TABLE OF CONTENTS

 

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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS	1
Section 1.01. Certain Defined Terms	1
Section 1.02. Computation of Time Periods	15
Section 1.03. Accounting Terms	15
Section 1.04. Miscellaneous	16
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES	16
Section 2.01. The Advances	16
Section 2.02. Requests for Advances	16
Section 2.03. Borrowings; Advances; Termination of Eurodollar Rate Advances	17
Section 2.04. Conversions and Continuations of Borrowings	19
Section 2.05. Optional Termination and Reduction of the Commitments	21
Section 2.06. Repayment and Prepayment of Advances; Notes	21
Section 2.07. Interest on Advances	22
Section 2.08. Interest Rate Determination	23
Section 2.09. Fees	23
Section 2.10. Payments; Computations; Interest on Overdue Amounts	23
Section 2.11. Consequential Losses on Eurodollar Rate Advances	24
Section 2.12. Increased Costs	25
Section 2.13. Replacement of Banks	26
Section 2.14. Illegality and Unavailability	26
Section 2.15. Taxes	27
Section 2.16. Payments Pro Rata	29
Section 2.17. Increase in Commitments	30
Section 2.18. Defaulting Banks	31
ARTICLE III CONDITIONS	32
Section 3.01. Conditions Precedent to Effectiveness	32
Section 3.02. Conditions Precedent to Each Borrowing	34
Section 3.03. Administrative Agent	34
ARTICLE IV GUARANTY	35
Section 4.01. Guaranty	35
Section 4.02. Payment	35
Section 4.03. Waiver	35
Section 4.04. Acknowledgments and Representations	35
Section 4.05. Subordination	36
Section 4.06. Guaranty Absolute	36
Section 4.07. No Waiver; Remedies	36

 

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Section 4.08. Continuing Guaranty	36
Section 4.09. Limitation	37
Section 4.10. Effect of Bankruptcy	37
ARTICLE V REPRESENTATIONS AND WARRANTIES	37
Section 5.01. Corporate Existence	37
Section 5.02. Corporate Power	38
Section 5.03. Enforceable Obligations	38
Section 5.04. Financial Statements	38
Section 5.05. Litigation	39
Section 5.06. Margin Stock; Use of Proceeds	39
Section 5.07. Investment Company Act	39
Section 5.08. ERISA	39
Section 5.09. Taxes	39
Section 5.10. Environmental Condition	40
Section 5.11. Ownership of Guarantor	40
Section 5.12. Solvency	40
Section 5.13. Disclosure	40
ARTICLE VI AFFIRMATIVE COVENANTS	40
Section 6.01. Compliance with Laws, Etc	40
Section 6.02. Reporting Requirements	41
Section 6.03. Use of Proceeds	42
Section 6.04. Maintenance of Insurance	42
Section 6.05. Preservation of Corporate Existence, Etc	42
Section 6.06. Payment of Taxes, Etc	43
Section 6.07. Visitation Rights	43
Section 6.08. Compliance with ERISA and the Code	43
ARTICLE VII NEGATIVE COVENANTS	43
Section 7.01. Financial Covenants	43
Section 7.02. Negative Pledge	44
Section 7.03. Merger and Sale of Assets	44
Section 7.04. Agreements to Restrict Dividends and Certain Transfers	45
Section 7.05. Transactions with Affiliates	45
Section 7.06. Change of Business	45
Section 7.07. Limitation on Loans, Advances and Investments	45
Section 7.08. Accounting Practices	46
Section 7.09. Debt	46
ARTICLE VIII DEFAULTS	47
Section 8.01. Defaults	47

 

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ARTICLE IX THE ADMINISTRATIVE AGENT	49
Section 9.01. Authorization and Action	49
Section 9.02. Administrative Agent’s Reliance, Etc	50
Section 9.03. Knowledge of Defaults	50
Section 9.04. Rights of the Administrative Agent as a Bank	51
Section 9.05. Bank Credit Decision	51
Section 9.06. Successor Administrative Agent	51
Section 9.07. Joint Lead Arrangers and Bookrunners and Syndication Agent	52
Section 9.08. INDEMNIFICATION	52
ARTICLE X MISCELLANEOUS	53
Section 10.01. Amendments, Etc	53
Section 10.02. Notices, Etc	53
Section 10.03. No Waiver; Remedies	54
Section 10.04. Costs, Expenses and Taxes	54
Section 10.05. Right of Set-off	55
Section 10.06. Bank Assignments and Participations	55
Section 10.07. Governing Law	57
Section 10.08. Interest	57
Section 10.09. Execution in Counterparts	58
Section 10.10. Survival of Agreements, Representations and Warranties, Etc	58
Section 10.11. The Borrower’s Right to Apply Deposits	59
Section 10.12. Confidentiality	59
Section 10.13. Binding Effect	60
Section 10.14. ENTIRE AGREEMENT	60
Section 10.15. USA PATRIOT ACT	61
Section 10.16. No Fiduciary Relationship	61

 

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EXHIBITS:
Exhibit A		Form of Note
Exhibit B		Form of Notice of Borrowing
Exhibit C		Form of Assignment
Exhibit D		Form of Opinion of Counsel for the Borrower and the Guarantor
Exhibit E		Form of U.S. Tax Compliance Certificate
SCHEDULES:
Schedule I	-	Bank and Administrative Agent Addresses
Schedule II	-	Borrower and Guarantor Addresses
Schedule III	-	Permitted Liens
Schedule IV	-	Agreements Restricting Dividends and Certain Transfers
Schedule V	-	GAAP Exceptions
Schedule VI	-	Investments
Schedule VII	-	Permitted Debt

 

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CREDIT AGREEMENT (this “ Agreement ”), dated as of February 27, 2009, by and among BRINKER INTERNATIONAL, INC., a Delaware corporation (the “ Borrowe r”), BRINKER RESTAURANT CORPORATION, a Delaware corporation (the “ Guarantor ”), the Banks party hereto, and JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, the “ Administrative Agent ”) for the Banks hereunder.

 

The Borrower has requested that the Banks make loans to it in an aggregate principal amount not exceeding $215,000,000 at any one time outstanding, and the Banks are prepared to make such loans upon and subject to the terms and conditions hereof.  Accordingly, the parties hereto agree as follows:

 

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

 

Section 1.01. Certain Defined Terms.   As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

 

“ Accession Agreement ” has the meaning specified in Section 2.17 .

 

“ Administrative Agent ” has the meaning specified in the introduction hereto.

 

“ Advance ” means an advance by a Bank to the Borrower as part of a Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance, each of which shall be a “ Type ” of Advance.

 

“ Affiliate ” means any Person that, directly or indirectly, controls, or is controlled by or under common control with, another Person.  For the purposes of this definition, the terms “control”, “controlled by” and “under common control with”, as used with respect to any Person, means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.  Without limiting the generality of the foregoing, a Subsidiary of a Person is an Affiliate of that Person.

 

“ Agreement ” has the meaning specified in the introduction hereto.

 

“ Applicable Lending Office ” means, with respect to each Bank, such Bank’s Domestic Lending Office in the case of a Base Rate Advance, and such Bank’s Eurodollar Lending Office in the case of a Eurodollar Rate Advance.

 

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“ Applicable Rate ” means, for any day, with respect to any Eurodollar Rate Advance or Base Rate Advance or with respect to the facility fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “Eurodollar Rate Spread”, “Base Rate Spread” or “Facility Fee Rate”, as the case may be, based upon the Moody’s Rating and the S&P Rating:

 

Rating Level		Ratings (Moody’s/S&P)			Facility Fee Rate (bps per annum)		Eurodollar Rate Spread (bps per annum)		Base Rate Spread (bps per annum)
Rating Level 1		>	Baa1 or BBB+		25.0		175.0		75.0
Rating Level 2			Baa2 or BBB		30.0		195.0		95.0
Rating Level 3			Baa3 and BBB-		40.0		235.0		135.0
Rating Level 4			Baa3/BB+ or Ba1/BBB-		50.0		275.0		175.0
Rating Level 5		<	Ba1 and BB+		50.0		325.0		225.0

 

For purposes of the foregoing, (a) if a Moody’s Rating or an S&P Rating shall not be in effect (other than by reason of the circumstances referred to in the last sentence of this definition), then the applicable rating agency shall be deemed to have established a rating in Rating Level 5 (as set forth in the table above); (b) if the Moody’s Rating and the S&P Rating shall fall within different Rating Levels, the Applicable Rate shall be based on the higher of the two ratings unless the ratings differ by more than one Rating Level, in which case the Applicable Rate shall be based on the Rating Level one level above that corresponding to the lower rating; and (c) if the Moody’s Rating or the S&P Rating shall be changed (other than as a result of a change in the rating system of Moody’s or S&P), such change shall be effective as of the date on which it is first publicly announced by Moody’s or S&P.  Each change in the Applicable Rate shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change.  If the rating system of Moody’s or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations, the Borrower and the Banks shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the rating most recently in effect prior to such change or cessation.

