statute of limitations affecting the
Guarantor's liability hereunder; (d) any right to require the Lender to proceed
against the Borrower, proceed against or exhaust any security for the
Indebtedness, or pursue any other remedy in the Lender 's power whatsoever; (e)
any benefit of and any right to participate in any security now or hereafter
held by the Lender; and (f) to the fullest extent permitted by law, any and all
other defenses or benefits that may be derived from or afforded by applicable
law limiting the liability of or exonerating guarantors or sureties. Guarantor
expressly waives all setoffs and counterclaims and all presentments, demands for
payment or performance, notices of nonpayment or nonperformance, protests,
notices of protest, notices of dishonor and all other notices or demands of any
kind or nature whatsoever with respect to the Guaranteed Obligations, and all
notices of acceptance of this Guaranty or of the existence, creation or
incurrence of new or additional Guaranteed Obligations, including but not
limited to the benefits of Chapter 34 of the Texas Business and Commerce Code,
ss.17.001 of the Texas Civil Practice and Remedies Code, and Rule 31 of the
Texas Rules of Civil Procedure, or any similar statute. The failure to give
notice of the occurrence of any of the events or actions referred to herein,
notice of any Default or Event of Default, however denominated, under the Loan
Documents, notice of intent to demand, notice of demand, notice of presentment
for payment, notice of nonpayment, notice of intent to protest, notice of
protest, notice of grace, notice of dishonor, notice of intent to accelerate,
notice of acceleration, notice of bringing of action to enforce the payment or
performance of the Guaranteed Obligations, notice of any sale or foreclosure of
any collateral for the Guaranteed Obligations, notice of any transfer of the
Guaranteed Obligations, notice of the financial condition of or other
circumstances regarding the Borrower, Guarantor, or any other Person liable for
the Guaranteed Obligations, or any other notice of any kind relating to the
Guaranteed Obligations (and the parties intend that Guarantor shall not be
considered a "Debtor" as defined in Section 9.102 of the Texas Business and
Commerce Code for the purpose of notices required to be given to a Debtor under
such code).
5. Obligations Independent. The obligations of Guarantor hereunder are
those of primary obligor, and not merely as surety, and are independent of the
Guaranteed Obligations and the obligations of any other guarantor, and a
separate action may be brought against the Guarantor to enforce this Guaranty
whether or not the Borrower or any other Person is joined as a party.
6. Subrogation. The Guarantor shall not exercise any right of subrogation,
contribution, indemnity, reimbursement or similar rights with respect to any
payments they make under this Guaranty until all of the Guaranteed Obligations
and any amounts payable under this Guaranty have been indefeasibly paid and
performed in full and any commitments of the Lenders or facilities provided by
the Lenders with respect to the Guaranteed Obligations are terminated. If any
amounts are paid to Guarantor in violation of the foregoing limitation, then
such amounts shall be held in trust for the benefit of the Lenders and shall
forthwith be paid to the Agent for the benefit of the Lenders to reduce the
amount of the Guaranteed Obligations, whether matured or unmatured.
7. Termination; Reinstatement. This Guaranty is a continuing and
irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and
shall remain in full force and effect until all Guaranteed Obligations and any
other amounts payable under this Guaranty are indefeasibly paid in full in cash
and any commitments of the Lender or facilities provided by the Lenders with
respect to the Guaranteed Obligations are terminated. Notwithstanding the
foregoing, this Guaranty shall continue in full force and effect or be revived,
as the case may be, if any payment by or on behalf of the Borrower or Guarantor
is made, or the Lenders exercise their right of setoff, in respect of the
Guaranteed Obligations and such payment or the proceeds of such setoff or any
part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any Debtor
Relief Laws or otherwise, all as if such payment had not been made or such
setoff had not occurred and whether or not a Lender is in possession of or has
released this Guaranty and regardless of any prior revocation, rescission,
termination or reduction. The obligations of the Guarantor under this paragraph
shall survive termination of this Guaranty.
