SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
(Mark One)
Quarterly Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the Quarterly Period Ended January 31, 2003
or
Transition Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the Transition Period from ________ to _______.
Commission file number 000-25225
CBRL GROUP, INC.
(Exact Name of Registrant as
Specified in Its Charter)
Tennessee 62-1749513
- ------------------------------- -------------------
(State or Other Jurisdiction (IRS Employer
of Incorporation or Organization) Identification No.)
Hartmann Drive, P. O. Box 787
Lebanon, Tennessee 37088-0787
-----------------------------
(Address of Principal Executive Offices)
615-444-5533
------------
(Registrant's Telephone Number, Including Area Code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
------- ----------
49,417,573 Shares of Common Stock
Outstanding as of February 28, 2003
PART I
Item 1. Financial Statements
CBRL GROUP, INC.
CONDENSED CONSOLIDATED BALANCE SHEET
(In thousands, except per share data)
(Unaudited)
January 31, August 2,
2003 2002*
---- ----
ASSETS
Current assets:
Cash and cash equivalents $ 21,578 $ 15,074
Receivables 8,378 8,161
Inventories 106,492 124,693
Prepaid expenses 12,966 12,022
Deferred income taxes 11,632 11,632
---------- ----------
Total current assets 161,046 171,582
Property and equipment - net 1,010,216 984,817
Goodwill - net 92,882 92,882
Other assets 15,918 14,550
---------- ----------
Total assets $1,280,062 $1,263,831
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 44,167 $ 73,806
Accrued expenses 186,666 159,276
Current maturities of long-term debt
and other long-term obligations 87 87
---------- ----------
Total current liabilities 230,920 233,169
---------- ----------
Long-term debt 202,079 194,476
---------- ----------
Other long-term obligations 51,167 53,192
---------- ----------
Shareholders' equity:
Preferred stock - 100,000 shares of $.01 par
value authorized, no shares issued -- --
Common stock - 400,000 shares of $.01 par
value authorized, at January 31, 2003, 49,360
shares issued and outstanding and at August 2, 2002,
50,272 shares issued and outstanding 494 503
Retained earnings 795,402 782,491
---------- ----------
Total shareholders' equity 795,896 782,994
---------- ----------
Total liabilities and shareholders' equity $1,280,062 $1,263,831
========== ==========
See notes to condensed consolidated financial statements.
* This condensed consolidated balance sheet has been derived from the audited
consolidated balance sheet as of August 2, 2002.
CBRL GROUP, INC.
CONDENSED CONSOLIDATED STATEMENT OF INCOME
(In thousands, except per share data)
(Unaudited)
Quarter Ended Six Months Ended
----------------------- ------------------------
January 31, February 1, January 31, February 1,
2003 2002 2003 2002
---- ---- ---- ----
Total revenue $ 563,119 $ 523,599 $1,090,658 $1,019,955
Cost of goods sold 190,112 181,732 356,077 344,932
---------- ---------- ---------- ----------
Gross profit 373,007 341,867 734,581 675,023
Labor & other related expenses 204,920 191,308 404,187 378,203
Other store operating expenses 97,405 88,301 187,985 171,472
---------- ---------- ---------- ----------
Store operating income 70,682 62,258 142,409 125,348
General and administrative 30,317 28,014 64,221 58,748
---------- ---------- ---------- ----------
Operating income 40,365 34,244 78,188 66,600
Interest expense 2,184 1,328 4,445 3,081
Interest income -- -- 73 --
---------- ---------- ---------- ----------
Income before income taxes 38,181 32,916 73,816 63,519
Provision for income taxes 13,555 11,784 26,205 22,740
---------- ---------- ---------- ----------
Net income $ 24,626 $ 21,132 $ 47,611 $ 40,779
========== ========== ========== ==========
Net earnings per share:
Basic $ .50 $ .38 $ .95 $ .74
========== ========== ========== ==========
Diluted $ .48 $ .37 $ .93 $ .72
========== ========== ========== ==========
Weighted average shares:
Basic 49,689 55,498 49,874 55,217
========== ========== ========== ==========
Diluted 51,447 57,595 51,383 56,888
========== ========== ========== ==========
See notes to condensed consolidated financial statements.
CBRL GROUP, INC.
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(In thousands)
(Unaudited)
Six Months Ended
------------------------
January 31, February 1,
2003 2002
---- ----
Cash flows from operating activities:
Net income $ 47,611 $ 40,779
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 32,524 30,019
Loss (gain) on disposition of property and equipment 120 (84)
Accretion on zero-coupon notes 2,603 --
Changes in assets and liabilities:
Inventories 18,201 7,596
Accounts payable (29,639) (17,267)
Other current assets and other current liabilities 26,229 (11,396)
Other assets and other long-term liabilities (4,373) 566
--------- ---------
Net cash provided by operating activities 93,276 50,213
--------- ---------
Cash flows from investing activities:
Purchase of property and equipment (58,458) (45,781)
Proceeds from sale of property and equipment 1,433 1,336
--------- ---------
Net cash used in investing activities (57,025) (44,445)
--------- ---------
Cash flows from financing activities:
Proceeds from issuance of long-term debt 207,100 273,600
Principal payments under long-term debt and other
long-term obligations (202,138) (263,650)
Proceeds from exercise of stock options 20,202 35,950
Purchases and retirement of common stock (53,868) (44,139)
Dividends on common stock (1,043) (1,163)
--------- ---------
Net cash (used in) provided by financing activities (29,747) 598
--------- ---------
Net increase in cash and cash equivalents 6,504 6,366
Cash and cash equivalents, beginning of period 15,074 11,807
--------- ---------
Cash and cash equivalents, end of period $ 21,578 $ 18,173
========= =========
Supplemental disclosures of cash flow information:
Cash paid during the six months for:
Interest $ 817 $ 3,625
========= =========
Income taxes $ 14,516 $ 32,146
========= =========
See notes to condensed consolidated financial statements.
CBRL GROUP, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
- ----------------------------------------------------
(Unaudited)(In thousands)
1. Condensed Consolidated Financial Statements
The condensed consolidated balance sheet as of January 31, 2003 and the
related condensed consolidated statements of income and cash flows for the
quarters and six-month periods ended January 31, 2003 and February 1, 2002, have
been prepared by CBRL Group, Inc. (the "Company") in accordance with accounting
principles generally accepted in the United States of America and pursuant to
the rules and regulations of the Securities and Exchange Commission without
audit; in the opinion of management, all adjustments (consisting of normal and
recurring items) for a fair presentation of such condensed consolidated
financial statements have been made.
These condensed consolidated financial statements should be read in
conjunction with the audited consolidated financial statements and notes thereto
contained in the Company's Annual Report on Form 10-K for the year ended August
2, 2002 filed with the Securities and Exchange Commission on October 25, 2002.
Deloitte & Touche LLP, the Company's independent accountants, have
performed a limited review of the financial information included herein. Their
report on such review accompanies this filing.
2. Income Taxes
The provision for income taxes for the quarter and six-month period ended
January 31, 2003 has been computed based on management's estimate of the tax
rate for the entire fiscal year of 35.5%. The variation between the statutory
tax rate and the effective tax rate is due primarily to employer tax credits for
FICA taxes paid on employee tip income. The Company's effective tax rate for the
quarter and six-month period ended February 1, 2002 was 35.8% and for the entire
fiscal year of 2002 was 35.6%.
As previously discussed in the Company's 2002 Annual Report on Form 10-K,
the Internal Revenue Service has been examining the Company's federal payroll
tax filings for the calendar years ended December 31, 1997 through December 31,
2001. The examination is now limited to the area of FICA taxes paid on
employee-reported tip income. Any assessment of such taxes would result in the
Company reporting the corresponding payment on its Income Statement as an
unusual item below General and Administrative and above Operating Income. During
the same fiscal quarter, the Company would also record a benefit for the same
amount to Provision for Income Taxes. The benefit results from an employer
credit for the FICA taxes paid on tip income; therefore, the Company expects
that a payment, if any, would have no effect on Net Income or Net Income Per
Share as reported by the Company, nor would the Company expect such a payment to
have a material impact on its liquidity and capital resources since the impact
would be expected to be only a timing difference between such payment and its
recovery through reduced future federal income tax payments.
3. Seasonality
The sales and profits of the Company are affected significantly by seasonal
travel and vacation patterns because of the interstate highway locations of its
Cracker Barrel Old Country Store(R) units. Historically, the Company's greatest
sales and profits have occurred during the period of June through August. Early
December through the last part of February, excluding the Christmas holidays,
has historically been a period of low sales and profits although retail revenues
historically have been seasonally highest between Thanksgiving and Christmas.
Therefore, the results of operations for the quarter and six-month period ended
January 31, 2003 cannot be considered indicative of the operating results for
the full fiscal year.
4. Inventories
Inventories were comprised of the following at:
January 31, August 2,
2003 2002
---- ----
Retail $ 73,563 $ 93,066
Restaurant 16,976 16,799
Supplies 15,953 14,828
-------- --------
Total $106,492 $124,693
======== ========
5. Net Income Per Share and Weighted Average Shares
Basic net income per share is computed by dividing income available to
common shareholders by the weighted average number of common shares outstanding
for the reporting period. Diluted net income per share reflects the potential
dilution that could occur if securities, options or other contracts to issue
common stock were exercised or converted into common stock. The Company's
zero-coupon convertible senior notes (see Note 4 to the Company's Consolidated
Financial Statements included in the Company's 2002 Annual Report on Form 10-K
for a description of these notes) represent potential dilutive shares at the
balance sheet date. The effect of the assumed conversion of the zero-coupon
convertible senior notes has been excluded from the calculation of diluted net
income per share for the quarter and six-month period ended January 31, 2003,
because none of the conditions that permit conversion had been satisfied during
the reporting period. Outstanding stock options issued by the Company represent
the only dilutive security reflected in diluted weighted average shares.
6. Comprehensive Income
Comprehensive income is defined as the change in equity of a business
enterprise during a period from transactions and other events and circumstances
from non-owner sources. There is no difference between comprehensive income and
net income as reported by the Company for all periods shown.
7. Segment Reporting
The Company manages its business on the basis of one reportable operating
segment. All of the Company's operations are located within the United States.
The following data are presented in accordance with Statement of Financial
Accounting Standards ("SFAS") No. 131, "Disclosures about Segments of an
Enterprise and Related Information," for all periods presented.
Quarter Ended Six Months Ended
---------------------- ------------------------
January 31, February 1, January 31, February 1,
2003 2002 2003 2002
---- ---- ---- ----
Net sales:
Restaurant $423,524 $391,176 $ 847,266 $ 786,913
Retail 139,315 132,161 242,832 232,560
-------- -------- ---------- ---------
Total net sales 562,839 523,337 1,090,098 1,019,473
Franchise fees and royalties 280 262 560 482
-------- -------- ---------- ----------
Total revenue $563,119 $523,599 $1,090,658 $1,019,955
======== ======== ========== ==========
8. Recently Issued Accounting Pronouncements
Effective August 3, 2002, the Company adopted SFAS No. 143, "Accounting for
Asset Retirement Obligations". SFAS No. 143 requires entities to record
obligations associated with the retirement of a tangible long-lived asset as a
liability upon incurring those obligations, with the amount of the liability
initially measured at fair value. Upon initially recognizing a liability for an
asset retirement obligation ("ARO"), an entity must capitalize the cost by
recognizing an increase in the carrying amount of the related long-lived asset.
Each period, the liability is amortized to its present value and the entity
depreciates the capitalized cost over the remaining useful life of the related
asset. Upon settlement of the liability, an entity either settles the obligation
for its recorded amount or incurs a gain or loss. Upon adoption of SFAS No. 143,
an entity will use a cumulative-effect approach to recognize transition amounts
for existing ARO liabilities, asset retirement costs, and accumulated
depreciation. All transition amounts are to be measured using current
information known as of the adoption date, including current assumptions and
current interest rates. The adoption of SFAS No. 143 did not have a material
impact on the Company's consolidated results of operations or financial
position.
Effective August 3, 2002, the Company adopted SFAS No. 144 "Accounting for
the Impairment or Disposal of Long-Lived Assets". This statement supersedes SFAS
No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed Of" and the accounting and reporting provisions of
Accounting Principles Board Opinion No. 30 "Reporting the Results of
Operations-Reporting the Effects of Disposal of a Segment of a Business, and
Extraordinary, Unusual and Infrequently Occurring Events and Transactions". SFAS
No. 144 retains the fundamental provisions of SFAS No. 121 but eliminates the
requirement to allocate goodwill to long-lived assets to be tested for
impairment. This statement also requires discontinued operations to be carried
at the lower of cost or fair value less costs to sell and broadens the
presentation of discontinued operations to include a component of an entity
rather than a segment of a business. The adoption of SFAS No. 144 did not have a
material impact on the Company's consolidated results of operations or financial
position.
Effective August 3, 2002, the Company adopted SFAS No. 145, "Rescission of
Financial Accounting Standards Board ("FASB") Statements No. 4, 44, 64,
Amendment of FASB Statement No. 13, and Technical Corrections". This statement
rescinds FASB Statement No. 4, "Reporting Gains and Losses from Extinguishment
of Debt", and an amendment of that Statement, FASB Statement No. 64,
"Extinguishments of Debt Made to Satisfy Sinking-Fund Requirements". This
statement also rescinds FASB Statement No. 44, "Accounting for Intangible Assets
of Motor Carriers". This statement amends FASB Statement No. 13, "Accounting for
Leases", to eliminate an inconsistency between the required accounting for
sale-leaseback transactions and the required accounting for certain lease
modifications that have economic effects that are similar to sale-leaseback
transactions. This statement also amends other existing authoritative
pronouncements to make various technical corrections, clarify meanings, or
describe their applicability under changed conditions. The adoption of SFAS No.
145 did not have a material impact on the Company's consolidated results of
operations or financial position.
Effective January 1, 2003, the Company adopted SFAS No. 146, "Accounting
for Costs Associated with Exit or Disposal Activities". This statement nullifies
Emerging Issues Task Force ("EITF") Issue No. 94-3, "Liability Recognition for
Certain Employee Termination Benefits and Other Costs to Exit an Activity
(including Certain Costs Incurred in a Restructuring)". SFAS No. 146 addresses
significant issues regarding the recognition, measurement, and reporting of
costs that are associated with exit and disposal activities, including
restructuring activities that are currently accounted for pursuant to the
guidance in EITF No. 94-3. The scope of SFAS No. 146 also includes (1) costs
related to terminating a contract that is not a capital lease and (2)
termination benefits that employees who are involuntarily terminated receive
under the terms of a one-time benefit arrangement that is not an ongoing benefit
arrangement or an individual deferred-compensation contract. SFAS No. 146 is
effective for exit or disposal activities initiated after December 31, 2002 and
did not have a material impact on the Company's consolidated results of
operations or financial position.
In December 2002, the FASB issued SFAS No. 148, "Accounting for Stock-Based
Compensation-Transition and Disclosure." SFAS No. 148 amends SFAS No. 123,
"Accounting for Stock-Based Compensation," and provides alternative methods of
transition for a voluntary change to the fair value based method of accounting
for stock-based employee compensation. SFAS No. 148 also amends the disclosure
requirements of SFAS No. 123 to require more prominent and frequent disclosures
in financial statements about the effects of stock-based compensation. The
transition guidance and annual disclosure provisions of SFAS No.148 are
effective for financial statements issued for fiscal years ending after December
15, 2002. The interim disclosure provisions are effective for financial reports
containing financial statements for interim periods beginning after December 15,
2002. The Company currently plans to continue accounting for stock-based
employee compensation in accordance with Accounting Principles Board ("APB")
opinion No. 25, "Accounting for Stock Issued to Employees," and related
Interpretations. Therefore, the disclosure provisions of SFAS No. 148 will be
effective for the Company in its third fiscal quarter and the Company currently
does not expect the adoption of this standard to have a material impact on the
Company's consolidated results of operations or financial position. However, the
Company has not yet determined the effect of the adoption of this standard on
the Company's consolidated results of operations or financial position, if the
Company were to elect to make a voluntary change to the fair value based method
of accounting for stock-based employee compensation based upon the alternative
methods of transition under SFAS No. 148.
In November 2002, the FASB issued Interpretation No. 45, "Guarantor's
Accounting and Disclosure Requirements for Guarantees, including Indirect
Guarantees of Indebtedness of Others." Interpretation No. 45 supersedes
Interpretation No. 34, "Disclosure of Indirect Guarantees of Indebtedness of
Others," and provides guidance on the recognition and disclosures to be made by
a guarantor in its interim and annual financial statements about its obligations
under certain guarantees. The initial recognition and measurement provisions of
Interpretation No. 45 are effective for guarantees issued or modified after
December 31, 2002, and are to be applied prospectively. The disclosure
requirements are effective for financial statements for interim or annual
periods ending after December 15, 2002. The Company had no instruments or
guarantees that required additional or enhanced disclosure under this
Interpretation at January 31, 2003, other than those disclosed in Note 10
herein, and no guarantees issued or modified after December 31, 2002 that
required recognition and measurement in accordance with the provisions of this
Interpretation; therefore, the adoption of this Interpretation did not have a
material impact on the Company's consolidated results of operations or financial
position.
In January 2003, the FASB issued Interpretation No. 46, "Consolidation of
Variable Interest Entities, an Interpretation of ARB No. 51." Interpretation No.
46 clarifies the application of Accounting Research Bulletin ("ARB") No. 51,
"Consolidated Financial Statements," to certain entities in which equity
investors do not have the characteristics of a controlling financial interest or
do not have sufficient equity at risk for the entity to finance its activities
without additional subordinated financial support from other parties. FASB
deemed this necessary because application of the majority voting interest
requirement in ARB No. 51 to certain types of entities did not identify the
party with a controlling financial interest because the controlling financial
interest could be achieved through arrangements that did not involve voting
interests. This Interpretation addresses consolidation by business enterprises
of variable interest entities. The initial recognition and measurement
provisions of Interpretation No. 46 are effective for variable interest entities
created after January 31, 2003, and to variable interest entities in which an
enterprise obtains an interest after that date. It applies in the fiscal year or
interim period beginning after June 15, 2003, to variable interest entities in
which an enterprise holds a variable interest that it acquired before February
1, 2003. The disclosure requirements are effective for financial statements
initially issued after January 31, 2003. The Company has determined that it will
not be required to consolidate or disclose information about a variable interest
entity upon the effective date of this Interpretation.
In November 2002, the FASB's Emerging Issues Task Force ("EITF") discussed
Issue No. 02-16, "Accounting by a Reseller for Cash Consideration Received from
a Vendor." Issue No. 02-16 provides guidance on the recognition of cash
consideration received by a customer from a vendor. The consensus reached by the
EITF in November 2002 is effective for fiscal periods beginning after December
15, 2002. Income statements for prior periods are required under certain
circumstances to be reclassified to comply with the consensus. Adoption of the
consensus reached in November 2002 related to Issue No. 02-16 is not expected to
have a material impact on the Company's consolidated results of operations or
financial position.
9. Impairment of Long-lived Assets
The Company evaluates long-lived assets and certain identifiable
intangibles to be held and used in the business for impairment whenever events
or changes in circumstances indicate that the carrying value of an asset may not
be recoverable. An impairment is determined by comparing estimated undiscounted
future operating cash flows to the carrying values of assets on a store by store
basis. If an impairment exists, the amount of impairment is measured as the sum
of the estimated discounted future operating cash flows of such asset and the
expected proceeds upon sale of the asset less its carrying value. Assets held
for sale, if any, are reported at the lower of carrying value or fair value less
costs to sell. The Company recorded no impairment losses in the quarters and
six-month periods ended January 31, 2003 and February 1, 2002. In addition, at
least annually the Company assesses the recoverability of goodwill and other
intangible assets. The impairment tests require the Company to estimate fair
values of its related reporting units by making assumptions regarding future
cash flows and other factors. This valuation may reflect, among other things,
such external factors as capital market valuation for public companies
comparable to the operating unit. If these assumptions change in the future, the
Company may be required to record material impairment charges for these assets.
The Company performed its annual assessment in the second fiscal quarter ending
January 31, 2003, and concluded that there was no current indication of
impairment. This annual assessment will be performed in the fiscal second
quarter of each year. Additionally, an assessment will be performed between
annual assessments if an event occurs or circumstances change that would more
likely than not reduce the fair value of a reporting unit below its carrying
amount.
10. Commitments and Contingencies
In Note 9 to the Consolidated Financial Statements for the fiscal year
ended August 2, 2002 contained in the Company's 2002 Annual Report on Form 10-K
(which is incorporated in this note by this reference), the Company reported
that its Cracker Barrel Old Country Store, Inc. subsidiary ("Cracker Barrel") is
a defendant in four pending lawsuits, one of which has been provisionally
certified as a collective action. The Company believes it has substantial
defenses in each of these actions and is defending each of them vigorously.
Nevertheless, the Company established a reserve of $3,500 in the consolidated
financial statements in the fourth quarter of fiscal 2001 with respect to one of
these lawsuits based on the Company's best estimate of its probable liability in
this matter and offers of judgment to those plaintiffs. None of those offers of
judgment was accepted.
As previously announced (see Note 9 to the Company's 2002 Annual Report on
Form 10-K for the fiscal year ended August 2, 2002 filed on October 25, 2002),
in the NAACP/Thomas public accommodations case, on October 1, 2002, a Federal
District Court issued a ruling granting Cracker Barrel's motion for denial of
class certification. Since no class was certified, there are now 38 individual
public accommodation plaintiffs, against whom the Company believes that Cracker
Barrel has substantial defenses. In addition on December 31, 2002, the
Magistrate in the Rhodes case issued a 180-page proposed ruling, recommending a
denial of class certification in that case. On March 7, 2003, the United States
District Court issued an order adopting the Magistrate's recommendations and
denying class certification.
The Company announced previously that the Housing and Civil Enforcement
Section of the Civil Rights Division of the Department of Justice (the
"Section") has begun an investigation with respect to public accommodation
allegations. The Company continues a dialogue with the Section that, if
unsuccessful, could lead to the Section filing suit under Title II of the Civil
Rights Act of 1964 seeking injunctive relief against Cracker Barrel regarding
its public accommodation compliance. The Section may not seek or obtain monetary
relief for alleged public accommodations non-compliance.
With respect to the non-ordinary course litigation disclosed above, with
the exception of the $3,500 reserve described in the first paragraph, although
any litigation carries with it risk of possible liability, the Company does not
view any such liability in this litigation as probable, nor can it reasonably
estimate the amount of such liability, if any. Accordingly, no provision has
been made in the Company's financial statements for any liability associated
with these matters. In the opinion of management, based upon information
currently available, the ultimate liability with respect to the four lawsuits or
the Section investigation discussed in this Note will not materially affect the
Company's consolidated results or financial position. However, future
developments in any of these proceedings, if adverse, could result in a material
effect on the Company.
In addition to the litigation described in the preceding paragraphs, the
Company and its subsidiaries are parties to other legal proceedings incidental
to their business. In the opinion of management, based upon information
currently available, the ultimate liability with respect to these other actions
will not materially affect the Company's consolidated results of operations or
financial position.