 

“ Applicable Usury Laws ” means the Texas Finance Code, any other law of the State of Texas limiting interest rates and any applicable Federal law to the extent that it permits Banks to contract for, charge, reserve or receive a greater amount of interest than under the Texas Finance Code or other laws of the State of Texas.

 

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“ Assignment ” means an assignment and acceptance entered into by a Bank and an assignee, and accepted by the Administrative Agent, in substantially the form of the attached Exhibit C .

 

“ Banks ” means the Persons listed under the heading “Banks” on the signature pages hereof and each other Person that shall have become a party hereto pursuant to an Assignment or an Accession Agreement, other than any such Person that shall have ceased to be a party hereto pursuant to an Assignment.

 

“ Base Rate ” means, for any day, a fluctuating interest rate per annum in effect from time to time which rate per annum shall at all times be equal to the higher of:

 

(a) the rate of interest announced publicly by JPMCB in New York, New York from time to time as JPMCB’s prime rate on such day;

 

(b) the Federal Funds Rate for such day plus ½ of 1% per annum; and

 

(c) so long as none of the conditions described in clauses (i), (ii) or (iii) of Section 2.03(d) shall exist, the Eurodollar Rate for a one month interest period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1% per annum, provided that, for the avoidance of doubt, the Eurodollar Rate for any day shall be based on the rate appearing on the Reuters BBA LIBOR Rates Page 3750 at approximately 11:00 a.m. London time on such day.

 

“ Base Rate Advance ” means an Advance which bears interest as provided in Section 2.07(a)(i) .

 

“ Base Rate Borrowing ” means a Borrowing comprised of Base Rate Advances.

 

“ Board ” means, as to any Person, the Board of Directors of the Person or the Executive Committee thereof.

 

“ Borrower ” has the meaning specified in the introduction hereto.

 

“ Borrowing ” means a borrowing consisting of simultaneous Advances of the same Type to the Borrower made by each of the Banks pursuant to Section 2.01 .

 

“ Business Day ” means a day of the year on which banks are not required or authorized to close in Dallas, Texas, or New York City, New York, and, if the applicable Business Day relates to any Eurodollar Rate Advances, on which dealings are carried on in the interbank eurodollar market.

 

“ Capitalized Lease ” means at any time, a lease with respect to which the lessee thereunder is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.

 

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“ Capitalized Lease Obligations ” means, with respect to any Person for any period of determination, the amount of the obligations of such Persons under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with GAAP.

 

“ Code ” means, as appropriate, the Internal Revenue Code of 1986, as amended, or any successor Federal tax code, and any reference to any statutory provision shall be deemed to be a reference to any successor provision or provisions.

 

“ Commitment ” of any Bank means at any time the amount set forth opposite such Bank’s name on the signature pages hereof or in an Assignment, as such amount may be terminated, reduced or increased pursuant to Section 2.05 , Section 8.01 or Section 10.06 .

 

“ Confidential Information ” has the meaning specified in Section 10.12 .

 

“ Confidential Information Memorandum ” means the Confidential Information Memorandum dated January 7, 2009, relating to the credit facility provided for herein.

 

“ Consolidated ” refers to the consolidation of the accounts of any Person and its Subsidiaries in accordance with GAAP.

 

“ Controlled Group ” means any group of organizations within the meaning of Section 414(b), (c), (m), or (o) of the Code of which the Borrower or its Subsidiaries is a member.

 

“ Corporate Franchise ” means the right or privilege granted by the state or government to the Person forming a corporation, and their successors, to exist and do business as a corporation and to exercise the rights and powers incidental to that form of organization or necessarily implied in the grant.

 

“ Credit Documents ” means this Agreement, the Notes, and each other agreement, instrument or document executed by the Borrower or the Guarantor at any time in connection with this Agreement.

 

“ Debt ” means, in the case of any Person, without duplication, (i) indebtedness of such Person for borrowed money, (ii) obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) Capitalized Lease Obligations, and (iv) obligations of such Person under or relating to letters of credit or guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses (i)  through (iii)  of this definition.  For the purposes of this Agreement, the term Debt shall not include any obligation of the Borrower or the Guarantor incurred by entering into, or by guaranteeing, any transaction that is a rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or option, foreign exchange transaction, currency swap or option or any similar transaction.

 

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“ Debt to Cash Flow Ratio ” has the meaning specified in Section 7.01(b) .

 

“ Default ” has the meaning specified in Section 8.01 .

 

“ Defaulting Bank ” means any Bank that (a) shall have failed to fund its ratable share of any Borrowing for three or more Business Days after the date of such Borrowing (unless (i) such Bank shall have notified the Administrative Agent and the Borrower in writing of its determination that a condition to its obligation to make an Advance as part of such Borrowing shall not have been satisfied and (ii) Banks representing a majority in interest of the Commitments shall not have advised the Administrative Agent in writing of their determination that such condition has been satisfied), (b) shall have notified the Administrative Agent (or shall have notified the Borrower, which shall in turn have notified the Administrative Agent) in writing that it does not intend or is unable to comply with its funding obligations under this Agreement, or shall have made a public statement to the effect that it does not intend or is unable to comply with such funding obligations or its funding obligations under other credit or similar agreements to which it is a party, (c) shall have failed (but not for fewer than three Business Days) after a request by the Administrative Agent to confirm that it will comply with its obligations to make Advances hereunder or (d) shall have become the subject of a bankruptcy or insolvency proceeding, or shall have had a receiver, conservator, trustee or custodian appointed for it, or shall have taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or shall have a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment.

 

“ Domestic Lending Office ” means, with respect to any Bank, the office of such Bank specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in an Assignment or such other office of such Bank as such Bank may from time to time specify to the Borrower and the Administrative Agent.

 

“ EBIT ” means for any period, the Consolidated earnings of a Person during such period from continuing operations, exclusive of (i) gains on sales of assets not in the ordinary course of business (to the extent such gains are included in earnings from continuing operations), (ii) any non-recurring, non-cash charges or losses not in the ordinary course of business (to the extent such charges or losses are included in earnings from continuing operations), (iii) any non-cash expenses for such period resulting from the grant of stock options or other equity-based incentives to any director, officer or employee of the Borrower or any Subsidiary pursuant to a written plan or agreement approved by the Board of the Borrower (to the extent such expenses are included in earnings from continuing operations) and (iv) extraordinary items, as determined under GAAP, but without deducting federal, state, foreign and local income taxes and Interest Expense.

 

“ EBITDA ” means, for any period, the Consolidated earnings of a Person during such period from continuing operations, exclusive of (i) gains on sales of assets

 

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not in the ordinary course of business (to the extent such gains are included in earnings from continuing operations), (ii) any non-recurring, non-cash charges or losses not in the ordinary course of business (to the extent such charges or losses are included in earnings from continuing operations), (iii) any non-cash expenses for such period resulting from the grant of stock options or other equity-based incentives to any director, officer or employee of the Borrower or any Subsidiary pursuant to a written plan or agreement approved by the Board of the Borrower (to the extent such expenses are included in earnings from continuing operations) and (iv) extraordinary items, as determined under GAAP, but without deducting federal, state, foreign and local income taxes, Interest Expense, depreciation and amortization.

 

“ Effective Date ” means the date on which the conditions set forth in Section 3.01 and Section 3.02(a)  shall have been satisfied (or waived in accordance with Section 10.01 ).

 

“ Eligible Assignee ” means (i) a Bank or any Affiliate of any Bank; (ii) a commercial bank or financial institution, in each case with an office in the United States of America acceptable to the Administrative Agent and, unless a Default has occurred and is continuing, the Borrower, such acceptance not to be unreasonably withheld, and (iii) a finance company, insurance company or other financial institution (not already covered by clause (ii) of this definition) or fund (whether a corporation, partnership or other entity) which is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business, and having total assets in excess of $1,000,000,000, or any other Person, in each case, acceptable to the Administrative Agent and, unless a Default has occurred and is continuing, the Borrower in their discretion.

 

“ Environment ” has the meaning set forth in 42 U.S.C. §9601(8) (1982).

 

“ Environmental Protection Statute ” means any local, state or federal law, statute, regulation, order, consent decree or other Governmental Requirement, domestic or foreign, arising from or in connection with or relating to the protection or regulation of the Environment, including, without limitation, those laws, statutes, regulations, orders, decrees and other Governmental Requirements relating to the disposal, cleanup, production, storing, refining, handling, transferring, processing or transporting of Hazardous Waste, Hazardous Substances or any pollutant or contaminant, wherever located.

