EXECUTION COPY
3-YEAR REVOLVING CREDIT AGREEMENT
DATED AS OF NOVEMBER 5, 2001
AMONG
APPLEBEE'S INTERNATIONAL, INC.
as the Borrower
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Administrative Agent
and
BANK OF AMERICA, N.A. and FLEET NATIONAL BANK,
as Documentation Agents
and
SUNTRUST BANK and U.S. BANK NATIONAL ASSOCIATION,
as Syndication Agents
-----------------------------------------------------------------------------
BANC ONE CAPITAL MARKETS, INC.,
as Sole Lead Arranger and Sole Book Runner
-----------------------------------------------------------------------------
SIDLEY AUSTIN BROWN & WOOD
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS............................................................................................1
1.1.
Certain Defined
Terms.......................................................................1
1.2.
References.................................................................................18
ARTICLE II THE
CREDITS..........................................................................................19
2.1.
Commitment.................................................................................19
2.2.
Swing Line
Loans...........................................................................19
2.2.1.
Amount of Swing Line
Loans........................................................19
2.2.2.
Borrowing
Notice..................................................................19
2.2.3.
Making of Swing Line
Loans........................................................20
2.2.4.
Repayment of Swing Line
Loans.....................................................20
2.3.
Required Payments;
Termination.............................................................21
2.3.1.
Required
Payments.................................................................21
2.3.2.
Termination.......................................................................21
2.4.
Ratable
Loans..............................................................................21
2.5.
Types of
Advances..........................................................................21
2.6.
Commitment Fee; Reductions in Aggregate Commitment; Increases in
Aggregate Commitment......21
2.6.1.
Commitment
Fee....................................................................21
2.6.2.
Reductions in Aggregate
Commitment................................................21
2.6.3.
Increase of Aggregate
Commitment..................................................22
2.7.
Minimum Amount of Each
Advance.............................................................24
2.8.
Optional Principal
Payments................................................................24
2.9.
Method of Selecting Types and Interest Periods for New Advances;
Method of Borrowing.......25
2.9.1.
Method of Selecting Types and Interest Periods for New
Advances...................25
2.9.2.
Method of
Borrowing...............................................................25
2.10.
Conversion and Continuation of Outstanding
Advances........................................25
2.11.
Changes in Interest Rate,
etc..............................................................26
2.12.
Rates Applicable After
Default.............................................................26
2.13.
Method of
Payment..........................................................................27
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2.14.
Noteless Agreement; Evidence of
Indebtedness...............................................27
2.15.
Telephonic
Notices.........................................................................28
2.16.
Interest Payment Dates; Interest and Fee
Basis.............................................28
2.17.
Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions............29
2.18.
Lending
Installations......................................................................29
2.19.
Non-Receipt of Funds by the Administrative
Agent...........................................29
2.20.
Replacement of
Lender......................................................................30
2.21.
Facility
LCs...............................................................................30
2.21.1. Issuance;
Transitional Facility
LCs...............................................30
2.21.2.
Participations....................................................................31
2.21.3.
Notice............................................................................31
2.21.4. LC
Fees...........................................................................32
2.21.5.
Administration; Reimbursement by
Lenders..........................................32
2.21.6.
Reimbursement by
Borrower.........................................................33
2.21.7.
Obligations
Absolute..............................................................33
2.21.8. Actions of
LC
Issuers.............................................................34
2.21.9.
Indemnification...................................................................34
2.21.10. Lenders'
Indemnification..........................................................35
2.21.11. Facility LC
Collateral
Account....................................................35
2.21.12. Rights as a
Lender................................................................35
ARTICLE III YIELD PROTECTION;
TAXES.............................................................................35
3.1.
Yield
Protection...........................................................................35
3.2.
Changes in Capital Adequacy
Regulations....................................................36
3.3.
Availability of Types of
Advances..........................................................37
3.4.
Funding
Indemnification....................................................................37
3.5.
Taxes......................................................................................37
3.6.
Lender Statements; Survival of
Indemnity...................................................39
ARTICLE IV CONDITIONS
PRECEDENT.................................................................................40
4.1.
Initial Credit
Extension...................................................................40
4.2.
Each Credit
Extension......................................................................41
ARTICLE V REPRESENTATIONS AND
WARRANTIES........................................................................42
5.1.
Existence and
Standing.....................................................................42
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5.2.
Authorization and
Validity.................................................................42
5.3.
No Conflict; Government
Consent............................................................42
5.4.
Financial
Statements.......................................................................43
5.5.
Material Adverse
Change....................................................................43
5.6.
Taxes......................................................................................43
5.7.
Litigation and Contingent
Obligations......................................................44
5.8.
Subsidiaries...............................................................................44
5.9.
Accuracy of
Information....................................................................44
5.10.
Regulation
U...............................................................................44
5.11.
Material
Agreements........................................................................44
5.12.
Compliance With
Laws.......................................................................45
5.13.
Ownership of
Properties....................................................................45
5.14.
ERISA; Foreign Pension
Matters.............................................................45
5.15.
Plan Assets; Prohibited
Transactions.......................................................45
5.16.
Environmental
Matters......................................................................45
5.17.
Investment Company
Act.....................................................................46
5.18.
Public Utility Holding Company
Act.........................................................46
5.19.
Insurance..................................................................................46
ARTICLE VI
COVENANTS............................................................................................46
6.1.
Financial
Reporting........................................................................46
6.2.
Use of
Proceeds............................................................................48
6.3.
Notice of
Default..........................................................................48
6.4.
Conduct of
Business........................................................................48
6.5.
Taxes......................................................................................49
6.6.
Insurance..................................................................................49
6.7.
Compliance with
Laws.......................................................................49
6.8.
Maintenance of
Properties..................................................................49
6.9.
Inspection; Keeping of Books and
Records...................................................49
6.10.
Addition of
Guarantors.....................................................................49
6.11.
Dividends and
Distributions................................................................50
6.12.
Capital
Expenditures.......................................................................50
6.13.
Merger.....................................................................................50
6.14.
Sale of
Assets.............................................................................50
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6.15.
Investments and
Acquisitions...............................................................51
6.16.
Liens......................................................................................53
6.17.
Transactions with
Affiliates...............................................................54
6.18.
Financial
Contracts........................................................................54
6.19.
ERISA......................................................................................54
6.20.
Environmental
Compliance...................................................................55
6.21.
Financial
Covenants........................................................................55
6.21.1. Maximum
Leverage
Ratio............................................................55
6.21.2. Minimum
Fixed Charge Coverage
Ratio...............................................55
6.21.3. Maximum
Ratio of Indebtedness to Total
Capitalization.............................55
ARTICLE VII
DEFAULTS............................................................................................55
7.1.
Breach of Representations or
Warranties....................................................55
7.2.
Failure to Make Payments When
Due..........................................................55
7.3.
Breach of
Covenants........................................................................56
7.4.
Other
Breaches.............................................................................56
7.5.
Default as to Other
Indebtedness...........................................................57
7.6.
Voluntary Bankruptcy; Appointment of Receiver;
Etc.........................................57
7.7.
Involuntary Bankruptcy; Appointment of Receiver;
Etc.......................................57
7.8.
Custody or Control of
Property.............................................................57
7.9.
Judgments..................................................................................58
7.10.
Unfunded
Liabilities.......................................................................58
7.11.
Other ERISA
Liabilities....................................................................58
7.12.
Environmental
Matters......................................................................58
7.13.
Change in
Control..........................................................................58
7.14.
The
Guaranty...............................................................................58
7.15.
The Loan
Documents.........................................................................59
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS
AND
REMEDIES.....................................................59
8.1.
Acceleration...............................................................................59
8.2.
Amendments.................................................................................60
8.3.
Preservation of
Rights.....................................................................61
ARTICLE IX GENERAL
PROVISIONS...................................................................................61
9.1.
Survival of
Representations................................................................61
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9.2.
Governmental
Regulation....................................................................61
9.3.
Headings...................................................................................62
9.4.
Entire
Agreement...........................................................................62
9.5.
Several Obligations; Benefits of this
Agreement............................................62
9.6.
Expenses;
Indemnification..................................................................62
9.7.
Numbers of
Documents.......................................................................63
9.8.
Accounting.................................................................................63
9.9.
Severability of
Provisions.................................................................63
9.10.
Nonliability of
Lenders....................................................................64
9.11.
Confidentiality............................................................................64
9.12.
Lenders Not Utilizing Plan
Assets..........................................................64
9.13.
Nonreliance................................................................................64
9.14.
Disclosure.................................................................................65
9.15.
Subordination of Intercompany
Indebtedness.................................................65
ARTICLE X THE
AGENTS............................................................................................66
10.1.
Appointment; Nature of
Relationship........................................................66
10.2.
Powers.....................................................................................66
10.3.
General
Immunity...........................................................................67
10.4.
No Responsibility for Loans, Recitals,
etc.................................................67
10.5.
Action on Instructions of
Lenders..........................................................67
10.6.
Employment of Agents and
Counsel...........................................................67
10.7.
Reliance on Documents;
Counsel.............................................................68
10.8.
Agents' Reimbursement and
Indemnification..................................................68
10.9.
Notice of
Default..........................................................................68
10.10.
Rights as a
Lender.........................................................................69
10.11.
Lender Credit
Decision.....................................................................69
10.12.
Successor
Agents...........................................................................69
10.13.
Agent and Arranger
Fees....................................................................70
10.14.
Delegation to
Affiliates...................................................................70
10.15.
Release of
Guarantors......................................................................70
ARTICLE XI SETOFF; RATABLE
PAYMENTS.............................................................................70
11.1.
Setoff.....................................................................................70
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11.2.
Ratable
Payments...........................................................................71
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS;
PARTICIPATIONS...................................................71
12.1.
Successors and Assigns; Designated
Lenders.................................................71
12.1.1. Successors
and
Assigns............................................................71
12.1.2. Designated
Lenders................................................................72
12.2.
Participations.............................................................................73
12.2.1. Permitted
Participants;
Effect....................................................73
12.2.2. Voting
Rights.....................................................................73
12.2.3.
Benefit of
Certain
Provisions.....................................................74
12.3.
Assignments................................................................................74
12.3.1. Permitted
Assignments.............................................................74
12.3.2. Effect;
Effective
Date............................................................74
12.3.3. The
Register......................................................................75
12.4.
Dissemination of
Information...............................................................75
12.5.
Tax
Treatment..............................................................................76
ARTICLE XIII
NOTICES............................................................................................76
13.1.
Notices....................................................................................76
13.2.
Change of
Address..........................................................................76
ARTICLE XIV
COUNTERPARTS........................................................................................76
ARTICLE XV CHOICE OF LAW; CONSENT TO
JURISDICTION; WAIVER OF JURY
TRIAL.........................................77
15.1.