The Company is secondarily liable for lease payments under the terms of an
operating lease that has been assigned to a third party. The operating lease has
a remaining life of approximately 10.5 years with annual lease payments of
approximately $350. The Company's performance is only required if the assignee
fails to perform his obligations as lessee. At this time, the Company has no
reason to believe that the assignee will not perform and, therefore, no
provision has been made in the accompanying financial statements for amounts to
be paid as a result of non-performance by the assignee.
The Company also is secondarily liable for lease payments under the terms
of another operating lease that has been sublet to a third party less than one
year ago. The operating lease has a remaining life of approximately 13.7 years
with annual lease payments of approximately $100. The Company's performance is
only required if the sublessee fails to perform his obligations as lessee. The
Company has a liability of approximately $500 in the accompanying financial
statements, which is comparable with the initial liability recorded at the time
the Company ceased operations at the leased location, for estimated amounts to
be paid in case of non-performance by the sublessee.
11. Subsequent Event
On February 21, 2003, the Company entered into a new five-year $300,000
revolving credit facility and terminated its existing $250,000 revolving credit
facility, which was set to expire on December 31, 2003.
On February 28, 2003, the Company announced that the Board of Directors had
authorized the repurchase of up to an additional 2,000 shares of the Company's
common stock. The purchases are to be made from time to time in the open market
at prevailing market prices. The Company presently expects to complete this new
share repurchase authorization before the end of fiscal 2003, although there can
be no assurance that such repurchase actually will be completed in that period
of time.
12. Reclassifications
Certain reclassifications have been made in the fiscal 2002 financial
statements to conform to the classifications used in fiscal 2003. Total revenues
in the quarter and the six-month period ended February 1, 2002, reflect
reclassifications of $1,097 and $2,240, respectively, of net return fees for the
Cracker Barrel Book-on-Audio program to net sales from other store operating
expenses, where the Company historically had reported the fees as a
miscellaneous income credit to other store operating expenses. This
reclassification had no effect on net income. The amounts of this
reclassification for the third and fourth quarters of fiscal 2002, are $1,077
and $1,575, respectively. Additionally, the balance sheet at August 2, 2002 and
the cash flow statement for the six- month period ended February 1, 2002 reflect
certain other reclassifications. These certain other reclassifications caused a
net increase of $94 to total current assets, total assets, total current
liabilities and total liabilities at August 2, 2002. These certain other
reclassifications had no net effect on net cash provided by operating activities
or the net increase in cash and cash equivalents for the six-month period ended
February 1, 2002.
INDEPENDENT ACCOUNTANTS' REPORT
To the Board of Directors and Shareholders of
CBRL Group, Inc.
Lebanon, Tennessee
We have reviewed the accompanying condensed consolidated balance sheet of CBRL
Group, Inc. and subsidiaries ("the Company") as of January 31, 2003, and the
related condensed consolidated statements of income and cash flows for the
quarters and six-month periods ended January 31, 2003 and February 1, 2002.
These financial statements are the responsibility of the Company's management.
We conducted our review in accordance with standards established by the American
Institute of Certified Public Accountants. A review of interim financial
information consists principally of applying analytical procedures to financial
data and of making inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit conducted in accordance
with auditing standards generally accepted in the United States of America, the
objective of which is the expression of an opinion regarding the financial
statements taken as a whole. Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to such condensed consolidated financial statements for them to be in
conformity with accounting principles generally accepted in the United States of
America.
We have previously audited, in accordance with auditing standards generally
accepted in the United States of America, the consolidated balance sheet of CBRL
Group, Inc. and subsidiaries as of August 2, 2002, and the related consolidated
statements of income, changes in shareholders' equity, and cash flows for the
year then ended (not presented herein); and in our report dated September 12,
2002, we expressed an unqualified opinion on those consolidated financial
statements. In our opinion, the information set forth in the accompanying
condensed consolidated balance sheet as of August 2, 2002 is fairly stated, in
all material respects, in relation to the consolidated balance sheet from which
it has been derived.
DELOITTE & TOUCHE LLP
Nashville, Tennessee
March 13, 2003
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
All amounts reported or discussed in Part I, Item 2 of this Quarterly
Report on Form 10-Q are shown in thousands, except dollar amounts per share. The
following discussion and analysis provides information which management believes
is relevant to an assessment and understanding of the Company's consolidated
results of operations and financial condition. The discussion should be read in
conjunction with the condensed consolidated financial statements and notes
thereto. Except for specific historical information, many of the matters
discussed in this Form 10-Q may express or imply projections of revenues or
expenditures, statements of plans and objectives or future operations or
statements of future economic performance. These, and similar statements are
forward-looking statements concerning matters that involve risks, uncertainties
and other factors which may cause the actual performance of the Company to
differ materially from those expressed or implied by these statements. All
forward-looking information is provided by the Company pursuant to the safe
harbor established under the Private Securities Litigation Reform Act of 1995
and should be evaluated in the context of these factors. Forward-looking
statements generally can be identified by the use of forward-looking terminology
such as "assumptions", "target", "guidance", "outlook", "plans", "projection",
"may", "will", "would", "expect", "intend", "estimate", "anticipate", "believe",
"potential" or "continue" (or the negative or other derivatives of each of these
terms) or similar terminology. Factors which will affect actual results include,
but are not limited to: adverse general economic conditions including uncertain
consumer confidence effects on sales; weather conditions and customer travel
activity; practical or psychological effects of terrorist acts and war or
military or government responses; commodity, workers' compensation, group health
and utility price changes; the effects of plans intended to improve operational
execution and performance; the effects of increased competition at Company
locations on sales and on labor recruiting, cost, and retention; the ability of
and cost to the Company to recruit, train, and retain qualified restaurant
hourly and management employees; the ability of the Company to identify
successful new lines of retail merchandise; the availability and cost of
acceptable sites for development; the acceptance of the Company's concepts as
the Company continues to expand into new markets and geographic regions; changes
in interest rates affecting the Company's financing costs; increases in
construction costs; changes in or implementation of additional governmental or
regulatory rules, regulations and interpretations affecting accounting, tax,
wage and hour matters, health and safety, pensions and insurance; the actual
results of pending or threatened litigation or governmental investigations and
the costs and effects of negative publicity associated with these activities;
changes in generally accepted accounting principles or changes in capital market
conditions that could affect valuations of restaurant companies in general or
the Company's goodwill in particular; other undeterminable areas of government
or regulatory actions or regulations; and other factors described from time to
time in the Company's filings with the Securities and Exchange Commission, press
releases, and other communications.
Results of Operations
The following table highlights operating results by percentage
relationships to total revenue for the quarter and six-month period ended
January 31, 2003 as compared to the same periods a year ago:
Quarter Ended Six Months Ended
----------------------- -----------------------
January 31, February 1, January 31, February 1,
2003 2002 2003 2002
---- ---- ---- ----
Total revenue 100.0% 100.0% 100.0% 100.0%
Cost of goods sold 33.8 34.7 32.6 33.8
----- ----- ----- -----
Gross profit 66.2 65.3 67.4 66.2
Labor & other related expenses 36.4 36.5 37.1 37.1
Other store operating expenses 17.3 16.9 17.2 16.8
----- ----- ----- -----
Store operating income 12.5 11.9 13.1 12.3
General and administrative 5.4 5.4 5.9 5.8
----- ----- ----- -----
Operating income 7.1 6.5 7.2 6.5
Interest expense 0.3 0.2 0.4 0.3
Interest income -- -- -- --
----- ----- ----- -----
Income before income taxes 6.8 6.3 6.8 6.2
Provision for income taxes 2.4 2.3 2.4 2.2
----- ----- ----- -----
Net income 4.4% 4.0% 4.4% 4.0%
===== ===== ===== =====
The following table highlights the components of total revenue by
percentage relationships to total revenue for the quarter and six-month period
ended January 31, 2003 as compared to the same periods a year ago:
Quarter Ended Six Months Ended
------------------------ ------------------------
January 31, February 1, January 31, February 1,
2003 2002 2003 2002
---- ---- ---- ----
Net sales:
Restaurant 75.2% 74.7% 77.7% 77.2%
Retail 24.7 25.2 22.2 22.8
----- ----- ----- -----
Total net sales 99.9 99.9 99.9 100.0
Franchise fees and royalties 0.1 0.1 0.1 0.0
----- ----- ----- -----
Total revenue 100.0% 100.0% 100.0% 100.0%
===== ===== ===== =====
Comparable Store Average Sales Analysis
Quarter Ended Six Months Ended
----------------------- -----------------------
January 31, February 1, January 31, February 1,
2003 2002 2003 2002
---- ---- ---- ----
Cracker Barrel (436 and 430 stores
for the quarter and six
months, respectively)
Net sales:
Restaurant $ 760.5 $ 745.7 $1,547.5 $1,520.9
Retail 295.9 295.3 519.2 520.9
-------- -------- -------- --------
Total net sales $1,056.4 $1,041.0 $2,066.7 $2,041.8
======== ======== ======== ========
Logan's (75 and 71 restaurants for $ 726.5 $ 723.2 $1,447.8 $1,445.7
======== ======== ======== ========
the quarter and six months,
respectively)
Total Revenue
Total revenue for the second quarter of fiscal 2003 increased 7.5% compared
to last year's second quarter. Comparable store sales results reflected
difficult comparisons to the second quarter of fiscal 2002, which benefited from
unusually mild winter weather. At the Cracker Barrel Old Country Store(R)
("Cracker Barrel") concept, comparable store restaurant sales increased 2.0%,
and comparable store retail sales increased 0.2%(compared with increases of 7.8%
and 4.3%, respectively, in the year ago quarter), resulting in a combined
comparable store sales (total net sales) increase of 1.5%. The comparable store
restaurant sales increase consisted of a 2.8% average check increase for the
quarter (on a 1.6% menu price increase) partially offset by a 0.8% guest traffic
decrease. The comparable store retail sales increase is believed primarily to
reflect the effect of Cracker Barrel taking markdowns on holiday merchandise
prior to the holiday versus a year ago partially offset by the effect of the
weak economic environment on consumer sentiment. At the Logan's Roadhouse(R)
("Logan's") concept, comparable restaurant sales increased 0.5% (compared with a
3.6% increase in the second quarter last year), which consisted of a 2.1%
average check increase (on a 1.1% menu price increase) partially offset by a
1.6% guest traffic decrease. Comparable store restaurant sales were also
affected by severe winter weather, especially late in January, with an estimated
reduction in revenue of as much as 1% for the full quarter. Sales from newly
opened Cracker Barrel stores and Logan's restaurants primarily accounted for the
balance of the total revenue increase in the second quarter.
Total revenue for the six-month period ended January 31, 2003, increased
6.9% compared to the six-month period ended February 1, 2002. At Cracker Barrel,
comparable store restaurant sales increased 1.8%, and comparable store retail
sales decreased 0.4%, resulting in a combined comparable store sales (total net
sales) increase of 1.2%. The comparable store restaurant sales increase
consisted of a 2.1% average check increase for the quarter (on a 1.2% menu price
increase) partially offset by a 0.3% guest traffic decrease. The comparable
store retail sales decrease is believed primarily to reflect the effect of the
weak economic environment on consumer sentiment. At Logan's, comparable
restaurant sales increased 0.1%, which consisted of a 1.5% average check
increase (on a 1.1% menu price increase) partially offset by a 1.4% guest
traffic decrease. Sales from newly opened Cracker Barrel stores and Logan's
restaurants primarily accounted for the balance of the total revenue increase in
the six-month period ended January 31, 2003.
Cost of Goods Sold
Cost of goods sold as a percentage of total revenue for the second quarter
of fiscal 2003 decreased to 33.8% from 34.7% in the second quarter of last year.
This decrease was due primarily to lower commodity costs for orange juice and
certain pork and dairy products versus the prior year, higher menu pricing,
higher initial mark-ons of retail merchandise, lower retail shrink and in-store
damages, a lower mix of retail sales as a percent of total revenues (retail has
a higher product cost than restaurant) and improvements in restaurant-level
execution. These decreases were partially offset by higher commodity costs for
beef, poultry and butter and higher markdowns of retail merchandise versus the
prior year, including the retail markdown effect of a pre-holiday markdown
strategy on seasonal and certain other retail goods.
Cost of goods sold as a percentage of total revenue for the six-month
period ended January 31, 2003, decreased to 32.6% from 33.8% in the six-month
period ended February 1, 2002. This decrease was due primarily to lower
commodity costs for orange juice and certain pork and dairy products versus the
prior year, higher menu pricing, higher initial mark-ons of retail merchandise,
lower retail shrink and in-store damages, a lower mix of retail sales as a
percent of total revenues (retail has a higher product cost than restaurant) and
improvements in restaurant-level execution. These decreases were offset
partially by higher markdowns of retail merchandise versus the prior year,
including the retail markdown effect of a pre-holiday markdown strategy on
seasonal and certain other retail goods.
Labor and Other Related Expenses
Labor and other related expenses include all direct and indirect labor and
related costs incurred in store operations. Labor and other related expenses as
a percentage of total revenue decreased to 36.4% in the second quarter this year
from 36.5% last year. This decrease was due primarily to higher menu pricing,
lower hourly labor expenses as a percent of revenue and decreased compensation
under unit-level bonus programs. The lower hourly labor was due to improved
labor productivity and slight hourly wage deflation versus the prior year at
Cracker Barrel. These improvements resulted from management efforts to control
wage increases, new hire wages, and overtime, as well as generally lower
competitive wage increase pressure, offset partially by hourly wage inflation at
Logan's of approximately 2%. These decreases were offset partially by increases
in manager wages, increased workers' compensation costs and increased group
health costs from last year.
Labor and other related expenses as a percentage of total revenue remained
unchanged at 37.1% in the six-month period ended January 31, 2003, as compared
to the six-month period ended February 1, 2002. Decreases from higher menu
pricing, lower hourly labor and decreased compensation under unit-level bonus
programs were offset by increases in manager wages, increased workers'
compensation costs and increased group health costs.
Other Store Operating Expenses
Other store operating expenses include all unit-level operating costs, the
major components of which are operating supplies, repairs and maintenance,
advertising expenses, utilities, rent, depreciation, general insurance, credit
card fees and pre-opening expenses other than labor-related. Other store
operating expenses as a percentage of total revenue increased to 17.3% in the
second quarter of fiscal 2003 from 16.9% in the second quarter of last year.
This increase was due primarily to higher utility costs, advertising and
maintenance versus the prior year. These increases were offset partially by
higher menu pricing and lower general liability insurance costs versus the prior
year.
Other store operating expenses as a percentage of total revenue increased
to 17.2% in the six-month period ended January 31, 2003, from 16.8% in the
six-month period ended February 1, 2002. This increase was due primarily to
higher maintenance and advertising versus the prior year. These increases were
offset partially by higher menu pricing and lower general liability insurance
costs versus the prior year.
General and Administrative Expenses
General and administrative expenses as a percentage of total revenue
remained unchanged at 5.4% in the second quarter of fiscal 2003 as compared to
the second quarter of last year. Higher professional fees versus the prior year
were offset by higher menu pricing and lower costs related to corporate level
incentive plans versus the prior year.
General and administrative expenses as a percentage of total revenue
increased to 5.9% in the six-month period ended January 31, 2003, from 5.8% in
the six-month period ended February 1, 2002. This increase was due primarily to
higher professional fees versus the prior year and higher costs for store
manager conferences versus a year ago offset partially by higher menu pricing.
Interest Expense
Interest expense increased to $2,184 and $4,445 in the second quarter and
the first six months of fiscal 2003, respectively, from $1,328 and $3,081 in the
same periods last year. The increases resulted primarily from higher average
outstanding debt during the second quarter and first six months of fiscal 2003
as compared to last year and was offset partially by lower average interest
rates as compared to last year.
Interest Income
The Company did not recognize any interest in the second quarters of fiscal
2003 and 2002, as well as the first six months of fiscal 2002. The Company's
interest income was $73 in the first six months of fiscal 2003. The increase for
the first six months of fiscal 2003 was due primarily to higher average funds
available for investment during the first quarter of fiscal 2003 as compared to
last year.
Provision for Income Taxes
The provision for income taxes as a percent of pre-tax income decreased to
35.5% in the second quarter and the first six months of fiscal 2003 from 35.8%
during the same periods a year ago and from 35.6% for the entire fiscal year of
2002. The variation between the statutory tax rate and the effective tax rate is
due primarily to employer tax credits for FICA taxes paid on employee tip
income. The primary reason for the decreases in the tax rate from the prior year
was decreases in effective state tax rates.
As previously discussed in the Company's 2002 Annual Report on Form 10-K,
the Internal Revenue Service has been examining the Company's federal payroll
tax filings for the calendar years ended December 31, 1997 through December 31,
2001 primarily relating to FICA taxes paid on employee-reported tip income. The
examination is now limited to FICA taxes paid on employee-reported tip income.
Any assessment of such taxes would result in the Company reporting the
corresponding payment on its Income Statement as an unusual item below General
and Administrative and above Operating Income. The Company would be entitled to
receive an employer credit for the FICA taxes paid on tip income. The Company
would record this corresponding benefit in the same amount as the payment to
Provision for Income Taxes, during the same fiscal quarter. Therefore, the
Company would expect that a payment, if any, would have no effect on Net Income
or Net Income Per Share as reported by the Company, nor would the Company expect
such a payment to have a material impact on its liquidity and capital resources
since the impact would be expected to be only a timing difference between such
payment and its recovery through reduced future federal income tax payments.
Critical Accounting Policies
The Company prepares its consolidated financial statements in conformity
with accounting principles generally accepted in the United States of America.
The preparation of these financial statements requires the Company to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements, and the reported amounts of revenues and expenses
during the reporting period (see Note 2 to the Company's Consolidated Financial
Statements included in the Company's 2002 Annual Report on Form 10-K). Actual
results could differ from those estimates. Critical accounting policies are
those that management believes are both most important to the portrayal of the
Company's financial condition and operating results, and require management's
most difficult, subjective or complex judgments, often as a result of the need
to make estimates about the effect of matters that are inherently uncertain. The
Company bases its estimates on historical experience and on various other
assumptions that are believed to be reasonable under the circumstances, the
results of which form the basis for making judgments about the carrying value of
assets and liabilities that are not readily apparent from other sources.
Judgments and uncertainties affecting the application of those policies may
result in materially different amounts being reported under different conditions
or using different assumptions. The Company considers the following policies to
be most critical in understanding the judgments that are involved in preparing
its consolidated financial statements.
Impairment of Long-Lived Assets
The Company assesses the impairment of long-lived assets whenever events or
changes in circumstances indicate that the carrying value may not be
recoverable. Recoverability of assets is measured by comparing the carrying
value of the asset to the undiscounted future cash flows expected to be
generated by the asset. If the total future cash flows are less than the
carrying amount of the asset, the carrying amount is written down to the
estimated fair value of an asset to be held and used or over the fair value, net
of estimated costs of disposal, of an asset to be disposed of, and a loss
resulting from value impairment is recognized by a charge to earnings. Judgments
and estimates made by the Company related to the expected useful lives of
long-lived assets are affected by factors such as changes in economic conditions
and changes in operating performance. As the Company assesses the ongoing
expected cash flows and carrying amounts of its long-lived assets, these factors
could cause the Company to realize a material impairment charge. From time to
time the Company has decided to exit from or dispose of certain operating units.
Typically, such decisions are made based on operating performance or strategic
considerations and must be made before the actual costs or proceeds of
disposition are known, and management must make estimates of these outcomes.
Such outcomes could include the sale of a property or leasehold, mitigating
costs through a tenant or subtenant, or negotiating a buyout of a remaining
lease term. In these instances management evaluates possible outcomes,
frequently using outside real estate and legal advice, and records in the
financial statements provisions for the effect of such outcomes. The accuracy of
such provisions can vary materially from original estimates, and management
regularly monitors the adequacy of the provisions until final disposition
occurs. In addition, at least annually the Company assesses the recoverability
of goodwill and other intangible assets. The impairment tests require the
Company to estimate fair values of its related reporting units by making
assumptions regarding future cash flows and other factors. This valuation may
reflect, among other things, such external factors as capital market valuation
for public companies comparable to the operating unit. If these assumptions
change in the future, the Company may be required to record material impairment
charges for these assets. The Company performed its annual assessment in the
second fiscal quarter ending January 31, 2003, and concluded that there was no
current indication of impairment.. This annual assessment will be performed in
the fiscal second quarter of each year. Additionally, an assessment will be
performed between annual assessments if an event occurs or circumstances change
that would more likely than not reduce the fair value of a reporting unit below
its carrying amount.
Insurance Reserves
The Company self-insures a significant portion of expected losses under its
workers' compensation, general liability and health insurance programs. The
Company has purchased insurance for individual claims that exceed $250 for
workers' compensation and general liability insurance prior to fiscal 2003, but
has now increased this amount to $500. The Company elected not to purchase such
insurance for its primary group health program, but its offered benefits are
limited to not more than $1,000 lifetime for any employee (including dependents)
in the program. The Company records a liability for workers' compensation and
general liability for all unresolved claims and for an estimate of incurred but
not reported claims at the anticipated cost to the Company based upon an
actuarially determined reserve as of the end of the Company's third fiscal
quarter and adjusting it by the actuarially determined losses and actual claims
payments for the subsequent fiscal quarters until the next annual, actuarial
study of its reserve requirements. Those reserves and these losses are
determined actuarially from a range of possible outcomes within which no given
estimate is more likely than any other estimate. In accordance with SFAS No. 5,
the Company records the losses at the low end of that range and discounts them
to present value using a risk-free interest rate based on the actuarially
projected timing of payments. The Company also monitors actual claims
development, including incurrence or settlement of individual large claims
during the interim period between actuarial studies as another means of
estimating the adequacy of its reserves. From time to time the Company has
performed limited scope interim updates of its actuarial studies to verify
and/or modify its reserves. The Company records a liability for its group health
program for all unpaid claims based primarily upon a loss development analysis
derived from actual group health claims payment experience provided by the
Company's third party administrator. The Company's accounting policies regarding
insurance reserves include certain actuarial assumptions and management
judgments regarding economic conditions, the frequency and severity of claims
and claim development history and settlement practices. Unanticipated changes in
these factors may produce materially different amounts of expense that would be
reported under these insurance programs.
Tax Provision
The Company must make estimates of certain items that comprise its income
tax provision. These estimates include effective state and local income tax
rates, employer tax credits for items such as FICA taxes paid on tip income,
Work Opportunity and Welfare to Work, as well as estimates related to certain
depreciation and capitalization policies. These estimates are made based on the
best available information at the time of the provision and historical
experience. The Company files its income tax returns many months after its
fiscal year end. These returns are subject to audit by various federal and state
governments years after the returns are filed and could be subject to differing
interpretations of the tax laws. The Company then must assess the likelihood of
successful legal proceedings or reach a settlement with the relevant taxing
authority, either of which could result in material adjustments to the Company's
consolidated financial statements and its consolidated financial position. See
Note 2 to the Company's Condensed Consolidated Financial Statements filed herein
and Note 7 to the Company's Consolidated Financial Statements included in the
Company's 2002 Annual Report on Form 10-K filed on October 25, 2002.