8. Subordination. Guarantor hereby subordinates the payment of all
obligations and indebtedness of the Borrower owing to the Guarantor, whether now
existing or hereafter arising, including but not limited to any obligation of
the Borrower to the Guarantor as subrogee of the Lender or resulting from the
Guarantor's performance under this Guaranty, to the indefeasible payment in full
in cash of all Guaranteed Obligations. If the Agent and/or Lenders so requests,
any such obligation or indebtedness of the Borrower to the Guarantor shall be
enforced and performance received by the Guarantor as trustee for the Lenders
and the proceeds thereof shall be paid over to the Agent on account of the
Guaranteed Obligations, but without reducing or affecting in any manner the
liability of the Guarantor under this Guaranty. With respect to Guarantor, all
Subordinated Obligations of Guarantor (as defined below) shall be subordinate
and junior in right of payment and collection to the payment and collection in
full of all Guaranteed Obligations as described below:
(a) As used herein, the term "Subordinated Obligations" for Guarantor
means: (i) all present and future indebtedness, liabilities, and obligations of
any kind owed by the Borrower, any guarantor, or any other Person liable for the
payment or performance of the Guaranteed Obligations to Guarantor, including
debt obligations, equity obligations, and other contractual obligations
requiring payments of any kind to be made to Guarantor and including any right
of subrogation (including any statutory rights of subrogation under Section 509
of the Bankruptcy Code, 11 U.S.C. ss. 509, or under Chapter 34 of the Texas
Business and Commerce Code), contribution, indemnification, reimbursement,
exoneration, or any right to participate in any claim or remedy of the
Administrative Agent against the Borrower, any guarantor, or any Person liable
for the payment or performance of the Guaranteed Obligations, or any collateral
which the Administrative Agent now has or may acquire, and (ii) any increases,
extensions, and rearrangements of the foregoing obligations under any
amendments, supplements, and other modifications of the documents and agreements
creating the foregoing obligations.
(b) Until all Guaranteed Obligations have been irrevocably paid in full
(and therefore the payment thereof is no longer subject to being set aside or
returned under the law), Guarantor agrees not to take any action to enforce
payment of the Subordinated Obligations of Guarantor, but this standstill is not
intended as a permanent waiver of the subrogation, contribution,
indemnification, reimbursement, exoneration, participation, or other rights of
Guarantor.
(c) Upon any receivership, insolvency proceeding, bankruptcy proceeding,
assignment for the benefit of creditors, reorganization, arrangement with
creditors, sale of assets for creditors, dissolution, liquidation, or marshaling
of the assets of the Borrower, Guarantor, or any other Person liable for the
payment or performance of the Guaranteed Obligations, all amounts due with
respect to the Guaranteed Obligations shall be paid in full before Guarantor
shall be entitled to collect or receive any payment with respect to the
Subordinated Obligations of Guarantor, and all payments to which Guarantor would
be entitled to collect or receive on the Subordinated Obligations of Guarantor
shall be paid over to the Administrative Agent for application to the Guaranteed
Obligations.
(d) Following written notice from the Administrative Agent to the Borrower
that a Default or an Event of Default has occurred and is continuing and that no
further payments shall be made on the Subordinated Obligations of Guarantor
until (i) all amounts due with respect to the Guaranteed Obligations shall be
paid in full or (ii) the Administrative Agent revokes such notice, Guarantor
shall not be entitled to collect or receive any payment with respect to the
Subordinated Obligations of Guarantor.
(e) If applicable, any lien, security interest, or assignment securing the
repayment of the Subordinated Obligations of such Guarantor shall be fully
subordinate to any lien, security interest, or assignment, if applicable, in
favor of the Administrative Agent which secures the Guaranteed Obligations. At
the request of the Administrative Agent, Guarantor will take any and all steps
necessary to fully evidence the subordination granted hereunder, including
amending or terminating financing statements and executing and recording
subordinations of liens.