CHOICE OF
LAW..............................................................................77
15.2.
CONSENT TO
JURISDICTION....................................................................77
15.3.
WAIVER OF JURY
TRIAL.......................................................................77
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EXHIBITS
Exhibit A-1....... - Form of Borrower's and
Guarantors' Counsel's Opinion
Exhibit A-2.......
Form of Administrative Agent's Counsel's Opinion
Exhibit B......... - Form of Compliance
Certificate
Exhibit C......... - Form of Assignment
Agreement
Exhibit D......... - Form of Loan/Credit
Related Money Transfer Instruction
Exhibit E......... - Form of Promissory
Note (if requested)
Exhibit F......... - List of Closing
Documents
Exhibit G......... - Form of Designation
Agreement
Exhibit H......... - Form of Guaranty
Exhibit I......... - Form of Commitment and
Acceptance
SCHEDULES
Pricing Schedule
Commitment Schedule
Schedule 2.21..... - Existing Letters of
Credit
Schedule 5.8...... - Subsidiaries
Schedule 5.16..... - Environmental
Matters
Schedule 6.15..... - Existing
Investments
Schedule 6.16..... - Existing Liens
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<PAGE>
3-YEAR REVOLVING CREDIT AGREEMENT
This 3-Year
Revolving Credit
Agreement,
dated as of November
5, 2001, is
among APPLEBEE'S INTERNATIONAL, INC., the
institutions from time to time parties
hereto as Lenders (whether by execution of this Agreement or an assignment
pursuant to Section 12.3), BANK ONE, NA, a
national banking
association having
its principal office in Chicago,
Illinois, as Swing Line Lender, LC Issuer
and
Administrative Agent, SUNTRUST BANK and U.S. BANK NATIONAL ASSOCIATION, as
Syndication Agents, and BANK OF AMERICA, N.A. and FLEET NATIONAL BANK, as
Documentation Agents. The parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined
Terms. As used in this
Agreement:
"Accounting Changes" is defined in Section 9.8 hereof.
"Acquisition"
means any transaction, or any series of related
transactions, consummated on or after the date
of this Agreement, by
which the
Borrower or any of its Subsidiaries (i) acquires any going
business or all or
substantially all of the assets of any
Person, or division thereof, whether
through purchase of assets, merger or otherwise or (ii)
directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of
votes) of the
securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason
of the happening of
a
contingency) or a majority (by percentage of voting power) of the
outstanding
ownership interests of a partnership or
limited liability company.
"Administrative Agent"
means Bank One in its
capacity as
contractual
representative of the Lenders pursuant to Article X, and not in
its individual
capacity as a Lender, and any successor
Administrative Agent
appointed pursuant
to Article X.
"Advance" means a
borrowing hereunder consisting of the aggregate
amount of several Loans (i) made by some or all of the
Lenders on the same
Borrowing Date, or (ii) converted or continued by the
Lenders on the same date
of conversion or continuation, consisting, in either case, of the
aggregate
amount of the several Loans of the same Type
and, in the case of Eurodollar
Loans, for the same Interest Period. The
term "Advance" shall include Swing Line
Loans unless otherwise expressly
provided.
"Affected Lender" is defined in Section 2.20.
"Affiliate" of any Person means any other Person directly or
indirectly
controlling, controlled by or under common
control with such
Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3
under the Securities
Exchange Act
of 1934) of ten percent (10%) or more of any class of voting securities (or
other voting interests) of the controlled Person or possesses, directly or
indirectly, the power to direct or cause the
direction of the management or
policies of the controlled Person, whether through ownership of voting
securities, by contract or otherwise.
Notwithstanding the previous sentence, any
institutional investors who purchase their
interest in the Borrower in a public
market shall not be considered Affiliates
of the Borrower.
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"Agent" means any of the Administrative Agent, the Syndication Agents
and the Documentation Agents, as
appropriate, and
"Agents" means, collectively,
the Administrative Agent, the Syndication
Agents and the Documentation Agents.
"Aggregate Commitment"
means the aggregate of
the Commitments of
all
the Lenders, as may be adjusted from time to
time pursuant to the terms hereof.
The initial Aggregate Commitment is
$150,000,000.
"Aggregate Outstanding
Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit
Exposure of all the Lenders.
"Agreement" means this 3-Year Revolving Credit Agreement,
as it may be
amended, restated, supplemented or
otherwise modified and as in effect from time
to time.
"Agreement Accounting
Principles" means
generally accepted accounting
principles as in effect in the United
States from time to time, applied in a
manner consistent with that used in preparing the
financial statements
of the
Borrower referred to in Section 5.4;
provided, however,
that except as provided
in Section 9.8, with respect to the
calculation
of financial
ratios and other
financial tests required by this Agreement,
"Agreement
Accounting
Principles"
means generally accepted accounting
principles as in effect in the United States
as of the date of this Agreement,
applied in a manner
consistent with that used
in preparing the financial statements of
the Borrower referred to in Section 5.4
hereof.
"Alternate Base Rate" means, for any day, a rate of interest
per annum
equal to the higher of (i) the Prime
Rate for such day and
(ii) the sum of (a)
the Federal Funds Effective Rate for such day and (b) one-half
of one percent
(0.5%) per annum.
"Applicable Fee Rate" means, at any time, the percentage rate per
annum
at which Commitment Fees are accruing on the unused
portion of the
Aggregate
Commitment at such time as set forth in the
Pricing Schedule.
"Applicable Margin"
means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set
forth in the Pricing Schedule.
"Arranger" means
Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, in its
capacity as Lead Arranger and Sole Book
Runner.
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"Article" means an article of this Agreement unless another
document is
specifically referenced.
"Assignment Agreement" is defined in Section 12.3.1.
"Authorized Officer"
means any of the chief executive officer, chief
financial officer, chief accounting officer
or treasurer of the Borrower, acting
singly.
"Available Aggregate
Commitment"
means, at any time, the Aggregate
Commitment then in effect minus the Aggregate
Outstanding
Credit Exposure at
such time.
"Bank One" means Bank One, NA, a national banking association having
its principal office in Chicago,
Illinois, in its
individual capacity,
and its
successors.
"Borrower" means
Applebee's
International,
Inc.,
a Delaware
corporation, and its permitted successors and assigns (including, without
limitation, a debtor-in-possession on its
behalf).
"Borrowing Date" means a date on which an Advance is made
hereunder.
"Borrowing Notice" is defined in Section 2.9.1.
"Business Day" means (i) with respect to any borrowing, payment or
rate
selection of Eurodollar Advances, a day (other than a Saturday or
Sunday) on
which banks are not authorized or required
to close in Chicago,
Illinois or New
York City for the conduct of substantially all of their commercial lending
activities, interbank wire transfers can be made on the Fedwire system and
dealings in United States dollars are
carried on in the London interbank market
and (ii) for all other purposes, a day (other than a Saturday or Sunday) on
which banks are not authorized or required
to close in Chicago,
Illinois or New
York City for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can
be made on the Fedwire system.
"Buying Lender" is defined in Section 2.6.3(ii).
"Capital Expenditures" means, without duplication, any expenditures
for
any purchase or other acquisition of any asset which would be
classified as a
fixed or capital asset on a consolidated balance sheet of the Borrower and
its
Subsidiaries prepared in accordance with
Agreement Account Principles, excluding
(i) Permitted Acquisitions, (ii) expenditures of insurance
proceeds to rebuild
or replace any asset after a casualty loss and (iii) leasehold improvement
expenditures for which the Borrower or a
Subsidiary is
reimbursed promptly
by
the lessor.
3
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"Capitalized Lease" of
a Person means any
lease of Property
by such
Person as lessee which would be
capitalized
on a balance
sheet of such
Person
prepared in accordance with Agreement
Accounting Principles.
"Capitalized Lease
Obligations"
of a Person
means the amount of
the
obligations of such Person under Capitalized Leases which would be shown as
a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Capital Stock"
means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in
the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalent
Investments" means, as
to any Person, (i) securities
issued or directly and fully guaranteed or insured by the United States or
any
agency or instrumentality thereof (provided that the full faith and
credit of
the United States is pledged in support
thereof) having
maturities of not
more
than one year from the date of acquisition,
(ii) time deposits and
certificates
of deposit of any investment grade commercial bank having, or which is the
principal banking subsidiary of an investment grade bank holding company
organized under the laws of the United
States, any State
thereof, the
District
of Columbia or any foreign jurisdiction having capital, surplus and undivided
profits aggregating in excess of
$500,000,000, with
maturities of not more than
one year from the date of acquisition by such Person, (iii) repurchase
obligations with a term of not more than ninety (90) days for underlying
securities of the types described in clause
(i) above entered into with any bank
meeting the qualifications specified in clause (ii) above,
provided that such
repurchase obligations are secured by a
first priority security interest in such
underlying securities which have, on the
date of purchase thereof, a fair market
value of at least 100% of the amount of the repurchase obligations, (iv)
commercial paper issued by any Person
incorporated in the United States rated at
least A-1 by S&P or P-1 by Moody's and
in each case maturing
not more than 270
days after the date of acquisition by such Person, (v) investments in money
market funds substantially all of the assets of which are comprised of
securities of the types described in clauses (i) through
(iv) above, and
(vi)
demand deposit accounts maintained in the
ordinary course of business.
"Change" is defined in Section 3.2.
"Change in Control" means (i) the acquisition by any Person,
or two or
more Persons acting in concert,
of beneficial
ownership (within the
meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or
indirectly, of
thirty-three percent (33%) or
more of the outstanding shares of voting stock of the Borrower; or (ii) the
majority of the Board of Directors of the Borrower fails to consist of
Continuing Directors; or (iii) except as expressly
permitted under the terms of
this Agreement, the Borrower consolidates with or
merges into another Person or
conveys, transfers or leases all or substantially all of its property to any
Person, or any Person consolidates with or merges into
the Borrower, in
either
event pursuant to a transaction in which
the outstanding
Capital Stock of
the
Borrower is reclassified or changed into or exchanged for
cash, securities
or
other property.
4
<PAGE>
"Closing Date" means November 5, 2001.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or
otherwise modified from time to time, and any rule or regulation issued
thereunder.
"Collateral Shortfall Amount" is defined in Section 8.1(i).
"Commitment" means,
for each Lender, the
obligation of such Lender to
make Revolving Loans to, and participate in
Swing Line Loans and in Facility LCs
issued upon the application of, the Borrower in an aggregate amount not
exceeding the amount set forth on the
Commitment
Schedule or in an
Assignment
Agreement executed pursuant to Section 12.3 or in a
Commitment and
Acceptance
executed pursuant to Section 2.6.3, as it may be modified as a result
of any
assignment that has become effective
pursuant to Section
12.3.2 or as otherwise
modified from time to time pursuant to the
terms hereof.