Legal Proceedings
As discussed in Note 10 to the Company's Condensed Consolidated Financial
Statements filed with this Quarterly Report and more fully discussed in Note 9
to the Company's Consolidated Financial Statements included in the Company's
2002 Annual Report on Form 10-K filed on October 25, 2002, the Company reported
that its Cracker Barrel Old Country Store, Inc. subsidiary is subject to an
investigation and certain lawsuits, one of which has been provisionally
certified as a collective action. As is more fully discussed in these footnotes,
the Company believes it has substantial defenses in these lawsuits and intends
to continue to defend each of them vigorously. Except for a $3,500 reserve
accrual, there currently is no provision for any potential liability with
respect to these matters in the Company's Condensed Consolidated Financial
Statements. However, future developments in any of these proceedings, if
adverse, could result in a material effect on the Company.
In addition to the litigation described in the proceeding paragraph, the
Company and its subsidiaries are party to other legal proceedings incidental to
their business. In the opinion of management, based upon information currently
available, the ultimate liability with respect to these other actions will not
materially affect the Company's consolidated results of operations or financial
position.
Impact of Recent Accounting Pronouncements Not Yet Adopted
In December 2002, the FASB issued SFAS No. 148, "Accounting for Stock-Based
Compensation-Transition and Disclosure." SFAS No. 148 amends SFAS No. 123,
"Accounting for Stock-Based Compensation," and provides alternative methods of
transition for a voluntary change to the fair value based method of accounting
for stock-based employee compensation. SFAS No. 148 also amends the disclosure
requirements of SFAS No. 123 to require more prominent and frequent disclosures
in financial statements about the effects of stock-based compensation. The
transition guidance and annual disclosure provisions of SFAS No.148 are
effective for financial statements issued for fiscal years ending after December
15, 2002. The interim disclosure provisions are effective for financial reports
containing financial statements for interim periods beginning after December 15,
2002. The Company currently plans to continue accounting for stock-based
employee compensation in accordance with APB opinion No. 25, "Accounting for
Stock Issued to Employees," and related Interpretations. Therefore, the
disclosure provisions of SFAS No. 148 will be effective for the Company in its
third fiscal quarter and the Company currently does not expect the adoption of
this standard to have a material impact on the Company's consolidated results of
operations or financial position. However, the Company has not yet determined
the effect of the adoption of this standard on the Company's consolidated
results of operations or financial position, if the Company were to elect to
make a voluntary change to the fair value based method of accounting for
stock-based employee compensation based upon the alternative methods of
transition under SFAS No. 148.
In November 2002, the FASB issued Interpretation No. 45, "Guarantor's
Accounting and Disclosure Requirements for Guarantees, including Indirect
Guarantees of Indebtedness of Others." Interpretation No. 45 supersedes
Interpretation No. 34, "Disclosure of Indirect Guarantees of Indebtedness of
Others," and provides guidance on the recognition and disclosures to be made by
a guarantor in its interim and annual financial statements about its obligations
under certain guarantees. The initial recognition and measurement provisions of
Interpretation No. 45 are effective for guarantees issued or modified after
December 31, 2002, and are to be applied prospectively. The disclosure
requirements are effective for financial statements for interim or annual
periods ending after December 15, 2002. The Company had no instruments or
guarantees that required additional or enhanced disclosure under this
Interpretation at January 31, 2003, other than those disclosed in Note 10 to the
Company's Condensed Consolidated Financial Statements filed in Part I, Item I of
this Quarterly Report on Form 10-Q, and no guarantees issued or modified after
December 31, 2002 that required recognition in accordance with the provisions of
this Interpretation; therefore, the adoption of this Interpretation did not have
a material impact on the Company's consolidated results of operations or
financial position.
In January 2003, the FASB issued Interpretation No. 46, "Consolidation of
Variable Interest Entities, an Interpretation of ARB No. 51." Interpretation No.
46 clarifies the application of Accounting Research Bulletin ("ARB") No. 51,
"Consolidated Financial Statements," to certain entities in which equity
investors do not have the characteristics of a controlling financial interest or
do not have sufficient equity at risk for the entity to finance its activities
without additional subordinated financial support from other parties, since the
application of the majority voting interest requirement in ARB No. 51 to certain
types of entities may not identify the party with a controlling financial
interest because the controlling financial interest may be achieved through
arrangements that do not involve voting interests. This Interpretation addresses
consolidation by business enterprises of variable interest entities. The initial
recognition and measurement provisions of Interpretation No. 46 are effective
for variable interest entities created after January 31, 2003, and to variable
interest entities in which an enterprise obtains an interest after that date. It
applies in the fiscal year or interim period beginning after June 15, 2003, to
variable interest entities in which an enterprise holds a variable interest that
it acquired before February 1, 2003. The disclosure requirements are effective
for financial statements initially issued after January 31, 2003. The Company
has determined that it will not be required to consolidate or disclose
information about a variable interest entity upon the effective date of this
Interpretation.
In November 2002, the FASB's Emerging Issues Task Force ("EITF") discussed
Issue No. 02-16, "Accounting by a Reseller for Cash Consideration Received from
a Vendor." Issue No. 02-16 provides guidance on the recognition of cash
consideration received by a customer from a vendor. The consensus reached by the
EITF in November 2002 is effective for fiscal periods beginning after December
15, 2002. Income statements for prior periods are required to be reclassified to
comply with the consensus. Adoption of the consensus reached in November 2002
related to Issue No. 02-16 is not expected to have a material impact on the
Company's consolidated results of operations or financial position.
Liquidity and Capital Resources
The Company's operating activities provided net cash of $93,276 for the
six-month period ended January 31, 2003 increased from the $50,213 provided
during the same period a year ago. This increase was due primarily to increases
in net income and depreciation and amortization, decreases in inventories and
income tax payments and increases in deferred revenues related to higher gift
card sales, partially offset by decreases in accounts payable. Most of the
$93,276 in net cash from operating activities was provided by net income
adjusted for depreciation and amortization. Cash used for increases in other
current assets and other assets and decreases in accounts payable and other
long-term liabilities was offset partially by cash provided by decreases in
inventories and increases in other current liabilities.
The Company had negative working capital of $69,874 at January 31, 2003
versus negative working capital of $61,587 at August 2, 2002. In the restaurant
industry, substantially all sales are either for cash or credit card. Like many
other restaurant companies, the Company is able to, and may from time to time,
operate with negative working capital. Restaurant inventories purchased through
the Company's principal food distributor are on terms of net zero days, while
restaurant inventories purchased locally generally are financed from normal
trade credit. Retail inventories purchased domestically generally are financed
from normal trade credit, while imported retail inventories generally are
purchased through letters of credit and wire transfers. These various trade
terms are aided by rapid turnover of the restaurant inventory. Employees
generally are paid on weekly, bi-weekly or semi-monthly schedules in arrears of
hours worked, and certain expenses such as certain taxes and some benefits are
deferred for longer periods of time.
Capital expenditures were $58,458 for the six-month period ended January
31, 2003 as compared to $45,781 during the same period a year ago. This increase
was due primarily to an increase in the average number of new locations under
construction versus the same period a year ago. Construction of new locations
accounted for most of these expenditures and for most of the increase.
Capitalized interest was $120 and $241 for the quarter and six-month period
ended January 31, 2003, as compared to $87 and $197 for the quarter and
six-month period ended February 1, 2002, respectively. This difference was due
primarily to an increase in the average number of new locations under
construction versus the same period a year ago offset partially by lower
borrowing costs as compared to a year ago.
The Company's internally generated cash, along with cash at August 2, 2002,
the Company's available revolver and real estate operating lease arrangements,
were sufficient to finance all of its growth in the first six months of fiscal
2003.
The Company estimates that its capital expenditures for fiscal 2003 will be
approximately $120,000 to $125,000, most of which will be related to the
construction of new Cracker Barrel stores and new Logan's restaurants. The
Company expects to open 23 new Cracker Barrel stores and 12 new company-operated
Logan's restaurants in fiscal 2003.
Long-term debt outstanding consisted of the following at:
January 31, August 2,
2003 2002
- --------------------------------------------------------------------------------
Revolving Credit Facility payable on or before
December 31, 2003 (4.25% at January 1, 2003
and rates ranging from 3.06% to 4.75% at
August 2, 2002) $ 25,000 $ 20,000
3.0% Zero-Coupon Contingently Convertible Senior
Notes payable on or before April 2, 2032 177,079 174,476
-------- --------
Long-term debt $202,079 $194,476
======== ========
On February 21, 2003, the Company entered into a new five-year $300,000
revolving credit facility and terminated its existing $250,000 revolving credit
facility, which was set to expire on December 31, 2003. The new facility has
substantially the same terms as the prior facility; however, there is a slightly
more favorable credit spread grid, as well as certain less restrictive
covenants.
On September 12, 2002, the Company announced that the Board of Directors
had authorized the repurchase of up to 2,000 shares of the Company's common
stock. The purchases were to be made from time to time in the open market at
prevailing market prices. During the second quarter, the Company completed that
share repurchase authorization by repurchasing the remaining 1,228 shares of its
common stock not repurchased during the first quarter. This 2,000 share
repurchase authorization was completed for total consideration of $53,868 or
$26.93 per share.
On February 28, 2003, the Company announced that the Board of Directors had
authorized the repurchase of up to an additional 2,000 shares of the Company's
common stock. The purchases are to be made from time to time in the open market
at prevailing market prices. The Company presently expects to complete this new
share repurchase authorization before the end of fiscal 2003, although there can
be no assurance that these expected repurchases actually will be completed in
that period of time.
During the first six months of fiscal 2003, the Company received proceeds
of $20,202 from the exercise of stock options on 1,088 shares of its common
stock. During the second quarter of fiscal 2003, the Company declared and paid
its annual dividend of $.02 per share.
Management believes that cash at January 31, 2003, along with cash
generated from the Company's operating activities and its available revolving
credit facility, as well as financing obtained through real estate operating
leases, will be sufficient to finance its continued operations, its new share
repurchase authorization and its continued expansion plans through fiscal 2004.
At January 31, 2003, the Company had $225,000 available under its then existing
revolving credit facility. The Company estimates that it will generate excess
cash of more than $60,000 before proceeds from the exercise of stock options and
after capital expenditures in fiscal 2003 which it presently intends to apply
toward its current and recently completed share repurchase authorizations, debt
reduction or other purposes. The Company's principal criteria for share
repurchases are that they be accretive to earnings per share and that they do
not unfavorably affect the Company's investment grade debt rating and target
capital structure. The Company's target capital structure includes the estimated
effect of off-balance sheet real estate operating leases on its long-term debt
and its total capitalization. The Company's target capital structure is
approximately 35% for the ratio of lease-adjusted debt to lease-adjusted total
capitalization.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
Item 7A of the Company's Annual Report on Form 10-K for the fiscal year
ended August 2, 2002, and filed with the Commission on October 25, 2002, is
incorporated in this item of this report by this reference.
Item 4. Controls and Procedures
Within the 90-day period prior to the filing of this report, an evaluation
was made under the supervision and with the participation of the Company's
management, including its Chief Executive Officer and Chief Financial Officer,
of the effectiveness of the design and operation of its disclosure controls and
procedures, as defined in Rule 13a-14(c) promulgated under the Securities
Exchange Act of 1934 (the "Exchange Act"). Based upon that evaluation, the Chief
Executive Officer and Chief Financial Officer concluded that the design and
operation of these disclosure controls and procedures are effective for the
purposes set forth in the definition of "disclosure controls and procedures" in
Exchange Act Rule 13a-14(c). There have been no significant changes in the
Company's internal controls or in other factors that could significantly affect
these controls subsequent to the date of their evaluation.
PART II
Item 1. Legal Proceedings
-----------------
Part I, Item 3 of the Company's Annual Report on Form 10-K
(the "Annual Report") for the fiscal year ended August 2, 2002
(filed with the Commission on October 25, 2002) is
incorporated in this Form 10-Q by this reference. Since the
filing of the Annual Report, the following has occurred with
respect to the legal proceedings described therein:
Rhodes - On December 31, 2002, the Magistrate issued a
180-page proposed ruling recommending a denial of class
certification in this case. On March 7, 2003, the United
States District Court issued an order adopting the
Magistrate's recommendations and denying class certification.
NAACP/Thomas - On October 1, 2002, the United State District
Court granted Cracker Barrel's Rule 23 (c) Motion for Denial
of Class Certification. Since no class was certified, there
are now 38 individual public accommodation plaintiffs. The
Company believes that its subsidiary has substantial defenses
against each of these claims.
See also Note 10 to the Company's Condensed Consolidated
Financial Statements filed in Part I, Item I of this Quarterly
Report on Form 10-Q, which also is incorporated in this item
by this reference.
Item 4. Submission of Matters to a Vote of Security Holders
---------------------------------------------------
Part II, Item 4 of the Company's Quarterly Report on Form 10-Q
for the Quarterly Period ended November 1, 2002 (filed with
the Commission on December 6, 2002) is incorporated herein by
this reference.
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
(a) The following exhibits are filed pursuant to Item 601 of
Regulation S-K
(10) $300,000,000 Revolving Credit Loan Agreement dated
February 21, 2003.
(15) Letter regarding unaudited financial information.
(b) The following Current Reports on Form 8-K were furnished
during the quarter for which this report is filed:
Form 8-K dated November 21, 2002, reporting under
Item 9 the issuance of a press release announcing the
Company's fiscal 2003 first quarter earnings, current
sales trends and earnings guidance for the second
quarter of fiscal 2003.
Form 8-K dated November 27, 2002, reporting under,
Item 9 the issuance of a press release announcing an
annual cash dividend.
Form 8-K dated January 16, 2003, reporting under Item
9 the issuance of a press release announcing the
Company's fiscal 2003 second quarter-to-date sales
trends and an update to its earnings guidance for the
second quarter of fiscal 2003.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934 the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CBRL GROUP, INC.
Date: 3/13/03 By /s/Lawrence E. White
------- --------------------------------------------------
Lawrence E. White, Senior Vice President, Finance
and Chief Financial Officer
Date: 3/13/03 By /s/Patrick A. Scruggs
------- --------------------------------------------------
Patrick A. Scruggs, Assistant Treasurer
and Chief Accounting Officer
CERTIFICATIONS
I, Michael A. Woodhouse, certify that:
1. I have reviewed this quarterly report on Form 10-Q of CBRL Group, Inc.;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all
material respects the financial condition, results of operations and cash
flows of the registrant as of, and for, the periods presented in this
quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
a. Designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this quarterly report
is being prepared;
b. Evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
quarterly report (the "Evaluation Date"); and
c. Presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of the registrant's board of directors (or persons performing the
equivalent function):
a. All significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to
record, process, summarize and report financial data and have
identified for the registrant's auditors any material weaknesses in
internal controls; and
b. Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including
any corrective actions with regard to significant deficiencies and material
weaknesses.
Date: March 13, 2003 /s/Michael A. Woodhouse
-------------- ---------------------------
Michael A. Woodhouse,
President and Chief Executive
Officer
I, Lawrence E. White, certify that:
1. I have reviewed this quarterly report on Form 10-Q of CBRL Group, Inc.;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all
material respects the financial condition, results of operations and cash
flows of the registrant as of, and for, the periods presented in this
quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
a. Designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this quarterly report
is being prepared;
b. Evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
quarterly report (the "Evaluation Date"); and
c. Presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of the registrant's board of directors (or persons performing the
equivalent function):
a. All significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to
record, process, summarize and report financial data and have
identified for the registrant's auditors any material weaknesses in
internal controls; and
b. Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including
any corrective actions with regard to significant deficiencies and material
weaknesses.
Date: March 13, 2003 /s/Lawrence E. White
-------------- ------------------------
Lawrence E. White,
Senior Vice President, Finance and
Chief Financial Officer
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
10 $300,000,000 Revolving Credit Loan Agreement dated 2/21/2003
15 Letter regarding unaudited financial information
REVOLVING CREDIT LOAN AGREEMENT
dated as of February 21, 2003
among
CBRL GROUP, INC.
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
SUNTRUST BANK
as Administrative Agent
and
BANK OF AMERICA, N.A.
and
WACHOVIA BANK
as Syndication Agents
and
FLEET NATIONAL BANK
as Documentation Agent
====================================================================
SUNTRUST capital markets, inc.
As Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; CONSTRUCTION....................................1
Section 1.1 Definitions.............................................1
Section 1.2 Classifications of Loans and Borrowings................16
Section 1.3 Accounting Terms and Determination.....................16
Section 1.4 Terms Generally........................................16
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS.........................17
Section 2.1 General Description of Facilities......................17
Section 2.2 Revolving Loans........................................17
Section 2.3 Procedure for Revolving Borrowings.....................17
Section 2.4 Swingline Commitment...................................18
Section 2.5 Procedure for Swingline Borrowing; Etc.................18
Section 2.6 Funding of Borrowings..................................19
Section 2.7 Interest Elections.....................................20
Section 2.8 Optional Reduction and Termination of Commitments......21
Section 2.9 Repayment of Loans.....................................22
Section 2.10 Evidence of Indebtedness...............................22
Section 2.11 Optional Prepayments...................................22
Section 2.12 Interest on Loans......................................23
Section 2.13 Fees...................................................24
Section 2.14 Computation of Interest and Fees.......................24
Section 2.15 Inability to Determine Interest Rates..................25
Section 2.16 Illegality.............................................25
Section 2.17 Increased Costs........................................26
Section 2.18 Funding Indemnity......................................27
Section 2.19 Taxes..................................................27
Section 2.20 Payments Generally; Pro Rata Treatment; Sharing of
Setoffs................................................29
Section 2.21 Mitigation of Obligations; Replacement of Lenders......30
Section 2.22 Letters of Credit......................................31
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT.........36
Section 3.1 Conditions To Effectiveness............................36
Section 3.2 Each Credit Event......................................37
Section 3.3 Delivery of Documents..................................38
ARTICLE IV REPRESENTATIONS AND WARRANTIES..............................38
Section 4.1 Existence; Power.......................................38
Section 4.2 Organizational Power; Authorization....................38
Section 4.3 Governmental Approvals; No Conflicts...................38
Section 4.4 Financial Statements...................................39
Section 4.5 Litigation and Environmental Matters...................39
Section 4.6 Compliance with Laws and Agreements....................39
Section 4.7 Investment Company Act, Etc............................39
Section 4.8 Taxes..................................................40
Section 4.9 Margin Regulations.....................................40
Section 4.10 ERISA..................................................40
Section 4.11 Ownership of Property..................................40
Section 4.12 Disclosure.............................................40
Section 4.13 Labor Relations........................................41
Section 4.14 Subsidiaries...........................................41
ARTICLE V AFFIRMATIVE COVENANTS.......................................41
Section 5.1 Financial Statements and Other Information.............41
Section 5.2 Notices of Material Events.............................42
Section 5.3 Existence; Conduct of Business.........................43
Section 5.4 Compliance with Laws, Etc..............................43
Section 5.5 Payment of Obligations.................................43
Section 5.6 Books and Records......................................43
Section 5.7 Visitation, Inspection, Etc............................43
Section 5.8 Maintenance of Properties; Insurance...................44
Section 5.9 Use of Proceeds and Letters of Credit..................44
Section 5.10 Additional Subsidiaries................................44
ARTICLE VI FINANCIAL COVENANTS.........................................44
Section 6.1 Leverage Ratio.........................................44
Section 6.2 Fixed Charge Coverage Ratio............................44
Section 6.3 Consolidated Total Adjusted Debt to Consolidated
EBITDAR................................................44
ARTICLE VII NEGATIVE COVENANTS..........................................45
Section 7.1 Indebtedness...........................................45
Section 7.2 Negative Pledge........................................45
Section 7.3 Fundamental Changes....................................46
Section 7.4 Investments, Loans, Acquisitions, Etc..................47
Section 7.5 Restricted Payments....................................48
Section 7.6 Sale of Assets.........................................48
Section 7.7 Transactions with Affiliates...........................48
Section 7.8 Restrictive Agreements.................................48
Section 7.9 Hedging Agreements.....................................49
Section 7.10 Amendment to Material Documents........................49
Section 7.11 Accounting Changes.....................................49
ARTICLE VIII EVENTS OF DEFAULT...........................................49
Section 8.1 Events of Default......................................49
ARTICLE IX THE ADMINISTRATIVE AGENT....................................52
Section 9.1 Appointment of Administrative Agent....................52
Section 9.2 Nature of Duties of Administrative Agent...............53
Section 9.3 Lack of Reliance on the Administrative Agent...........53
Section 9.4 Certain Rights of the Administrative Agent.............53
Section 9.5 Reliance by Administrative Agent.......................54
Section 9.6 The Administrative Agent in its Individual Capacity....54
Section 9.7 Successor Administrative Agent.........................54
ARTICLE X MISCELLANEOUS...............................................55
Section 10.1 Notices................................................55
Section 10.2 Waiver; Amendments.....................................56
Section 10.3 Expenses; Indemnification..............................57
Section 10.4 Successors and Assigns.................................59
Section 10.5 Governing Law; Jurisdiction; Consent to Service
of Process.............................................61
Section 10.6 WAIVER OF JURY TRIAL...................................62
Section 10.7 Right of Setoff........................................62
Section 10.8 Counterparts; Integration..............................63
Section 10.9 Survival...............................................63
Section 10.10 Severability...........................................63
Section 10.11 Confidentiality........................................63
Section 10.12 Interest Rate Limitation...............................64
Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule 4.5 - Litigation and Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Exhibits
Exhibit A - Revolving Credit Note
Exhibit B - Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Subsidiary Guarantee Agreement
Exhibit E - Form of Compliance Certificate
Exhibit 2.3 - Notice of Revolving Borrowing
Exhibit 2.5 - Notice of Swingline Borrowing
Exhibit 2.9 - Form of Continuation/Conversion
REVOLVING CREDIT LOAN AGREEMENT
THIS REVOLVING CREDIT LOAN AGREEMENT (this "Agreement") is made and
entered into as of February 21, 2003, by and among CBRL GROUP, INC., a Tennessee
corporation (the "Borrower"), the several banks and other financial institutions
from time to time party hereto (the "Lenders"), SUNTRUST BANK, in its capacity
as Administrative Agent for the Lenders (the "Administrative Agent"), BANK OF
AMERICA, N.A. and WACHOVIA BANK, in their capacity as Syndication Agents (the
"Syndication Agents"), and FLEET NATIONAL BANK, in its capacity as Documentation
Agent (the "Documentation Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders establish a
$300,000,000 revolving credit facility for Borrower with a $20,000,000 swingline
sub-facility and a $25,000,000 letter of credit sub-facility;
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders severally, to the extent of their respective Commitments, are willing to
establish the credit facilities for the Borrower, as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders and the Administrative
Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1 Definitions. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein specified
(to be equally applicable to both the singular and plural forms of the terms
defined):
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR
for such Interest Period by (ii) a percentage equal to 100% minus the Eurodollar
Reserve Percentage for such Interest Period.
"Administrative Agent" shall have the meaning assigned to such term in
the opening paragraph hereof.
"Administrative Questionnaire" shall mean, with respect to each Lender,
an administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent duly completed by such Lender.