 

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder from time to time.

 

“ Eurocurrency Liabilities ” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

 

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“ Eurodollar Lending Office ” means, with respect to any Bank, the office of such Bank specified as its “Eurodollar Lending Office” opposite its name on Schedule I hereto or in an Assignment (or, if no such office is specified, its Domestic Lending Office) or such other office of such Bank as such Bank may from time to time specify to the Borrower and the Administrative Agent.

 

“ Eurodollar Rate ” means, for any Interest Period, the offered rate for deposits in U.S. Dollars for a period equal to or nearest the number of days in such Interest Period which appears on the Reuters “LIBOR01” screen displaying British Bankers’ Association Interest Settlement Rates (or on any successor or substitute screen provided by Reuters, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such screen, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) as of approximately 11:00 a.m. London time on the date two Business Days prior to the first day of such Interest Period, provided that if such rates do not appear on any such screen, the “Eurodollar Rate” shall mean, for any Interest Period, the rate per annum equal to the average (rounded upwards, if necessary, to the nearest 1/16 of 1%) of the respective rates notified to the Administrative Agent by each Reference Bank as the rate at which U.S. Dollar deposits are offered to such Reference Bank by prime banks at or about 11:00 a.m., London time, two Business Days prior to the beginning of such Interest Period in the London interbank market for delivery on the first day of such Interest Period for a period approximately equal to the number of days in such Interest Period and in an amount comparable to the principal amount of the Advances.

 

“ Eurodollar Rate Advance ” means any Advance as to which the Borrower shall have selected an interest rate based upon the Eurodollar Rate as provided in Article II .

 

“ Eurodollar Rate Borrowing ” means a Borrowing comprised of Eurodollar Rate Advances.

 

“ Eurodollar Rate Reserve Percentage ” of any Bank for any Interest Period for any Eurodollar Rate Advance means the reserve percentage applicable during such Interest Period (or if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for such Bank with respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period.

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

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“ Existing Credit Agreement ” means the $300,000,000 Credit Agreement dated as of October 6, 2004, among the Borrower, the Guarantor, certain financial institutions named therein and Citibank, N.A., as Administrative Agent, as amended.

 

“ Existing Term Loan Agreement ” means the $400,000,000 Loan Agreement dated as of October 24, 2007, among the Borrower, the Guarantor, certain financial institutions named therein and Citibank, N.A., as Administrative Agent.

 

“ Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

 

“ Financial Officer ” means the chief financial officer, the principal accounting officer, any vice president or assistant vice president with accounting or financial responsibilities, or the treasurer or any assistant treasurer of the Borrower.

 

“ Foreign Subsidiary ” means a Subsidiary of the Borrower organized under the laws of a jurisdiction other than the United States of America.

 

“ GAAP ” means generally accepted accounting principles for financial reporting as in effect from time to time in the United States of America, applied on a consistent basis.

 

“ Governmental Requirements ” means all judgments, orders, writs, injunctions, decrees, awards, laws, ordinances, statutes, regulations, rules, Corporate Franchises, permits, certificates, licenses, authorizations and the like and any other requirements of any government or any commission, board, court, agency, instrumentality or political subdivision thereof.

 

“ Guaranteed Obligations ” means all obligations of the Borrower to the Banks and the Administrative Agent hereunder and under the Notes and any other Credit Document to which the Borrower is a party, whether for principal, interest, fees, expenses, indemnities or otherwise, and whether now or hereafter existing.

 

“ Guarantor ” has the meaning specified in the introduction hereto.

 

“ Hazardous Substance ” has the meaning set forth in 42 U.S.C. §9601(14) and shall also include each other substance considered to be a hazardous substance under any Environmental Protection Statute.

 

“ Hazardous Waste ” has the meaning set forth in 42 U.S.C. §6903(5) and shall also include each other substance considered to be a hazardous waste under any Environmental Protection Statute (including, without limitation, 40 C.F.R. §261.3).

 

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“ Increasing Bank ” has the meaning specified in Section 2.17 .

 

“ Indemnified Person ” has the meaning specified in Section 10.04(b) .

 

“ Insufficiency ” means, with respect to any Plan, the amount, if any, by which the present value of the vested benefits under such Plan exceeds the fair market value of the assets of such Plan allocable to such benefits.

 

“ Interest Expense ” means, with respect to any Person for any period of determination, its interest expense determined in accordance with GAAP, including, without limitation, all interest with respect to Capitalized Lease Obligations and all capitalized interest, but excluding deferred financing fees.

 

“ Interest Payment Dates ” means, with respect to each Advance, the earlier of (i) the last day of the applicable Interest Period related to such Advance, (ii) the ninetieth (90th) day after the day on which the applicable Interest Period related to such Advance begins, if such Interest Period is longer than three months, (iii) the Termination Date, (iv) the date of demand therefor with respect to interest accruing under Section 2.07(b)  and Section 2.10(e) , and (v) the date of any prepayment of any Advance, whether or not such prepayment is otherwise permitted hereunder.

 

“ Interest Period ” means with respect to any Advance:

 

(a) if such Advance is a Eurodollar Rate Advance, the period commencing on the date of such Advance or on the last day of the immediately preceding Interest Period applicable to such Advance, as the case may be, and ending on the numerically corresponding day (or if there is no corresponding day, the last day) in the calendar month that is one (1), two (2), three (3) or six (6) months thereafter, as the Borrower may select, and

 

(b) if such Advance is a Base Rate Advance, the period commencing on the date of such Advance or on the last day of the immediately preceding Interest Period applicable to such Advance, as the case may be, and ending ninety (90) days later or, if earlier, on the Termination Date or the date of the prepayment of such Advance,

 

in each case, as selected by the Borrower, as provided in Section 2.02 with respect to Advances.  Notwithstanding the foregoing, however:

 

(i) if any Interest Period would end on a day which shall not be a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, with respect to Eurodollar Rate Advances only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day;

 

(ii) no Interest Period may be selected for any Advance that ends later than the Termination Date; and

 

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(iii) Interest Periods commencing on the same date for Advances comprising the same Borrowing shall be of the same duration.

 

Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of an Interest Period.  The Administrative Agent shall promptly advise each Bank in writing of each Interest Period so selected by the Borrower with respect to each Borrowing.

 

“ Investments ” has the meaning specified in Section 7.07 .

 

“ JPMCB ” means JPMorgan Chase Bank, N.A.

 

“ Joint Lead Arrangers ” means J.P. Morgan Securities Inc. and Banc of America Securities LLC, in their capacities as joint lead arrangers and joint bookrunners for the credit facility provided for herein.

 

“ Lien ” means any mortgage, lien, pledge, charge, deed of trust, security interest, encumbrance or other type of preferential arrangement to secure or provide for the payment of any obligation of any Person, whether arising by contract, operation of law or otherwise (including, without limitation, the interest of a vendor or lessor under any conditional sale agreement, Capitalized Lease or other title retention agreement).

 

“ Liquid Investments ” means:

 

(a) direct obligations of, or obligations the principal of and interest on which are guaranteed or insured by, the United States of America or any agency or instrumentality thereof;

 

(b)  (i) negotiable or nonnegotiable certificates of deposit, time deposits, bankers’ acceptances or other similar banking arrangements maturing within twelve (12) months from the date of acquisition thereof (“ bank debt securities ”), issued by (A) any Bank or any Affiliate of any Bank or (B) any other foreign or domestic bank, trust company or financial institution which has a combined capital surplus and undivided profit of not less than $100,000,000 or the U.S. Dollar equivalent thereof, if at the time of deposit or purchase, such bank debt securities are rated not less than “BB” (or the then equivalent) by the rating service of S&P or of Moody’s, (ii) commercial paper issued by (A) any Bank or any Affiliate of any Bank or (B) any other Person if at the time of purchase such commercial paper is rated not less than “A-2” (or the then equivalent) by the rating service of S&P or not less than “P-2” (or the then equivalent) by the rating service of Moody’s, or upon the discontinuance of both of such services, such other nationally recognized rating service or services, as the case may be, as shall be selected by the Borrower or the Guarantor, (iii) debt or other securities issued by (A) any Bank or Affiliate of any Bank or (B) or any other Person, if at the time of purchase such Person’s debt or equity securities are rated not less than “BB” (or the then equivalent) by the rating service of S&P or of Moody’s, or upon the discontinuance of both such services, such other nationally recognized rating service or services, as the case may be, as shall be selected by the Borrower or the

 

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Guarantor and (iv) marketable securities of a class registered pursuant to Section 12(b) or (g) of the Exchange Act;

 

(c) repurchase agreements relating to investments described in clauses (a)  and (b)  above with a market value at least equal to the consideration paid in connection therewith, with any Person who has a combined capital surplus and undivided profit of not less than $100,000,000 or the U.S. Dollar equivalent thereof, if at the time of entering into such agreement the debt securities of such Person are rated not less than “BBB” (or the then equivalent) by the rating service of S&P or of Moody’s, or upon the discontinuance of both such services, such other nationally recognized rating service or services, as the case may be, as shall be selected by the Borrower or the Guarantor; and

 

(d) shares of any mutual fund registered under the Investment Company Act of 1940, as amended, which invests solely in underlying securities of the types described in clauses (a) , (b)  and (c)  above.