(f) This is an absolute and irrevocable agreement of subordination and the
Administrative Agent may, without notice to Guarantor, take any action described
herein without impairing or releasing the obligations of Guarantor hereunder.
(g) Guarantor shall not assign or otherwise transfer to any other Person
any interest in the Subordinated Obligations of Guarantor unless Guarantor
causes the assignee or other transferee to execute and deliver to the
Administrative Agent a subordination agreement in substantially the form of the
subordination provisions in this Agreement.
(h) If any amount shall be paid to Guarantor in violation of this section
such amount shall be held in trust for the benefit of the Administrative Agent
and immediately turned over to the Administrative Agent, with any necessary
endorsement, to be applied to the Guaranteed Obligations.
9. Stay of Acceleration. In the event that acceleration of the time for
payment of any of the Guaranteed Obligations is stayed, in connection with any
case commenced by or against the Guarantors or the Borrower under any Debtor
Relief Laws, or otherwise, all such amounts shall nonetheless be payable by the
Guarantor immediately upon demand by the Lender except as otherwise prohibited
by applicable law or court order.
10. Expenses. Guarantor shall pay on demand all out-of-pocket expenses
(including reasonable attorneys' fees and expenses) in any way relating to the
enforcement or protection of the Lenders' rights under this Guaranty or in
respect of the Guaranteed Obligations, including any incurred during any
"workout" or restructuring in respect of the Guaranteed Obligations and any
incurred in the preservation, protection or enforcement of any rights of the
Lenders in any proceeding any Debtor Relief Laws. The obligations of the
Guarantor under this paragraph shall survive the payment in full of the
Guaranteed Obligations and termination of this Guaranty.
11. Miscellaneous. No provision of this Guaranty may be waived, amended,
supplemented or modified, except by a written instrument executed by the Agent,
Required Lenders and the Guarantor. No failure by the Agent or Lenders to
exercise, and no delay in exercising, any right, remedy or power hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy or power hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law or in
equity. The unenforceability or invalidity of any provision of this Guaranty
shall not affect the enforceability or validity any other provision herein.
Unless otherwise agreed by the Agent, Lenders and the Guarantor in writing, this
Guaranty (except as provided in Section 18 hereof) is not intended to supersede
or otherwise affect any other guaranty now or hereafter given by Guarantor for
the benefit of the Lenders or any term or provision thereof.
12. Condition of Borrower. Guarantor acknowledges and agrees that it has
the sole responsibility for, and has adequate means of, obtaining from the
Borrower and any other guarantor such information concerning the financial
condition, business and operations of the Borrower and any such other guarantor
as the Guarantor requires, and that the Agent and the Lenders have no duty, and
the Guarantor is not relying on the Agent and the Lenders at any time, to
disclose to the Guarantor any information relating to the business, operations
or financial condition of the Borrower or any other guarantor (the Guarantor
waiving any duty on the part of the Lender to disclose such information and any
defense relating to the failure to provide the same).
13. Setoff. If and to the extent any payment is not made when due
hereunder, any Lender may setoff and charge from time to time any amount so due
against any or all of any Guarantor's accounts or deposits with such Lender and
notify Guarantor promptly after such setoff.
14. Representations and Warranties. Guarantor hereby represents, warrants,
ratifies, adopts and affirms and shall comply with the representations,
warranties, and covenants made by the Borrower in the Credit Agreement to the
extent that such representations, warranties, and covenants are applicable to
Guarantor, including all of the representations and warranties in Article V of
the Credit Agreement and all of the covenants in Article VI of the Credit
Agreement.