"Affiliate" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person.
"Aggregate Revolving Commitments" shall mean the sum of the Revolving
Commitments of all Lenders at any time outstanding. On the Closing Date, the
Aggregate Revolving Commitments are $300,000,000.
"Applicable Lending Office" means with respect to each Lender, the
"Lending Office" of such Lender (or an Affiliate of such Lender) designated for
each Type of Loan in the Administrative Questionnaire submitted by such Lender
or such other office of such Lender (or an Affiliate of such Lender) as such
Lender may from time to time specify to the Administrative Agent and the
Borrower for each Type of Loan.
"Applicable Margin" shall mean, with respect to all Revolving Loans
outstanding on any date, a percentage per annum determined by reference to
Schedule I attached hereto, based upon the Borrower's ratio of Consolidated
Total Adjusted Debt to Consolidated EBITDAR; provided, that no change in the
Applicable Margin resulting from a change in Borrower's ratio of Consolidated
Total Adjusted Debt to Consolidated EBITDAR shall be effective until the third
day after the date upon which the Borrower delivers the financial statements
required by Section 5.1(a) or (b) and the compliance certificate required by
Section 5.1(c); provided further, that if at any time the Borrower fails to
deliver such financial statements and such certificate, the Applicable Margin
shall be set at Level V until such time as such financial statements and
certificate are delivered, at which time the Applicable Margin shall be
determined as provided above. The Applicable Margin from the Closing Date until
the first financial statement and compliance certificate are required to be
delivered shall be set at Level III.
"Applicable Percentage" shall mean, with respect to the commitment fee
or the letter of credit fee (as set forth in Section 2.13), as the case may be,
as of any date, the percentages determined by reference to Schedule I attached
hereto, based upon the Borrower's ratio of Consolidated Total Adjusted Debt to
Consolidated EBITDAR; provided, that no change in the Applicable Percentage
resulting from a change in the Borrower's ratio of Consolidated Total Adjusted
Debt to Consolidated EBITDAR shall be effective until the third day after the
date upon which the Borrower delivers the financial statements required by
Section 5.1(a) or (b) and the compliance certificate required by Section 5.1
(c); provided, further, that if at any time the Borrower fails to deliver such
financial statements and such certificate, the Applicable Percentage shall be at
Level V until such time as such financial statements and certificate are
delivered, at which time the Applicable Percentage shall be determined as
provided above. The Applicable Percentage for both the commitment fee and the
letter of credit fee from the Closing Date until the first financial statement
and compliance certificate are required to be delivered shall be set at Level
III.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit C attached hereto or any other form approved by
the Administrative Agent.
"Availability Period" shall mean the period from the Closing Date to
the Commitment Termination Date.
"Base Rate" shall mean a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall be equal to the higher of (i) the
per annum rate which the Administrative Agent publicly announces from time to
time to be its prime lending rate, as in effect from time to time, and (ii) the
Federal Funds Rate, as in effect from time to time, plus one-half of one percent
(0.50%). The Administrative Agent's prime lending rate is a reference rate and
does not necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"Borrower" shall have the meaning in the introductory paragraph hereof.
"Borrowing" shall mean a borrowing consisting of (i) Loans of the same
Class and Type, made, converted or continued on the same date and in case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (ii) a
Swingline Loan.
"Business Day" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Atlanta, Georgia, New York, New York or
Nashville, Tennessee are authorized or required by law to close and (ii) if such
day relates to a Eurodollar Loan, any day on which dealings in Dollars are
carried on in the London interbank market.
"Capital Lease Obligations" of any Person shall mean all obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" shall mean the occurrence of one or more of the
following events: (a) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of the Borrower to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder in effect on the date hereof), (b) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
"group" (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof) of 30% or more of the outstanding shares of the voting stock of the
Borrower; or (c) a majority of the board of directors of the Borrower by Persons
who are neither (i) nominated by those persons on the board of directors of
Borrower on the Closing Date or (ii) appointed by directors so nominated.
"Change in Law" shall mean (i) the adoption of any applicable law, rule
or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any appropriate Governmental Authority after the date of
this Agreement, or (iii) compliance by any Lender (or its Applicable Lending
Office) or the Issuing Bank (or for purposes of Section 2.17(b), by such
Lender's or the Issuing Bank's holding company, if applicable) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Charges" shall have the meaning as set forth in Section 10.12.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans and when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or a Swingline Commitment.
"Closing Date" shall mean the date on which the conditions precedent
set forth in Section 3.1 and Section 3.2 have been satisfied or waived in
accordance with Section 10.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Commitment" shall mean a Revolving Commitment, a Swingline Commitment
or any combination thereof (as the context shall permit or require).
"Commitment Termination Date" shall mean the earliest of (i) February
21, 2008, (ii) the date on which the Revolving Commitments are terminated
pursuant to Section 2.8 and (iii) the date on which all amounts outstanding
under this Agreement have been declared or have automatically become due and
payable (whether by acceleration or otherwise).
"Consolidated EBITDAR" shall mean, as measured on a consolidated basis
over a rolling four fiscal quarter period, the sum of (A) Consolidated Net
Income (or loss), plus (B) to the extent deducted in determining Consolidated
Net Income for such period, (i) income tax expense, (ii) Consolidated Interest
Expense, (iii) depreciation and amortization expenses, (iv) Consolidated Lease
Expense, and (v) all other non-cash charges (including non-cash stock option
expense recorded by Borrower), determined, in each case for such period on a
consolidated basis in accordance with GAAP.
"Consolidated EBITR" shall mean, as measured on a consolidated basis
over a rolling four fiscal quarter period, the sum of (A) Consolidated Net
Income (or loss), plus (B) to the extent deducted in determining Consolidated
Net Income for such period, (i) income tax expense, (ii) Consolidated Interest
Expense, (iii) Consolidated Lease Expense, and (iv) all other non-cash charges
(including non-cash stock option expense recorded by Borrower), in each case for
such period determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" shall mean, for the Borrower and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the sum of (i) total interest expense, including without limitation
the interest component of any payments in respect of Capital Lease Obligations
capitalized or expensed during such period (whether or not actually paid during
such period) plus (ii) the net amount payable (or minus the net amount
receivable) under Hedging Agreements during such period (whether or not actually
paid or received during such period).
"Consolidated Lease Expense" shall mean, for any period, the aggregate
amount of fixed and contingent rentals payable by the Borrower and its
Subsidiaries with respect to leases of real and personal property (excluding
Capital Lease Obligations) determined in each case for such period, on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, the net income
(or loss) of the Borrower and its Subsidiaries for such period determined on a
consolidated basis, but excluding therefrom (to the extent otherwise included
therein) (i) any extraordinary or non-recurring gains or losses, (ii) any gains
attributable to write-ups of assets and (iii) any equity interest of the
Borrower or any Subsidiary of the Borrower in the unremitted earnings of any
Person that is not a Subsidiary and (iv) any income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary on the date that such Person's
assets are acquired by the Borrower or any Subsidiary, all determined in
accordance with GAAP.
"Consolidated Total Adjusted Debt" shall mean, for any period, with
respect to the Borrower and its Subsidiaries, without duplication, on a
consolidated basis in accordance with GAAP, the sum of (i) all Indebtedness,
(ii) the present value of all Operating Leases (calculated on a basis of
discount rate equal to 10% per annum) and (iii) all obligations under any direct
or indirect Guarantee of Borrower or any Subsidiary. Additionally, the
calculation of Consolidated Total Adjusted Debt shall include the redemption
amount with respect to any redeemable preferred stock of Borrower or any
Subsidiary required to be redeemed within the twelve (12) month period after the
date of calculation.
"Consolidated Total Capitalization" shall mean, for any period, with
respect to the Borrower and its Subsidiaries, without duplication on a
consolidated basis in accordance with GAAP, the sum of (i) Consolidated Total
Adjusted Debt, plus (ii) shareholder's equity.
"Control" shall mean the power, directly or indirectly, either to (i)
vote 25% or more of securities having ordinary voting power for the election of
directors (or persons performing similar functions) of a Person or (ii) direct
or cause the direction of the management and policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. The
terms "Controlling", "Controlled by", and "under common Control with" have
meanings correlative thereto.
"Default" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"Default Interest" shall have the meaning set forth in Section 2.12(c).
"Dollar(s)" and the sign "$" shall mean lawful money of the United
States of America.
"Environmental Laws" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the pollution or protection of environment,
health, safety or natural resources, including those relating to the Release of
any Hazardous Material.
"Environmental Liability" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Material, (c)
any actual or alleged exposure to any Hazardous Material, (d) the Release or
threatened Release of any Hazardous Material or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean any Person for purposes of Title IV of
ERISA is a member of the controlled group of Borrower or under common control
with Borrower, within the meaning of Section 414 of the Code.
"ERISA Event" shall mean (a) the occurrence of any "reportable event",
as defined in Section 4043 of ERISA or the regulations issued thereunder with
respect to a Plan (other than an event for which the 30-day notice period is
waived); (b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the Borrower or any of
its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator appointed by the PBGC of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, bears interest at a
rate determined by reference to the Adjusted LIBO Rate.
"Eurocurrency Liabilities" has the meaning specified in Regulation D.
"Eurodollar Reserve Percentage" shall mean the maximum reserve
percentage (including, without limitation, any emergency, supplemental, special
or other marginal reserves) expressed as a decimal (rounded upwards to the next
1/100th of 1%) in effect on any day to which the Administrative Agent is subject
with respect to the Adjusted LIBO Rate pursuant to regulations issued by the
Board of Governors of the Federal Reserve System (or any Governmental Authority
succeeding to any of its principal functions) with respect to eurocurrency
funding (currently referred to as "eurocurrency liabilities" under Regulation
D). Eurodollar Loans shall be deemed to constitute eurocurrency funding and to
be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under Regulation D. The Eurodollar Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Event of Default" shall have the meaning provided in Article VIII.
"Excluded Taxes" shall mean with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.21(b), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.19(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 2.19(a).
"Federal Funds Rate" shall mean, for any period, a fluctuating interest
rate per annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal
for each day during such period, to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day the next preceding Business Day) by the Federal
Reserve Bank of New York, or if such rate is not so published for any Business
Day, the Federal Funds Rate for such day shall be the average rounded upwards,
if necessary, to the next 1/100th of 1% of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent.
"Fixed Charge Coverage Ratio" shall mean, at any date of calculation,
the ratio of (A) Consolidated EBITR to (B) the sum of (i) Consolidated Interest
Expense (excluding the amortization of any discount and any non-cash interest
charges with respect to the LYONs), plus (ii) Consolidated Lease Expense.
"Foreign Lender" shall mean any Lender that is organized under the laws
of a jurisdiction other than that of the Borrower. For purposes of this
definition, the United States of America or any State thereof or the District of
Columbia shall constitute one jurisdiction.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of Section
1.3.
"Governmental Authority" shall mean the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Granting Lender" shall have the meaning set forth in Section 10.4(e).
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith. The term
"Guarantee" used as a verb has a corresponding meaning.
"Hazardous Material" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"Hedging Agreements" shall mean interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts, commodity agreements (except commodity
agreements in the ordinary course of business) and other similar agreements or
arrangements designed to protect against fluctuations in interest rates or
currency values.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person which in accordance with GAAP would be shown on the
balance sheet of such Person as debt (including, without limitation, obligations
for borrowed money and for the deferred purchase price of property or services,
and obligations evidenced by bonds, debentures, notes or other similar
instruments); (ii) all Capital Lease Obligations; (iii) all Guaranties of such
Person (including the stated amount of undrawn standby letters of credit); (iv)
Indebtedness of others secured by any Lien upon property owned by such Person,
whether or not assumed; and (v) Hedging Agreements (except for commodity
agreements executed in the ordinary course of business designed to protect
against fluctuations in commodity values). Notwithstanding the foregoing, in
determining the Indebtedness of any Person, (x) there shall be included all
obligations of such Person of the character referred to in clauses (i) through
(v) above deemed to be extinguished under GAAP but for which such Person remains
legally liable and (y) any deferred obligations of such Person to make payments
on any agreement not to compete which was entered into by such Person in
connection with the acquisition of any business shall be reduced by the
effective federal and state corporate tax rate applicable to such Person in
order to recognize the deductibility of such payments and the resulting
reduction of the cash actually expended by the Person to satisfy such
obligation.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Information Memorandum" shall mean the Confidential Information
Memorandum dated January, 2003 relating to the Borrower and the transactions
contemplated by this Agreement and the other Loan Documents.
"Indemnitee" shall have the meaning set forth in Section 10.3(b).
"Initial Extension of Credit" means the earlier to occur of the initial
Borrowing or the initial issuance of a Letter of Credit hereunder.
"Interest Period" shall mean (i) with respect to any Eurodollar
Borrowing, a period of one, two, three or six months, and (ii) with respect to a
Swingline Loan, a period of such duration not to exceed 10 days, as the Borrower
may request and the Swingline Lender may agree in accordance with Section 2.5;
provided, that:
(i) the initial Interest Period for such Borrowing shall
commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of another Type) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the
day on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless, in the case of a Eurodollar Borrowing,
such Business Day falls in another calendar month, in which case such
Interest Period would end on the next preceding Business Day;
(iii) any Interest Period in respect of a Eurodollar Borrowing
which begins on the last Business Day of a calendar month or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period shall end on the last Business
Day of such calendar month; and
(iv) no Interest Period may extend beyond the Commitment
Termination Date.
"Issuing Bank" shall mean SunTrust Bank or any other Lender, each in
its capacity as an issuer of Letters of Credit pursuant to Section 2.22.
"LC Commitment" shall mean that portion of the Aggregate Revolving
Commitments that may be used by the Borrower for the issuance of Letters of
Credit under Section 2.22, in an aggregate face amount not to exceed
$25,000,000.
"LC Disbursement" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Documents" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus (ii) the
aggregate amount of all LC Disbursements that have not been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Lender shall be its
Pro Rata Share of the total LC Exposure at such time.
"Lenders" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include, where appropriate, the Swingline
Lender and other Lenders from time to time who are assignees under Section
10.4(b).
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.22 by the Issuing Bank for the account of the Borrower pursuant to the
LC Commitment.
"Leverage Ratio" shall mean, as of any date of determination with
respect to the Borrower, the ratio of (i) Consolidated Total Adjusted Debt as of
such date to (ii) Consolidated Total Capitalization as of such date.
"LIBOR" shall mean for any applicable Interest Period the rate per
annum for deposits in Dollars for a period equal to such Interest Period
appearing on that page of the Bloomberg's Service which displays British
Banker's Association Interest Settlement Rates for deposits in Dollars (or if
page or service shall cease to be available, such other page on that service or
such other service designated by the British Banker's Association for the
display of such Association's Interest Settlement Rates for Dollar deposits) as
of 11:00 a.m. (London, England time) on the day that is two Business Days prior
to the first day of such Interest Period; provided, that if such rate or service
is not available to the Lender for any reason, LIBOR shall mean the rate of
interest determined by the Lender to be the average (rounded upward, if
necessary, to the nearest 1/100th of 1%) of the rates per annum at which
deposits in Dollars are offered to the Administrative Agent two Business Days
preceding the first day of such Interest Period by leading banks in the London
interbank market as of 10:00 a.m. (Nashville, Tennessee time) for a period equal
to such Interest Period and in an amount comparable to the amount of the
Revolving Commitment.
"Lien" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing).
"Loan Documents" shall mean, collectively, this Agreement, the Notes,
the LC Documents, all Notices of Borrowing, the Subsidiary Guarantee Agreements
(as any such documents may be amended or restated from time to time), and any
Continuation/Conversion Notices and Compliance Certificates.
"Loan Parties" shall mean the Borrower and its Subsidiaries.
"Loans" shall mean all Revolving Loans and Swingline Loans in the
aggregate or any of them, as the context shall require.
"LYONs" means the $422,050,000 at maturity, of zero coupon liquid yield
option notes due 2032 as previously issued by the Borrower.
"Material Adverse Effect" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences whether or not related, a
material adverse change in, or a material adverse effect on, (i) the business,
results of operations, financial condition, assets, liabilities or prospects of
the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Loan
Parties to perform any of their respective obligations under the Loan Documents,
(iii) the rights and remedies of the Administrative Agent, the Issuing Bank and
the Lenders under any of the Loan Documents or (iv) the legality, validity or
enforceability of any of the Loan Documents.
"Material Indebtedness" shall mean Indebtedness (other than the Loans
and Letters of Credit) or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $10,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary in respect to any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"Maximum Rate" shall have the meaning set forth in Section 10.12.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Notes" shall mean, collectively, the Revolving Credit Notes and the
Swingline Note.
"Notices of Borrowing" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
"Notice of Conversion/Continuation" shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.7(b) hereof.
"Notice of Revolving Borrowing" shall have the meaning as set forth in
Section 2.3.
"Notice of Swingline Borrowing" shall have the meaning as set forth in
Section 2.5.
"Obligations" shall mean all amounts owing by the Borrower to the
Administrative Agent, the Issuing Bank or any Lender (including the Swingline
Lender) pursuant to or in connection with this Agreement or any other Loan
Document, including without limitation, all principal, interest (including any
interest accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses (including all
fees and expenses of counsel to the Administrative Agent and any Lender
(including the Swingline Lender) incurred pursuant to this Agreement or any
other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or
thereunder, together with all renewals, extensions, modifications or
refinancings thereof.
"Operating Leases" shall mean, as applied to any Person, any lease of
any property by such Person as a lessee which would, in accordance with GAAP, be
required to be classified and accounted for as an operating lease on a balance
sheet of such Person.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document. Notwithstanding the foregoing, Other Taxes shall not include
items constituting Excluded Taxes.
"Participant" shall have the meaning set forth in Section 10.4(c).
"Payment Office" shall mean the office of the Administrative Agent
located at 303 Peachtree Street, N.E., Atlanta, Georgia 30308, or such other
location as to which the Administrative Agent shall have given written notice to
the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar functions.
"Permitted Encumbrances" shall mean
(i) Liens imposed by law for taxes, assessments, governmental
charges or levies which are not yet due or which are being contested in
good faith by appropriate proceedings and with respect to which
adequate reserves are being maintained on the books of the Borrower or
its Subsidiaries, as the case may be, in accordance with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
arising in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in
accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance, social security laws or regulations or similar laws to
secure public or statutory obligations;
(iv) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course of
business;
(v) judgment and attachment liens not giving rise to an Event
of Default or Liens created by or existing from any litigation or legal
proceeding that are currently being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are
being maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
materially interfere with the ordinary conduct of business of the
Borrower and its Subsidiaries taken as a whole;
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness of Borrower or its Subsidiaries.
"Permitted Investments" shall mean:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
(or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States), in each case maturing
within one year from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the time
of acquisition thereof, of S&P or Moody's and in either case maturing
within six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time
deposits maturing within 180 days of the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States or any state thereof
which has a combined capital and surplus and undivided profits of not
less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (i) above and
entered into with a financial institution satisfying the criteria
described in clause (iii) above; and
(v) shares of mutual or similar funds investing solely in any
one or more of the Permitted Investments described in clauses (i)
through (iv) above.
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pro Rata Share" of any amount shall mean, with respect to any Lender
at any time, the product of such amount multiplied by a fraction, the numerator
of which shall be the sum of such Lender's Revolving Commitment and the
denominator of which shall be the sum of all Lenders' Revolving Commitments; or
if the Revolving Commitments have been terminated or expired or if the Loans
have been declared to be due and payable, a fraction, the numerator of which
shall be the sum of such Lender's Revolving Credit Exposure and the denominator
of which shall be the sum of the aggregate Revolving Credit Exposure of all
Lenders.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be in effect from time to time, and any
successor regulations.
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Replacement Lender" shall have the meaning set forth in Section
2.21(b).
"Replacement Notice" shall have the meaning set forth in Section
2.21(b).
"Required Lenders" shall mean, at any time, Lenders holding more than
50% of the aggregate outstanding Revolving Credit Exposures at such time or if
the Lenders have no Revolving Credit Exposure, then Lenders holding more than
50% of the Aggregate Revolving Commitments.
"Responsible Officer" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer, the
treasurer, assistant treasurer or a vice president of the Borrower or such other
representative of the Borrower as may be designated in writing by any one of the
foregoing with the consent of the Administrative Agent; and, with respect to the
financial covenants only, the chief financial officer, the treasurer or
assistant treasurer of the Borrower.
"Restricted Payment" shall have the meaning set forth in Section 7.5.
"Revolving Commitment" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Letters of Credit and Swingline Loans in an aggregate principal
amount not exceeding the amount set forth with respect to such Lender on the
signature pages to this Agreement, or in the case of a Person becoming a Lender
after the Closing Date, the amount of the assigned "Revolving Commitment" as
provided in the Assignment and Acceptance Agreement executed by such Person as
an assignee, as the same may be changed pursuant to terms hereof.
"Revolving Credit Exposure(s)" shall mean, with respect to any Lender
at any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans, LC Exposure and Swingline Exposure.
"Revolving Credit Note" shall mean a promissory note of the Borrower
payable to the order of a Lender in the principal amount of such Lender's
Revolving Commitment, in substantially the form of Exhibit A.
"Revolving Loan" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrower under its Revolving Commitment, which may
either be a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"Subject Lender" shall have the meaning set forth in Section 2.21(b).
"Subsidiary" shall mean, with respect to any Person (the "parent"), any
corporation, partnership, joint venture, limited liability company, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, partnership, joint venture, limited liability company,
association or other entity (i) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power, or in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, Controlled or held, or (ii) that is, as
of such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent. Unless
otherwise indicated, all references to "Subsidiary" hereunder shall mean a
Subsidiary of the Borrower.
"Subsidiary Guarantee Agreement(s)" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit D, made by each of the
Subsidiaries in favor of the Administrative Agent for the benefit of the
Lenders.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $20,000,000.
"Swingline Exposure" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.5, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"Swingline Lender" shall mean SunTrust Bank.
"Swingline Loan" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
"Swingline Note" shall mean the promissory note of the Borrower payable
to the order of the Swingline Lender in the principal amount of the Swingline
Commitment, substantially in the form of Exhibit B.
"Swingline Rate" shall mean the absolute rate of interest offered by
the Agent for advances under the Swingline as requested by the Borrower.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Type", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"VIE" shall have the meaning set forth in Section 10.4(e).
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Classifications of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g. a "Revolving
Loan") or by Type (e.g. a "Eurodollar Loan") or by Class and Type (e.g.
"Revolving Eurodollar Loan"). Borrowings also may be classified and referred to
by Class (e.g. "Revolving Borrowing") or by Type (e.g. "Eurodollar Borrowing")
or by Class and Type (e.g. " Revolving Eurodollar Borrowing").
Section 1.3 Accounting Terms and Determination. Unless otherwise defined or
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with GAAP as
in effect from time to time, applied on a basis consistent (except for such
changes approved by the Borrower's independent public accountants) with the most
recent audited consolidated financial statement of the Borrower delivered
pursuant to Section 5.1(a); provided, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article
VI to eliminate the effect of any change in GAAP on the operation of such
covenant (or if the Administrative Agent notifies the Borrower that the Required
Lenders wish to amend Article VI for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Lenders.