 

“ Majority Banks ” means at any time Banks holding more than fifty percent (50%) of the then aggregate unpaid principal amount of the Advances held by the Banks, or, if no such principal amount is then outstanding, Banks having more than fifty percent (50%) of the Commitments.

 

“ Material Adverse Effect ” means, relative to any occurrence whatsoever, any effect which (a) is material and adverse to the financial condition or business operations of the Borrower and its Subsidiaries, on a Consolidated basis, or (b) adversely affects the legality, validity or enforceability of this Agreement or any Note, or (c) causes a Default.

 

“ Maximum Rate ” means at the particular time in question the maximum non-usurious rate of interest which, under Applicable Usury Law, may then be contracted for, taken, reserved, charged or received under this Agreement, the Notes or under any other agreement entered into in connection with this Agreement or the Notes.  If such maximum non-usurious rate of interest changes after the date hereof, the Maximum Rate shall, from time to time, be automatically increased or decreased, as the case may be, as of the effective date of each change in such maximum rate, in each case without notice to Borrower.

 

“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

 

“ Moody’s Rating ” means, at any time, the Borrower’s corporate family rating then most recently announced by Moody’s.

 

“ Net Worth ” of any Person means, as of any date of determination, the excess of total assets of such Person over total liabilities, total assets and total liabilities each to be determined in accordance with GAAP.

 

“ Non-U.S. Bank ” has the meaning specified in Section 2.15(e) .

 

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“ Note ” means a promissory note of the Borrower payable to the order of any Bank, in substantially the form of Exhibit A hereto, evidencing the aggregate indebtedness of the Borrower to such Bank resulting from Advances.

 

“ Notice of Borrowing ” has the meaning specified in Section 2.02 .

 

“ Obligated Party ” has the meaning specified in Section 4.03 .

 

“ Other Taxes ” has the meaning specified in Section 2.15(b) .

 

“ PBGC ” means the Pension Benefit Guaranty Corporation (and any successor thereto).

 

“ Patriot Act ” means the USA Patriot Act, Title III of Pub. L. 107-56, signed into law on October 26, 2001.

 

“ Permitted Liens ” means, with respect to any Person, Liens:

 

(a) for taxes, assessments or governmental charges or levies on property of such Person incurred in the ordinary course of business to the extent not required to be paid pursuant to Sections 6.01 and 6.06 ;

 

(b) imposed by law, such as landlords’, carriers’, warehousemen’s and mechanics’ liens and other similar Liens arising in the ordinary course of business securing obligations which are not overdue for a period of more than sixty (60) days or which are being contested in good faith and by appropriate proceedings;

 

(c) arising in the ordinary course of business (i) out of pledges or deposits under workers’ compensation laws, unemployment insurance, old age pensions or other social security or retirement benefits, or similar legislation or to secure public or statutory obligations of such Person or (ii) which were not incurred in connection with the borrowing of money and do not in the aggregate materially detract from the value or use of the assets of the Borrower and its Subsidiaries in the operation of their business;

 

(d) securing Debt existing on the date of this Agreement and listed on the attached Schedule III or reflected in the financial statements referenced in Section 5.04 , provided that the Debt secured by such Liens shall not be renewed, refinanced or extended if the amount of such Debt so renewed is greater than the outstanding amount of such Debt on the date of this Agreement;

 

(e) constituting easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of property or minor imperfections in title thereto which, in the aggregate, are not material in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of such Person;

 

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(f) securing judgments against such Person which are being appealed;

 

(g) on real property acquired by such Person after the date of this Agreement and securing only Debt of such Person incurred to finance the purchase price of such property, provided that any such Lien is created within one hundred eighty (180) days of the acquisition of such property; or

 

(h) other than those Liens otherwise permitted above, Liens securing Debt of the Borrower and its Subsidiaries in an aggregate principal amount not in excess of five percent (5.0%) of the Borrower’s Net Worth, on a Consolidated basis, as reflected on the most recent financial statements of the Borrower and its Consolidated Subsidiaries delivered to the Banks pursuant to Section 5.04 or 6.02 .

 

“ Person ” means an individual, partnership, corporation, limited liability company, limited liability partnership, business trust, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.

 

“ Plan ” means an employee pension benefit plan within the meaning of Title IV of ERISA which is either (a) maintained for employees of the Borrower, of any Subsidiary of the Borrower, or of any member of the Controlled Group, or (b) maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which the Borrower, any Subsidiary of the Borrower or any member of the Controlled Group is at the time in question making or accruing an obligation to make contributions or has within the preceding five plan years made contributions.

 

“ Rating ” means the Moody’s Rating or the S&P Rating, as the case may be.

 

“ Rating Level ” means the applicable rating level as set forth in the table under the definition of the Applicable Rate.

 

“ Reference Banks ” mean JPMCB and Bank of America, N.A.

 

“ Register ” has the meaning specified in Section 10.06(c) .

 

“ Rent Expense ” means, for any Person for any period of determination, such Person’s operating lease expense computed in accordance with GAAP, including, without limitation, all contingent rentals, but excluding all common area maintenance expenses.

 

“ Revolving Period ” means the period of time commencing on the Effective Date and ending on the Termination Date.

 

“ Sale/Leaseback Transaction ” has the meaning specified in Section 7.01(c) .

 

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“ SEC ” means the United States Securities and Exchange Commission (and any successor thereto).

 

“ SEC Filing ” means a report or statement filed with the SEC pursuant to Section 13, 14, or 15(d) of the Exchange Act and the regulations thereunder.

 

“ Significant Subsidiary ” means any Subsidiary which is a “significant subsidiary” of the Borrower within the meaning of Rule 1-02 of Regulation S-X under the Exchange Act.

 

“ Solvent ” means, with respect to any Person, that, as of any date of determination, (a) the amount of the present fair saleable value of the assets of such Person will, as of such date, exceed the amount of all liabilities of such Person, contingent or otherwise, as of such date, as such terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature.  For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.

 

“ S&P ” means Standard & Poor’s Rating Services or any successor thereto.

 

“ S&P Rating ” means, at any time, the Borrower’s corporate credit rating then most recently announced by S&P.

 

“ Subsidiary ” means, as to any Person, any corporation, limited liability company, association or other business entity in which such Person or one or more of its Subsidiaries directly or indirectly through one or more intermediaries owns sufficient equity or voting interests to enable it or them (individually or as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such entity, and any partnership or joint venture if more than a fifty percent (50%) interest in the profits or capital thereof is owned directly or indirectly by such Person, or by one or more of its Subsidiaries, or collectively by such Person and one or more of its Subsidiaries (unless such partnership can and does ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries).  Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a direct or indirect Subsidiary of the Borrower.

 

“ Taxes ” has the meaning specified in Section 2.15(a) .

 

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“ Termination Date ” means February 27, 2012 (being the third anniversary of the date of this Agreement), or, if earlier, the date of termination in whole of the Commitments pursuant to Section 2.05 or 8.01 , provided that if such date shall not be a Business Day, the Termination Date shall be the immediately preceding Business Day.

 

“ Termination Event ” means (i) a “reportable event”, as such term is described in Section 4043 of ERISA (other than a “reportable event” not subject to the provision for 30 day notice to the PBGC), or an event described in Section 4062(f) of ERISA, or (ii) the withdrawal of the Borrower or any member of the Controlled Group from a Plan during a plan year in which it was a “substantial employer”, as such term is defined in Section 4001(a)(2) of ERISA, or the incurrence of liability by the Borrower or any member of the Controlled Group under Section 4064 of ERISA upon the termination of a Plan or Plan, or (iii) the distribution of a notice of intent to terminate a Plan pursuant to Section 4041(a)(2) of ERISA or the treatment of a Plan amendment as a termination under Section 4041 of ERISA, or (iv) the institution of proceedings to terminate a Plan by the PBGC under Section 4042 of ERISA, or (v) any other event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan.

