Exhibit
10.1
5-YEAR REVOLVING CREDIT AGREEMENT
DATED AS OF DECEMBER 18, 2006
AMONG
APPLEBEE'S INTERNATIONAL, INC.
as the Borrower
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as
Administrative Agent
and
BANK OF AMERICA, N.A., THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
CHICAGO BRANCH, and CITIBANK, N.A.,
as Syndication Agents
================================================================================
J.P. MORGAN SECURITIES INC. and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Joint Book Runners
================================================================================
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS....................................................................1
1.1.
Certain Defined Terms....................................1
1.2.
References..............................................17
ARTICLE II
THE
CREDITS...................................................................17
2.1.
Commitment..............................................17
2.2.
Swing Line Loans........................................17
2.2.1.
Amount of Swing Line Loans.....................17
2.2.2.
Borrowing Notice...............................17
2.2.3.
Making of Swing Line Loans.....................18
2.2.4.
Repayment of Swing Line Loans..................18
2.3.
Required Payments; Termination..........................19
2.3.1.
Required Payments..............................19
2.3.2.
Termination....................................19
2.4.
Ratable Loans...........................................19
2.5.
Types of Advances.......................................19
2.6.
Commitment Fee; Reductions in Aggregate Commitment;
Increases in Aggregate Commitment.......................19
2.6.1.
Commitment Fee.................................19
2.6.2.
Reductions in Aggregate Commitment.............19
2.6.3.
Increase of Aggregate Commitment...............20
2.7.
Minimum Amount of Each Advance..........................22
2.8.
Optional Principal Payments.............................22
2.9.
Method of Selecting Types and Interest Periods for New
Advances; Method of Borrowing...........................22
2.9.1.
Method of Selecting Types and Interest Periods
for New Advances...............................22
2.9.2.
Method of Borrowing............................23
2.10.
Conversion and Continuation of Outstanding Advances.....23
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2.11.
Changes in Interest Rate, etc...........................24
2.12.
Rates Applicable After Default..........................24
2.13.
Method of Payment.......................................24
2.14.
Noteless Agreement; Evidence of Indebtedness............25
2.15.
Telephonic Notices......................................25
2.16.
Interest Payment Dates; Interest and Fee Basis..........26
2.17.
Notification of Advances, Interest Rates, Prepayments
and Commitment Reductions...............................26
2.18.
Lending Installations...................................26
2.19.
Non-Receipt of Funds by the Administrative Agent........27
2.20.
Replacement of Lender...................................27
2.21.
Facility LCs............................................28
2.21.1.
Issuance;
Transitional Facility LCs............28
2.21.2.
Participations.................................28
2.21.3.
Notice.........................................28
2.21.4. LC
Fees........................................29
2.21.5.
Administration; Reimbursement by Lenders.......29
2.21.6.
Reimbursement by Borrower......................30
2.21.7.
Obligations Absolute...........................30
2.21.8. Actions of
LC Issuers..........................31
2.21.9.
Indemnification................................31
2.21.10. Lenders'
Indemnification.......................32
2.21.11. Facility LC
Collateral Account.................32
2.21.12. Rights as a
Lender.............................32
ARTICLE III YIELD PROTECTION;
TAXES...........................................32
3.1.
Yield Protection........................................32
3.2.
Changes in Capital Adequacy Regulations.................33
3.3.
Availability of Types of Advances.......................34
3.4.
Funding Indemnification.................................34
3.5.
Taxes...................................................34
3.6.
Lender Statements; Survival of Indemnity................36
ARTICLE IV CONDITIONS
PRECEDENT...............................................37
4.1.
Initial Credit Extension................................37
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4.2.
Each Credit Extension...................................38
ARTICLE V
REPRESENTATIONS AND
WARRANTIES................................................38
5.1.
Existence and Standing..................................38
5.2.
Authorization and Validity..............................39
5.3.
No Conflict; Government Consent.........................39
5.4.
Financial Statements....................................39
5.5.
Material Adverse Change.................................39
5.6.
Taxes...................................................40
5.7.
Litigation and Contingent Obligations...................40
5.8.
Subsidiaries............................................40
5.9.
Accuracy of Information.................................40
5.10.
Regulation U............................................40
5.11.
Material Agreements.....................................41
5.12.
Compliance With Laws....................................41
5.13.
Ownership of Properties.................................41
5.14.
ERISA; Foreign Pension Matters..........................41
5.15.
Plan Assets; Prohibited Transactions....................41
5.16.
Environmental Matters...................................41
5.17.
Investment Company Act..................................42
5.18.
Insurance...............................................42
ARTICLE VI
COVENANTS..........................................................42
6.1.
Financial Reporting.....................................42
6.2.
Use of Proceeds.........................................44
6.3.
Notice of Default.......................................44
6.4.