Section 1.4 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the word "to"
means "to but excluding". Unless the context requires otherwise (i) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as it was originally executed or as it may from time to time be amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
permitted assigns, (iii) the words "hereof", "herein" and "hereunder" and words
of similar import shall be construed to refer to this Agreement as a whole and
not to any particular provision hereof, (iv) all references to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles,
Sections, Exhibits and Schedules to this Agreement and (v) all references to a
specific time shall be construed to refer to the time in the city and state of
the Administrative Agent's principal office, unless otherwise indicated.
Section 1.5 Time References. All time references contained herein shall
refer to Eastern Standard Time (Atlanta, Georgia time) unless specifically
stated otherwise.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1 General Description of Facilities. Subject to and upon the
terms and conditions herein set forth, (i) each Lender severally agrees (to the
extent of each Lender's Pro Rata Share up to such Lender's Revolving Commitment)
to make Revolving Loans to the Borrower in accordance with Section 2.2, (ii) the
Issuing Bank agrees to issue Letters of Credit in accordance with Section 2.22,
(iii) the Swingline Lender agrees to make Swingline Loans in accordance with
Section 2.4, and (iv) each Lender agrees to purchase a participation interest in
the Letters of Credit and the Swingline Loans pursuant to the terms and
conditions hereof; provided, that in no event shall the aggregate principal
amount of all outstanding Revolving Loans, Swingline Loans and outstanding LC
Obligations exceed at any time the Aggregate Revolving Commitments from time to
time in effect.
Section 2.2 Revolving Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make Revolving Loans to the Borrower,
from time to time during the Availability Period, in an aggregate principal
amount outstanding at any time that will not result in (a) such Lender's
Revolving Credit Exposure exceeding such Lender's Revolving Commitment or (b)the
sum of the aggregate Revolving Credit Exposures of all Lenders exceeding the
Aggregate Revolving Commitments. During the Availability Period, the Borrower
shall be entitled to borrow, prepay and reborrow Revolving Loans in accordance
with the terms and conditions of this Agreement; provided, that the Borrower may
not borrow or reborrow should there exist a Default or Event of Default.
Section 2.3 Procedure for Revolving Borrowings. The Borrower shall give the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of each Revolving Borrowing substantially in the form of
Exhibit 2.3 attached hereto (a "Notice of Revolving Borrowing") (x) prior
to 11:00 a.m. one (1) Business Day prior to the requested date of each Base Rate
Borrowing and (y)prior to 11:00 a.m. three (3) Business Days prior to the
requested date of each Eurodollar Borrowing. Each Notice of Revolving Borrowing
shall be irrevocable and shall specify: (i) the aggregate principal amount of
such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day),
(iii) the Type of such Revolving Loan comprising such Borrowing and (iv) in the
case of a Eurodollar Borrowing, the duration of the initial Interest Period
applicable thereto (subject to the provisions of the definition of Interest
Period). Each Revolving Borrowing shall consist entirely of Base Rate Loans or
Eurodollar Loans, as the Borrower may request. The aggregate principal amount of
each Eurodollar Borrowing shall be a minimum of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, and the aggregate principal amount of
each Base Rate Borrowing shall be a minimum of $1,000,000 or an integral
multiple of $100,000 in excess thereof; provided, that Base Rate Loans made
pursuant to Section 2.5 or Section 2.22(c) may be made in lesser amounts as
provided therein. At no time shall the total number of Eurodollar Borrowings
outstanding at any time exceed six. Promptly following the receipt of a Notice
of Revolving Borrowing in accordance herewith, the Administrative Agent shall
advise each Lender of the details thereof and the amount of such Lender's
Revolving Loan to be made as part of the requested Revolving Borrowing.
Section 2.4 Swingline Commitment. Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower, from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time not to exceed the lesser of (i) the
Swingline Commitment then in effect and (ii) the difference between the
Aggregate Revolving Commitments and the aggregate Revolving Credit Exposures of
all Lenders; provided, that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. The Borrower shall be
entitled to borrow, repay and reborrow Swingline Loans in accordance with the
terms and conditions of this Agreement.
Section 2.5 Procedure for Swingline Borrowing; Etc
(a) The Borrower shall give the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of each
Swingline Borrowing ("Notice of Swingline Borrowing") prior to 11:00
a.m. on the requested date of each Swingline Borrowing. Each Notice
of Swingline Borrowing shall be irrevocable and shall specify:
(i) the principal amount of such Swingline Loan, (ii) the date of such
Swingline Loan (which shall be a Business Day) and (iii) the account
of the Borrower to which the proceeds of such Swingline Loan should be
credited. The Administrative Agent will promptly advise the Swingline
Lender of each Notice of Swingline Borrowing. Each Swingline Loan shall
accrue interest at the Swingline Rate and shall have an Interest Period
(subject to the definition thereof) as agreed upon between the Borrower
and the Swingline Lender. The aggregate principal amount of each
Swingline Loan shall be a minimum of $100,000 or an integral multiple
of $100,000 in excess thereof. The Swingline Lender will make the
proceeds of each Swingline Loan available to the Borrower in Dollars in
immediately available funds at the account specified by the Borrower in
the applicable Notice of Swingline Borrowing not later than 1:00 p.m.
on the requested date of such Swingline Loan.
(b) The Swingline Lender, at any time and from time to time in
its sole discretion, may, on behalf of the Borrower (which hereby
irrevocably authorizes and directs the Swingline Lender to act on its
behalf), give a Notice of Revolving Borrowing to the Administrative
Agent requesting the Lenders (including the Swingline Lender) to make
Base Rate Loans in an amount equal to the unpaid principal amount of
any Swingline Loan. Each Lender will make the proceeds of its Base Rate
Loan included in such Borrowing available to the Administrative Agent
for the account of the Swingline Lender in accordance with Section 2.6,
which will be used solely for the repayment of such Swingline Loan.
(c) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is
not, made in accordance with the foregoing provisions, then each Lender
(other than the Swingline Lender) shall purchase an undivided
participating interest in such Swingline Loan in an amount equal to
its Pro Rata Share thereof on the date that such Base Rate Borrowing
should have occurred. On the date of such required purchase, each
Lender shall promptly transfer, in immediately available funds, the
amount of its participating interest to the Administrative Agent for
the account of the Swingline Lender. If such Swingline Loan bears
interest at a rate other than the Base Rate, such Swingline Loan shall
automatically become a Base Rate Loan on the effective date of any such
participation and interest shall become payable on demand.
(d) Each Lender's obligation to make a Base Rate Loan pursuant
to Section 2.5(b)or to purchase the participating interests pursuant to
Section 2.5(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation (i) any
setoff, counterclaim, recoupment, defense or other right that such
Lender or any other Person may have or claim against the Swingline
Lender, the Borrower or any other Person for any reason whatsoever,
(ii) the existence of a Default or an Event of Default or the
termination of any Lender's Revolving Commitment, (iii) the existence
(or alleged existence) of any event or condition which has had or could
reasonably be expected to have a Material Adverse Effect, (iv) any
breach of this Agreement or any other Loan Document by the Borrower,
the Administrative Agent or any Lender or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing. If such amount is not in fact made available to the
Swingline Lender by any Lender, the Swingline Lender shall be entitled
to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof
at the Federal Funds Rate. Until such time as such Lender makes its
required payment, the Swingline Lender shall be deemed to continue to
have outstanding Swingline Loans in the amount of the unpaid
participation for all purposes of the Loan Documents. In addition,
such Lender shall be deemed to have assigned any and all payments made
of principal and interest on its Loans and any other amounts due to it
hereunder, to the Swingline Lender to fund the amount of such Lender's
participation interest in such Swingline Loans that such Lender failed
to fund pursuant to this Section, until such amount has been purchased
in full.
Section 2.6 Funding of Borrowings
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in immediately
available funds by 1:00 p.m. to the Administrative Agent at the Payment
Office; provided, that the Swingline Loans will be made as set forth in
Section 2.5. The Administrative Agent will make such Loans available to
the Borrower by promptly crediting the amounts that it receives, in
like funds by the close of business on such proposed date, to an
account maintained by the Borrower with the Administrative Agent or at
the Borrower's option, by effecting a wire transfer of such amounts to
an account designated by the Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by
any Lender prior to 5 p.m. one (1) Business Day prior to the date of a
Borrowing in which such Lender is participating that such Lender will
not make available to the Administrative Agent such Lender's share of
such Borrowing, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent on such
date, and the Administrative Agent, in reliance on such assumption,
may make available to the Borrower on such date a corresponding amount.
If such corresponding amount is not in fact made available to the
Administrative Agent by such Lender on the date of such Borrowing,
the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest
at the Federal Funds Rate for up to two (2) days and thereafter at the
rate specified for such Borrowing. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Borrower,
and the Borrower shall immediately pay such corresponding amount to
the Administrative Agent together with interest at the rate specified
for such Borrowing. Nothing in this subsection shall be deemed to
relieve any Lender from its obligation to fund its Pro Rata Share of
any Borrowing hereunder or to prejudice any rights which the Borrower
may have against any Lender as a result of any default by such Lender
hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the
basis of their respective Pro Rata Shares. No Lender shall be
responsible for any default by any other Lender in its obligations
hereunder, and each Lender shall be obligated to make its Loans
provided to be made by it hereunder, regardless of the failure of any
other Lender to make its Loans hereunder.
Section 2.7 Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in
the applicable Notice of Borrowing, and in the case of a Eurodollar
Borrowing, shall have an initial Interest Period as specified in such
Notice of Borrowing. Thereafter, the Borrower may elect to convert
such Borrowing into a different Type or to continue such Borrowing, and
in the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate
Borrowing. This Section shall NOT apply to Swingline Borrowings, which
may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall give the Administrative Agent prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing (a "Notice of
Conversion/Continuation") that is to be converted or continued, as the
case may be, (x) prior to 11:00 a.m. one (1) Business Day prior to the
requested date of a conversion into a Base Rate Borrowing and (y) prior
to 11:00 a.m. three (3) Business Days prior to a continuation of or
conversion into a Eurodollar Borrowing. Each such Notice of
Conversion/Continuation shall be irrevocable and shall specify (i) the
Borrowing to which such Notice of Continuation/Conversion applies and
if different options are being elected with respect to different
portions thereof, the portions thereof that are to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) shall be specified for each
resulting Borrowing); (ii) the effective date of the election made
pursuant to such Notice of Continuation/Conversion, which shall be a
Business Day, (iii) whether the resulting Borrowing is to be a Base
Rate Borrowing or a Eurodollar Borrowing; and (iv) if the resulting
Borrowing is to be a Eurodollar Borrowing, the Interest Period
applicable thereto after giving effect to such election, which shall
be a period contemplated by the definition of "Interest Period." If
any such Notice of Continuation/Conversion requests a Eurodollar
Borrowing but does not specify an Interest Period, the Borrower shall
be deemed to have selected an Interest Period of one month. The
principal amount of any resulting Borrowing shall satisfy the minimum
borrowing amount for Eurodollar Borrowings and Base Rate Borrowings set
forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of
any Eurodollar Borrowing, the Borrower shall have failed to deliver a
Notice of Conversion/ Continuation, then, unless such Borrowing is
repaid as provided herein, the Borrower shall be deemed to have elected
to convert such Borrowing to a Base Rate Borrowing. No Borrowing may be
converted into, or continued as, a Eurodollar Borrowing if a Default or
an Event of Default exists, unless the Administrative Agent and each of
the Lenders shall have otherwise consented in writing. No conversion of
any Eurodollar Loans shall be permitted except on the last day of the
Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
Section 2.8 Optional Reduction and Termination of Commitments.
(a) Unless previously terminated, all Revolving Commitments
shall terminate on the Commitment Termination Date.
(b) Upon at least three (3) Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) to the
Administrative Agent (which notice shall be irrevocable), the Borrower
may reduce the Aggregate Revolving Commitments in part or terminate the
Aggregate Revolving Commitments in whole; provided, that (i)any partial
reduction shall apply to reduce proportionately and permanently the
Revolving Commitment of each Lender (but shall not reduce the Swingline
Commitment), (ii) the amount of any partial reduction pursuant to this
Section 2.8 shall be a minimum amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, and (iii) no such reduction
shall be permitted which would reduce the Aggregate Revolving
Commitments to an amount less than the then outstanding Revolving
Credit Exposures of all Lenders. Any such reduction in the Aggregate
Revolving Commitments shall result in a proportionate reduction
(rounded to the next lowest integral multiple of $100,000) in the LC
Commitment.
Section 2.9 Repayment of Loans.
(a) The outstanding principal amount of all Revolving Loans shall
be due and payable (together with accrued and unpaid interest thereon)
on the Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be due
and payable (together with accrued interest thereon) on the earlier of
(i) the last day of the Interest Period applicable to such Borrowing
and (ii) the Commitment Termination Date.
Section 2.10 Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual
practice appropriate records evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender
from time to time, including the amounts of principal and interest
payable thereon and paid to such Lender from time to time under this
Agreement. The Administrative Agent shall maintain appropriate records
in which shall be recorded (i) the Revolving Commitment of each Lender,
(ii) the amount of each Loan made hereunder by each Lender, the Class
and Type thereof and the Interest Period applicable thereto, (iii) the
date of each continuation thereof pursuant to Section 2.7, (iv) the
date of each conversion of all or a portion thereof to another Type
pursuant to Section 2.7, (v) the date and amount of any principal or
interest due and payable or to become due and payable from the Borrower
to each Lender hereunder in respect of such Loans and (vi) both the
date and amount of any sum received by the Administrative Agent
hereunder from the Borrower in respect of the Loans and each Lender's
Pro Rata Share thereof. The entries made in such records shall be
prima facie evidence of the existence and amounts of the obligations of
the Borrower therein recorded; provided, that the failure or delay of
any Lender or the Administrative Agent in maintaining or making entries
into any such record or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans (both
principal and unpaid accrued interest) of such Lender in accordance
with the terms of this Agreement.
(b) The Borrower agrees that it will execute and deliver to each
Lender a Revolving Credit Note, and, in the case of the Swingline
Lender only, a Swingline Note, payable to the order of such Lender.
Section 2.11 Optional Prepayments. The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, without
premium or penalty, by giving irrevocable written notice (or telephonic notice
promptly confirmed in writing) to the Administrative Agent no later than (i) in
the case of prepayment of any Eurodollar Borrowing, 11:00 a.m. three (3)
Business Days prior to any such prepayment; (ii) in the case of any prepayment
of any Base Rate Borrowing, one Business Day prior to the date of such
prepayment; and (iii) in the case of Swingline Borrowings, 11:00 a.m. on the
date of such prepayment. Each such notice shall be irrevocable and shall specify
the proposed date of such prepayment and the principal amount of each Borrowing
or portion thereof to be prepaid. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each affected Lender of the contents
thereof and of such Lender's Pro Rata Share of any such prepayment. If such
notice is given, the aggregate amount specified in such notice shall be due and
payable on the date designated in such notice, together with accrued interest to
such date on the amount so prepaid in accordance with Section 2.12(e); provided,
that if a Eurodollar Borrowing is prepaid on a date other than the last day of
an Interest Period applicable thereto, the Borrower shall also pay all amounts
required pursuant to Section 2.18. Each partial prepayment of any Eurodollar or
Base Rate Loan shall be in a minimum amount of $5,000,000 and in integral
multiples of $1,000,000 in excess thereof. Each prepayment of a Borrowing shall
be applied ratably to the Loans comprising such Borrowing.
Section 2.12 Interest on Loans.
(a) The Borrower shall pay interest on each Base Rate Loan at
the Base Rate in effect from time to time and on each Eurodollar Loan
at the Adjusted LIBO Rate for the applicable Interest Period in effect
for such Eurodollar Loan, plus, the Applicable Margin in effect from
time to time. Interest on the principal amount of all Loans shall
accrue from and including the date such Loans are made to but excluding
the date of any repayment thereof.
(b) The Borrower shall pay interest on each Swingline Loan at the
Swingline Rate in effect from time to time.
(c) While an Event of Default exists or after acceleration, at
the option of the Required Lenders, the Borrower shall pay interest
("Default Interest") with respect to all Eurodollar Loans at the rate
otherwise applicable for the then-current Interest Period plus an
additional 2% per annum until the last day of such Interest Period, and
thereafter, and with respect to all Base Rate Loans (including all
Swingline Loans) and all other Obligations hereunder (other than
Loans), at an all-in rate in effect for Base Rate Loans, plus an
additional 2% per annum.
(d) (i) Interest on all outstanding Base Rate Loans shall be
payable quarterly in arrears on the last Business Day of each March,
June, September and December and on the Commitment Termination Date.
(ii) Interest on all outstanding Eurodollar Loans shall be payable on
the last day of each Interest Period applicable thereto, and, in the
case of any Eurodollar Loans having an Interest Period in excess of
three months or 90 days, respectively, on each day which occurs every
three months or 90 days, as the case may be, after the initial date of
such Interest Period, and on the Commitment Termination Date. (iii)
Interest on each Swingline Loan shall be payable on the maturity date
of such Loan, which shall be the last day of the Interest Period
applicable thereto, and on the Commitment Termination Date.
(iv) Interest on any Loan which is converted into a Loan of another
Type or which is repaid or prepaid shall be payable on the date of such
conversion or on the date of any such repayment or prepayment (on the
amount repaid or prepaid) thereof. All Default Interest shall be
payable on demand.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the
Borrower and the Lenders of such rate in writing (or by telephone,
promptly confirmed in writing). Any such determination shall be
conclusive and binding for all purposes, absent manifest error.
Section 2.13 Fees.
(a) Administrative Agent. The Borrower shall pay to the
Administrative Agent for its own account fees in the amounts and at the
times previously agreed upon by the Borrower and the Administrative
Agent.
(b) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee,
which shall accrue at the Applicable Percentage (determined daily in
accordance with Schedule I) on the daily amount of the unused Revolving
Commitment of such Lender during the Availability Period, provided,
that if such Lender continues to have any Revolving Credit Exposure
after the Commitment Termination Date, then the commitment fee shall
continue to accrue on the amount of such Lender's unused Revolving
Commitment from and after the Commitment Termination Date to the date
that all of such Lender's Revolving Credit Exposure has been paid in
full. Accrued commitment fees shall be payable in arrears on the
last Business Day of each March, June, September and December of
each year and on the Commitment Termination Date, commencing on the
first such date after the Closing Date, provided further, that any
commitment fees accruing after the Commitment Termination Date shall be
payable on demand. For purposes of calculating the commitment fee, LC
Exposure will be deemed usage of the Revolving Commitment, but
outstanding Swingline Exposure will not.
(c) Letter of Credit Fees. The Borrower agrees to pay (i) to the
Administrative Agent, for the account of each Lender, a letter of
credit fee with respect to its participation in each Letter of Credit,
which shall accrue at the Applicable Percentage then in effect on the
average daily amount of such Lender's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements)
attributable to such Letter of Credit during the period from and
including the date of issuance of such Letter of Credit to but
excluding the date on which such Letter expires or is drawn in full and
(ii) to the Issuing Bank for its own account a fronting fee, which
shall accrue at the rate of 0.125% per annum on the average daily
amount of the LC Exposure (excluding any portion thereof attributable
to unreimbursed LC Disbursements) during the Availability Period (or
until the date that such Letter of Credit is irrevocably canceled,
whichever is later), as well as the Issuing Bank's standard fees
with respect to issuance, amendment, renewal or extension of any
Letter of Credit or processing of drawings thereunder. Accrued letter
of credit fees shall be payable in arrears on the last Business Day of
each March, June, September and December of each year and on the
Commitment Termination Date, commencing on the first such date after
the Closing Date.
Section 2.14 Computation of Interest and Fees. All computations of interest
and fees hereunder shall be made on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest or fees are payable
(to the extent computed on the basis of days elapsed). Each determination by the
Administrative Agent of an interest amount or fee hereunder shall be made in
good faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.
Section 2.15 Inability to Determine Interest Rates. If prior to the
commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the
relevant interbank market, adequate means do not exist for
ascertaining LIBOR for such Interest Period, or
(ii)the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBO Rate does not
adequately and fairly reflect the cost to such Lenders (or
Lender, as the case may be) of making, funding or maintaining
their (or its, as the case may be) Eurodollar Loans for such
Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall be converted into Base Rate Loans on the last day of
the then current Interest Period applicable thereto unless the Borrower prepays
such Loans in accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one Business Day before the date of any Eurodollar
Revolving Borrowing for which a Notice of Revolving Borrowing has previously
been given that it elects not to borrow on such date, then such Revolving
Borrowing shall be made as a Base Rate Borrowing.
Section 2.16 Illegality. If any Change in Law shall make in unlawful or
impossible for any Lender to make, maintain or fund any Eurodollar Loan and such
Lender shall so notify the Administrative Agent, the Administrative Agent shall
promptly give notice thereof to the Borrower and the other Lenders, whereupon
until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Eurodollar Revolving Loans, or to continue or convert
outstanding Loans as or into Eurodollar Loans, shall be suspended. In the case
of the making of a Eurodollar Revolving Borrowing, such Lender's Revolving Loan
shall be made as a Base Rate Loan as part of the same Revolving Borrowing for
the same Interest Period and if the affected Eurodollar Loan is then
outstanding, such Loan shall be converted to a Base Rate Loan either (i) on the
last day of the then current Interest Period applicable to such Eurodollar Loan
if such Lender may lawfully continue to maintain such Loan to such date or (ii)
immediately if such Lender shall determine that it may not lawfully continue to
maintain such Eurodollar Loan to such date. Notwithstanding the foregoing, the
affected Lender shall, prior to giving such notice to the Administrative Agent,
designate a different Applicable Lending Office if such designation would avoid
the need for giving such notice and if such designation would not otherwise be
disadvantageous to such Lender in the good faith exercise of its discretion.
Section 2.17 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement that is not otherwise included in the
determination of the Adjusted LIBO Rate hereunder against
assets of, deposits with or for the account of, or credit
extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the eurodollar
interbank market any other condition affecting this Agreement
or any Eurodollar Loans made by such Lender or any Letter of
Credit or any participation therein;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan or to
increase the cost to such Lender or the Issuing Bank of participating in or
issuing any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrower (subject to the applicable Lender taking the
measures required by Section 2.21) shall promptly pay, upon written notice from
and demand by such Lender on the Borrower (with a copy of such notice and demand
to the Administrative Agent), to the Administrative Agent for the account of
such Lender, within five Business Days after the date of such notice and demand,
an additional amount or amounts sufficient to compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered, provided, however, that upon receipt of notice from a Lender
claiming compensation pursuant to this Section 2.17(a) and so long as no Event
of Default shall have occurred and be continuing, the Borrower shall have the
right, on or before the 30th day after receipt of such notice, to convert each
Eurodollar Borrowing under which such Lender has a Commitment into a Base Rate
Borrowing, subject to payment in full of (i) all amounts necessary to compensate
such Lender for such increased costs and (ii) any amounts owing pursuant to
Section 2.18 as a result of such conversion.