 

“ Third Party Funds ” has the meaning specified in Section 10.05 .

 

“ Total Commitment ” means, at any time, the aggregate amount of the Commitments of the Banks, as in effect at such time.

 

“ Type ” has the meaning set forth in the definition of the term “Advance” above.

 

“ UFCA ” means the Uniform Fraudulent Conveyance Act, as amended from time to time.

 

“ UFTA ” means the Uniform Fraudulent Transfer Act, as amended from time to time.

 

“ U.S. Dollars ” and “ $ ” mean the lawful currency of the United States of America.

 

Section 1.02. Computation of Time Periods.   In this Agreement 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 words “to” and “until” each means “to but excluding.”

 

Section 1.03. Accounting Terms .  All accounting and financial terms not specifically defined herein and the compliance with each covenant contained herein with respect to financial matters (unless a different procedure is otherwise set forth herein) shall be construed in accordance with GAAP.  If subsequent to the date hereof any change shall occur in GAAP or in the application thereof and such change shall affect the calculation of any financial covenant, or any other provision, set forth herein, then if the Borrower, by notice to the Administrative Agent, shall request an amendment to any such

 

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financial covenant or other provision to eliminate the effect of such change on such financial covenant or other provision (or if the Administrative Agent or the Majority Banks, by notice to the Borrower, shall request an amendment to any such financial covenant or other provision for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then the parties hereto shall enter into negotiations in an effort to agree upon such an amendment and, until such notice shall have been withdrawn or such amendment shall have become effective in accordance herewith, such financial covenant or other provision shall be calculated or interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective.

 

Section 1.04. Miscellaneous .  The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Article, Section, Schedule and Exhibit references are to Articles and Sections of and Schedules and Exhibits to this Agreement, unless otherwise specified.

 

ARTICLE II

 

AMOUNTS AND TERMS OF THE ADVANCES

 

Section 2.01. The Advances.  Each Bank, severally and for itself alone, on the terms and conditions hereinafter set forth, hereby agrees to make Advances to the Borrower from time to time on any Business Day prior to the Termination Date in an aggregate amount outstanding not to exceed at any time such Bank’s Commitment.  Each Borrowing shall be in an aggregate amount of not less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof, and shall consist of Advances of the same Type made to the Borrower on the same day by the Banks ratably according to their respective Commitments and having the same Interest Period.  Within the limits of each Bank’s Commitment, the Borrower may borrow, prepay pursuant to Section 2.06(b)  and reborrow.

 

Section 2.02. Requests for Advances.   During the Revolving Period, each Borrowing shall be made on notice, given not later than 11:00 A.M. (New York City time) (a) in the case of a proposed Borrowing comprised of Eurodollar Rate Advances, at least three (3) Business Days prior to the date of the proposed Borrowing, and (b) in the case of a proposed Borrowing comprised of Base Rate Advances, on the Business Day of the proposed Borrowing, by the Borrower to the Administrative Agent, which shall give to each Bank prompt notice thereof by telecopy.  Each such notice of a Borrowing (a “ Notice of Borrowing” ) shall be in writing (including by telecopy), in substantially the form of Exhibit B hereto, executed by the Borrower.  Each Notice of Borrowing shall refer to this Agreement and shall specify the requested (i) date of such Borrowing (which shall be a Business Day), (ii) Type of Advances comprising such Borrowing, (iii) aggregate principal amount of such Borrowing, and (iv) Interest Period for such Borrowing.

 

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Section 2.03. Borrowings; Advances; Termination of Eurodollar Rate Advances.   (a)  Advances shall be made by the Banks ratably in accordance with their respective Commitments on the borrowing date of the Borrowing, provided , however , that the failure of any Bank to make any Advance shall not in itself relieve any other Bank of its obligation to lend hereunder.

 

(b)  Each Borrowing shall be a Eurodollar Rate Borrowing or a Base Rate Borrowing.  Each Bank may at its option make any Eurodollar Rate Advance by causing the Eurodollar Lending Office of such Bank to make such Advance, provided , however , that any exercise of such option shall not affect the obligation of the Borrower to repay such Advance in accordance with the terms of this Agreement and the applicable Note, if any.  Advances of more than one (1) interest rate option may be outstanding at the same time, provided , however , that the Borrower shall not be entitled to request any Advances which, if made, would result in an aggregate of more than ten (10) separate Advances of any Bank being outstanding hereunder at any one time.  For purposes of the foregoing, Advances having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Advances.

 

(c)  Each Bank shall, before 1:00 P.M. (New York City time) on the borrowing date of each Borrowing make available at its Applicable Lending Office for the account of the Administrative Agent at its address referred to in Section 10.02 , in immediately available funds, such Bank’s portion of such Borrowing.  After the Administrative Agent’s receipt of such funds and upon satisfaction of the applicable conditions set forth in Article III , the Administrative Agent will make such funds available to the Borrower not later than 2:00 P.M. (New York City time) at such account of the Borrower as the Borrower shall from time to time designate in a notice delivered to the Administrative Agent that is reasonably acceptable to the Administrative Agent.  If the applicable conditions set forth in Article III to any such Borrowing are not met, the Administrative Agent shall so notify the Banks making the Advances comprising such Borrowing and return the funds so received to the respective Banks as soon as practicable.

 

(d)  Notwithstanding anything in this Agreement to the contrary:

 

(i) if any Bank shall, at least one (1) Business Day before the date of any requested Borrowing to be made, notify the Administrative Agent that the introduction of or any change in or the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Bank or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund Eurodollar Rate Advances hereunder, the right of the Borrower to select Eurodollar Rate Advances for such Borrowing or any subsequent Borrowing shall be suspended until such Bank shall notify the Administrative Agent that the circumstances causing such suspension no longer exist, and except as provided in clause (iv)  below, each Advance comprising such Borrowing shall be a Base Rate Advance;

 

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(ii) if the Majority Banks shall, on or before the date any requested Borrowing consisting of Eurodollar Rate Advances is to be made, notify the Administrative Agent that the Eurodollar Rate for such Eurodollar Rate Advances will not adequately reflect the cost to such Banks of making their respective Eurodollar Rate Advances, the right of the Borrower to select the Eurodollar Rate for such Borrowing or any subsequent Borrowing shall be suspended until the Administrative Agent, at the request of the Majority Banks, shall notify the Borrower and the Banks that the circumstances causing such suspension no longer exist, and except as provided in clause (iv)  below, each Advance comprising such Borrowing shall be a Base Rate Advance;

 

(iii) if, under the circumstances referred to in the proviso in the definition of “Eurodollar Rate” in Section 1.01 , the Reference Banks fail to furnish timely information to the Administrative Agent for determining the Eurodollar Rate for Eurodollar Rate Advances comprising any requested Borrowing to be made, (A) the Administrative Agent shall forthwith notify the Borrower and the Banks that the interest rate cannot be determined for such Eurodollar Rate Advances, (B) the right of the Borrower to select Eurodollar Rate Advances for such Borrowing or any subsequent Borrowing shall be suspended until the Administrative Agent shall notify the Borrower and the Banks that the circumstances causing such suspension no longer exist, and (C) each Advance comprising such Borrowings shall be a Base Rate Advance;

 

(iv) if the Borrower has requested a proposed Borrowing consisting of Eurodollar Rate Advances and as a result of circumstances referred to in clauses (i)  and (ii)  above, such Borrowing would not consist of Eurodollar Rate Advances, the Borrower may, by notice given reasonably prior to the time of such proposed Borrowing, cancel such Borrowing, in which case such Borrowing shall be canceled and no Advances shall be made as a result of such requested Borrowing; and

 

(v) if the Borrower shall fail to select the duration or continuation of any Interest Period for any Advances consisting of Eurodollar Rate Advances, in accordance with the provisions contained in the definition of “Interest Period”, in Section 1.01 and in this Section 2.03(d) , the Administrative Agent will promptly so notify the Borrower and the Banks and such Advances will be made available to the Borrower on the date of such Borrowing as Base Rate Advances.

 

(e)  Each Notice of a Borrowing shall be irrevocable and binding on the Borrower, except as set forth in Section 2.03(d)(iv) .  In the case of any Eurodollar Rate Advance requested by the Borrower in a Notice of Borrowing, the Borrower shall, unless the second following sentence shall be applicable, indemnify each Bank against any loss, cost or expense incurred by such Bank if such Eurodollar Rate Advance is not made, including as a result of any failure to fulfill, on or before the date specified in such Notice

 

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of Borrowing for such Borrowing, the applicable conditions set forth in Article III , including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund such Advance to be made by such Bank as part of such Borrowing when such Advance, as a result of such failure, is not made on such date.  A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to the Borrower and the Administrative Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense.  If a Borrowing requested by the Borrower to be comprised of Eurodollar Rate Advances is not made as a Borrowing comprised of Eurodollar Rate Advances as a result of Section 2.03(d) , the Borrower shall indemnify each Bank against any loss (excluding loss of profits), cost or expense incurred by such Bank by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank (prior to the time such Bank is actually aware that such Borrowing will not be so made), to fund the Advance to be made by such Bank as part of such Borrowing.  A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to the Borrower and the Administrative Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense.