"Commitment and Acceptance" is identified in Section 2.6.3.
"Commitment Fee" is defined in Section 2.6.1.
"Commitment Increase Notice" is defined in Section 2.6.3(i)
hereof.
"Commitment Schedule"
means the Schedule
identifying
each Lender's
Commitment as of the Closing Date attached
hereto and identified as such.
"Consolidated Funded
Indebtedness"
means at any time the Funded
Indebtedness of the Borrower and its
Subsidiaries
calculated on a
consolidated
basis as of such time.
"Consolidated
Indebtedness" means at
any time the Indebtedness of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such
time.
"Consolidated Interest
Expense" means, for any period, the total gross
interest expense of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period, whether
paid or accrued, including, without
duplication, the interest component of
Capitalized Leases, commitment and letter
of credit fees, the discount or implied
interest component of
Off-Balance Sheet
Liabilities, capitalized interest expense, pay-in-kind interest expense,
amortization of debt documents and net payments (if
any) pursuant to Financial
Contracts relating to interest rate protection (other than any such payments
pursuant to Financial Contracts in effect prior to the date hereof which
are
being terminated substantially concurrently with the execution and delivery
hereof).
5
<PAGE>
"Consolidated Net Income" means, with reference to any period,
the net
after-tax income (or loss) of the Borrower
and its Subsidiaries
calculated on a
consolidated basis for such period,
excluding the net after-tax income (or loss)
allocated to minority interests in accordance with Agreement Accounting
Principles.
"Consolidated
Net Worth"
means
at any time the consolidated
stockholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time.
"Consolidated Rentals"
means, for any period, the Rentals of the
Borrower and its Subsidiaries calculated on a consolidated basis for such
period.
"Consolidated Total
Assets" means at any
time the total assets of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such
time.
"Consolidated Total
Capitalization"
means at any time the sum of
Consolidated Indebtedness plus Consolidated Net Worth,
each calculated as
of
such time.
"Contingent Obligation" of a Person means any agreement,
undertaking or
arrangement by which such Person
assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the
payment of, or otherwise becomes or
is contingently liable upon, the obligation
or liability of any other Person, or
agrees to maintain the net worth or working
capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without
limitation, any comfort letter (the obligations
in respect of which shall be measured based
on actual amounts owing on any given
measurement date), operating agreement,
take-or-pay contract
or the obligations
of any such Person as general partner of a partnership with respect to the
liabilities of the partnership.
"Continuing Director"
means, with respect to any Person as of any date
of determination, any member of the board of
directors of such
Person who (a)
was a member of such board of directors on the Closing Date, or (b) was
nominated for election or elected to such
board of directors
with the approval
of the required majority of the Continuing Directors who were members of
such
board at the time of such nomination or
election.
"Contractual
Obligation" of any Person shall mean any provision of any
security issued by such Person or of any
agreement,
instrument or
undertaking
under which such Person is obligated or by
which it or any of the property owned
by it is bound.
"Controlled
Group"
means all members of a controlled group of
corporations or other business entities and
all trades or businesses (whether or
not incorporated) under common control
which, together with
the Borrower or any
of its Subsidiaries, are treated as a single employer
under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in Section 2.10.
6
<PAGE>
"Credit Extension"
means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension
Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Default" means an event described in Article VII.
"Designated Lender"
means, with respect to
each Designating
Lender,
each Eligible Designee designated by such
Designating Lender pursuant to Section
12.1.2.
"Designating Lender" means, with respect to each Designated Lender,
the
Lender that designated such Designated
Lender pursuant to Section 12.1.2.
"Designation Agreement" is defined in Section 12.1.2.
"Documentation Agent"
means each of Bank of
America, N.A.
and Fleet
National Bank, in each case in its capacity
as the documentation
agent for the
Lenders pursuant to Article X, and not in
its individual
capacity as a Lender,
and any successor Documentation Agent
appointed pursuant to Article X.
"Domestic Subsidiary"
means a Subsidiary
of the Borrower organized
under the laws of a jurisdiction located in
the United States of America.
"EBITDA" means, for
any period,
Consolidated Net
Income plus, to the
extent deducted from revenues in determining Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) expense for taxes paid or
accrued, (iii)
depreciation, (iv) amortization, (v)
extraordinary losses incurred other than in
the ordinary course of business, and (vi) other non-cash losses (except any
non-cash losses that require accrual of a reserve for
anticipated
future cash
payments for any period other than accrual
for future obligations
made pursuant
to SFAS No. 87, No. 112 or No. 116, as amended) deducted in calculating net
income (or net loss) (including,
without limitation,
loss on the disposition of
assets), minus, to the extent included in Consolidated Net Income, (x)
extraordinary gains realized other than in
the ordinary course of business, (y)
the income of any joint venture, except to the extent of cash dividends or
distributions actually paid by such joint
venture to the Borrower or any of its
Subsidiaries and (z) other non-cash gains
(including, without
limitation, gain
on the disposition of assets), in each case of the Borrower and its
Subsidiaries, determined in accordance with
Agreement Accounting Principles for
such period.
"EBITR" means,
for any period,
Consolidated
Net Income plus, to
the
extent deducted from revenues in determining Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) expense for taxes paid or
accrued, (iii)
Consolidated Rentals, (iv) extraordinary losses incurred other than in the
ordinary course of business, and (v) other non-cash losses
(except any non-cash
losses that require accrual of a reserve for
anticipated
future cash
payments
for any period other than accrual for
future obligations
made pursuant to
SFAS
No. 87, No. 112 or No. 116, as amended)
deducted in
calculating net income
(or
net loss) (including, without limitation, loss on the disposition of
assets),
minus, to the extent included in Consolidated
Net Income,
(x) extraordinary
gains realized other than in the ordinary
course of business,
(y) the income of
any joint venture, except to the extent of cash dividends or distributions
actually paid by such joint venture to the Borrower or any of
its Subsidiaries
and (z) other non-cash gains (including, without limitation, gain on the
disposition of assets), in each case of the Borrower and its Subsidiaries,
determined in accordance with Agreement
Accounting Principles for such period.
7
<PAGE>
"Effective Commitment Amount" is defined in Section 2.6.3(i)
hereof.
"Eligible Designee" means a special purpose corporation, partnership,
limited partnership or limited liability company that is administered by a
Lender or an Affiliate of a Lender and (i) is
organized under the laws of the
United States of America or any state
thereof, (ii) is engaged primarily in
making, purchasing or otherwise
investing in
commercial loans in
the ordinary
course of its business and (iii) issues (or the parent of which issues)
commercial paper rated at least A-1 or the
equivalent thereof by S&P or at least
P-1 or the equivalent thereof by
Moody's.
"Environmental Laws"
means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans,
injunctions, permits,
concessions,
grants,
franchises, licenses, agreements and other
governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the
environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or
wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of
pollutants,
contaminants, hazardous
substances or wastes or the clean-up or
other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as
amended from time to time, including
(unless the context otherwise requires) any
rules or regulations promulgated
thereunder.
"Eurodollar Advance"
means an Advance which, except as otherwise
provided in Section 2.12, bears interest at
the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar
Advance for
the relevant Interest Period, the
applicable British Bankers' Association LIBOR
rate for deposits in U.S. dollars as reported by Bloomberg
or, if Bloomberg
is
not available, by any other generally recognized
financial information
service
as of 11:00 a.m. (London time) two Business Days
prior to the first day of such
Interest Period, and having a maturity equal to
such Interest Period,
provided
that, if no such British Bankers' Association LIBOR rate is available to the
Administrative Agent, the applicable Eurodollar Base Rate for the relevant
Interest Period shall instead be the rate
determined by the Administrative Agent
to be the rate at which Bank One or one of
its Affiliate
banks offers to
place
deposits in U.S. dollars with first-class banks in the London interbank
market
at approximately 11:00 a.m. (London time) two
Business Days prior to the first
day of such Interest Period, in the approximate amount of Bank One's relevant
Eurodollar Loan and having a maturity equal
to such Interest Period.
8
<PAGE>
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.12, bears interest at the
applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar
Advance for the
relevant Interest Period, the sum of (i)
the quotient of (a) the Eurodollar Base
Rate applicable to such Interest
Period, divided by (b) one minus the
Reserve
Requirement (expressed as a decimal)
applicable to such
Interest Period,
plus
(ii) the then Applicable Margin, changing as and when the
Applicable
Margin
changes.
"Excluded Taxes"
means, in the case of each Lender or applicable
Lending Installation and each Agent, taxes imposed on its overall net
income,
and franchise taxes imposed on it, by (i) the
jurisdiction
under the laws of
which such Lender or Agent is incorporated or organized or any political
combination or subdivision or taxing
authority thereof or
(ii) the jurisdiction
in which such Agent's or Lender's
principal executive office or such Lender's
applicable Lending Installation is located or in
which, other than as a direct
result of the transaction evidenced by this Agreement, such Agent or Lender
otherwise is, or at any time was, engaged
in business.
"Exhibit" refers
to an exhibit to this Agreement, unless another
document is specifically referenced.
"Existing Credit
Agreement" means that
certain Credit Agreement dated
as of March 30, 1998 among the Borrower,
the lenders parties
thereto, Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
as Arranger and
Syndication Agent,
NationsBank, N.A., as Documentation
Agent, and Bank One,
NA (formerly known as
The First National Bank of Chicago),
as Administrative Agent, as the same has
been amended, restated, supplemented or
otherwise modified from time to time.
"Facility LC" is defined in Section 2.21.1.
"Facility LC Application" is defined in Section 2.21.3.
"Facility LC Collateral Account" is defined in Section 2.21.11.
"Facility Termination
Date" means the earlier of (a) November 5, 2004,
and (b) the date of termination in whole of
the Aggregate Commitment pursuant to
Section 2.6.2 hereof or the Commitments
pursuant to Section 8.1 hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate
per
annum equal to the weighted average of the rates on
overnight Federal funds
transactions with members of the Federal
Reserve System arranged by Federal
funds brokers on such day, as published
for such day (or, if
such day is not a
Business Day, for the immediately 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
at approximately 10:00 a.m. (Chicago
time) on such day on such transactions
received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole
discretion.
9
<PAGE>
"Financial Contract"
of a Person
means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other
financial
instrument with similar characteristics or (ii) any agreement, device or
arrangement providing for payments
related to
fluctuations of
interest rates,
exchange rates, forward rates or commodity prices,
including,
but not limited
to, interest rate swap or exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency and interest rate options, puts or
warrants.