(b) If any Lender or the Issuing Bank shall have determined that on
or after the date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of
return on such Lender's or the Issuing Bank's capital (or on the
capital of such Lender's or the Issuing Bank's parent corporation) as a
consequence of its obligations hereunder or under or in respect of any
Letter of Credit to a level below that which such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's parent corporation could
have achieved but for such Change in Law (taking into consideration
such Lender's or the Issuing Bank's policies or the policies of such
Lender's or the Issuing Bank's parent corporation with respect to
capital adequacy) then, from time to time, within five (5) Business
Days after receipt by the Borrower of written demand by such Lender
(with a copy thereof to the Administrative Agent), the Borrower shall
pay to such Lender such additional amounts as will compensate such
Lender or the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's parent corporation, as the
case may be, specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower (with a copy to the Administrative Agent) and
shall be conclusive, absent manifest error. The Borrower shall pay any
such Lender or the Issuing Bank, as the case may be, such amount or
amounts within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such
compensation.
Section 2.18 Funding Indemnity. In the event of (a) the payment of any
principal of a Eurodollar Loan other than on the last day of the Interest Period
applicable thereto (including as a result of an Event of Default), (b) the
conversion or continuation of a Eurodollar Loan other than on the last day of
the Interest Period applicable thereto, or (c) the failure by the Borrower to
borrow, prepay, convert or continue any Eurodollar Loan on the date specified in
any applicable notice (regardless of whether such notice is withdrawn or
revoked), then, in any such event, the Borrower shall compensate each Lender,
within five (5) Business Days after written demand from such Lender, for any
loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (A) the amount of interest that
would have accrued on the principal amount of such Eurodollar Loan if such event
had not occurred at the Adjusted LIBO Rate applicable to such Eurodollar Loan
for the period from the date of such event to the last day of the then current
Interest Period therefor (or in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Eurodollar Loan) over (B) the amount of interest that would accrue on the
principal amount of such Eurodollar Loan for the same period if the Adjusted
LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or
the date on which the Borrower failed to borrow, convert or continue such
Eurodollar Loan. A certificate as to any additional amount payable under this
Section 2.18 submitted to the Borrower by any Lender shall be conclusive, absent
manifest error.
Section 2.19 Taxes.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided, that if
the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section) the Administrative Agent, any Lender or the Issuing Bank
(as the case may be) shall receive an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within thirty (30) days after written
demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Lender or the Issuing
Bank, as the case may be, on or with respect to any payment by or on
account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender or the Issuing Bank, or by the Administrative
Agent on its own behalf or on behalf of a Lender or the Issuing Bank,
shall be conclusive absent manifest error.
(d) 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, or for the account of such
Lender, as the case may be, 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) 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 located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to
the Borrower (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate. Without limiting the
generality of the foregoing, each Foreign Lender agrees that it will
deliver to the Administrative Agent and the Borrower (or in the case of
a Participant, to the Lender from which the related participation shall
have been purchased) two (2) duly completed copies of Internal Revenue
Service Form 1001 or 4224, or any successor form thereto, as the case
may be, certifying in each case that such Foreign Lender is entitled to
receive payments made by the Borrower hereunder and under the Notes
payable to it, without deduction or withholding of any United States
federal income taxes and (ii) a duly completed Internal Revenue Service
Forms W-8 or W-9, or any successor form thereto, as the case may be, to
establish an exemption from United State backup withholding tax. Each
such Foreign Lender shall deliver to the Borrower and the
Administrative Agent such forms on or before the date that it becomes a
party to this Agreement (or in the case of a Participant, on or before
the date such Participant purchases the related participation). In
addition, each such Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such
Lender. Each such Lender shall promptly notify the Borrower and the
Administrative Agent at any time that it determines that it is no
longer in a position to provide any previously delivered certificate
to the Borrower (or any other form of certification adopted by the U.S.
taxing authorities for such purpose).
(f) For any period with respect to which a Lender has failed to
provide the Borrower or the Administrative Agent with the appropriate
form, certificate or other document described in subsection (e) above
(other than if such failure is due to a Change in Law), such Lender
shall not be entitled to indemnification under subsection (a) or (c) of
this Section 2.19 with respect to Taxes imposed by the United States
by reason of such failure; provided, however, that should a Lender
become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Borrower shall
take such steps as such Lender shall reasonably request to assist such
Lender to recover such Taxes. For purposes of this Section 2.19, the
entry into force of the final U.S. Department of Treasury regulations
promulgated under Sections 1441 and 1442 of the Internal Revenue Code,
published but not yet effective as of the date of this Agreement, will
not be considered a Change in Law.
Section 2.20 Payments Generally; Pro Rata Treatment; Sharing of Setoffs
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.17, 2.18 or 2.19,
or otherwise) prior to 1:00 p.m., on the date when due, in immediately
available funds, without setoff or counterclaim. Any amounts received
after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon.
All such payments shall be made to the Administrative Agent at the
Payment Office, except payments to be made directly to the Issuing
Bank or Swingline Lender as expressly provided herein and except that
payments pursuant to Sections 2.17, 2.18 and 2.19 and 10.3 shall be
made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account
of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be made payable for the period of such
extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder,
such funds shall be applied (i) first, towards payment of interest and
fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of its Revolving Loans or participations in LC
Disbursements or Swingline Loans that would result in such Lender
receiving payment of a greater proportion of the aggregate amount of
its Revolving Loans and participations in LC Disbursements and
Swingline Loans and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in
the Revolving Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary 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 Revolving Loans and participations in LC
Disbursements and Swingline Loans; provided, that (i) if any such
participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this
paragraph shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements or Swingline Loans to any assignee
or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall
apply). The Borrower 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 the Borrower rights of setoff and counterclaim with
respect to such participation as fully as if such Lender were a direct
creditor of the Borrower in the amount of such participation.
(d) 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 Issuing Bank
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 Issuing Bank, as the case
may be, the amount or amounts due. In such event, if the Borrower has
not in fact made such payment, then each of the Lenders or the Issuing
Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank 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 Effective Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.5(b), 2.22(c) or (d), 2.20(d) or 10.3(d),
then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received
by the Administrative Agent for the account of such Lender to satisfy
such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
Section 2.21 Mitigation of Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.17, 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 2.19, 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 reasonable judgment
of such Lender, such designation or assignment (i) would eliminate or
reduce amounts payable under Section 2.17 or Section 2.19, as the case
may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Borrower hereby agrees to pay all costs and
expenses incurred by any Lender in connection with such designation or
assignment.
(b) If any Lender (a "Subject Lender") makes demand upon the
Borrower for (or if the Borrower is otherwise required to pay) amounts
pursuant to Section 2.17(a) or (b) or Section 2.19 or gives notice
pursuant to Section 2.15(ii) or 2.16 requiring a conversion of such
Subject Lender's Eurodollar Borrowings to Base Rate Borrowings or
suspending such Lender's obligation to make Loans as, or to convert or
continue Loans into or as, Eurodollar Borrowings, the Borrower, may,
within 90 days of receipt by the Borrower of such demand or notice (or
the occurrence of such other event causing the Borrower to be required
to pay such compensation), as the case may be, give notice (a
"Replacement Notice") in writing to the Administrative Agent and such
Subject Lender of its intention to replace such Subject Lender with a
financial institution (a "Replacement Lender") designated in such
Replacement Notice. Unless the Administrative Agent shall, in the
exercise of its reasonable discretion and within 30 days of its receipt
of such Replacement Notice, notify the Borrower and such Subject Lender
in writing that the designated financial institution is unsatisfactory
to the Administrative Agent (such denial not being available to the
Administrative Agent where the Replacement Lender is already a Lender),
then such Subject Lender shall, subject to the payment of any amounts
due pursuant to Section 2.17(a) and (b) and Section 2.19 assign, in
accordance with Section 10.4, all of its Commitments, Loans, Notes
and other rights and obligations under this Agreement and all other
Loan Documents to the Replacement Lender; provided, however, that
(i) such assignment shall be without recourse, representation or
warranty and (ii) the purchase price paid by such designated financial
institution shall be in at least the amount of such Subject Lender's
Loans, together with all accrued and unpaid interest and fees in
respect thereof, plus all other amounts (including the amounts demanded
and unreimbursed under Sections 2.17(a) and (b) and Section 2.19) owing
to such Subject Lender hereunder. Upon the effective date of an
assignment described above, the Borrower shall issue a replacement
Note or Notes, as the case may be, to such Replacement Lender, which
shall become a "Lender" for all purposes under this Agreement and the
other Loan Documents.
Section 2.22 Letters of Credit.
(a) During the Availability Period, the Issuing Bank, in reliance
upon the agreements of the other Lenders pursuant to Section 2.22(d),
agrees to issue, at the request of the Borrower, Letters of Credit for
the account of the Borrower on the terms and conditions hereinafter set
forth; provided, that (i) each Letter of Credit shall expire on the
earlier of (A) the date one year after the date of issuance of such
Letter of Credit (or in the case of any renewal or extension thereof,
one year after such renewal or extension) and (B) the date that is five
(5) Business Days prior to the Commitment Termination Date; (ii) each
Letter of Credit shall be in a stated amount of at least $50,000; (iii)
the Borrower may not request any Letter of Credit, if, after giving
effect to such issuance (A) the aggregate LC Exposure would exceed the
LC Commitment or (B) the aggregate LC Exposure, plus the aggregate
outstanding Revolving Loans of all Lenders would exceed the Aggregate
Revolving Commitments; and (iv) there is no continuing Event of
Default hereunder. Upon the issuance of each Letter of Credit each
Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Issuing Bank without recourse a
participation in such Letter of Credit equal to such Lender's Pro Rata
Share of the aggregate amount available to be drawn under such Letter
of Credit. Each issuance of a Letter of Credit shall be deemed to
utilize the Revolving Commitment of each Lender by an amount equal to
the amount of such participation.
(b) To request the issuance of a Letter of Credit (or any amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower
shall give the Issuing Bank and the Administrative Agent irrevocable
written notice at least two (2) Business Days prior to the requested
date of such issuance specifying the date (which shall be a Business
Day) such Letter of Credit is to be issued (or amended, extended or
renewed, as the case may be), the expiration date of such Letter of
Credit, the amount of such Letter of Credit, the name and address of
the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. In
addition to the satisfaction of the conditions in Article III, the
issuance of such Letter of Credit (or any amendment which increases the
amount of such Letter of Credit) will be subject to the further
conditions that such Letter of Credit shall be in such form and contain
such terms as the Issuing Bank shall approve and that the Borrower
shall have executed and delivered any additional applications,
agreements and instruments relating to such Letter of Credit as the
Issuing Bank shall reasonably require; provided, that in the event
of any conflict between such applications, agreements or instruments
and this Agreement, the terms of this Agreement shall control.
(c) Upon receipt of Borrower's notice under Section 2.22(b), the
Issuing Bank will confirm with the Administrative Agent (by telephone
or in writing) that the Administrative Agent has received such notice
and if not, the Issuing Bank will provide the Administrative Agent with
a copy thereof. Unless the Issuing Bank has received notice from the
Administrative Agent on or before the Business Day immediately
preceding the date the Issuing Bank is to issue the requested Letter of
Credit (1) directing the Issuing Bank not to issue the Letter of Credit
because such issuance is not then permitted hereunder because of the
limitations set forth in Section 2.22(a) or that one or more conditions
specified in Article III are not then satisfied, then, subject to the
terms and conditions hereof, the Issuing Bank shall, on the requested
date, issue such Letter of Credit in accordance with the Issuing Bank's
usual and customary business practices.
(d) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly
following its receipt thereof. The Issuing Bank shall notify the
Borrower and the Administrative Agent of such demand for payment and
whether the Issuing Bank has made or will make a LC Disbursement
thereunder; provided, that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to such LC
Disbursement. The Borrower shall be irrevocably and unconditionally
obligated to reimburse the Issuing Bank for any LC Disbursements paid
by the Issuing Bank in respect of such drawing, without presentment,
demand or other formalities of any kind. Unless the Borrower shall
have notified the Issuing Bank and the Administrative Agent prior to
11:00 a.m. on the Business Day immediately prior to the date on which
such drawing is honored that the Borrower intends to reimburse the
Issuing Bank for the amount of such drawing in funds other than from
the proceeds of Revolving Loans, the Borrower shall be deemed to have
timely given a Notice of Revolving Borrowing to the Administrative
Agent requesting the Lenders to make a Base Rate Borrowing on the date
on which such drawing is honored in an exact amount due to the Issuing
Bank; provided, that for purposes solely of such Borrowing, the
conditions precedents set forth in Section 3.2 hereof shall not be
applicable. The Administrative Agent shall notify the Lenders of such
Borrowing in accordance with Section 2.3, and each Lender shall make
the proceeds of its Base Rate Loan included in such Borrowing available
to the Administrative Agent for the account of the Issuing Bank in
accordance with Section 2.6. The proceeds of such Borrowing shall be
applied directly by the Administrative Agent to reimburse the Issuing
Bank for such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is
not, made in accordance with the foregoing provisions, then each
Lender (other than the Issuing Bank) shall be obligated to fund the
participation that such Lender purchased pursuant to subsection (a) in
an amount equal to its Pro Rata Share of such LC Disbursement on and as
of the date which such Base Rate Borrowing should have occurred. Each
Lender's obligation to fund its participation shall be absolute and
unconditional and shall not be affected by any circumstance, including
without limitation (i) any setoff, counterclaim, recoupment, defense or
other right that such Lender or any other Person may have against the
Issuing Bank or any other Person for any reason whatsoever, (ii) the
existence of a Default or an Event of Default or the termination of the
Aggregate Revolving Commitments, (iii) any adverse change in the
condition (financial or otherwise) of the Borrower or any of its
Subsidiaries, (iv) any breach of this Agreement by the Borrower or any
other Lender, (v) any amendment, renewal or extension of any Letter of
Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly
transfer, in immediately available funds, the amount of its
participation to the Administrative Agent for the account of the
Issuing Bank. Whenever, at any time after the Issuing Bank has
received from any such Lender the funds for its participation in a LC
Disbursement, the Issuing Bank (or the Administrative Agent on its
behalf) receives any payment on account thereof, the Administrative
Agent or the Issuing Bank, as the case may be, will distribute to such
Lender its Pro Rata Share of such payment; provided, that if such
payment is required to be returned for any reason to the Borrower or to
a trustee, receiver, liquidator, custodian or similar official in any
bankruptcy proceeding, such Lender will return to the Administrative
Agent or the Issuing Bank any portion thereof previously distributed by
the Administrative Agent or the Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (d) of this Section 2.22 on
the due date therefor, such Lender shall pay interest to the Issuing
Bank (through the Administrative Agent) on such amount from such due
date to the date such payment is made at a rate per annum equal to the
Federal Funds Rate; provided, that if such Lender shall fail to make
such payment to the Issuing Bank within three (3) Business Days of such
due date, then, retroactively to the due date, such Lender shall be
obligated to pay interest on such amount at the Default Rate.
(g) If any Event of Default shall occur and be continuing, on the
Business Day that the Borrower receives notice from the Administrative
Agent or the Required Lenders demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders, an amount in cash equal to the LC
Exposure as of such date plus any accrued and unpaid interest thereon;
provided, that the obligation to deposit such cash collateral shall
become effective immediately, and such deposit shall become
immediately due and payable, without demand or notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower
described in clause (g) or (h) of Section 8.1. Such deposit shall be
held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement.
The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower's risk and expense, such
deposits shall not bear interest. Interest and profits, if any, on
such investments shall accumulate in such account. Moneys in such
account shall applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it had not been reimbursed
and to the extent so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated, with the
consent of the Required Lenders, be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result
of the occurrence of an Event of Default, such amount (to the extent
not so applied as aforesaid) shall be returned to the Borrower with
three Business Days after all Events of Default have been cured or
waived.
(h) Promptly following the end of each calendar quarter, the Issuing
Bank shall deliver (through the Administrative Agent) to each Lender
and the Borrower a report describing the aggregate Letters of Credit
outstanding at the end of such calendar quarter. Upon the request of
any Lender from time to time, the Issuing Bank shall deliver to such
Lender any other information reasonably requested by such Lender with
respect to each Letter of Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under
all circumstances whatsoever and irrespective of any of the following
circumstances:
(i)Any lack of validity or enforceability of any Letter of Credit
or this Agreement;
(ii)The existence of any claim, setoff, defense or other right
which the Borrower or any Subsidiary or Affiliate of the
Borrower may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons or entities
for whom any such beneficiary or transferee may be acting),
any Lender (including the Issuing Bank) or any other Person,
whether in connection with this Agreement or the Letter of
Credit or any document related hereto or thereto or any
unrelated transaction;
(iii)Any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any
respect;
(iv)Payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document to the Issuing Bank
that does not comply with the terms of such Letter of Credit;
(v)Any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder; or
(vi)The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any
Related Party of any of the foregoing shall have any liability or
responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred
to above), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document
required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the
control of the Issuing Bank; provided, that the foregoing shall not be
construed to excuse the Issuing Bank from liability to the Borrower to
the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are
caused by the Issuing Bank's failure to exercise care when determining
whether drafts or other documents presented under a Letter of Credit
comply with the terms thereof. The parties hereto expressly agree, that
in the absence of gross negligence or willful misconduct on the part of
the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care
in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect
to documents presented that appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may,
in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless
of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.
(j) Each Letter of Credit shall be subject to the Uniform Customs and
Practices for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No.500, as the same may be amended from
time to time, and, to the extent not inconsistent therewith, the
governing law of this Agreement set forth in Section 10.5.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
Section 3.1 Conditions To Effectiveness. The obligations of the Lenders
(including the Swingline Lender) to make Loans and the obligation of the Issuing
Bank to issue any Letter of Credit hereunder occasioned by the Initial Extension
of Credit are subject to satisfaction of the following conditions before or
concurrently with the Initial Extension of Credit (or waiver in accordance with
Section 10.2):
(a) The Administrative Agent shall have received all fees and other amounts
due and payable on or prior to the Closing Date, including
reimbursement or payment of all out-of-pocket expenses (including
reasonable fees, charges and disbursements of counsel to the
Administrative Agent) required to be reimbursed or paid by the Borrower
hereunder, under any other Loan Document and under any agreement with
the Administrative Agent or SunTrust Capital Markets, Inc., as Lead
Arranger.
(b) The Administrative Agent (or its counsel) shall have received the
following:
(i) a counterpart of this Agreement signed by or on behalf of each
party thereto or written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission
of a signed signature page of this Agreement) that such party
has signed a counterpart of this Agreement;
(ii) duly executed Notes payable to each Lender;
(iii) a duly executed Subsidiary Guarantee Agreement executed by
each Subsidiary;
(iv) a certificate of the Secretary or Assistant Secretary of each
Loan Party, attaching and certifying copies of its charter (or
corresponding organizational documents), bylaws and of the
resolutions of its boards of directors (or other governing
body), authorizing the execution, delivery and performance of
the Loan Documents to which it is a party and certifying the
name, title and true signature of each officer or
representative of such Loan Party executing the Loan Documents
to which it is a party;
(v) certificates of good standing or existence, as may be
available from the Secretary of State of the jurisdiction of
incorporation of such Loan Party and each other jurisdiction
where such Loan Party is required to be qualified to do
business as a foreign corporation;
(vi) a favorable written opinion of Dinsmore & Shohl LLP, counsel
to the Loan Parties, addressed to the Administrative Agent and
each of the Lenders, and covering such matters relating to the
Loan Parties, the Loan Documents and the transactions
contemplated therein as the Administrative Agent or the
Required Lenders shall reasonably request;
(vii) duly executed payoff letters, executed by each lender holding
Indebtedness to be refinanced on the Closing Date;
(viii) certificates of insurance issued on behalf of insurer of the
Borrower, describing in reasonable detail the types and
amounts of insurance (property and liability) maintained by
the Borrower;
(ix) duly executed Notices of Borrowing, if applicable; and
(x) a duly executed funds disbursement agreement.
Section 3.2 Each Credit Event.
(a) The obligation of each Lender to make a Loan on the occasion of each
Borrowing (including the Initial Extension of Credit) and the obligation of the
Issuing Bank to issue a Letter of Credit (including the initial issuance) or
renew a Letter of Credit and the right of the Borrower to request the issuance
or a renewal of a Letter of Credit, shall be subject to the further conditions
precedent that on the date of such Borrowing or issuance or renewal: (x) the
following statements shall be true (and each of the giving of the acceptance by
the Borrower of the proceeds of such Borrowing or of such Letter of Credit or
the renewal of such Letter of Credit shall constitute a representation and
warranty by the Borrower that both on the date of such notice and on the date of
such Borrowing or issuance or renewal (and giving effect thereto) such
statements are true):
(i) no Default or Event of Default exists; and
(ii) all representations and warranties of each Loan Party set
forth in the Loan Documents are true and correct in all
material respects on and as of the date other than any such
representations or warranties that, by their terms, refer to a
specific date other than the date of such Borrowing or
issuance or renewal, in which case as of such specific date;
and
(iii) since the date of the most recent financial statements
referred to in Section 4.4(a) or delivered by the Borrower
pursuant to Section 5.1(a), there has been no change which has
had or could reasonably be expected to result in a Material
Adverse Effect; and
(b) the Administrative Agent shall have received such other documents,
certificates, information or legal opinions as the Administrative Agent
or the Required Lenders may reasonably request, all in form and
substance reasonably satisfactory to the Administrative Agent or the
Required Lenders.
Section 3.3 Delivery of Documents. All of the Loan Documents, certificates,
legal opinions and other documents and papers referred to in this Article III,
unless otherwise specified, shall be delivered to the Administrative Agent for
the account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be in form and
substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
each Lender as follows:
Section 4.1 Existence; Power. The Borrower and each of its Subsidiaries (i)
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to
carry on its business as now conducted, and (iii) is duly qualified to do
business, and is in good standing, in each jurisdiction where such qualification
is required, except where a failure to be so qualified would not reasonably be
expected to result in a Material Adverse Effect.
Section 4.2 Organizational Power; Authorization. The execution, delivery
and performance by each Loan Party of the Loan Documents to which it is a party
are within such Loan Party's organizational powers and have been duly authorized
by all necessary organizational action. This Agreement has been duly executed
and delivered by the Borrower, and constitutes, and each other Loan Document to
which any Loan Party is a party, when executed and delivered by such Loan Party,
will constitute, valid and binding obligations of the Borrower or such Loan
Party (as the case may be), enforceable against it in accordance with their
respective terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
Section 4.3 Governmental Approvals; No Conflicts. The execution, delivery
and performance by the Borrower of this Agreement, and by each Loan Party of the
other Loan Documents to which it is a party (a) do not require any consent or
approval of, registration or filing with, or any action by, any Governmental
Authority, except those as have been obtained or made and are in full force and
effect or where the failure to do so, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under
any indenture, material agreement or other material instrument binding on the
Borrower or any of its Subsidiaries or any of its assets or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries (except for violations that would not reasonably be expected to
have a Material Adverse Effect) and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries,
except Liens (if any) created under the Loan Documents.