 

(f)  Unless the Administrative Agent shall have received notice from a Bank prior to the date of any Borrowing that such Bank will not make available to the Administrative Agent such Bank’s ratable portion of such Borrowing, the Administrative Agent may assume that such Bank has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting such Borrowing on such date a corresponding amount.  If and to the extent that such Bank shall not have so made such ratable portion available to the Administrative Agent, such Bank and the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of the Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii) in the case of such Bank, the Federal Funds Rate.  If such Bank shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Bank’s Advance as part of such Borrowing for purposes of this Agreement.

 

(g)  The failure of any Bank to make the Advance to be made by it as part of any Borrowing shall not relieve any other Bank of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Bank shall be responsible for the failure of any other Bank to make the Advance to be made by such other Bank on the date of any Borrowing.

 

Section 2.04. Conversions and Continuations of Borrowings.   (a)  Subject to the limitations set forth in Section 2.03(d) , the Borrower shall have the right at any time upon prior irrevocable notice to the Administrative Agent (i) not later than 11:00 A.M. (New York City time) on the last day of the Interest Period therefor, to

 

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convert any Borrowing which constitutes a Eurodollar Rate Borrowing into a Base Rate Borrowing or to continue any Base Rate Borrowing for an additional Interest Period and (ii) not later than 10:00 A.M. (New York City time) three (3) Business Days prior to the date of conversion or continuation, to convert any Borrowing which constitutes a Base Rate Borrowing into a Eurodollar Rate Borrowing or to continue any Borrowing constituting a Eurodollar Rate Borrowing for an additional Interest Period, subject in each case to the following:

 

(A) each conversion or continuation shall be made pro rata among the Banks in accordance with the respective principal amounts of the Advances comprising the converted or continued Borrowing;

 

(B) if less than all the outstanding principal amount of any Borrowing shall be converted or continued, the aggregate principal amount of such Borrowing converted or continued shall be in an amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof;

 

(C) accrued interest on an Advance (or portion thereof) being converted or continued shall be paid by the Borrower at the time of conversion or continuation;

 

(D) if any Eurodollar Rate Borrowing is converted at a time other than the end of the Interest Period applicable thereto, the Borrower shall pay, upon demand, any amounts due to the Banks pursuant to Section 2.03(e)  and Section 2.06(d)  as a result of such conversion;

 

(E) no Interest Period may be selected for any Eurodollar Rate Borrowing that would end later than the Termination Date;

 

(F) no Default shall have occurred and be continuing at the time of, or result from, such conversion or continuation; and

 

(G) each such conversion or continuation shall constitute a representation and warranty by the Borrower and the Guarantor that no Default (i) has occurred and is continuing at the time of such conversion or continuation, or (ii) would result from such conversion or continuation.

 

(b)  Each notice pursuant to Section 2.04(a)  shall be irrevocable, shall be in writing (or telephone notice promptly confirmed in writing) and shall refer to this Agreement and specify (i) the identity and amount of the Borrowing that the Borrower requests be converted or continued, (ii) whether such Borrowing is to be converted to or continued as a Eurodollar Rate Borrowing or a Base Rate Borrowing, (iii) if such notice requests a conversion, the date of such conversion (which shall be a Business Day) and (iv) if such Borrowing is to be converted to or continued as a Eurodollar Rate Borrowing, the Interest Period with respect thereto.  If no Interest Period is specified in any such notice with respect to any conversion to or continuation as a Eurodollar Rate Borrowing, the Borrower shall be deemed to have selected an Interest Period of one (1) month’s duration.  The Administrative Agent shall promptly advise the other Banks of any notice

 

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given pursuant to Section 2.04(a)  and of each Bank’s portion of any converted or continued Borrowing.  If the Borrower shall not have given notice in accordance with Section 2.04(a)  to continue any Eurodollar Rate Borrowing into a subsequent Interest Period (and shall not otherwise have given notice in accordance with Section 2.04(a)  to convert such Eurodollar Rate Borrowing), such Eurodollar Rate Borrowing shall, at the end of the Interest Period applicable thereto (unless repaid pursuant to the terms hereof), automatically be continued for a new Interest Period as a Base Rate Borrowing.

 

Section 2.05. Optional Termination and Reduction of the Commitments.   The Borrower shall have the right, upon at least three (3) Business Days’ notice to the Administrative Agent, to terminate in whole or reduce in part the unused portions of the Total Commitment of the Banks, provided that (a) each partial reduction shall be in the aggregate amount of at least $10,000,000 and in an integral multiple of $1,000,000 in excess thereof, (b) the aggregate amount of the Commitments of the Banks shall not be reduced to an amount which is less than the aggregate principal amount of the Advances then outstanding, and (c) no Notice of Borrowing has been delivered and is in effect that would result in Advances being outstanding in an aggregate amount in excess of the Total Commitment thereafter.  Such notice shall specify the date and the amount of the reduction or termination of the Total Commitment.  Any such reduction or termination of the Total Commitment shall be made ratably among the Banks in accordance with their respective Commitments and shall be permanent.  Simultaneously with any termination of the Total Commitment, the Borrower shall pay to the Administrative Agent for the accounts of the Banks the accrued and unpaid facility fee as set forth in Section 2.09(a) .

 

Section 2.06. Repayment and Prepayment of Advances; Notes. (a)  The Borrower agrees to repay the Advances in full on the Termination Date.

 

(b)  The Borrower may, upon at least one (1) Business Day’s notice in respect of Base Rate Advances, and, in respect of Eurodollar Rate Advances, upon at least three (3) Business Days’ notice, to the Administrative Agent stating the proposed date (which shall be a Business Day) and aggregate principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding principal amounts of the Advances comprising part of the same Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid and amounts, if any, required to be paid pursuant to Section 2.11 as a result of such prepayment, provided , however , that each partial prepayment pursuant to this Section 2.06(b)  shall be in an aggregate principal amount not less than $10,000,000 and increments of $1,000,000 in excess thereof and in an aggregate principal amount such that after giving effect thereto no Borrowing comprised of Base Rate Advances shall have a principal amount outstanding of less than $5,000,000 and no Borrowing comprised of Eurodollar Rate Advances shall have a principal amount outstanding of less than $10,000,000.

 

(c)  Each notice of prepayment shall specify the prepayment date and the aggregate principal amount of each Borrowing to be prepaid, shall be irrevocable and shall commit the Borrower to prepay such Borrowing by the amount stated therein.  All

 

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prepayments under this Section 2.06 shall be accompanied by accrued interest on the principal amount being prepaid to the date of prepayment.

 

(d)  In the event that a Bank shall incur any loss or expense (including, without limitation, any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by the Bank to fund or maintain all or any portion of the outstanding principal amount of any Advance) as a result of the prepayment of a Eurodollar Rate Advance or conversion of any Eurodollar Borrowing, on a date other than the last day of any Interest Period applicable thereto, then the Borrower shall pay to the Administrative Agent for the account of such Bank, on demand, such amount as will reimburse the Bank for such loss or expense.  A certificate as to the amount of such loss or expense setting forth the calculation thereof, submitted by such Bank to the Borrower and the Administrative Agent, shall be conclusive and binding for all purposes in the absence of error.

 

(e)  The records maintained by the Administrative Agent and the Banks shall be prima facie evidence of the existence and amounts of the obligations of the Borrower in respect of the Advances, interest and fees due or accrued hereunder, provided that the failure of the Administrative Agent or any Bank to maintain such records or any error therein shall not in any manner affect the obligation of the Borrower to pay any amounts due hereunder in accordance with the terms of this Agreement.  Any Bank may request that Advances made by it be evidenced by a Note.  In such event, the Borrower shall prepare, execute and deliver to such Bank a Note payable to such Bank.

 

Section 2.07. Interest on Advances.   (a)  Interest on Advances.   The Borrower shall pay interest on the unpaid principal amount of each Advance made by each Bank from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum (but subject to the provisions of Section 10.08 ):

 

(i) if such Advance is a Base Rate Advance, a rate per annum equal at all times during the Interest Period for such Advance to the Base Rate in effect from time to time during such Interest Period for such Advance plus the Applicable Rate in effect from time to time, payable on the last day of such Interest Period; and

 

(ii) if such Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during the Interest Period for such Advance to the sum of the Eurodollar Rate for such Interest Period plus the Applicable Rate in effect from time to time, payable on the last day of such Interest Period and, if such Interest Period has a duration of more than three (3) months, on the day which occurs during such Interest Period three (3) months from the first day of such Interest Period.