"Floating Rate" means,
for any day, a rate
per annum equal to (i) the
Alternate Base Rate for such day plus (ii)
the Applicable Margin,
changing when
and as the Alternate Base Rate changes.
"Floating Rate
Advance" means an
Advance which,
except as
otherwise
provided in Section 2.12, bears interest at
the Floating Rate.
"Floating Rate Loan" means a Loan or portion thereof, which, except as
otherwise provided in Section 2.12, bears
interest at the Floating Rate.
"Foreign Pension Plan"
means any employee benefit plan as described in
Section 3(3) of ERISA for which the
Borrower or any member of its Controlled
Group is a sponsor or administrator and which (i) is maintained or
contributed
to for the benefit of employees of the Borrower, any of its respective
Subsidiaries or any member of its
Controlled Group, (ii) is not covered by ERISA
pursuant to Section 4(b)(4) of ERISA,
and (iii) under
applicable local law,
is
required to be funded through a trust or other funding vehicle. "Foreign
Subsidiary" means a Subsidiary of the Borrower which is not a Domestic
Subsidiary.
"Funded Indebtedness"
means at any time the aggregate dollar amount of
(i) Indebtedness which has actually been
funded and is outstanding at such time,
whether or not such amount is due or payable
at such time, (ii) the undrawn
amount of standby letters of credit and (iii) Contingent Obligations with
respect to the Funded Indebtedness of any
other Person.
"Guarantor" shall
mean each Subsidiary of the Borrower that is a
Domestic Subsidiary as of the Closing Date
and each other
Subsidiary that
has
become a guarantor of the Obligations
hereunder in
accordance with the terms of
Section 6.10.
10
<PAGE>
"Guaranty" means that
certain Guaranty
(and any and all
supplements
thereto) executed from time to time by each Guarantor in favor of the
Administrative Agent for the benefit of
itself and the Lenders, in substantially
the form of Exhibit H attached hereto, as amended, restated, supplemented or
otherwise modified from time to time.
"Indebtedness" of a Person means, without duplication, such Person's
(i) obligations for borrowed money,
(ii) obligations
representing the
deferred
purchase price of Property or services
(other than accounts
payable arising in
the ordinary course of such Person's
business payable on
terms customary in the
trade), (iii) obligations, whether or not assumed,
secured by Liens or
payable
out of the proceeds or production from Property now or hereafter owned or
acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) obligations of such Person to
purchase
securities or other Property arising out of or in connection
with the sale of
the same or substantially similar
securities or Property, (vi) Capitalized Lease
Obligations, (vii) obligations, contingent
or otherwise, with respect to letters
of credit and bankers' acceptances, (viii) Contingent Obligations, (ix) Net
Mark-to-Market Exposure under Financial Contracts, (x) Off-Balance Sheet
Liabilities, and (xi) any other obligation
for borrowed money or other financial
accommodation which in accordance with
Agreement Accounting
Principles would be
shown as a liability on a consolidated balance sheet of such Person.
"Indebtedness" of the Borrower includes the Indebtedness of any
joint venture,
unless it is nonrecourse to the Borrower
and its Subsidiaries.
"Interest Period" means, with respect to a Eurodollar Advance, a
period
of one, two, three or six months or such other
period agreed to by the Lenders
and the Borrower, commencing on a Business
Day selected by the Borrower pursuant
to this Agreement. Such Interest Period shall end on
but exclude the day which
corresponds numerically to such date one,
two, three or six months or such other
agreed upon period thereafter, provided, however, that if there is no such
numerically corresponding day in such next,
second, third or sixth succeeding
month or such other succeeding period, such Interest Period shall end on the
last Business Day of such next, second,
third or sixth
succeeding month or such
other succeeding period. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar
month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance, extension of credit
(other than accounts receivable arising in the ordinary
course of business
on
terms customary in the trade,
but including accounts receivable from other
Persons which are not current assets or did not arise from sales
to such other
Person in the ordinary course of business) or
contribution
of capital by such
Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or
other securities owned by such Person; and any structured notes, Financial
Contracts, derivative financial instruments and other similar
instruments or
contracts owned by such Person.
Notwithstanding
the foregoing,
an Acquisition
shall not be deemed to be an
Investment.
11
<PAGE>
"LC Fee" is defined in Section 2.21.4.
"LC Issuer" means Bank One (or any Affiliate of Bank One
designated by
Bank One) or any of the other Lenders, as
applicable, in its respective capacity
as issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount of all
Facility LCs outstanding at such
time plus (ii) the aggregate unpaid amount at such time of all
Reimbursement
Obligations.
"LC Payment Date" is defined in Section 2.21.5.
"Lender Increase Notice" is defined in Section 2.6.3(i) hereof.
"Lenders" means the lending institutions listed on the
signature pages
of this Agreement and their respective
successors and assigns. Unless otherwise
specified, the term "Lender" includes Bank One in its capacity as Swing
Line
Lender.
"Lending Installation" means, with respect to a Lender or an Agent,
the
office, branch, subsidiary or affiliate of such Lender or
Agent listed on the
administrative information sheets provided to the Administrative Agent in
connection herewith, or on a Schedule or otherwise
selected by such
Lender or
Agent pursuant to Section 2.18.
"Leverage Ratio" is defined in Section 6.21.1.
"Lien" means
any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or
preferential
arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement, and, in the case of stock,
stockholders
agreements,
voting trust
agreements and all similar
arrangements).
"Loan" means a Revolving Loan or a Swing Line Loan, as
applicable.
"Loan Documents"
means this Agreement,
the Facility LC
Applications,
the Guaranty, and all other documents,
instruments,
notes (including any
Notes
issued pursuant to Section 2.14, if requested) and agreements executed in
connection therewith or contemplated thereby, as the same may be amended,
restated or otherwise modified and in
effect from time to time.
"Loan Party" is defined in Section 4.1(i).
"Material Adverse
Effect" means a
material adverse
effect on (i) the
business, Property, condition (financial or
otherwise), operations, performance,
properties, results of operations or prospects of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the
Borrower or any of
its
Subsidiaries to perform its respective
obligations
under the Loan
Documents to
which it is a party, or (iii) the validity
or enforceability of
any of the Loan
Documents or the rights or remedies of the
Agents, the LC Issuers or the Lenders
thereunder.
"Material
Indebtedness" means Indebtedness in an outstanding principal
amount of $20,000,000 or more in the
aggregate (or the equivalent thereof in any
currency other than U.S. dollars).
"Material Indebtedness
Agreement" means any
agreement under which any
Material Indebtedness was created or is governed
or which provides for the
incurrence of Indebtedness in an amount which would constitute Material
Indebtedness (whether or not an amount of
Indebtedness
constituting
Material
Indebtedness is outstanding
thereunder).
12
<PAGE>
"Modify" and "Modification" are defined in Section 2.21.1.
"Moody's" means
Moody's Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan"
means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more
than one employer
is
obligated to make contributions.
"Net Mark-to-Market
Exposure" of a Person means, as of any date of
determination, the excess (if any) of all
unrealized losses over all unrealized
profits of such Person arising from
Financial Contracts. "Unrealized losses"
means the fair market value of the cost to such Person of replacing each
Financial Contract as of the date of
determination
(assuming such Financial
Contract were to be terminated as of that
date), and "unrealized
profits" means
the fair market value of the gain to such Person
of replacing
such Financial
Contract as of the date of determination
(assuming such
Financial Contract were
to be terminated as of that date).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" is defined in Section 2.14(iv).
"Obligations" means
all Loans,
Reimbursement
Obligations,
advances,
debts, liabilities, obligations, covenants and duties owing by the
Borrower to
any of the Agents, any LC Issuer, any
Lender, the Arranger, any affiliate of the
Agents, any LC Issuer, or any Lender, the
Arranger, or any
indemnitee under the
provisions of Section 9.6 or any other
provisions of the Loan Documents, in each
case of any kind or nature, present or future, arising under this Agreement
or
any other Loan Document, whether or not
evidenced by any note, guaranty or other
instrument, whether or not for the payment of
money, whether arising
by reason
of an extension of credit, loan, foreign exchange risk, guaranty,
indemnification, or in any other manner,
whether direct or
indirect (including
those acquired by assignment), absolute or
contingent, due or to become due, now
existing or hereafter arising and however
acquired. The term
includes, without
limitation, all interest, charges, expenses, fees, attorneys' fees and
disbursements, paralegals' fees (in each case
whether or not allowed), and any
other sum chargeable to the Borrower or any of its Subsidiaries under this
Agreement or any other Loan Document.
13
<PAGE>
"Off-Balance Sheet
Liability"
of a Person
means (i) any
repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person,
(ii) any liability
under any Sale and Leaseback
Transaction which is not a Capitalized
Lease, (iii) any liability under any
so-called "synthetic lease" transaction
entered into by such Person, or (iv) any
obligation arising with respect to any
other transaction which is the functional
equivalent of borrowing but which does not
constitute a liability on the balance
sheets of such Person, but excluding from
this clause (iv) Operating Leases.
"Operating Lease" of a Person means any lease of Property (other
than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any
renewals effective at the option of the
lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit
Exposure" means, as to any Lender at any time, the
sum of (i) the aggregate principal amount of its Revolving
Loans outstanding at
such time, plus (ii) an amount equal to its
Pro Rata Share of the obligations to
purchase participations in Swing Line Loans, plus (iii) an
amount equal to its
Pro Rata Share of the LC Obligations at
such time.
"Participants" is defined in Section 12.2.1.
"Payment Date" means
the last day of each March, June, September and
December and the Facility Termination
Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor
thereto.
"Permitted Acquisition" is defined in Section 6.15(vi).
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company,
association,
enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality
thereof.
"Plan" means an
employee benefit plan
which is covered by Title IV of
ERISA or subject to the minimum funding
standards under
Section 412 of the Code
as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule identifying the Applicable
Margin
and Applicable Fee Rate attached hereto and
identified as such.
14
<PAGE>
"Prime Rate" means a rate per annum equal to the prime rate of
interest
announced from time to time by Bank One or
its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime
rate
changes.
"Property" of a
Person means any and all property, whether real,
personal, tangible, intangible, or mixed,
of such Person, or other assets owned,
leased or operated by such Person.
"Proposed New Lender" is defined in Section 2.6.3(i) hereof.
"Pro Rata Share" means, with respect to a Lender, a
portion equal to a
fraction the numerator of which is such
Lender's Commitment at such time (in
each case, as adjusted from time to time in
accordance
with the provisions of
this Agreement) and the denominator of
which is the Aggregate Commitment at such
time, or, if the Aggregate Commitment has been terminated, a fraction the
numerator of which is such Lender's
Outstanding Credit Exposure at such time and
the denominator of which is the sum of the Aggregate Outstanding Credit
Exposure.