Conduct of Business.....................................44
6.5.
Taxes...................................................44
6.6.
Insurance...............................................44
6.7.
Compliance with Laws....................................44
6.8.
Maintenance of Properties...............................44
6.9.
Inspection; Keeping of Books and Records................45
6.10.
Addition of Guarantors..................................45
6.11.
Dividends and Distributions.............................45
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6.12.
Intentionally Omitted...................................45
6.13.
Merger..................................................45
6.14.
Sale of Assets..........................................45
6.15.
Investments and Acquisitions............................46
6.16.
Liens...................................................48
6.17.
Transactions with Affiliates............................49
6.18.
Financial Contracts.....................................49
6.19.
ERISA...................................................49
6.20. Environmental
Compliance................................50
6.21.
Financial Covenants.....................................50
6.21.1. Maximum
Leverage Ratio.........................50
6.21.2.
Minimum Fixed
Charge Coverage Ratio............50
ARTICLE VII
DEFAULTS..........................................................50
7.1.
Breach of Representations or Warranties.................50
7.2.
Failure to Make Payments When Due.......................50
7.3.
Breach of Covenants.....................................50
7.4.
Other Breaches..........................................50
7.5.
Default as to Other Indebtedness........................51
7.6.
Voluntary Bankruptcy; Appointment of Receiver; Etc......51
7.7.
Involuntary Bankruptcy; Appointment of Receiver; Etc....51
7.8.
Custody or Control of Property..........................51
7.9.
Judgments...............................................52
7.10.
Unfunded Liabilities....................................52
7.11.
Other ERISA Liabilities.................................52
7.12.
Change in Control.......................................52
7.13.
The Guaranty............................................52
7.14.
The Loan Documents......................................52
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND
REMEDIES...................52
8.1.
Acceleration............................................52
8.2.
Amendments..............................................54
8.3.
Preservation of Rights..................................54
ARTICLE IX GENERAL
PROVISIONS.................................................55
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9.1.
Survival of Representations.............................55
9.2.
Governmental Regulation.................................55
9.3.
Headings................................................55
9.4.
Entire Agreement........................................55
9.5.
Several Obligations; Benefits of this Agreement.........55
9.6.
Expenses; Indemnification...............................55
9.7.
Numbers of Documents....................................56
9.8.
Accounting..............................................56
9.9.
Severability of Provisions..............................57
9.10.
Nonliability of Lenders.................................57
9.11.
Confidentiality.........................................57
9.12.
Lenders Not Utilizing Plan Assets.......................57
9.13.
Nonreliance.............................................58
9.14.
Disclosure..............................................58
9.15.
Subordination of Intercompany Indebtedness..............58
9.16.
USA Patriot Act.........................................59
ARTICLE X THE
AGENTS..........................................................59
10.1.
Appointment; Nature of Relationship.....................59
10.2.
Powers..................................................59
10.3.
General Immunity........................................60
10.4.
No Responsibility for Loans, Recitals, etc..............60
10.5.
Action on Instructions of Lenders.......................60
10.6.
Employment of Agents and Counsel........................60
10.7.
Reliance on Documents; Counsel..........................61
10.8.
Agents' Reimbursement and Indemnification...............61
10.9.
Notice of Default.......................................61
10.10.
Rights as a Lender......................................61
10.11.
Lender Credit Decision..................................62
10.12.
Successor Agents........................................62
10.13.
Agent and Arranger Fees.................................62
10.14.
Delegation to Affiliates................................63
10.15.
Release of Guarantors...................................63
ARTICLE XI SETOFF; RATABLE
PAYMENTS...........................................63
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11.1.
Setoff..................................................63
11.2.
Ratable Payments........................................63
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS;
PARTICIPATIONS.................64
12.1.
Successors and Assigns; Designated Lenders..............64
12.1.1. Successors
and Assigns.........................64
12.1.2. Designated
Lenders.............................64
12.2.
Participations..........................................65
12.2.1. Permitted
Participants; Effect.................65
12.2.2. Voting
Rights..................................66
12.2.3. Benefit of
Certain Provisions..................66
12.3.
Assignments.............................................66
12.3.1. Permitted
Assignments..........................66
12.3.2. Effect;
Effective Date.........................67
12.3.3. The
Register...................................67
12.4.
Dissemination of Information............................68
12.5.
Tax Treatment...........................................68
ARTICLE XIII
NOTICES..........................................................68
13.1.
Notices.................................................68
13.2.
Change of Address.......................................68
ARTICLE XIV
COUNTERPARTS......................................................68
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL.......69
15.1.
CHOICE OF LAW...........................................69
15.2.
CONSENT TO JURISDICTION.................................69
15.3.