Section 4.4 Financial Statements. The Borrower has furnished to each Lender
(i) the audited consolidated balance sheet of the Borrower and its Subsidiaries
as of its fiscal year ending August 2, 2002 and the related consolidated
statements of income, shareholders' equity and cash flows for the fiscal year
then ended audited by Deloitte & Touche LLP and (ii) the unaudited consolidated
balance sheet of the Borrower and its Subsidiaries as of November 1, 2002, and
the related unaudited consolidated statements of income and cash flows for the
fiscal quarter and year-to-date period then ending, certified by a Responsible
Officer. Such financial statements fairly present the consolidated financial
condition of the Borrower and its Subsidiaries as of such dates and the
consolidated results of operations for such periods in conformity with GAAP
consistently applied, subject to year end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii). Since August
2, 2002, there have been no changes with respect to the Borrower and its
Subsidiaries which have had or would reasonably be expected to have, singly or
in the aggregate, a Material Adverse Effect.
Section 4.5 Litigation and Environmental Matters. Except for the matters
set forth on Schedule 4.5:
(a) no litigation, investigation or proceeding of or before any arbitrators
or Governmental Authorities is pending against or, to the knowledge of
the Borrower, threatened against or affecting the Borrower or any of
its Subsidiaries (i) as to which there is a reasonable possibility of
an adverse determination that would reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect or
(ii) which in any manner draws into question the validity or
enforceability of this Agreement or any other Loan Document.
(b) neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law, or to obtain, maintain or comply
with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any
Environmental Liability, the result of any of which would reasonably be
expected to result in, either individually or in the aggregate, a
Material Adverse Effect.
Section 4.6 Compliance with Laws and Agreements. The Borrower and each
Subsidiary is in compliance with (a) all applicable laws, rules, regulations and
orders of any Governmental Authority, and (b) all indentures, agreements or
other instruments binding upon it or its properties, except such non-compliance
that, either singly or in the aggregate, would be expected to result in a
Material Adverse Effect.
Section 4.7 Investment Company Act, Etc. Neither the Borrower nor any of
its Subsidiaries is (a) an "investment company", as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended, or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended.
Section 4.8 Taxes. The Borrower and its Subsidiaries have timely filed or
caused to be filed all federal income tax returns and all other material tax
returns that are required to be filed by them, and have paid all taxes shown to
be due and payable on such returns or on any assessments made against it or its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority, except (i) to the extent the failure to
do so would not have a Material Adverse Effect or (ii) where the same are
currently being contested in good faith by appropriate proceedings and for which
the Borrower or such Subsidiary, as the case may be, has set aside on its books
adequate reserves in accordance with GAAP.
Section 4.9 Margin Regulations. None of the proceeds of any of the Loans or
Letters of Credit will be used for "purchasing" or "carrying" any "margin stock"
with the respective meanings of each of such terms under Regulation U as now and
from time to time hereafter in effect or for any purpose that violates the
provisions of the applicable Margin Regulations.
Section 4.10 ERISA. No ERISA Event has occurred or is reasonably expected
to occur with respect to any Plan that, when taken together with all other such
ERISA Events with respect to any Plan for which liability is reasonably expected
to occur, would reasonably be expected to result in a Material Adverse Effect.
The present value of all accumulated benefit obligations under each Plan (based
on the assumptions used for purposes of Statement of Financial Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $5,000,000 the fair market value of the assets of
such Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $5,000,000 the fair
market value of the assets of all such underfunded Plans.
Section 4.11 Ownership of Property.
(a) The Borrower and its Subsidiaries as a whole have good title to, or
valid leasehold interests in, all of their real and personal property
material to the operation of their business.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed, or
otherwise has the right, to use, all patents, trademarks, service
marks, tradenames, copyrights and other intellectual property material
to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe on the rights of any other Person,
except for any such failures that, individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse
Effect.
Section 4.12 Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports (including without limitation all reports that
the Borrower is required to file with the Securities and Exchange Commission),
financial statements, certificates or other information furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender in connection
with the negotiation or syndication of this Agreement or any other Loan Document
or delivered hereunder or thereunder (as modified or supplemented by any other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, taken as a
whole, in light of the circumstances under which they were made, not misleading.
Section 4.13 Labor Relations. Except for the matters set forth in Schedule
4.5, there are no strikes, lockouts or other material labor disputes or
grievances against the Borrower or any of its Subsidiaries, or, to the
Borrower's knowledge, threatened against or affecting the Borrower or any of its
Subsidiaries, and no significant unfair labor practice, charges or grievances
are pending against the Borrower or any of its Subsidiaries, or to the
Borrower's knowledge, threatened against any of them before any Governmental
Authority any of which individually or in the aggregate would be reasonably
expected to result in a Material Adverse Effect. All payments due from the
Borrower or any of its Subsidiaries pursuant to the provisions of any collective
bargaining agreement have been paid or accrued as a liability on the books of
the Borrower or any such Subsidiary, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
Section 4.14 Subsidiaries. Schedule 4.14 sets forth the name of, the
ownership interest of the Borrower in, the jurisdiction of incorporation of, and
the type of, each Subsidiary as of the Closing Date.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of and interest on any Loan or any fee or
any LC Disbursement remains unpaid or any Letter of Credit remains outstanding:
Section 5.1 Financial Statements and Other Information. The Borrower will
deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of
each fiscal year of Borrower, a copy of the annual audited report for such
fiscal year for the Borrower and its Subsidiaries, containing a consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal
year and the related consolidated statements of income, stockholders' equity and
cash flows (together with all footnotes thereto) of the Borrower and its
Subsidiaries for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail and
reported on by an accounting firm acceptable to Administrative Agent (without a
"going concern" or like qualification, exception or explanation and without any
qualification or exception as to scope of such audit) to the effect that such
financial statements present fairly in all material respects the financial
condition and the results of operations of the Borrower and its Subsidiaries for
such fiscal year on a consolidated basis in accordance with GAAP and that the
examination by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards;
(b) as soon as available and in any event within 45 days after the end of
each of the first three fiscal quarters of each fiscal year of the Borrower, an
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of such fiscal quarter and the related unaudited consolidated statements
of income and cash flows of the Borrower and its Subsidiaries for such fiscal
quarter and the then elapsed portion of such fiscal year, setting forth in each
case in comparative form the figures for the corresponding quarter and the
corresponding portion of Borrower's previous fiscal year, all certified by the
chief financial officer or treasurer of the Borrower as presenting fairly in all
material respects the financial condition and results of operations of the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP,
subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to
in clauses (a) and (b) above, a certificate of a Responsible Officer (in
substantially the form of the Compliance Certificate attached hereto as Exhibit
E), (i) certifying as to whether there exists a Default or Event of Default on
the date of such certificate, and if a Default or an Event of Default then
exists, specifying the details thereof and the action which the Borrower has
taken or proposes to take with respect thereto, (ii) setting forth in reasonable
detail calculations demonstrating compliance with Article VI and (iii) stating
whether any change in GAAP or the application thereof has occurred since the
date of the Borrower's most recent audited financial statements either referred
to in Section 4.4 or delivered pursuant to subsection (a) of this Section, and,
if any change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate; and
(d) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial condition of
the Borrower or any Subsidiary as the Administrative Agent or any Lender may
reasonably request.
Section 5.2 Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or, to the knowledge of
the Borrower, affecting the Borrower or any Subsidiary which, if adversely
determined, would reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by which the
Borrower or any of its Subsidiaries (i) fails to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) becomes subject to any Environmental
Liability, (iii) receives notice of any claim with respect to any Environmental
Liability, or (iv) becomes aware of any basis for any Environmental Liability
and in each of the preceding clauses, which individually or in the aggregate,
would reasonably be expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrower and its Subsidiaries in an aggregate amount exceeding
$5,000,000; and
(e) any other development that results in, or would reasonably be expected
to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
Section 5.3 Existence; Conduct of Business. The Borrower will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and maintain in full force and effect its legal existence and
its respective rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business
and will continue to engage in the same business as presently conducted or such
other businesses that are reasonably related thereto; provided, that nothing in
this Section shall prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 7.3.
Section 5.4 Compliance with Laws, Etc. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and
requirements of any Governmental Authority applicable to its properties, except
where the failure to do so, either individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect.
Section 5.5 Payment of Obligations. The Borrower will, and will cause each
of its Subsidiaries to, pay and discharge at or before maturity, all of its
obligations and liabilities (including without limitation all tax liabilities
and claims that could result in a statutory Lien) before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest would not reasonably be expected to result in a Material Adverse Effect.
Section 5.6 Books and Records. The Borrower will, and will cause each of
its Subsidiaries to, keep proper books of record and account in which full, true
and correct entries shall be made of all dealings and transactions in relation
to its business and activities to the extent necessary to prepare the
consolidated financial statements of Borrower in conformity with GAAP.
Section 5.7 Visitation, Inspection, Etc. The Borrower will, and will cause
each of its Subsidiaries to, permit any representative of the Administrative
Agent or any Lender, to visit and inspect its properties, to examine its books
and records and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with any of its officers and with its independent
certified public accountants, all at such reasonable times during normal
business hours and as often as the Administrative Agent or any Lender may
reasonably request after reasonable prior notice to the Borrower.
Section 5.8 Maintenance of Properties; Insurance. The Borrower will, and
will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear except where the failure to do so, either individually or
it the aggregate, would not reasonably be expected to result in a Material
Adverse Effect and (b) maintain with financially sound and reputable insurance
companies, insurance with respect to its properties and business, and the
properties and business of its Subsidiaries, against loss or damage of the kinds
customarily insured against by companies in the same or similar businesses
commensurate with the size of Borrower and with deductibles in amounts
reasonably acceptable to Administrative Agent.
Section 5.9 Use of Proceeds and Letters of Credit. The Borrower will use
the proceeds of all Loans to refinance existing indebtedness, to finance
acquisitions permitted under the terms of this Agreement, to finance working
capital needs and for other general corporate purposes of the Borrower and its
Subsidiaries, which from time to time may include purchases of Borrower's
outstanding equity securities in accordance with the rules and regulations of
the United States Securities and Exchange Commission. No part of the proceeds of
any Loan will be used, whether directly or indirectly, for any purpose that
would violate any rule or regulation of the Board of Governors of the Federal
Reserve System, including Regulations T, U or X. All Letters of Credit will be
used for general corporate purposes.
Section 5.10 Additional Subsidiaries. If any additional Subsidiary is
acquired or formed after the Closing Date, the Borrower will, within ten (10)
business days after such Subsidiary is acquired or formed, notify the
Administrative Agent and the Lenders thereof and will cause such Subsidiary to
execute a Subsidiary Guarantee Agreement in the same form and substance as the
Subsidiary Guarantee Agreements previously executed, and the Borrower will cause
such Subsidiary to deliver similar documents applicable to such Subsidiary
required under Section 3.1 as reasonably requested by the Administrative Agent.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on or any Loan remains
unpaid or any fee or any LC Disbursement remains unpaid or any Letter of Credit
remains outstanding:
Section 6.1 Leverage Ratio. The Borrower, on a consolidated basis with its
Subsidiaries shall maintain, as of the end of each fiscal quarter of Borrower a
Leverage Ratio of not greater than 0.50 to 1.00.
Section 6.2 Fixed Charge Coverage Ratio. The Borrower, on a consolidated
basis with its Subsidiaries, shall maintain a Fixed Charge Coverage Ratio, for
the most recently completed four fiscal quarter period, greater than 2.50 to
1.00.
Section 6.3 Consolidated Total Adjusted Debt to Consolidated EBITDAR. The
Borrower, on a consolidated basis with its Subsidiaries, shall maintain a ratio
of Consolidated Total Adjusted Debt to Consolidated EBITDAR, for the most
recently completed four fiscal quarter period, of not greater than 3.00 to 1.00.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on any Loan remains unpaid
or any fee or any LC Disbursement remains unpaid or any Letter of Credit remains
outstanding:
Section 7.1 Indebtedness. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth on Schedule 7.1
and extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof (immediately prior to giving
effect to such extension, renewal or replacement) or shorten the maturity or the
weighted average life thereof;
(c) Indebtedness represented by the LYONs;
(d) Indebtedness incurred to finance the acquisition of any capital assets
(including Capital Lease Obligations and any Indebtedness assumed in connection
with the acquisition of any such assets secured by a lien on such assets prior
to the acquisition thereof); provided, that (i) such Indebtedness is incurred
prior to or within 90 days after such acquisition, (ii) any extensions,
renewals, and replacements of any such Indebtedness do not increase the
outstanding principal amount thereof (immediately prior to giving effect to such
extension, renewal or replacement) or shorten the maturity or the weighted
average life thereof, and (iii) the aggregate principal amount of such
Indebtedness does not exceed $50,000,000 at any time outstanding;
(e) Indebtedness incurred pursuant to Operating Leases for real property
used in connection with restaurant facilities; and
(f) other unsecured Indebtedness; provided that after giving effect to such
additional unsecured Indebtedness and all other Indebtedness allowable under
this Section, Borrower remains in pro-forma compliance with the financial
covenants set forth in Article VI hereof and no Default or Events of Default
shall have occurred and be continuing or would occur as a result thereof.
Section 7.2 Negative Pledge. The Borrower will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any
of its assets or property now owned or hereafter acquired or, except:
(a) Permitted Encumbrances;
(b) any Liens on any property or asset of the Borrower or any Subsidiary
existing on the Closing Date set forth on Schedule 7.2; provided, that such Lien
shall not apply to any other property or asset of the Borrower or any
Subsidiary;
(c) purchase money Liens upon any capital assets to secure the purchase
price of such capital assets (including Liens securing any Capital Lease
Obligations); provided, that (i) such Lien secures Indebtedness permitted by
Section 7.1(d), (ii) such Lien attaches to such asset concurrently or within 90
days after the acquisition thereof; (iii) such Lien does not extend to any other
asset; and (iv) the Indebtedness secured thereby does not exceed the cost of
acquiring such capital assets;
(d) any Lien (i) existing on any asset of any Person at the time such
Person becomes a Subsidiary of the Borrower, (ii) existing on any asset of any
Person at the time such Person is merged with or into the Borrower or any
Subsidiary of the Borrower or (iii) existing on any asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower; provided,
that any such Lien was not created in the contemplation of any of the foregoing
and any such Lien secures only those obligations which it secures on the date
that such Person becomes a Subsidiary or the date of such merger or the date of
such acquisition;
(e) Liens arising in connection with Capital Lease Obligations, provided
that no such Lien shall extend to or cover any assets other than the assets
subject to such Capital Lease Obligations;
(f) other Liens securing Indebtedness outstanding in an aggregate principal
amount not to exceed $10,000,000; and
(g) extensions, renewals, or replacements of any Lien referred to in
paragraphs (a) through (f) of this Section; provided, that the principal amount
of the Indebtedness secured thereby is not increased and that any such
extension, renewal or replacement is limited to the assets originally encumbered
thereby.
Section 7.3 Fundamental Changes.
(a) The Borrower will not, and will not permit any Subsidiary to, merge
into or consolidate into any other Person, or permit any other Person to merge
into or consolidate with it, or sell, lease, transfer or otherwise dispose of
(in a single transaction or a series of transactions) all or substantially all
of its assets (in each case, whether now owned or hereafter acquired) or all or
substantially all of the stock of any of its Subsidiaries (in each case, whether
now owned or hereafter acquired) or liquidate or dissolve; provided, that if at
the time thereof and immediately after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing (i) the Borrower or any
Subsidiary may merge with a Person if the Borrower (or such Subsidiary) is the
surviving Person, (ii) any Subsidiary may merge into another Subsidiary, (iii)
any Subsidiary may sell, transfer, lease or otherwise dispose of all or
substantially all of its assets to the Borrower or to another Subsidiary and
(iv) a Borrower or a Subsidiary may engage in a merger or consolidation pursuant
to an acquisition permitted under Section 7.4; provided, that any such merger
involving a Person that is not a wholly-owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
engage to any material extent in any business other than businesses of the type
conducted by the Borrower and its Subsidiaries on the date hereof and businesses
reasonably related thereto.
Section 7.4 Investments, Loans, Acquisitions, Etc. The Borrower will not,
and will not permit any of its Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly-owned
Subsidiary prior to such merger), any common stock, evidence of indebtedness or
other securities (including any option, warrant, or other right to acquire any
of the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or any
other interest in, any other Person (all of the foregoing being collectively
called "Investments"), or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person that constitute a
business unit, except:
(a) Investments (other than Permitted Investments) existing on the date
hereof and set forth on Schedule 7.4 (including Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
(d) Investments made by the Borrower in or to any Subsidiary (including
intercompany Indebtedness) and by any Subsidiary to the Borrower or in or to
another Subsidiary (including intercompany Indebtedness);
(e) loans or advances to employees, officers or directors of the Borrower
or any Subsidiary in the ordinary course of business for travel, relocation and
related expenses;
(f) Hedging Agreements permitted by Section 7.9;
(g) Investments constituting an acquisition of assets or shares of another
Person, if (i) the Borrower is in pro-forma compliance with the financial
covenants of Article VI following such acquisition; (ii) the acquisition is the
same or a similar line of Business as now conducted by the Borrower and its
Subsidiaries; (iii) after giving effect to such acquisition, no Default or Event
of Default shall exist; and (iv) the acquired assets or shares are owned by
Borrower or a Subsidiary; and
(h) Investments other than those described in subsections (a) through (g)
above which in the aggregate do not exceed $25,000,000 during the term of this
Agreement.
Section 7.5 Restricted Payments. The Borrower will not, and will not permit
its Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any dividend on any class of its stock, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, retirement, defeasance or other acquisition of, any shares
of common stock or Indebtedness subordinated to the Obligations of the Borrower
or any options, warrants, or other rights to purchase such common stock or such
Indebtedness, whether now or hereafter outstanding (each, a "Restricted
Payment"), except for (i) dividends payable by the Borrower solely in shares of
any class of its common stock, (ii) Restricted Payments made by any Subsidiary
to the Borrower or to another Subsidiary and (iii) cash dividends paid on, and
cash redemptions of, the common stock of the Borrower; provided, that (i) no
Default or Event of Default has occurred and is continuing at the time such
dividend is paid or redemption is made and (ii) such Restricted Payment is
permitted under applicable law.
Section 7.6 Sale of Assets. The Borrower will not, and will not permit any
of its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise
dispose of, any of its assets, business or property, whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares
of such Subsidiary's common stock to any Person other than the Borrower (or to
qualified directors if required by applicable law), except:
(a) the sale or other disposition in the ordinary course of business for
fair market value of obsolete or worn out property or other property reasonably
deemed unnecessary for operations;
(b) the sale of inventory and Permitted Investments in the ordinary course
of business;
(c) a transfer of assets pursuant to a transaction allowable under Section
7.3; and
(d) the sale or other disposition of assets in an aggregate amount not to
exceed $50,000,000 during the term of this Agreement.
Section 7.7 Transactions with Affiliates. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its Subsidiaries not involving
any other Affiliates and (c) any Restricted Payment permitted by Section 7.5.
Section 7.8 Restrictive Agreements. The Borrower will not, and will not
permit any Subsidiary to, directly or indirectly, enter into, incur or permit to
exist any agreement that prohibits, restricts or imposes any condition upon (a)
the ability of the Borrower or any Subsidiary to create, incur or permit any
Lien upon any of its assets or properties, whether now owned or hereafter
acquired, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its common stock, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary or to transfer any of its property or
assets to the Borrower or any Subsidiary of the Borrower; provided, that (i) the
foregoing shall not apply to restrictions or conditions imposed by law or by
this Agreement or any other Loan Document, (ii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale is permitted
hereunder, (iii) clause (a) shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions and conditions apply only to the property or
assets securing such Indebtedness and (iv) clause (a) shall not apply to
customary provisions in leases restricting the assignment thereof.
Section 7.9 Hedging Agreements. The Borrower will not, and will not permit
any of the Subsidiaries to, enter into any Hedging Agreement, other than Hedging
Agreements entered into in the ordinary course of business to hedge or mitigate
risks to which the Borrower or any Subsidiary is exposed in the conduct of its
business or the management of its liabilities. Solely for the avoidance of
doubt, the Borrower acknowledges that a Hedging Agreement entered into for
speculative purposes or of a speculative nature (which shall be deemed to
include any Hedging Agreement under which the Borrower or any of the
Subsidiaries is or may become obliged to make any payment (i) in connection with
the purchase by any third party of any common stock or any Indebtedness or (ii)
as a result of changes in the market value of any common stock or any
Indebtedness) is not a Hedging Agreement entered into in the ordinary course of
business to hedge or mitigate risks.
Section 7.10 Amendment to Material Documents. The Borrower will not permit
any Subsidiary to, amend, modify or waive any of its rights in a manner
materially adverse to the Lenders under its certificate of incorporation, bylaws
or other organizational documents.
Section 7.11 Accounting Changes. The Borrower will not, and will not permit
any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except pursuant to GAAP, or change the fiscal year of the
Borrower or of any Subsidiary, except to change the fiscal year of a Subsidiary
to conform its fiscal year to that of the Borrower.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.1 Events of Default. If any of the following events (each an
"Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or of any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or any fee or
any other amount (other than an amount payable under clause (a) of this Article)
payable under this Agreement or any other Loan Document, when and as the same
shall become due and payable, and such failure shall continue unremedied for a
period of five (5) days; or
(c) any representation or warranty made or deemed made by or on behalf of
the Borrower or any Subsidiary in or in connection with this Agreement or any
other Loan Document (including the Schedules attached thereto), or in any
certificate, report, financial statement or other document submitted to the
Administrative Agent or the Lenders by any Loan Party or any representative of
any Loan Party pursuant to or in connection with this Agreement or any other
Loan Document shall be incorrect in any material respect when made or deemed
made or submitted; or
(d) the Borrower shall fail to observe or perform any covenant or agreement
contained in Sections 5.2, 5.3 (with respect to the Borrower's existence) or
Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those referred to in clauses
(a), (b), (c) and (d) above), and such failure shall remain unremedied for 30
days (5 days in the event of a failure to observe or perform under clauses (a),
(b) or (c) of Section 5.1) after the earlier of (i) a Responsible Officer of the
Borrower becomes aware of such failure, or (ii) notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender; or
(f) the Borrower or any Subsidiary (whether as primary obligor or as
guarantor or other surety) shall fail to pay any principal of or premium or
interest on any Material Indebtedness that is outstanding, when and as the same
shall become due and payable (whether at scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument evidencing such Indebtedness; or any other event shall occur or
condition shall exist under any agreement or instrument relating to such
Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable;
or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or any offer to
prepay, redeem, purchase or defease such Indebtedness shall be required to be
made, in each case prior to the stated maturity thereof; or
(g) the Borrower or any Subsidiary shall (i) commence a voluntary case or
other proceeding or file any petition seeking liquidation, reorganization or
other relief under any federal, state or foreign bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
custodian, trustee, receiver, liquidator or other similar official of it or any
substantial part of its property, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in clause (i) of this Section, (iii) apply for or consent to the appointment of
a custodian, trustee, receiver, liquidator or other similar official for the
Borrower or any such Subsidiary or for a substantial part of its assets, (iv)
file an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors, or (vi) take any action for the purpose of effecting any of the
foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in
respect of the Borrower or any Subsidiary or its debts, or any substantial part
of its assets, under any federal, state or foreign bankruptcy, insolvency or
other similar law now or hereafter in effect or (ii) the appointment of a
custodian, trustee, receiver, liquidator or other similar official for the
Borrower or any Subsidiary or for a substantial part of its assets, and in any
such case, such proceeding or petition shall remain undismissed for a period of
60 days or an order or decree approving or ordering any of the foregoing shall
be entered; or
(i) the Borrower or any Subsidiary shall become unable to pay, shall admit
in writing its inability to pay, or shall fail to pay, its debts as they become
due; or
(j) an ERISA Event shall have occurred that, in the opinion of the Required
Lenders, when taken together with other ERISA Events that have occurred, could
reasonably be expected to result in liability to the Borrower and the
Subsidiaries in an aggregate amount exceeding $5,000,000; or
(k) any judgments or orders for the payment of money in excess of
$25,000,000 in the aggregate, and (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or court order or (ii) there shall
be any period of 30 consecutive days during which such judgment shall not have
been discharged or a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; provided, however, that
any such judgment or court order shall not be an Event of Default under this
Section 8.1(k) if and for so long as (i) the entire amount of such judgment or
court order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer has
been notified of, and has not disputed the claim made for payment of the amount
of such judgment or order shall be rendered against the Borrower or any
Subsidiary; or
(l) any non-monetary judgment or order shall be rendered against the
Borrower or any Subsidiary that is likely to have a Material Adverse Effect, and
there shall be a period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(m) a Change in Control shall occur or exist; or
(n) any provision of any Subsidiary Guarantee Agreement shall for any
reason cease to be valid and binding on, or enforceable against, any Subsidiary
party thereto, or any Subsidiary party thereto shall so state in writing, or any
Subsidiary party thereto shall seek to terminate its Subsidiary Guarantee
Agreement;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately; (ii) declare the principal of and any accrued interest on
the Loans, and all other Obligations owing hereunder, to be, whereupon the same
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower and
(iii) exercise all remedies contained in any other Loan Document; and that, if
an Event of Default specified in either clause (g) or (h) shall occur, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon, and all fees, and all other
Obligations shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.1 Appointment of Administrative Agent.