"Purchase Price"
means the total consideration and other amounts
payable in connection with any Acquisition,
including,
without limitation,
any
portion of the consideration payable in cash, the value of any
Capital Stock or
other equity interests of the Borrower (other than treasury stock of the
Borrower repurchased prior to the Closing Date) or any Subsidiary issued as
consideration for such Acquisition, all Indebtedness and other monetary
liabilities incurred or assumed in
connection
with such Acquisition and all
transaction costs and expenses incurred in
connection with such Acquisition.
"Purchasers" is defined in Section 12.3.1.
"Regulation D" means
Regulation
D of the Board of
Governors of the
Federal Reserve System as from time to time
in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation T" means
Regulation
T of the Board of
Governors of the
Federal Reserve System as from time to time
in effect and any successor or other
regulation or official interpretation of
said Board of Governors relating to the
extension of credit by and to brokers and
dealers of securities
for the purpose
of purchasing or carrying margin stock (as
defined therein).
"Regulation U" means
Regulation
U of the Board of
Governors of the
Federal Reserve System as from time to time
in effect and any successor or other
regulation or official interpretation of
said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker
lenders for the
purpose
of purchasing or carrying margin stocks applicable to member banks of the
Federal Reserve System.
15
<PAGE>
"Regulation X" means
Regulation
X of the Board of
Governors of the
Federal Reserve System as from time to time
in effect and any successor or other
regulation or official interpretation of
said Board of Governors relating to the
extension of credit by foreign lenders for
the purpose of purchasing or carrying
margin stock (as defined therein).
"Reimbursement Obligations" means with respect to any LC Issuer, at
any
time, the aggregate of all obligations of the Borrower then
outstanding
under
Section 2.21 to reimburse such LC Issuer for amounts paid by
such LC Issuer in
respect of any one or more drawings under
Facility LCs issued by such LC Issuer;
or, as the context may require, all such Reimbursement Obligations then
outstanding to reimburse all of the LC
Issuers.
"Rentals" of a Person means the aggregate fixed amounts payable by
such
Person under any Operating Lease.
"Reportable Event" means a reportable event, as defined in Section
4043
of ERISA and the regulations issued under
such section, with
respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation or
otherwise waived the requirement of Section
4043(a) of ERISA that it be notified
within thirty (30) days of the occurrence
of such event, provided, however, that
a failure to meet the minimum funding
standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable
Event regardless of the issuance of
any such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the
Code.
"Required Lenders"
means Lenders in the aggregate having at least
fifty-one percent (51%) of the Aggregate Commitment or, if the Aggregate
Commitment has been terminated, Lenders in the aggregate holding at least
fifty-one percent (51%) of the Aggregate
Outstanding Credit Exposure.
"Reserve Requirement"
means, with respect to
an Interest Period,
the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is
imposed under
Regulation D on "Eurodollar
liabilities" (as defined in Regulation
D).
"Revolving Loan"
means, with
respect to a Lender,
each loan made by
such Lender pursuant to its commitment to lend
set forth in Section 2.1 (or any
conversion or continuation thereof).
"Risk Based
Capital
Guidelines"
is defined in Section 3.2.
"S&P" means
Standard and Poor's
Ratings Services,
a division of The
McGraw-Hill Companies, Inc. and any
successor thereto.
"Sale and Leaseback
Transaction" means any
sale or other transfer
of
Property by any Person with the intent to
lease such Property as lessee.
16
<PAGE>
"Schedule" refers to a
specific schedule
to this Agreement, unless
another document is specifically
referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Selling Lender" is defined in Section 2.6.3(ii).
"Single Employer Plan"
means a Plan
maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any
member of
the Controlled Group.
"Subsidiary" of a
Person means (i) any
corporation
more than fifty
percent (50%) of the outstanding securities having ordinary voting power of
which shall at the time be owned or
controlled, directly
or indirectly, by such
Person or by one or more of its
Subsidiaries
or by such Person and
one or more
of its Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization more than fifty
percent (50%) of the ownership interests having ordinary voting power of
which
shall at the time be so owned or controlled. Unless otherwise expressly
provided, all references herein to a
"Subsidiary" shall mean a Subsidiary of the
Borrower.
"Substantial Portion"
means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than ten
percent (10%) of the consolidated assets of
the Borrower and its Subsidiaries as
would be shown in the consolidated
financial statements
of the Borrower and its
Subsidiaries as at the end of the four fiscal
quarter period ending with the
fiscal quarter immediately prior to the fiscal quarter in which such
determination is made, or (ii) is
responsible for more than ten percent (10%) of
the Consolidated Net Income of the Borrower
and its Subsidiaries as reflected in
the financial statements referred to in
clause (i) above.
"Swing Line Borrowing Notice" is defined in Section 2.2.2.
"Swing Line
Lender" means Bank One or such other
Lender which may
succeed to its rights and obligations as
Swing Line Lender pursuant to the terms
of this Agreement.
"Swing Line Loan" means a Loan made available to the Borrower by the
Swing Line Lender pursuant to Section
2.2.
"Syndication Agent"
means each of SunTrust Bank and U.S. Bank National
Association, in each case in its capacity as the syndication agent for the
Lenders pursuant to Article X, and not in
its individual
capacity as a Lender,
and any successor Syndication Agent
appointed pursuant to Article X.
17
<PAGE>
"Taxes" means any and
all present or future
taxes, duties, levies,
imposts, deductions, charges or withholdings,
and any and all
liabilities with
respect to the foregoing, but excluding
Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Transferred Credit" is defined in Section 2.6.3(ii).
"Type" means,
with respect to any
Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance, and with respect to any Loan, its
nature
as a Floating Rate Loan or a Eurodollar
Loan.
"Unfunded Liabilities"
means the amount (if
any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market
value of all such Plan
assets allocable to
such
benefits, all determined as of the then most recent
valuation date for such
Plans using PBGC actuarial assumptions for
single employer plan terminations.
"Unmatured Default"
means an event which
but for the lapse of time or
the giving of notice, or both, would
constitute a Default.
"Wholly-Owned
Subsidiary" of a
Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly,
by such Person or one
or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more
Wholly-Owned
Subsidiaries of such Person, or (ii) any
partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of
which shall at the time be
so owned or controlled.
The foregoing
definitions
shall be equally applicable to both the
singular and plural forms of the defined
terms.
Any accounting terms
used in this Agreement which are not specifically
defined herein shall have the meanings
customarily given them in accordance with
Agreement Accounting Principles.
1.2. References.
Any references to the Borrower's Subsidiaries shall
not in any way be construed as consent by
the Administrative Agent or any Lender
to the establishment, maintenance or acquisition of any
Subsidiary, except
as
may otherwise be permitted hereunder.
18
<PAGE>
ARTICLE II
THE CREDITS
2.1. Commitment. From
and including the date of this Agreement and prior to
the Facility Termination Date, upon the
satisfaction of the conditions precedent
set forth in Sections 4.1 and 4.2, as
applicable, each Lender severally and not
jointly agrees, on the terms and conditions
set forth in this Agreement, to (i)
make Revolving Loans to the Borrower,
(ii) to participate in
Swing Line Loans
and (iii) participate in Facility LCs issued upon the
request of the Borrower,
provided that, after giving effect to the making
of each Revolving
Loan, the
making of each Swing Line Loan and the
issuance of each such
Facility LC, such
Lender's Outstanding Credit Exposure shall
not exceed its Commitment. Subject to
the terms of this Agreement, the Borrower may borrow, repay and reborrow
Revolving Loans at any time prior to the Facility Termination Date. The
Commitments to lend hereunder shall expire automatically on the Facility
Termination Date. The LC Issuers will issue
Facility LCs hereunder on the terms
and conditions set forth in Section
2.21.
2.2. Swing Line
Loans.
2.2.1. Amount of Swing Line
Loans. Upon the
satisfaction
of the conditions
precedent set forth in Section 4.2 and, if
such Swing Line Loan is to be made on
the date of the initial Advance
hereunder,
the satisfaction of the conditions
precedent set forth in Section 4.1 as well,
from and including the
date of this
Agreement and prior to the Facility
Termination Date, the
Swing Line Lender, on
the terms and conditions set forth in this Agreement, shall make Swing Line
Loans to the Borrower from time to time in
an aggregate principal
amount not to
exceed $5,000,000, provided that the
Aggregate Outstanding Credit Exposure shall
not at any time exceed the Aggregate
Commitment, and provided further that at no
time shall the sum of (i) the Swing Line
Lender's share of the
obligations
to
participate in the Swing Line Loans,
plus (ii) the
outstanding Revolving
Loans
made by the Swing Line Lender pursuant to
Section 2.1, plus (iii) the Swing Line
Lender's Pro Rata Share of the LC
Obligations,
exceed the Swing Line
Lender's
Commitment at such time. Subject to the terms of this
Agreement,
the Borrower
may borrow, repay and reborrow Swing Line Loans at any time prior to the
Facility Termination Date.
2.2.2. Borrowing Notice.The
Borrower shall deliver to the Administrative Agent
and the Swing Line Lender irrevocable notice (a "Swing Line Borrowing
Notice")
not later than 12:00 noon (Chicago time) on the Borrowing Date of each Swing
Line Loan, specifying (i) the applicable
Borrowing Date (which
date shall be a
Business Day), and (ii) the amount of the
requested Swing Line
Loan which shall
be an amount not less than $300,000 and
integral multiples of $100,000 in excess
thereof. Each Swing Line Loan shall bear
interest on the outstanding principal
amount thereof, for each day from and including
the day such Swing Line Loan is
made to but excluding the date it is paid, at a rate per annum equal,
at the
Borrower's option, to the Floating Rate or at
a rate per annum agreed to by the
Borrower and the Swing Line Lender at the
time of borrowing.
19
<PAGE>
2.2.3. Making of Swing Line Loans. Promptly after receipt of a Swing Line
Borrowing Notice, the Administrative Agent shall notify each Lender by
fax, or
other similar form of transmission,
of the requested Swing
Line Loan. Not later
than 2:00 p.m. (Chicago time) on the applicable
Borrowing Date, the
Swing Line
Lender shall make available the Swing Line
Loan, in funds immediately available
in Chicago, to the Administrative Agent at its address specified
pursuant to
Article XIII. The Administrative Agent will promptly deposit the funds so
received from the Swing Line Lender in the Borrower's account with the
Administrative Agent on the Borrowing
Date.