WAIVER OF JURY TRIAL....................................69
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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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5-YEAR REVOLVING CREDIT AGREEMENT
This
5-Year Revolving Credit Agreement, dated as of December 18, 2006,
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), JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, a national
banking association,
as Swing Line Lender, LC Issuer and Administrative Agent,
and BANK OF AMERICA,
N.A., THE BANK OF
TOKYO-MITSUBISHI
UFJ, LTD., CHICAGO
BRANCH, and CITIBANK,
N.A., as Syndication
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
JPMCB 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 and the Syndication
Agents,
as appropriate, and
"Agents" means, collectively, the Administrative Agent and
the Syndication 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
Aggregate Commitment as of the Closing Date is $400,000,000.
"Aggregate Outstanding
Credit Exposure"
means, at any time, the aggregate
of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this
5-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 in
effect for such day
and (ii) the
sum of (a) the Federal
Funds Effective Rate in effect 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 J.P. Morgan Securities Inc., and its successors,
in its
capacity as Joint Lead Arranger and Joint Book Runner.
"Article" means an
article of this Agreement unless another document is
specifically referenced.
"Assignment Agreement" is defined in Section 12.3.1.
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"Authorized Officer"
means any of the chief executive officer, chief
financial officer, chief accounting officer, treasurer or vice
president-finance
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.
"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).
"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
3
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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) municipal
or preferred
short term auction rate securities that are rated at least A by
S&P, Moody's
or
Fitch, Inc., a wholly-owned subsidiary of Fimalac S.A., and in each
case with an
interest rate re-set
auction date of not more than 270 days
after the date of
acquisition by such Person (vi) investments in money market funds
substantially
all of the assets of which are comprised of securities of the types
described in
clauses (i) through (v) above, and (vii) 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.
"Closing Date" means December 18, 2006.
"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.
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"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 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
discount 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).
"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.
"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, 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.
When measuring "Contingent Obligations", the amount of any
Contingent Obligation
will be (i) the fair market value thereof as determined in
accordance with,
and
as permitted
by, Agreement Accounting Principles, as so reported in the
Borrower's annual and quarterly financial statements required to be delivered
under Section 6.1 or
(ii) the full amount of the total obligation in the case
that the Borrower
has not performed a fair market value assessment under
Agreement Accounting Principles.
"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.
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"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.
"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.
"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) non-cash
expense related to SFAS No. 123R, as
amended
(except any such
expense that
requires accrual of a reserve for
anticipated
future cash payments for any period), (vi) extraordinary losses incurred other
than in the ordinary
course of business and the non-cash loss of any joint
venture, and (vii)
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.
6
<PAGE>
"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) non-cash
expense related to SFAS No. 123R, as amended (except any
such expense that
requires accrual of a reserve for
anticipated
future cash
payments for any period), (v) extraordinary losses incurred other than in
the
ordinary course of business and the non-cash loss of any joint
venture, 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.
"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.
7
<PAGE>
"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 on
Page 3750 of the Dow Jones Market
Service or, if such service 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 JPMCB 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 JPMCB's
relevant Eurodollar
Loan and having a maturity equal to such
Interest Period.
"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
5-Year Revolving
Credit
Agreement dated as of December 3, 2004, among the Borrower,
the lenders
parties
thereto and JPMorgan Chase Bank, National Association, as Administrative Agent,
as the same has been amended, supplemented or otherwise modified from time to
time prior to the Closing Date.
"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) December 16,
2011, 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.
8
<PAGE>
"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 on the next succeeding 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.
"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.
"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.
9
<PAGE>
"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 and any such
receivables that are
evidenced by a
promissory note, 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.
"JPMCB" means JPMorgan Chase Bank, National Association, a national
banking
association, in its individual capacity, and its successors.
"LC
Fee" is defined in Section 2.21.4.
10
<PAGE>
"LC
Issuer" means JPMCB (or any Affiliate of JPMCB designated by JPMCB) 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 JPMCB 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 interest 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 $25,000,000 or more in the aggregate (or the equivalent
thereof in any
currency other than U.S. dollars).
11
<PAGE>
"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).
"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.
"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.
12
<PAGE>
"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(vii).
"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.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by JPMCB as its prime rate in effect at its principal
office in New
York City; each change
in the Prime Rate shall be effective from and including
the date such change is publicly announced as being effective.
"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.
13
<PAGE>
"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.
"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.
14
<PAGE>
"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.
"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.
15
<PAGE>
"Swing Line Borrowing Notice" is defined in Section 2.2.2.
"Swing Line Lender"
means JPMCB 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 Bank of America, N.A., The Bank of
Tokyo-Mitsubishi UFJ, Ltd., Chicago Branch, and Citibank,
N.A., 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.
"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.
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<PAGE>
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.
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 $15,000,000,
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.
17
<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 at 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
18
<Page>
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.
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.