15. Indemnification and Survival. Guarantor agrees to protect, defend,
indemnify, and hold harmless the Administrative Agent, each Lender, and each of
their respective Related Parties (collectively, the "Indemnified Parties"), from
and against all demands, claims, actions, suits, damages, judgments, fines,
penalties, liabilities, and costs and expenses, including reasonable costs of
attorneys and related costs of experts such as accountants (collectively, the
"Indemnified Liabilities"), actually incurred by the Indemnified Parties which
are related to any litigation or proceeding relating to this Agreement, the Loan
Documents, or the transactions contemplated thereunder, INCLUDING INDEMNIFIED
LIABILITIES CAUSED BY ANY INDEMNIFIED PARTIES' OWN NEGLIGENCE, but not
Indemnified Liabilities which are a result of any Indemnified Parties' gross
negligence or willful misconduct. The provisions of this paragraph shall survive
any purported termination of this Agreement and the Loan Documents that does not
expressly reference this paragraph. This Agreement may be executed in multiple
counterparts each of which shall constitute one and the same agreement. All
notices shall be given in the manner required under Section 10.02 of the Credit
Agreement to the following addresses:
If to Guarantor:
CEC Entertainment, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
c/o CEC Entertainment, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Legal Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Administrative Agent:
Bank of America, N.A.,
as Administrative Agent under the Amended and Restated Credit Agreement
dated as of July 18, 2005, among
CEC Entertainment Concepts, L.P., the financial
institutions parties thereto, and the Administrative Agent
▇▇▇ ▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ 1-231-08-30
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
16. GOVERNING LAW; Assignment; Jurisdiction; Notices. THIS GUARANTY SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF TEXAS. This Guaranty shall (a) bind the Guarantors and their successors and
assigns, provided that no Guarantor may assign its rights or obligations under
this Guaranty without the prior written consent of the Agent and Lenders (and
any attempted assignment without such consent shall be void), and (b) inure to
the benefit of the Agent and Lenders and its successors and assigns and the
Agent and Lenders may, without notice to the Guarantors and without affecting
the Guarantors' obligations hereunder, assign, sell or grant participations in
the Guaranteed Obligations and this Guaranty, in whole or in part in accordance
with the Credit Agreement. The Guarantors hereby irrevocably (i) submit to the
non-exclusive jurisdiction of any United States Federal or State court sitting
in Dallas, Texas in any action or proceeding arising out of or relating to this
Guaranty, and (ii) waive to the fullest extent permitted by law any defense
asserting an inconvenient forum in connection therewith. Service of process by
the Lender in connection with such action or proceeding shall be binding on the
Guarantors if sent to the Guarantors by registered or certified mail at its
address specified below or such other address as from time to time notified by
the Guarantors. The Guarantors agree that the Agent or the Lenders may disclose
to any assignee of or participant in, or any prospective assignee of or
participant in, any of its rights or obligations of all or part of the
Guaranteed Obligations any and all information in the Lenders' possession
concerning the Guarantors, this Guaranty and any security for this Guaranty,
provided that such information is disclosed subject to an agreement containing
provisions substantially the same as those of Section 10.07 of the Credit
Agreement. All notices and other communications to the Guarantors under this
Guaranty shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopier to the
Guarantors at their address set forth below or at such other address in the
United States as may be specified by the Guarantor in a written notice delivered
to the Lenders at such office as the Agent or Lenders may designate for such
purpose from time to time in a written notice to the Guarantors. This Guaranty
is subject to the provisions of Section 9.10 of the Credit Agreement.
17. Time is of the Essence. Time is of the Essence in the performance of
this Guaranty.
18. Amendment and Restatement. This Guaranty is executed in amendment and
restatement (but not extinguishment) of that certain Guaranty dated December 2,
2002 by the Guarantor.
19. WAIVER OF JURY TRIAL; FINAL AGREEMENT. TO THE EXTENT ALLOWED BY
APPLICABLE LAW, THE GUARANTORS AND THE LENDERS IRREVOCABLY WAIVE TRIAL BY JURY
WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING ON, ARISING OUT OF OR
RELATING TO THIS GUARANTY OR THE GUARANTEED OBLIGATIONS. THIS GUARANTY
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Executed as of the 18th day of July, 2005.
CEC ENTERTAINMENT, INC., a
Kansas corporation
By:
---------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President and CFO