2.2.4. Repayment of Swing Line
Loans. Each Swing Line
Loan shall be paid
in
full by the Borrower on or before the fifth (5th) Business
Day after the
Borrowing Date for such Swing Line Loan. In
addition, the Swing Line Lender (i)
may a t any time in its sole discretion with respect to any outstanding Swing
Line Loan, or (ii)shall on the fifth (5th)
Business Day after the Borrowing Date
of any Swing Line Loan, require each
Lender (including the
Swing Line Lender)
to make a Revolving Loan(subject to the
limitations set forth in Section 2.1) in
the amount of such Lender's Pro Rata Share
of such Swing Line
Loan (including,
without limitation, any interest accrued
and unpaid thereon), for the purpose of
repaying such Swing Line Loan. Each Lender shall make
available its required
Revolving Loan, in funds immediately
available in Chicago
to the Administrative
Agent at its address specified pursuant to Article XIII, by no later than (i)
4:00 p.m. (Chicago time) on the date of any notice
received on or before
2:00
p.m. (Chicago time) on such date pursuant to
this Section 2.2.4 and (ii) 10:00
a.m. (Chicago time) on the Business Day
immediately
following the date of
any
such notice received after 2:00 p.m. (Chicago time) on such date. Revolving
Loans made pursuant to this Section 2.2.4
shall initially be Floating Rate Loans
and thereafter may be continued as Floating Rate Loans or converted into
Eurodollar Loans in the manner provided in
Section 2.10 and subject to the other
conditions and limitations set forth in this Article II.
Unless a Lender shall
have notified the Swing Line
Lender, prior to its making any Swing Line
Loan,
that any applicable condition precedent set
forth in Sections 4.1 or 4.2 had not
then been satisfied, such Lender's obligation to make Revolving Loans
pursuant
to this Section 2.2.4 to repay Swing Line Loans shall be unconditional,
continuing, irrevocable and absolute and shall not be affected by any
circumstances, including, without limitation, (a) any set-off, counterclaim,
recoupment, defense or other right which
such Lender may have against any Agent,
the Swing Line Lender or any other Person,
(b) the occurrence or
continuance of
a Default or Unmatured Default, (c) any adverse change in the condition
(financial or otherwise) of the Borrower, or (d) any other circumstances,
happening or event whatsoever. In the event that any Lender fails to make
payment to the Administrative Agent of any amount due under this
Section 2.2.4,
the Administrative Agent shall be entitled
to receive, retain and
apply against
such obligation the principal and interest
otherwise payable to such Lender
hereunder until the Administrative
Agent receives such
payment from such Lender
or such obligation is otherwise fully
satisfied.
In addition to the
foregoing,
if for any reason any Lender fails to make, or is prohibited from making,
payment to the Administrative Agent of any amount due under this
Section 2.2.4,
such Lender shall be deemed, at the option
of the Administrative
Agent, to have
unconditionally and irrevocably purchased from the Swing Line
Lender, without
recourse or warranty, an undivided interest and
participation in the applicable
Swing Line Loan in the amount of such
Revolving Loan, and such interest and
participation may be recovered from such Lender
together with interest
thereon
at the Federal Funds Effective Rate for
each day during the period commencing on
the date of demand and ending on the date such
amount is received. On the
Facility Termination Date, the Borrower shall repay in full the
outstanding
principal balance of the Swing Line
Loans.
20
<PAGE>
2.3. Required
Payments; Termination.
2.3.1. Required Payments. The Aggregate
Outstanding
Credit Exposure and
all
other unpaid Obligations (other than LC Obligations that have been cash
collateralized pursuant to Section 8.1),
shall be paid in full
by the Borrower
on the Facility Termination Date.
2.3.2. Termination. Notwithstanding
the termination
of this Agreement on
the
Facility Termination Date, until all of the
Obligations (other
than contingent
indemnity obligations) shall have been fully paid and satisfied and all
financing arrangements among the Borrower and the Lenders
hereunder and
under
the other Loan Documents shall have been terminated, all of the rights and
remedies under this Agreement and the other
Loan Documents shall survive and the
Administrative Agent shall be entitled to
retain its security interest in and to
all existing and future collateral (if
any).
2.4. Ratable
Loans. Each Advance
hereunder (other than any Swing Line Loan)
shall consist of Revolving Loans made from
the several Lenders ratably according
to their Pro Rata Shares.
2.5. Types of
Advances. The Advances
may be Revolving Loans
consisting of
Floating Rate Advances or Eurodollar Advances, or a combination thereof,
selected by the Borrower in accordance with
Sections 2.9 and 2.10, or Swing Line
Loans selected by the Borrower in
accordance with Section 2.2.
2.6. Commitment
Fee; Reductions in Aggregate Commitment; Increases in
Aggregate Commitment.
2.6.1. Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a
commitment fee (the "Commitment Fee") at
a per annum rate equal to the Applicable
Fee Rate on the daily unused portion of
such Lender's Commitment from the Closing Date to and
including the
Facility
Termination Date, payable quarterly in arrears on each
Payment Date hereafter
including, without limitation, the Facility Terminate Date. Swing Line
Loans
shall count as usage of any Lender's
Commitment (in the
amount of such Lender's
Pro Rata Share thereof) for the purpose of
calculating
the Commitment Fee
due
hereunder.
2.6.2. Reductions in Aggregate
Commitment. The Borrower may permanently reduce
the Aggregate Commitment in whole, or in part ratably among the
Lenders in a
minimum amount of $3,000,000 (and in multiples of $3,000,000 if in excess
thereof), upon at least three (3) Business
Days' prior
written notice to the
Administrative Agent of such reduction,
which notice shall specify the amount of
any such reduction; provided, however, that the amount of the Aggregate
Commitment may not be reduced below the
Aggregate Outstanding
Credit Exposure.
All accrued Commitment Fees shall be payable on the effective date of any
termination of all of the obligations of the Lenders to make
Credit Extensions
hereunder.
21
<PAGE>
2.6.3. Increase of Aggregate
Commitment.
(i) At any time, the Borrower may
request that the Aggregate Commitment be increased,
provided that, without
the
prior written consent of all of the
Lenders, (a) the
Aggregate Commitment shall
at no time exceed $175,000,000; (b) the Borrower shall not previously have
reduced the Aggregate Commitment;
and (c) the Borrower
shall not be entitled to
make such request more than twice. Such request shall be made in a written
notice given to the Administrative Agent and the Lenders by the
Borrower not
less than twenty (20) Business Days prior
to the proposed effective date of such
increase, which notice (a "Commitment
Increase Notice") shall specify the amount
of the proposed increase in the Aggregate
Commitment and the
proposed effective
date of such increase. In the event of such a Commitment
Increase Notice,
each
of the Lenders shall be given the
opportunity
to participate in the requested
increase ratably in proportions
that their
respective
Commitments bear to
the
Aggregate Commitment. No Lender shall have any obligation to increase its
Commitment pursuant to a Commitment
Increase Notice. On or prior to the date
that is fifteen (15) Business Days after receipt of the Commitment Increase
Notice, each Lender shall submit to the
Administrative Agent a notice indicating
the maximum amount by which it is willing to increase its Commitment in
connection with such Commitment Increase Notice (any such notice to the
Administrative Agent being herein a "Lender
Increase Notice"). Any
Lender which
does not submit a Lender Increase Notice to the
Administrative
Agent prior to
the expiration of such fifteen (15)
Business Day period shall be deemed to have
denied any increase in its Commitment. In the event that the increases of
Commitments set forth in the Lender
Increase Notices exceed the amount requested
by the Borrower in the Commitment Increase
Notice, the Administrative Agent and
the Arranger shall have the right, in consultation with the Borrower, to
allocate the amount of increases
necessary to meet the Borrower's Commitment
Increase Notice. In the event that the
Lender Increase Notices are less than the
amount requested by the Borrower,
not later than three
(3) Business Days prior
to the proposed effective date the Borrower
may notify the Administrative Agent
of any financial institution that shall have agreed to become a
"Lender" party
hereto (a "Proposed New Lender") in connection with the Commitment Increase
Notice. Any Proposed New Lender shall be subject to the consent of the
Administrative Agent (which consent shall
not be unreasonably
withheld). If the
Borrower shall not have arranged any Proposed New Lender(s) to commit to the
shortfall (if any) from the Lender
Increase Notices, then the Borrower shall
have the option to reduce the amount of its
Commitment
Increase Notice to the
aggregate amount set forth in the Lender
Increase Notices or to withdraw
its
Commitment Increase Notice. Based upon the Lender Increase Notices, any
allocations made in connection therewith and any notice regarding
any Proposed
New Lender, if applicable, the Administrative Agent shall notify the
Borrower
and the Lenders on or before the Business
Day immediately prior
to the proposed
effective date of the amount of each Lender's and Proposed New Lenders'
Commitment (the "Effective Commitment Amount") and the amount of the
Aggregate
Commitment, which amount shall be effective on
the following Business
Day. Any
increase in the Aggregate Commitment shall be subject to the following
conditions precedent: (A) the Borrower shall have
obtained the consent thereto
22
<PAGE>
of each Guarantor and its reaffirmation of
the Loan Document(s)
executed by it,
which consent and reaffirmation shall be in writing and in form
and substance
reasonably satisfactory to the Administrative
Agent, (B) as of the
date of the
Commitment Increase Notice and as of the
proposed effective date of the increase
in the Aggregate Commitment, all
representations and warranties made by any Loan
Party in any Loan Document shall be true
and correct in all material respects as
though made on such date and no event shall
have occurred and then be continuing
which constitutes a Default or Unmatured Default, (C) the Borrower, the
Administrative Agent and each Proposed New Lender or Lender that shall have
agreed to provide a "Commitment" in support of such increase in the Aggregate
Commitment shall have executed and delivered a "Commitment and Acceptance"
substantially in the form of Exhibit I
hereto, (D) counsel
for the Borrower and
for the Guarantors shall have provided to
the Administrative
Agent supplemental
opinions in form and substance reasonably satisfactory to the Administrative
Agent and (E) the Borrower and each
Proposed New Lender shall otherwise have
executed and delivered such other
instruments
and documents as may
be required
under Article IV or that the Administrative Agent shall have reasonably
requested in connection with such increase. If any fee shall be charged by
the
Lenders whose Commitment is increasing in connection
with any such
increase,
such fee shall be in accordance with then
prevailing market
conditions,
which
market conditions shall have been
reasonably documented
by the
Administrative
Agent to the Borrower. Upon satisfaction of the conditions precedent to any
increase in the Aggregate Commitment, the Administrative Agent shall promptly
advise the Borrower and each Lender of the
effective date of such increase. Upon
the effective date of any increase in the
Aggregate Commitment
that is provided
by a Proposed New Lender, such Proposed New Lender shall be a party to this
Agreement as a Lender and shall have the
rights and obligations of a Lender
hereunder. Nothing contained herein shall
constitute, or otherwise be deemed to
be, a commitment on the part of any Lender
to increase its Commitment hereunder
at any time.