(a) Each Lender irrevocably appoints SunTrust Bank as the Administrative
Agent and authorizes it to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent under this Agreement and the
other Loan Documents, together with all such actions and powers that are
reasonably incidental thereto. The Administrative Agent may perform any of its
duties hereunder 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 through
their respective Related Parties. The exculpatory provisions set forth in this
Article shall apply to any such sub-agent and 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.
(b) The Issuing Bank shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time and except for so long as the Administrative Agent may agree at the request
of the Required Lenders to act for the Issuing Bank with respect thereto;
provided, that the Issuing Bank shall have all the benefits and immunities (i)
provided to the Administrative Agent in this Article IX with respect to any acts
taken or omissions suffered by the Issuing Bank in connection with Letters of
Credit issued by it or proposed to be issued by it and the application and
agreements for letters of credit pertaining to the Letters of Credit as fully as
the term "Administrative Agent" as used in this Article IX included the Issuing
Bank with respect to such acts or omissions and (ii) as additionally provided in
this Agreement with respect to the Issuing Bank.
Section 9.2 Nature of Duties of Administrative Agent. The Administrative
Agent shall not have any duties or obligations except those expressly set forth
in this Agreement and the other Loan Documents. Without limiting the generality
of the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default or an Event
of Default has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any discretionary
powers, except those discretionary rights and powers expressly contemplated by
the Loan Documents that the Administrative Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.2), and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not 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 Subsidiaries that is communicated to or obtained by 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
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default or Event of Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or any Lender, and
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 any 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 and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
Section 9.3 Lack of Reliance on the Administrative Agent. Each of the
Lenders, the Swingline Lender and the Issuing Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each of
the Lenders, the Swingline Lender and the Issuing Bank also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder.
Section 9.4 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
Section 9.5 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 believed by it to be genuine and to have been signed, sent or
made by the proper Person. The Administrative Agent may also rely upon any
statement made to it orally or by telephone and believed by it to be made by the
proper Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (including counsel for the
Borrower), independent public 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 such counsel, accountants or experts.
Section 9.6 The Administrative Agent in its Individual Capacity. The bank
serving as the Administrative Agent shall have the same rights and powers under
this Agreement and any other Loan Document in its capacity as a Lender as any
other Lender and may exercise or refrain from exercising the same as though it
were not the Administrative Agent; and the terms "Lenders", "Required Lenders",
"holders of Notes", or any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its individual
capacity. The bank acting as the Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or Affiliate of the Borrower as if
it were not the Administrative Agent hereunder.
Section 9.7 Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving ten (10)
days' notice thereof to the Lenders and the Borrower. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor Administrative
Agent, subject to the approval by the Borrower provided that no Default or Event
of Default shall exist at such time. If no successor Administrative Agent shall
have been so appointed, and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or any state thereof or
a bank which maintains an office in the United States, having a combined capital
and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative Agent
hereunder by a successor, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement and the
other Loan Documents. If within 45 days after written notice is given of the
retiring Administrative Agent's resignation under this Section 9.7 no successor
Administrative Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (i) the retiring Administrative Agent's
resignation shall become effective, (ii) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (iii) the Required Lenders shall thereafter perform all duties of the
retiring Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided above.
After any retiring Administrative Agent's resignation hereunder, the provisions
of this Article IX shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect of any
actions taken or not taken by any of them while it was serving as the
Administrative Agent.
ARTICLE X
MISCELLANEOUS
Section 10.1 Notices.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to any
party herein to be effective shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
To the Borrower: CBRL Group, Inc.
305 Hartmann Drive
Lebanon, Tennessee 37087
Attention: Lawrence E. White
Telecopy Number: (615) 443-9818
To the Administrative Agent: SunTrust Bank
201 Fourth Avenue North, 3rd Floor
Nashville, Tennessee 37219
Attention: Allen Oakley and Ned Spitzer
Telecopy Number: (615) 748-5269
With a copy to: SunTrust Bank
Agency Services
303 Peachtree Street, N.E., 25th Floor
Atlanta, Georgia 30308
Attention: Ms. Hope Williams
Telecopy Number: (404) 658-4906
To the Issuing Bank: SunTrust Bank
25 Park Place, N. E./Mail Code 3706
Atlanta, Georgia 30303
Attention: Michael E. Sullivan
Telecopy Number: (404) 588-8129
To the Swingline Lender: SunTrust Bank
Agency Services
303 Peachtree Street, N.E., 25th Floor
Atlanta, Georgia 30308
Attention: Ms. Hope Williams
Telecopy Number: (404) 658-4906
To any other Lender: the address set forth in the
Administrative Questionnaire
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All such
notices and other communications shall, when transmitted by overnight delivery,
or faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mails or if
delivered, upon delivery; provided, that notices delivered to the Administrative
Agent, the Issuing Bank or the Swingline Bank shall not be effective until
actually received by such Person at its address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the convenience
and at the request of the Borrower. The Administrative Agent and the Lenders
shall be entitled to rely on the authority of any Person purporting to be a
Person authorized by the Borrower to give such notice and the Administrative
Agent and Lenders shall not have any liability to the Borrower or other Person
on account of any action taken or not taken by the Administrative Agent or the
Lenders in reliance upon such telephonic or facsimile notice. The obligation of
the Borrower to repay the Loans and all other Obligations hereunder shall not be
affected in any way or to any extent by any failure of the Administrative Agent
and the Lenders to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Administrative Agent and the Lenders of a
confirmation which is at variance with the terms understood by the
Administrative Agent and the Lenders to be contained in any such telephonic or
facsimile notice.
Section 10.2 Waiver; Amendments.
(a) No failure or delay by the Administrative Agent, the Issuing Bank or
any Lender in exercising any right or power hereunder or any other Loan
Document, and no course of dealing between the Borrower and the Administrative
Agent or any Lender, shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power or any abandonment or discontinuance
of steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies provided by law. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
the issuance of a Letter of Credit shall not be construed as a waiver of any
Default or Event of Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default or
Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the other
Loan Documents, nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Borrower and the Required Lenders or the Borrower and the Administrative Agent
with the consent of the Required Lenders and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, that no amendment or waiver shall: (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii) reduce
the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the date fixed for any
payment of any principal of, or interest on, any Loan or LC Disbursement or
interest thereon or any fees hereunder or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date for the termination or
reduction of any Commitment, without the written consent of each Lender affected
thereby, (iv) change Section 2.19(b) or (c) in a manner that would alter the pro
rata sharing of payments required thereby, without the written consent of each
Lender, (v) change any of the provisions of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders which are required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
consent of each Lender; (vi) release any guarantor or limit the liability of any
such guarantor under any guaranty agreement; or (vii) release all or
substantially all collateral (if any) securing any of the Obligations; provided
further, that no such agreement shall amend, modify or otherwise affect the
rights, duties or obligations of the Administrative Agent, the Swingline Bank
or the Issuing Bank without the prior written consent of such Person.
Section 10.3 Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs and
expenses of the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent and its Affiliates, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents and any amendments, modifications or waivers thereof (whether or not
the transactions contemplated in this Agreement or any other Loan Document shall
be consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Bank 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 costs and expenses (including, without limitation, the reasonable
fees, charges and disbursements of outside counsel and the allocated cost of
inside counsel) incurred by the Administrative Agent, the Issuing Bank or any
Lender in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or in
connection with the Loans made or any 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) The Borrower shall indemnify the Administrative Agent, the Issuing Bank
and each Lender, and each Related Party of any of the foregoing (each, an
"Indemnitee") against, and hold each of them harmless from, any and all costs,
losses, liabilities, claims, damages and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, which may be
incurred by or asserted against any Indemnitee arising out of, in connection
with or as a result of (i) the execution or delivery of this Agreement or any
other agreement or instrument contemplated hereby, the performance by the
parties hereto of their respective obligations hereunder or the consummation of
any of the transactions contemplated hereby, (ii) any Loan or Letter of Credit
or any actual or proposed use of the proceeds therefrom (including any refusal
by the Issuing Bank 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 by the Borrower
or any Subsidiary or any Environmental Liability related in any way to the
Borrower or any Subsidiary 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 and regardless of whether any Indemnitee is a
party thereto; provided, that the Borrower shall not be obligated to indemnify
any Indemnitee for any of the foregoing arising out of such Indemnitee's gross
negligence or willful misconduct as determined by a court of competent
jurisdiction in a final and nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative Agent and each of
the Lenders harmless from and against, any and all present and future stamp,
documentary, and other similar taxes with respect to this Agreement and any
other Loan Documents, any collateral described therein, or any payments due
thereunder, and save the Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount required to be
paid to the Administrative Agent, the Issuing Bank or the Swingline Lender under
clauses (a), (b) or (c) hereof, each Lender severally agrees to pay to the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may
be, such Lender's Pro Rata Share (determined as of the time that the
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided, that the unreimbursed expense or indemnified payment, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Issuing Bank or the Swingline Lender in
its capacity as such.
(e) To the 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 actual or direct damages) arising out of, in connection with or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
transactions contemplated therein, any Loan or any Letter of Credit or the use
of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly after
written demand therefor.
Section 10.4 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void).
(b) Any Lender may at any time assign to one or more assignees all or a
portion of its rights and obligations under this Agreement and the other Loan
Documents (including all or a portion of its Commitment and the Loans and LC
Exposure at the time owing to it); provided, that (i) except in the case of an
assignment to a Lender or an Affiliate of a Lender, each of the Borrower and the
Administrative Agent (and, in the case of an assignment of all or a portion of a
Commitment or any Lender's obligations in respect of its LC Exposure or
Swingline Exposure, the Issuing Bank and the Swingline Lender) must give their
prior written consent (which consent shall not be unreasonably withheld or
delayed), and provided that no consent of the Borrower shall be required while
an Event of Default has occurred and is continuing, (ii) except in the case of
an assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire amount of the assigning Lender's Commitment hereunder or an assignment
while an Event of Default has occurred and is continuing, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $1,000,000 (unless
the Borrower and the Administrative Agent shall otherwise consent), (iii) 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 and the other
Loan Documents, (iv) the assigning Lender and the assignee shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee payable by the assigning Lender or the assignee
(as determined between such Persons) in an amount equal to $1,000 and (v) such
assignee, if it is not a Lender, shall deliver a duly completed Administrative
Questionnaire to the Administrative Agent; provided, that any consent of the
Borrower otherwise required hereunder shall not be required if an Event of
Default has occurred and is continuing. Upon the execution and delivery of the
Assignment and Acceptance and payment by such assignee to the assigning Lender
of an amount equal to the purchase price agreed between such Persons, such
assignee shall become a party to this Agreement and any other Loan Documents to
which such assigning Lender is a party and, to the extent of such interest
assigned by such Assignment and Acceptance, shall have the rights and
obligations of a Lender under this Agreement, and the assigning Lender shall be
released from its obligations hereunder to a corresponding extent (and, in the
case of an Assignment and Acceptance 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 2.16,
2.17 and 2.18 and 10.3. Upon the consummation of any such assignment hereunder,
the assigning Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements to have new Notes issued if so requested by either or
both the assigning Lender or the assignee. Any assignment or other transfer by a
Lender that does not fully comply with the terms of this clause (b) shall be
treated for purposes of this Agreement as a sale of a participation pursuant to
clause (c) below.
(c) Any Lender may at any time, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment, the Loans owing to it and its LC
Exposure); 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 its obligations hereunder, and (iii)
the Borrower, the Administrative Agent, the Swingline Bank, the Issuing Bank and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. Any agreement between such Lender and the Participant
with respect to such participation shall provide that such Lender shall retain
the sole right and responsibility to enforce this Agreement and the other Loan
Documents and the right to approve any amendment, modification or waiver of this
Agreement and the other Loan Documents; provided, that such participation
agreement may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver of this Agreement
described in the first proviso of Section 10.2(b) that affects the Participant.
The Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.16, 2.17 and 2.18 to the same extent as if it were a Lender hereunder
and had acquired its interest by assignment pursuant to paragraph (b); provided,
that no Participant shall be entitled to receive any greater payment under
Section 2.16 or 2.18 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant unless the
sale of such participation is made with the Borrower's prior written consent. To
the extent permitted by law, the Borrower agrees that each Participant shall be
entitled to the benefits of Section 2.19 as though it were a Lender, provided,
that such Participant agrees to share with the Lenders the proceeds thereof in
accordance with Section 2.19 as fully as if it were a Lender hereunder. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.18 unless the Borrower is notified of such
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.18(e) as though it were a
Lender hereunder.
(d) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement and its Notes (if any) to
secure its obligations to a Federal Reserve Bank without complying with this
Section; provided, that no such pledge or assignment shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(e) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a variable interest entity (an "VIE"),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Lender would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided, that (i) nothing
herein shall constitute a commitment by any VIE to make any Loan and (ii) if an
VIE elects not to exercise such option or otherwise fails to provide all or any
part of any Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an VIE hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if such
Loan were made by such Granting Lender. Each party hereto hereby agrees that no
VIE shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Lender). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any VIE, it will not institute against, or
join any other person in instituting against, such VIE any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State contrary to this Section 10.4, any VIE
may (i) with notice to, but without the prior written consent of, the Borrower
and the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting Lender or
to any financial institutions (consented to by the Borrower and the
Administrative Agent) providing liquidity and/or credit support to or for the
account of such VIE to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such VIE. As this Section
10.4(e) applies to any particular VIE, this Section may not be amended without
the written consent of such VIE.
Section 10.5 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of Tennessee.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself
and its property, to the non-exclusive jurisdiction of the United States
District Court of the Middle District of Tennessee, and of any state court
within Davidson County, Tennessee 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 the transactions contemplated hereby or thereby, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such Tennessee state
court or, to the extent permitted by applicable law, 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
any other Loan Document shall affect any right that the Administrative Agent,
the Issuing Bank or any Lender 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) The Borrower irrevocably and unconditionally waives any objection which
it may now or hereafter have to the laying of venue of any such suit, action or
proceeding described in paragraph (b) of this Section and brought in any court
referred to in paragraph (b) of this Section. Each of the parties hereto
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) Each party to this Agreement irrevocably consents to the service of
process in the manner provided for notices in Section 10.1. Nothing in this
Agreement or in any other Loan Document will affect the right of any party
hereto to serve process in any other manner permitted by law.
Section 10.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO 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 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 PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.7 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
each Lender and the Issuing Bank shall have the right, at any time or from time
to time upon the occurrence and during the continuance of an Event of Default,
without prior notice to the Borrower, any such notice being expressly waived by
the Borrower to the extent permitted by applicable law, to setoff and apply
against all deposits (general or special, time or demand, provisional or final)
of the Borrower at any time held or other obligations at any time owing by such
Lender and the Issuing Bank to or for the credit or the account of the Borrower
against any and all Obligations held by such Lender or the Issuing Bank, as the
case may be, irrespective of whether such Lender or the Issuing Bank shall have
made demand hereunder and although such Obligations may be unmatured. Each
Lender and the Issuing Bank agree promptly to notify the Administrative Agent
and the Borrower after any such setoff and any application made by such Lender
and the Issuing Bank, as the case may be; provided, that the failure to give
such notice shall not affect the validity of such setoff and application.
Section 10.8 Counterparts; Integration. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements and understandings, oral
or written, regarding such subject matters.
Section 10.9 Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.17, 2.18, 2.19, and 10.3 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the other Loan Documents, and
the making of the Loans and the issuance of the Letters of Credit.
Section 10.10 Severability. Any provision of this Agreement or any other
Loan Document held to be illegal, invalid or unenforceable in any jurisdiction,
shall, as to such jurisdiction, be ineffective to the extent of such illegality,
invalidity or unenforceability without affecting the legality, validity or
enforceability of the remaining provisions hereof or thereof; and the
illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
Section 10.11 Confidentiality. Each of the Administrative Agent, the
Issuing Bank and each Lender agrees to take normal and reasonable precautions to
maintain the confidentiality of any information designated in writing as
confidential and provided to it by the Borrower or any Subsidiary, except that
such information may be disclosed (i) to any Related Party of the Administrative
Agent, the Issuing Bank or any such Lender, including without limitation
accountants, legal counsel and other advisors, (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(iii) to the extent requested by any regulatory agency or authority, (iv) to the
extent that such information becomes publicly available other than as a result
of a breach of this Section, or which becomes available to the Administrative
Agent, the Issuing Bank, any Lender or any Related Party of any of the foregoing
on a nonconfidential basis from a source other than the Borrower, (v) in
connection with the exercise of any remedy hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
and (vi) subject to provisions substantially similar to this Section 10.11, to
any actual or prospective assignee or Participant, or (vii) with the consent of
the Borrower. Any Person required to maintain the confidentiality of any
information as provided for 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 its own confidential information.
Section 10.12 Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which may be treated as interest on
such Loan under applicable law (collectively, the "Charges"), shall exceed the
maximum lawful rate of interest (the "Maximum Rate") which may be contracted
for, charged, taken, received or reserved by a Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Rate to the date of
repayment, shall have been received by such Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER:
CBRL GROUP, INC.
By:/s/Lawrence E. White
----------------------------------------------
Lawrence E. White
Title: Senior Vice President, Finance and
Chief Financial Officer
ADMINISTRATIVE AGENT:
SUNTRUST BANK
as Administrative Agent, as Issuing Bank, as
Swingline Lender and as a Lender
By:/s/Ned Spitzer
----------------------------------------------
Ned Spitzer
Title: Assistant Vice-President
Revolving Commitment: $50,000,000
Swingline Commitment: $20,000,000
LENDER:
BANK OF AMERICA, N.A., as a Lender and a
Syndication Agent
By:/s/Byran Hulker
----------------------------------------------
Byran Hulker
Title: Senior Vice President
Revolving Commitment: $40,000,000
LENDER:
WACHOVIA BANK, N.A., as a Lender and a
Syndication Agent
By:/s/Beth Rue
----------------------------------------------
Beth Rue
Title: Associate
Revolving Commitment: $40,000,000
LENDER:
FLEET NATIONAL BANK, as a Lender and
Documentation Agent
By:/s/Thomas P. Tansi
----------------------------------------------
Thomas P. Tansi
Title: Director
Revolving Commitment: $35,000,000
LENDER:
AMSOUTH BANK, as a Lender
By:/s/George H. Schultz
----------------------------------------------
George H. Schultz
Title: Senior Vice President
Revolving Commitment: $25,000,000
LENDER:
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By:/s/Russell S. Rogers
----------------------------------------------
Russell S. Rogers
Title: Vice President
Revolving Commitment: $25,000,000
LENDER:
UNION PLANTERS BANK, N.A., as a Lender
By:/s/John Stringfield
----------------------------------------------
John Stringfield
Title: Vice President
Revolving Commitment: $20,000,000
LENDER:
COMMERCEBANK, N.A., as a Lender
By:/s/Teresa Tundidor-Gonzalez
----------------------------------------------
Teresa Tundidor-Gonzalez
Title: Vice President
Revolving Commitment: $15,000,000
By:/s/Edward P. Tietjen
----------------------------------------------
Edward P. Tietjen
Title: Senior Vice President and Manager
LENDER:
FIFTH THIRD BANK, as a Lender
By:/s/Megan S. Heisel
----------------------------------------------
Megan S. Heisel
Title: Assistant Vice President
Revolving Commitment: $15,000,000
LENDER:
MERRILL LYNCH BUSINESS FINANCIAL SERVICES INC.,
as a Lender
By:/s/William E. Johnston
----------------------------------------------
William E. Johnston
Title: First Vice President
Revolving Commitment: $15,000,000
LENDER:
COMPASS BANK, as a Lender
By:/s/Keely McGee
----------------------------------------------
Keely McGee
Title: Vice President
Revolving Commitment: $10,000,000
LENDER:
HIBERNIA NATIONAL BANK, as a Lender
By:/s/Michael R. Geissler
----------------------------------------------
Michael R. Geissler
Title: Vice President
Revolving Commitment: $10,000,000
All schedules and exhibits of this Credit Agreement have been excluded from this
exhibit due to immateriality.
Exhibit 15 March 13, 2003 CBRL Group, Inc. 106 Castle Heights Avenue North Lebanon, Tennessee 37088-0787 We have made a review, in accordance with standards established by the American Institute of Certified Public Accountants, of the unaudited interim financial information of CBRL Group, Inc. and subsidiaries for the quarters and six-month periods ended January 31, 2003 and February 1, 2002, as indicated in our report dated March 13, 2003; because we did not perform an audit, we expressed no opinion on that information. We are aware that our report referred to above, which is included in your Quarterly Report on Form 10-Q for the quarter ended January 31, 2003, is incorporated by reference in Registration Statement Nos. 2-86602, 33-15775, 33-37567, 33-45482, 333-01465, 333-71384 and 333-81063 on Forms S-8 and Registration Statement Nos. 33-59582, 333-90996-02 and 333-90996-13 on Form S-3. We also are aware that the aforementioned report, pursuant to Rule 436(c) under the Securities Act of 1933, is not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act. DELOITTE & TOUCHE LLP Nashville, Tennessee