 

(b)  Additional Interest on Eurodollar Rate Advances.   The Borrower shall pay to each Bank, so long as such Bank shall be required under regulations of the Board of Governors of the Federal Reserve System to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional interest

 

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on the unpaid principal amount of each Eurodollar Rate Advance of such Bank, from the date of such Advance until such principal amount is paid in full, at an interest rate per annum equal at all times to the remainder obtained by subtracting (i) the Eurodollar Rate for each Interest Period for such Advance from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage equal to one hundred percent (100%) minus the Eurodollar Rate Reserve Percentage of such Bank for such Interest Period, payable on each date on which interest is payable on such Advance.  Such additional interest shall be determined by such Bank and notified to the Borrower through the Administrative Agent.  A certificate as to the amount of such additional interest submitted to the Borrower and the Administrative Agent by such Bank shall be conclusive and binding for all purposes, absent error.

 

(c)  Payment of Interest.   All accrued but unpaid interest on all Advances shall be due and payable on the Interest Payment Dates related thereto.

 

(d)  Maximum Interest .  The parties hereto agree that the sum of (i) interest payable in accordance with this Section 2.07 , plus (ii) the fees payable as provided in Section 2.09 to the extent they would constitute interest under Applicable Usury Law, plus (iii) other consideration payable hereunder or under the Notes which constitutes interest under Applicable Usury Law (whether or not denoted as interest), shall, as more fully provided in Section 10.08 , not exceed the maximum amount allowed under Applicable Usury Law.

 

Section 2.08. Interest Rate Determination.   The Administrative Agent shall give prompt notice to the Borrower and the Banks of the applicable interest rate for each Eurodollar Rate Advance determined by the Administrative Agent for purposes of Section 2.07 .

 

Section 2.09. Fees.   (a)  Facility Fee .  The Borrower agrees to pay to the Administrative Agent, for the account of each Bank, a facility fee on such Bank’s Commitment (regardless of usage) from the date hereof until the Termination Date in an amount equal to the product of such Bank’s Commitment multiplied by the Facility Fee Rate therefor (as such rate is set forth under the definition of the Applicable Rate), payable in arrears in quarterly installments on the last day of each calendar quarter during the term of such Bank’s Commitment, on the effective date of any reduction or termination of the Total Commitment pursuant to Section 2.05 and on the Termination Date.

 

(b)  Administrative Agent’s Fees.   The Borrower agrees to pay to the Administrative Agent, for its sole account, the fees separately agreed upon with the Administrative Agent.

 

Section 2.10. Payments; Computations; Interest on Overdue Amounts.  
(a)  The Borrower shall make each payment hereunder and under the Notes to be made by it not later than 11:00 A.M. (New York City time) on the day when due in U.S. Dollars to the Administrative Agent at its address referred to in Section 10.02 in same day funds.  The Administrative Agent will promptly thereafter cause to be distributed like funds

 

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relating to the payment of principal, interest or fees ratably (other than amounts payable pursuant to Section 2.06(d) , 2.07(b) , 2.09(b) , 2.11 , 2.12 , 2.14 or 2.15 ) to the Banks for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Bank to such Bank for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement.  In no event shall any Bank be entitled to share any fees paid to the Administrative Agent pursuant to Section 2.09(b) .

 

(b)  All interest and fees hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Base Rate at times when the Base Rate is based on JPMCB’s prime rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), 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.  Each determination by the Administrative Agent (or, in the case of Section 2.07(b) , by a Bank) of an interest rate hereunder shall be conclusive and binding for all purposes, absent error.

 

(c)  Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or fees, as the case may be, provided , however , that if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.

 

(d)  Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due by the Borrower to any Bank hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Bank on such due date an amount equal to the amount then due such Bank.  If and to the extent the Borrower shall not have so made such payment in full to the Administrative Agent, each Bank shall repay to the Administrative Agent forthwith on demand such amount distributed to such Bank together with interest thereon, for each day from the date such amount is distributed to such Bank until the date such Bank repays such amount to the Administrative Agent, at the Federal Funds Rate.

 

(e)  Notwithstanding the foregoing, upon the occurrence and during the continuance of any Default, the Applicable Rate shall automatically be increased by 2% per annum.

 

Section 2.11. Consequential Losses on Eurodollar Rate Advances.   If (a) any payment (or purchase pursuant to Section 2.13 ) of principal of any Eurodollar Rate Advance made to the Borrower is made other than on the last day of an Interest Period relating to such Advance, as a result of a prepayment pursuant to Section 2.06(b)  or 2.14 or acceleration of the maturity of the Advances pursuant to Section 8.01 or for

 

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any other reason or as a result of any such purchase; (b) a Eurodollar Rate Advance is converted pursuant to Section 2.04 at a time other than the end of an Interest Period; or (c) the Borrower fails to make a principal or interest payment with respect to any Eurodollar Rate Advance on the date such payment is due and payable, the Borrower shall, upon demand by any Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank any amounts required to compensate such Bank for any additional losses, costs or expenses which it may reasonably incur as a result of any such payment or purchase, including, without limitation, any loss (including loss of reasonably anticipated profits, except in the case of such a purchase pursuant to Section 2.13 ), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund or maintain such Advance.

 

Section 2.12. Increased Costs.   (a)  If, due to the introduction of or any change (including without limitation, but without duplication, any change by way of imposition or increase of reserve requirements included, in the case of Eurodollar Rate Advances, in the Eurodollar Rate Reserve Percentage) in or in the interpretation, application or applicability of any law, regulation, guideline or request from any central bank or other governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining any Eurodollar Rate Advance to the Borrower, then the Borrower shall from time to time, upon demand by such Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost.  A certificate as to the amount of such increased cost, submitted to the Borrower and the Administrative Agent by such Bank, shall be prima facie evidence of the amount of such increased cost.  Promptly after any Bank becomes aware of any such introduction, change or proposed compliance, such Bank shall notify the Borrower thereof, provided that the failure to provide such notice shall not affect such Bank’s rights hereunder, except that such Bank’s right to recover such increased costs from the Borrower for any period prior to such notice shall be limited to the period of ninety (90) days immediately prior to the date such notice is given to the Borrower.

 

(b)  If any Bank determines that the introduction of or any change in any law or regulation or any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank and that the amount of such capital is increased by or based upon the existence of such Bank’s Advances or commitment to lend to the Borrower hereunder and other commitments of this type, then, upon receipt of a demand by such Bank (with a copy of such demand to the Administrative Agent), the Borrower shall, within ten (10) days of such demand, notify such Bank and the Administrative Agent that the Borrower desires to replace such Bank in accordance with Section 2.13 .  If the Borrower either fails to notify such Bank and the Administrative Agent in accordance with the prior sentence or fails to replace such Bank within the time periods specified in Section 2.13 , the Borrower shall promptly pay to the Administrative Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate

 

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such Bank or such corporation in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital to be allocable to the existence of such Bank’s commitment to lend hereunder.  A certificate as to such amounts submitted to the Borrower and the Administrative Agent by such Bank shall be conclusive and binding for all purposes, absent error.

 

Section 2.13. Replacement of Banks .  In the event that (a) any Bank makes a demand for payment under Section 2.07(b)  or Section 2.12 , (b) the Borrower is required to make any payment in respect of Taxes or Other Taxes pursuant to Section 2.15 or (c) any Bank becomes a Defaulting Bank, the Borrower may within ninety (90) days of the applicable event, if no Default then exists, replace such Bank with another commercial bank, financial institution or other Person in accordance with all of the provisions of Section 10.06(a)  (including execution of an appropriate Assignment), provided that (i) all obligations of such Bank to lend hereunder shall be terminated and the Advances payable to such Bank and all other obligations owed to such Bank hereunder shall be purchased in full without recourse at par plus accrued interest at or prior to such replacement, (ii) such replacement shall be reasonably satisfactory to the Administrative Agent, (iii) if such replacement bank is not already a Bank hereunder, the Borrower (and, for avoidance of doubt, not the replacement bank) shall pay to the Administrative Agent an assignment fee of $3,500 in connection with such replacement, (iv) such replacement shall, from and after such replacement, be deemed for all purposes to be a “Bank” hereunder with a Commitment in the amount of the respective Commitment of the assigning Bank immediately prior to such replacement (plus, if such replacement bank is already a Bank prior to such replacement, the respective Commitment of such Bank prior to such replacement), as such amount may be changed from time to time pursuant hereto, and shall have all of the rights, duties and obligations hereunder of the Bank being replaced, and (v) such other actions shall be taken by the Borrower, such Bank and such replacement bank as may be appropriate to effect the replacement of such Bank with such replacement bank on terms such that such replacement bank has the same rights, duties and obligations hereunder as such Bank (including, without limitation, execution and delivery of new Notes to such replacement bank if such replacement bank shall so request, redelivery to the Borrower in due course of any Notes payable to such Bank and specification of the information contemplated by Schedule I as to such replacement bank).