(ii) For purposes of
this clause (ii), (A) the term "Buying Lender(s)" shall
mean (1) each Lender the Effective Commitment Amount of which is greater
than
its Commitment prior to the effective date of any increase in the
Aggregate
Commitment and (2) each Proposed New Lender that is allocated an Effective
Commitment Amount in connection with any
Commitment Increase Notice, and (b) the
term "Selling Lender(s)" shall mean each Lender whose
Commitment is not
being
increased from that in effect prior to such increase in the Aggregate
Commitment. Effective on the effective date of any increase in the
Aggregate
Commitment pursuant to clause (i) above,
each Selling Lender hereby sells,
grants, assigns and conveys to each Buying
Lender, without
recourse,
warranty,
or representation of any kind, except as specifically provided herein, an
undivided percentage of such Selling
Lender's right, title
and interest in and
to its Outstanding Credit Exposure (the
"Transferred Credit")
in the respective
dollar amounts and percentages necessary so
that, from and after such sale, each
such Selling Lender's Outstanding Credit Exposure shall equal such Selling
Lender's Pro Rata Share (calculated based
upon the Effective Commitment Amounts)
of the Aggregate Outstanding Credit
Exposure. Effective on the effective date of
the increase in the Aggregate Commitment pursuant to clause (i) above,
each
Buying Lender hereby purchases and accepts
such grant, assignment and conveyance
of the Transferred Credit from the Selling
Lenders. Each Buying Lender hereby
agrees that its respective purchase price for the Transferred
Credit purchased
hereby shall equal the respective dollar amount necessary so that, from and
after such payments, each Buying Lender's Outstanding Credit Exposure shall
23
<PAGE>
equal such Buying Lender's Pro Rata Share
(calculated
based upon the
Effective
Commitment Amounts) of the Aggregate
Outstanding Credit
Exposure. Such
amount
shall be payable on the effective date of the increase in the Aggregate
Commitment by wire transfer of immediately
available funds to the Administrative
Agent. The Administrative Agent, in turn, shall wire transfer any such
funds
received to the Selling Lenders,
in same day funds, for
the sole account of the
Selling Lenders. Each Selling Lender hereby represents and warrants to each
Buying Lender that such Selling
Lender owns the
Outstanding
Credit Exposure
being sold and assigned hereby for its own
account and has not sold, transferred
or encumbered any or all of its interest in
such Outstanding
Credit Exposure,
except for participations which will be extinguished upon payment to Selling
Lender of an amount equal to the portion of the Outstanding Credit Exposure
being sold by such Selling Lender.
Each Buying Lender
hereby acknowledges
and
agrees that, except for each Selling
Lender's representations and warranties
contained in the foregoing sentence, each such Buying Lender has
entered into
its Commitment and Acceptance with respect to such increase on
the basis of its
own independent investigation and has not relied upon, and will
not rely upon,
any explicit or implicit written or oral representation, warranty or other
statement of the Lenders or the Administrative Agent concerning the
authorization, execution, legality, validity, effectiveness, genuineness,
enforceability or sufficiency of this
Agreement or the other Loan Documents. The
Borrower hereby agrees to compensate each Selling Lender for all losses,
expenses and liabilities incurred by each
Lender in connection with the sale and
assignment of any Eurodollar Loan hereunder on the terms and in the
manner as
set forth in Section 3.4.
2.7. Minimum Amount
of Each Advance.
Each Eurodollar Advance shall be in
the minimum amount of $3,000,000 (and in multiples of $1,000,000 if
in excess
thereof), and each Floating Rate Advance shall be in the minimum
amount of
$3,000,000 (and in multiples of $1,000,000 if in excess thereof), provided,
however, that any Floating Rate Advance may be in the amount
of the Available
Aggregate Commitment.
2.8. Optional
Principal Payments.
The Borrower may from time to time
pay,
without penalty or premium, all outstanding Floating Rate Advances, or any
portion of the outstanding Floating Rate
Advances, in a minimum aggregate amount
of $3,000,000 or any integral multiple of $1,000,000 in excess thereof, upon
prior notice to the Administrative
Agent at or before
10:00 a.m. (Chicago time)
on the date of such payment. The Borrower may from time to time
pay, subject to
the payment of any funding indemnification amounts required by Section 3.4
but
without penalty or premium, all outstanding
Eurodollar Advances or, in a minimum
aggregate amount of $3,000,000 or any
integral multiple of
$1,000,000 in excess
thereof, any portion of the outstanding Eurodollar Advances upon three (3)
Business Days' prior notice to the
Administrative Agent. The Borrower may at any
time pay, without penalty or premium,
all outstanding Swing
Line Loans or, in a
minimum amount of $300,000 and
increments of $100,000
in excess thereof,
any
portion of the outstanding Swing Line
Loans, with notice to
the Administrative
Agent and the Swing Line Lender by 11:00 a.m. (Chicago time) on the date of
repayment.
24
<PAGE>
2.9. Method of
Selecting Types and Interest Periods for New Advances; Method
of Borrowing.
2.9.1. Method of Selecting Types
and Interest Periods
for New Advances. Other
than with respect to Swing Line Loans
(which shall be governed by Section 2.2),
the Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable
thereto from time to
time;
provided that there shall be no more than
seven (7) Interest
Periods in effect
with respect to all of the Revolving Loans at any time, unless such limit has
been waived by the Administrative Agent in its sole discretion. The Borrower
shall give the Administrative Agent irrevocable notice (a "Borrowing Notice")
not later than 10:00 a.m. (Chicago time) on the Borrowing
Date of each Floating
Rate Advance and three (3) Business Days before the Borrowing Date for each
Eurodollar Advance, specifying:
(i) the Borrowing
Date, which shall be a Business Day, of such Advance,
(ii) the aggregate
amount of such Advance,
(iii) the Type of
Advance selected, and
(iv) in the
case of each Eurodollar Advance, the Interest Period
applicable thereto.
2.9.2. Method of Borrowing. On each Borrowing Date, each Lender shall make
available its Loan or Loans not later than
noon, Chicago
time, in Federal or
other funds immediately available to the Administrative Agent, in Chicago,
Illinois at its address specified in or pursuant to Article XIII. The
Administrative Agent will deposit the funds so
received from the Lenders in the
Borrower's account with the Administrative
Agent at the
Administrative
Agent's
aforesaid address. Notwithstanding the foregoing provisions of this Section
2.9.2, to the extent that a Loan made by
a Lender matures on the Borrowing Date
of a requested Loan, such Lender shall
apply the proceeds of the Loan it is then
making to the repayment of principal of the
maturing Loan.
2.10. Conversion and
Continuation of
Outstanding
Advances. Floating Rate
Advances shall continue as Floating Rate
Advances unless and until such Floating
Rate Advances are converted into
Eurodollar
Advances pursuant to this Section
2.10 or are repaid in accordance with
Section 2.8. Each Eurodollar Advance shall
continue as a Eurodollar Advance until the end of the then
applicable
Interest
Period therefor, at which time each such Eurodollar Advance shall be
automatically converted into a Floating Rate
Advance unless (x) such Eurodollar
Advance is or was repaid in accordance with Section 2.8 or (y) the Borrower
shall have given the Administrative Agent a
Conversion/Continuation Notice (as
defined below) requesting that, at the end of such Interest Period, such
Eurodollar Advance continue as a Eurodollar Advance for the same or
another
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Interest Period. Subject to the terms of Section
2.7, the Borrower may elect
from time to time to convert all or any
part of a Floating
Rate Advance
(other
than a Swing Line Loan) into a Eurodollar
Advance, provided that
any conversion
of any Eurodollar Advance shall be made on, and only on, the last day of
the
Interest Period applicable thereto. The Borrower shall give the
Administrative
Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion
of a Floating Rate Advance into a Eurodollar Advance or continuation of a
Eurodollar Advance not later than 10:00 a.m.
(Chicago time) at
least three (3)
Business Days prior to the date of the
requested conversion
or continuation,
specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate
amount and
Type of the Advance which is to be
converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the Interest
Period applicable thereto.
Promptly after receipt of any
Conversion/Continuation Notice, the Administrative
Agent shall provide the Lenders with notice
thereof.
2.11. Changes in Interest
Rate, etc. Each
Floating Rate Advance
shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or
is automatically
converted from a
Eurodollar Advance into a Floating Rate
Advance pursuant to Section 2.10, to but
excluding the date it is paid or is
converted into a Eurodollar Advance pursuant
to Section 2.10 hereof, at a rate per annum equal to the
Floating Rate for such
day. Changes in the rate of interest on
that portion of any Advance maintained
as a Floating Rate Advance will take effect
simultaneously
with each change
in
the Alternate Base Rate. Each Eurodollar Advance shall bear interest on
the
outstanding principal amount thereof from and including the first day of the
Interest Period applicable thereto to (but not including) the
last day of such
Interest Period at the interest rate
determined by the
Administrative Agent
as
applicable to such Eurodollar Advance based
upon the Borrower's selections under
Sections 2.9 and 2.10 and otherwise in accordance with the terms hereof. No
Interest Period may end after the Facility
Termination Date.
2.12. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.9, 2.10 or
2.11, during the
continuance
of a
Default or Unmatured Default the Required Lenders may, at their option, by
notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes
in interest rates),
declare that no
Advance may be made as, converted into or continued as a Eurodollar Advance.
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During the continuance of a Default the
Required Lenders may,
at their option,
by notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes
in interest rates), declare that (i)
each Eurodollar Advance shall bear interest for
the remainder of the applicable
Interest Period at the rate otherwise
applicable to such Interest Period plus 2%
per annum, (ii) each Floating Rate Advance shall bear interest at a rate
per
annum equal to the Floating Rate in effect from time to time
plus 2% per annum
and (iii) the LC Fee shall be increased by
2% per annum, provided
that, during
the continuance of a Default under Section 7.6 or
7.7, the interest
rates set
forth in clauses (i) and (ii) above and the
increase in the LC Fee
set forth in
clause (iii) above shall be applicable to all Credit Extensions without any
election or action on the part of the
Administrative Agent or any Lender.