19
<PAGE>
2.6.3. Increase of Aggregate Commitment. (i) At any time, the Borrower
may
request that the
Aggregate Commitment
be increased,
provided that, (a) the
Aggregate Commitment
shall at no time
exceed an amount equal
to $600,000,000
minus the aggregate amount of reductions to the Aggregate
Commitment during
the
term of this Agreement; and (b) the Borrower shall not be
entitled to make such
request more than four
times. Such request
shall be made in a
written notice
given to the Administrative Agent and the Lenders by the
Borrower not less than
fifteen (15)
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 ten (10) 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 ten (10) 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 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
20
<Page>
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
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
21
<Page>
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 12:00 noon
(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 12:00
noon (Chicago time) on the date of
repayment.
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 ten (10) 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:
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(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
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. 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 11:00 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.
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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.
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
24
<PAGE>
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 JPMCB 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
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,
25
<Page>
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
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.
26
<PAGE>
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
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, (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, or (c) if such Lender has failed to timely grant its consent
to any consent
or waiver under, or amendment to, this Agreement which is otherwise
consented to
by the Required
Lenders; 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.
27
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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
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 $50,000,000 and (ii) the Aggregate Outstanding Credit Exposure shall
not
exceed the Aggregate Commitment. No Facility LC shall have an
expiry date later
than one year after its issuance; provided that any Facility LC may
provide for
the renewal thereof for additional one-year periods. If any Facility
LCs remain
outstanding five (5) days prior to the Facility Termination Date, the Borrower
shall comply with Sections 2.21.11 and 8.1 (whether or not any
Default exists at
such time) with
respect to such
Facility LCs and the
Facility LC
Collateral
Account.
(ii)
Transitional
Provision. Schedule
2.21 contains a schedule of certain
letters of credit
issued by JPMCB for the account of the Borrower prior to the
Closing Date.
Subject to the satisfaction of the conditions contained in
Sections 4.1 and 4.2,
from and after the
Closing Date such
letters of credit
shall be deemed to be Facility LCs issued pursuant to this Section
2.21.
2.21.2. Participations. On the date of this Agreement,
with respect to the
Facility LCs identified on Schedule 2.21, and upon the issuance or
Modification
by the applicable
LC Issuer of a
Facility LC in
accordance with this
Section
2.21, such LC
Issuer shall be deemed, without further action by any party
hereto, to have
unconditionally and
irrevocably sold to each Lender, and each
Lender shall be deemed, without further action by any party hereto, to have
unconditionally and
irrevocably purchased
from such LC Issuer, a participation
in such Facility LC (and each Modification thereof) and the related LC
Obligations in proportion to its Pro Rata Share.
2.21.3. Notice.
Subject to Section
2.21.1, the Borrower shall give the
applicable LC Issuer
notice prior to 10:00 a.m. (Chicago time) at least three
(3) Business Days prior to the proposed date of issuance or
Modification of each
Facility LC,
specifying the
beneficiary,
the proposed date of issuance (or
Modification) and the
expiry date of such Facility LC, and describing the
proposed terms of such Facility LC and the nature of the
transactions
proposed
to be supported
thereby. Upon receipt
of such notice, the applicable LC Issuer
shall promptly notify the Administrative Agent, and the Administrative Agent
shall promptly notify each Lender, of the contents thereof and of the
amount of
such Lender's
participation
in such proposed Facility LC. The issuance or
Modification by any LC
Issuer of any Facility
LC shall, in addition to the
conditions precedent
set forth in Article IV (the satisfaction of which such LC
Issuer shall have no duty to ascertain), be subject to the conditions
precedent
28
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that such Facility
LC shall be
satisfactory
to such LC
Issuer and that the
Borrower shall have executed and delivered such application agreement and/or
such other instruments
and agreements relating to such Facility LC as the
applicable LC Issuer
shall have
reasonably
requested (each, a "Facility LC
Application"). In the
event of any conflict between the terms of this Agreement
and the terms of any Facility LC Application, the terms of this Agreement
shall
control.
2.21.4. LC Fees. The
Borrower shall pay to the Administrative Agent, for
the account of the Lenders ratably in accordance with their
respective Pro
Rata
Shares, (i) with
respect to each standby Facility LC, a letter of credit fee at
a per annum rate equal to the Applicable Margin for Eurodollar Loans in effect
from time to time on the average daily undrawn stated amount under such
standby
Facility LC, such fees to be payable in arrears on each Payment
Date, and (ii)
with respect to each commercial Facility LC, a one-time letter of
credit fee in
an amount equal to the product of (A) 50% of the Applicable Margin for
Eurodollar Loans in effect from time to time times (B) the initial
stated amount
(or, with respect to a
Modification of any
such commercial
Facility LC which
increases the stated
amount thereof, such increase in the stated amount)
thereof, such fee to
be payable on the date of such issuance or i