 

Section 2.14. Illegality and Unavailability.   (a)  Notwithstanding any other provision of this Agreement, if any Bank shall notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation shall make it unlawful, or any central bank or other governmental authority shall assert that it is unlawful, for such Bank or its Applicable Lending Office to make any Eurodollar Rate Advance or to continue to fund or maintain any Eurodollar Rate Advance hereunder, then, on notice thereof to the Borrower by the Administrative Agent,

 

(i) the obligation of such Bank to make any Eurodollar Rate Advance shall be suspended until the Administrative Agent shall notify the Borrower and the Bank that the circumstances causing such suspension no longer exist, and

 

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(ii) the Eurodollar Rate Advances then outstanding of such Bank, together with all accrued interest thereon and all amounts payable pursuant to Section 2.11 , shall be automatically converted to Base Rate Advances, or, at the option of the Borrower, prepaid in full, unless such Bank shall determine in good faith in its sole opinion that it is lawful to maintain such Advances made by such Bank to the end of the Interest Period then applicable thereto.

 

(b)  If, with respect to any conversion of a Base Rate Advance to a Eurodollar Rate Advance or the continuation of any Eurodollar Rate Advance pursuant to Section 2.04 :

 

(i) the Administrative Agent is unable to determine the Eurodollar Rate for the applicable Eurodollar Rate Advance in accordance with the definition of such term (including as a result of the failure of the Reference Banks to furnish timely information to the Administrative Agent); or

 

(ii) the Majority Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent will not adequately and fairly reflect the cost to such Banks of maintaining the applicable Eurodollar Rate Advance;

 

then the Administrative Agent forthwith shall give notice thereof to the Borrower and the Banks, whereupon until the Administrative Agent notifies the Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Banks to convert or continue after the current Interest Period(s) any Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Borrower and the Banks that the circumstances causing such suspension no longer exist.

 

Section 2.15. Taxes.   (a)  Any and all payments by the Borrower or the Guarantor hereunder or under the Notes or any other Credit Document shall be made in accordance with Section 2.10 , and subject to Sections 2.15(c) , 2.15(e)  and 2.16 , free and clear of and without deduction for any and all taxes, levies, imposts, deductions, charges or withholdings with respect thereto, and all liabilities with respect thereto, including any interest, additions to tax or penalties applicable thereto, excluding in the case of each Bank and the Administrative Agent (i) taxes imposed directly or indirectly on or measured by its income, and franchise taxes imposed on it in lieu of net income taxes, by any jurisdiction (or political subdivision thereof) under the laws of which such Bank or the Administrative Agent (as the case may be) is organized or, in the case of a Bank, maintains a lending office and at which such Bank now or hereafter does business, and (ii) United States of America income taxes (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as “ Taxes ”).  If the Borrower or the Guarantor shall be required by law to deduct any Taxes from or in respect of any sum payable by it hereunder or under any Note or other Credit Document to any Bank or the Administrative Agent, (x) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions

 

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applicable to additional sums payable under this Section 2.15 ) such Bank or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (y) the Borrower or the Guarantor, as the case may be, shall make such deductions and (z) the Borrower or the Guarantor, as the case may be, shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.

 

(b)  In addition, the Borrower or the Guarantor, as the case may be, agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made by the Borrower or the Guarantor hereunder or under any Note or other Credit Document executed by it or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any Note or other Credit Document (hereinafter referred to as “ Other Taxes ”).

 

(c)  Within thirty (30) days after the date of the payment of Taxes by or at the direction of the Borrower or the Guarantor, the Borrower will furnish to the Administrative Agent, at its address referred to in Section 10.02 , the original or a certified copy of a receipt evidencing payment thereof.  If a Bank receives from the relevant jurisdiction imposing such Tax a refund of a specific Tax item for which it has been indemnified by the Borrower with respect to which the Borrower has paid additional amounts pursuant to this Section 2.15 , it shall pay the Borrower an amount equal to such refund, together with any interest paid by such jurisdiction with respect to such refund, provided that the Borrower, upon the request of such Bank, agrees to promptly repay the amount (or portion thereof) paid over to the Borrower by such Bank in the event such Bank is required to repay the refund (or portion thereof) to such jurisdiction.

 

(d)  Without prejudice to the survival of any other agreement of the Borrower or the Guarantor hereunder, the agreements and obligations of the Borrower and the Guarantor contained in this Section 2.15 shall survive the payment in full of principal and interest hereunder and under the Notes and other Credit Documents.

 

(e)  Each Bank that is organized under the laws of any jurisdiction other than the United States of America or any state or political subdivision thereof (for purposes of this Section 2.15(e) , each a “ Non-U.S. Bank ”) shall deliver to the Borrower and the Administrative Agent on or prior to the date of this Agreement or upon the effectiveness of any Assignment, or at such other times prescribed by applicable law, (i) two (2) properly completed and signed originals of United States of America Internal Revenue Service form W-8BEN or W-8ECI, as appropriate, or any successor applicable form, as the case may be, certifying that such Bank is entitled to benefits under an income tax treaty to which the United States is a party that eliminates or reduces the rate of withholding tax on payments under this Agreement and the other Credit Documents or certifying that the income receivable pursuant to this Agreement and the other Credit Documents is effectively connected with the conduct of a trade or business in the United States, or (ii) if such Non-U.S. Bank is not a “bank” or other Person described in Code Section 881(c)(3), two properly completed and signed originals of a statement substantially in the form of Exhibit E hereto, together with two properly completed and

 

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signed originals of Internal Revenue Service form W-8BEN, upon which the Borrower is entitled to rely, from any such Non-U.S. Bank or any successor applicable form, together with any other certificate or statement of exemption or reduction required under the Code, in order to establish that such Non-U.S. Bank is entitled to treat the interest payments under this Agreement and the other Credit Documents as portfolio interest that is exempt from withholding tax under the Code.  Thereafter, upon the reasonable request of the Borrower or the Administrative Agent, each such Non-U.S. Bank shall (A) upon the obsolescence of any form previously delivered by such Non-U.S. Bank, promptly submit to the Administrative Agent and the Borrower such additional properly completed and signed originals of such forms (or such successor forms as shall be adopted from time to time by the relevant United States taxing authorities) as may then be available under then current United States laws and regulations to qualify for a deduction in United States withholding taxes, or such evidence as is satisfactory to the Borrower and the Administrative Agent of an available exemption from United States withholding taxes, in respect of all payments to be made to such Non-U.S. Bank by the Borrower pursuant to the Credit Documents, and (B) promptly notify the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption.  A Non-U.S. Bank shall not be required to deliver any form or statement pursuant to this Section 2.15 that such Non-U.S. Bank is not legally able to deliver.  The Borrower shall not be required to pay additional amounts to any Bank pursuant to this Section 2.15 to the extent that such Bank did not qualify for a complete exemption from United States withholding taxes at the time such Bank became a party to this agreement and to the extent that the obligation to pay additional amounts would not have arisen but for the failure of such Bank to comply with this paragraph (e), except to the extent such Bank is not able to comply as a result of a change in law.  Any assignee of all or any portion of any Bank’s rights and obligations under this Agreement shall be subject to this Section 2.15(e) .

 

(f)  Upon the reasonable request of the Borrower, any Bank claiming any additional amounts payable pursuant to this Section 2.15 shall use its reasonable efforts (consistent with its internal policies and requirements of law) to change the jurisdiction of its Applicable Lending Office if such a change would reduce any such additional amounts (or any similar amount that may thereafter accrue) and would not, in the sole determination of such Bank, be otherwise disadvantageous to such Bank.

 

(g)  The Borrower or the Guarantor shall indemnify the Administrative Agent and each Bank, within 10 days after written demand therefor, for the full amount of any Taxes or Other Taxes paid by the Administrative Agent or such Bank, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower or the Guarantor under this Section 2.15 .

 

Section 2.16. Payments Pro Rata.   Except as provided in Sections 2.06(d) , 2.07(b) , 2.09(b) , 2.11 , 2.12 , 2.14 or 2.15 , each of the Banks agrees that if it should receive any payment (whether by voluntary payment, by realization upon