2.13. Method of Payment.
All payments of the
Obligations hereunder
shall be
made, without setoff, deduction, or
counterclaim, in immediately available funds
to the Administrative Agent at the Administrative Agent's address specified
pursuant to Article XIII, or at any other Lending Installation of the
Administrative Agent specified in writing by the
Administrative
Agent to the
Borrower, by 12:00 noon (Chicago time) on the date when due and
shall (except
(i) in the case of Reimbursement
Obligations for which
the applicable LC Issuer
has not been fully indemnified by the
Lenders or (ii) with respect to repayments
of Swing Line Loans) be applied
ratably by the
Administrative
Agent among the
Lenders. Each payment delivered to the
Administrative Agent
for the account of
any Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds that the
Administrative Agent
received at such
Lender's address specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the Administrative Agent from
such Lender. Each reference to the Administrative Agent in this Section 2.13
shall also be deemed to refer, and shall apply equally, to the applicable LC
Issuer, in the case of payments
required to be made by
the Borrower to such LC
Issuer pursuant to Section 2.21.6. The Administrative Agent is hereby
authorized, upon the occurrence and during the
continuance
of a Default,
to
charge the account of the Borrower maintained with Bank One or any of its
Affiliates for each payment of principal, interest and fees as it becomes
due
hereunder.
2.14. Noteless Agreement;
Evidence of Indebtedness.
(i) Each Lender
shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to
such Lender
resulting from each Loan made by such Lender
from time to time,
including the
amounts of principal and interest payable and paid to such Lender
from time to
time hereunder.
(ii) The
Administrative Agent
shall also maintain accounts in which it will
record (a) the date and the amount of each
Revolving Loan made
hereunder,
the
Type thereof and the Interest Period, if
any, applicable thereto, (b) the amount
of any principal or interest due and payable or to
become due and payable from
the Borrower to each Lender hereunder, (c)
the effective date and amount of each
Assignment Agreement delivered to and accepted by it and the parties
thereto
pursuant to Section 12.3, (d) the original
stated amount of each Facility LC and
the amount of LC Obligations outstanding at any time, (e) the
amount of any sum
27
<PAGE>
received by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof, and (f) all other appropriate debits and credits as
provided in this Agreement, including, without limitation, all fees, charges,
expenses and interest.
(iii) The entries
maintained in the accounts maintained pursuant to clauses
(i) and (ii) above shall be prima facie
evidence of the existence and amounts of
the Obligations therein recorded; provided, however, that the failure of the
Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner
affect the
obligation of the
Borrower to repay
the Obligations in accordance with their
terms.
(iv) Any Lender may
request that its Loans be evidenced by a promissory note
or, in the case of the Swing Line
Lender, promissory notes representing its
Revolving Loans and Swing Line Loans,
respectively, substantially in the form of
Exhibit E, with appropriate changes for
notes evidencing Swing Line Loans (each,
a "Note"). In such event, the Borrower shall prepare, execute and deliver to
such Lender such Note or Notes payable to
the order of such Lender. Thereafter,
the Loans evidenced by each such Note and
interest thereon
shall at all times
(prior to any assignment pursuant to
Section 12.3) be represented by one or more
Notes payable to the order of the payee
named therein, except to the extent that
any such Lender subsequently returns any
such Note for cancellation and requests
that such Loans once again be evidenced as described in clauses (i) and (ii)
above.
2.15. Telephonic
Notices. The Borrower hereby authorizes the Lenders and
the Administrative Agent to extend, convert or continue Advances, effect
selections of Types of Advances and
transfer funds based
on telephonic
notices
made by any person or persons the Administrative Agent or any Lender in good
faith believes to be acting on behalf of
the Borrower, it being
understood that
the foregoing authorization is specifically
intended to allow Borrowing Notices
and Conversion/Continuation
Notices to be given
telephonically.
The Borrower
agrees to deliver promptly to the
Administrative Agent a
written
confirmation,
signed by an Authorized Officer, if such confirmation is requested by the
Administrative Agent or any Lender, of each telephonic notice. If the written
confirmation differs in any material respect from the action taken by the
Administrative Agent and the Lenders,
the records of the
Administrative
Agent
and the Lenders shall govern absent
manifest error.
2.16. Interest Payment
Dates; Interest and
Fee Basis. Interest
accrued on
each Floating Rate Advance and Swing Line Loan shall
be payable in arrears on
each Payment Date, commencing with the first such date to occur after the
Closing Date, on any date on which the
Floating Rate Advance or Swing Line Loan
is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest
accrued on that portion of the outstanding
principal amount of any Floating Rate
Advance converted into a Eurodollar
Advance on a day other
than a Payment Date
shall be payable on the date of conversion.
Interest accrued on
each Eurodollar
Advance shall be payable on the last day of
its applicable
Interest Period,
on
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<PAGE>
any date on which the Eurodollar Advance is
prepaid, whether by
acceleration or
otherwise, and at maturity; provided that interest
accrued on each
Eurodollar
Advance having an Interest Period longer than three (3) months
shall also be
payable on the last day of each three-month interval during such Interest
Period. Interest on Eurodollar Advances, Swing Line Loans, LC Fees and
Commitment Fees shall be calculated for actual days elapsed on the
basis of a
360-day year; interest on Floating Rate Advances
shall be calculated for actual
days elapsed on the basis of a 365/366-day
year. Interest shall be payable for
the day an Advance is made but not for the
day of any payment on the amount paid
if payment is received prior to 12:00 noon (Chicago time) at the place of
payment. If any payment of principal of or
interest on an Advance, any fees or
any other amounts payable to any Agent or
any Lender hereunder
shall become due
on a day which is not a Business
Day, such payment shall be made on the next
succeeding Business Day and, in the case of
a principal payment,
such extension
of time shall be included in computing interest, fees and commissions in
connection with such payment.
2.17. Notification of
Advances, Interest
Rates, Prepayments and Commitment
Reductions. Promptly after receipt thereof,
the Administrative Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Swing Line Borrowing
Notice,
Conversion/Continuation Notice,
and repayment notice received by it hereunder.
Promptly after notice
from the
applicable LC Issuer, the Administrative Agent will notify each Lender of
the
contents of each request for issuance of a Facility LC hereunder. The
Administrative Agent will notify each Lender of
the interest rate applicable to
each Eurodollar Advance promptly upon determination of such interest
rate and
will give each Lender prompt notice of each
change in the Alternate Base Rate.
2.18. Lending Installations. Subject to Section 3.6, each Lender may book
its Loans and its participation in any LC Obligations and Swing
Line Loans and
the LC Issuers may book the Facility LCs at
any Lending Installation selected by
such Lender or the applicable LC Issuer,
as the case may be,
and may change its
Lending Installation from time to time.
All terms of this Agreement shall apply
to any such Lending Installation and the
Loans, Facility LCs,
participations in
LC Obligations and Swing Line Loans and any Notes
issued hereunder shall be
deemed held by each Lender or the
applicable LC Issuer,
as the case may be, for
the benefit of any such Lending Installation. Each Lender and each LC Issuer
may, by written notice to the Administrative Agent and the Borrower in
accordance with Article XIII, designate replacement or additional Lending
Installations through which Loans will be made or participated in by it or
Facility LCs will be issued by it and for whose account Loan payments or
payments with respect to Facility LCs are
to be made.
2.19. Non-Receipt of
Funds by the Administrative Agent.
Unless the Borrower
or a Lender, as the case may be, notifies
the Administrative
Agent prior to the
time on which it is scheduled to make
payment to the Administrative Agent of (i)
in the case of a Lender, the proceeds of a Loan or (ii) in the
case of the
Borrower, a payment of principal,
interest or fees to
the Administrative Agent
for the account of the Lenders, that it does not intend to make
such payment,
the Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be
obligated to, make the amount of such
29
<PAGE>
payment available to the intended recipient
in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Administrative Agent, the recipient of such payment
shall, on
demand by the Administrative Agent, repay
to the Administrative Agent the amount
so made available together with interest
thereon in respect of
each day during
the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (x) in
the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the
first three (3) days and,
thereafter, the interest rate applicable to
the relevant Loan or (y) in the case
of payment by the Borrower, the interest rate applicable to the relevant
Loan,
including the interest rate applicable
pursuant to Section 2.12.
2.20. Replacement of Lender.
The Borrower shall
have the right, in its
sole
discretion, at any time and from time to
time to terminate the Commitment of any
Lender (an "Affected Lender"), in whole, upon at least thirty
(30) days' prior
notice to the Administrative Agent and such Lender, (a) if such Lender has
failed or refused to make available the full amount of any
Revolving Loan as
required by its Commitment hereunder, or (b) if such Lender has demanded
that
the Borrower make any additional payment to
such Lender pursuant to Section 3.1,
3.2 or 3.5, or if such Lender's obligation to make or continue, or convert
Floating Rate Advances into, Eurodollar Advances has been
suspended pursuant to
Section 3.3; provided that no Default or
Unmatured Default
shall have occurred
and be continuing at the time of such
replacement, and that,
concurrently with
such replacement, (i) another bank or other entity which is reasonably
satisfactory to the Borrower and the
Administrative
Agent shall agree,
as of
such date, to purchase for cash the Advances
and other Obligations
due to the
Affected Lender pursuant to an Assignment
Agreement substantially in the form of
Exhibit C and to become a Lender for all
purposes under this
Agreement and to
assume all obligations of the Affected
Lender to be
terminated as of such date
and to comply with the requirements of Section 12.3 applicable to
assignments,
and (ii) the Borrower shall pay to such
Affected Lender in immediately available
funds on the day of such replacement (A) all interest, fees and other amounts
then accrued but unpaid to such Affected
Lender by the Borrower hereunder to and
including the date of termination,
including without
limitation payments due to
such Affected Lender under Sections 3.1,
3.2 and 3.5, to the extent applicable,
and (B) an amount, if any, equal to the payment which would have been due to
such Lender on the day of such replacement under Section 3.4 had the Loans of
such Affected Lender been prepaid on such date rather than sold to the
replacement Lender.
2.21. Facility LCs.
2.21.1. Issuance; Transitional Facility
LCs.
(i) Issuance.
The LC Issuers hereby
agree, on the terms
and conditions set
forth in this Agreement, to issue standby and performance letters of credit
(each, together with the letters of credit deemed issued by the LC Issuers
hereunder pursuant to Section 2.21.1(ii), a
"Facility LC") and to renew, extend,
increase, decrease or otherwise modify each
Facility LC ("Modify," and each such
30
<PAGE>
action a "Modification"), from time to time from and
including the date of this
Agreement and prior to the Facility Termination Date upon the request of the
Borrower; provided that immediately after each such Facility LC is
issued or
Modified, (i) the aggregate amount of the
outstanding LC Obligations shall not
exceed $25,000,000 and (ii) the Aggregate
Outstanding Credit
Exposure shall not
exceed the Aggregate Commitment.
No Facility LC shall
have an exp
