AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT dated as of May 6, 2005 to the Five-Year Credit Agreement
dated as of May 19, 2004 (the "Credit Agreement") among THE SERVICEMASTER
COMPANY, a Delaware corporation (the "Company"); the LENDERS from time to time
party thereto; JPMORGAN CHASE BANK, N.A. (formerly known as JPMORGAN CHASE BANK)
and BANK OF AMERICA, N.A., as Syndication Agents; U.S. BANK NATIONAL ASSOCIATION
(formerly known as U.S. BANK) and WACHOVIA BANK, N.A., as Documentation Agents;
and SUNTRUST BANK, as administrative agent (the "Administrative Agent").
The parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, after this Amendment becomes effective,
refer to the Credit Agreement as amended hereby.
SECTION 2. Amended Definitions. The following definition in Section
1.01 of the Credit Agreement is amended to read in its entirety as follows:
"Termination Date" means (i) May 6, 2010 or (ii) such later day to
which the Termination Date may be extended pursuant to Section 2.01(c), but if
such day is not a Business Day, then the Termination Date shall be the next
succeeding Business Day unless such Business Day falls in another calendar
month, in which case the Termination Date shall be the next preceding Business
Day.
SECTION 3. Amendment to Article 2. Section 2.01 of the Credit Agreement
is hereby amended by the insertion of subsection (c). Section 2.01(c) shall read
as follows:
(c) Extension Option. The Termination Date may be extended from time to
time in the manner set forth in this subsection (c) for a period of one year
from the Termination Date then in effect. If the Company wishes to request an
extension of the Termination Date, the Company shall give written notice to that
effect to the Administrative Agent not less than 45 nor more than 90 days prior
to (i) the first anniversary of the date hereof in the case of the initial such
extension or (ii) the anniversary of the date hereof which follows by
approximately one year the date of the then most recent extension hereunder, in
the case of any subsequent such extension, whereupon the Administrative Agent
shall promptly notify each of the Lenders of such request. Each Lender will use
its best efforts to respond to such request, whether affirmatively or
negatively, as it may elect in its sole and absolute discretion, within 30 days
of such notice to the Administrative
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Agent. Any Lender not responding to such request within such time period shall
be deemed to have responded negatively to such request. The Company may request
the Lenders that do not elect to extend the Termination Date to assign their
Commitments in their entirety to one or more Purchasers pursuant to Section
12.03 which Purchasers will agree to extend the Termination Date. If all Lenders
(including such Purchasers and excluding their respective transferor Lenders)
respond affirmatively, then, subject to receipt by the Administrative Agent of
counterparts of an Extension Agreement in substantially the form of Exhibit K
hereto duly completed and signed by all of the parties hereto, the Termination
Date shall be extended to the first anniversary of the Termination Date then in
effect.
SECTION 4. Amendments to Article 5. (a) Section 5.03 of the Credit
Agreement is amended to read in its entirety as follows:
Section 5.03. Business and Property. The Lenders have each heretofore
been furnished with a copy of the Annual Report of the Company on Form 10-K for
the fiscal year ended December 31, 2004 (the "Form 10-K"), the Annual Report to
Shareholders of the Company for the fiscal year ended December 31, 2004 (the
"Annual Report") and the Current Reports of the Company on Form 8-K filed on
January 21, 2005, February 10, 2005, February 24, 2005, March 14, 2005, April 5,
2005 and April 21, 2005 (the "Form 8-Ks"). The Form 10-K, the Annual Report and
the Form 8-Ks are hereinafter referred to as the "Disclosure Documents."
(b) Section 5.04 of the Credit Agreement is amended by:
(i) changing the date specified in clause (a) thereof from
"December 31, 2003" to "December 31, 2004"; and
(ii) changing the date specified in clause (b) thereof from
"December 31, 2003" to "December 31, 2004".
SECTION 5. Amendment to Exhibit. Exhibit K, as set forth in Exhibit K
hereto, is added to the Credit Agreement.
SECTION 6. Applicable Eurocurrency Margin and Facility Fee Rate. The
table appearing in the Pricing Schedule is amended to read as follows:
- --------------------------------------------------------------------------------
Level I Level II Level III Level IV Level V
- --------------------------------------------------------------------------------
Applicable Eurocurrency 45.0 52.5 60.0 80.0 112.5
Margin
- --------------------------------------------------------------------------------
Facility Fee Rate 10.0 12.5 15.0 20.0 25.0
- --------------------------------------------------------------------------------
SECTION 7. Representations of Company. The Company represents and
warrants that (i) the representations and warranties of the Company set forth in
Article 5 of the Credit Agreement, as amended by this Amendment No. 1, will be
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true on and as of the Amendment No. 1 Effective Date (defined below) and (ii) no
Default will have occurred and be continuing on such date.
SECTION 8. Governing Law. This Amendment No. 1 shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 9. Counterparts. This Amendment No. 1 may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 10. Effectiveness. This Amendment No. 1 shall become
effective as of the date hereof on the date when each of the following
conditions shall have been satisfied (the "Amendment No. 1 Effective Date"):
(a) receipt by the Administrative Agent of counterparts hereof signed
by the Company, the Administrative Agent and each Lender (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Administrative Agent in form satisfactory to it of facsimile,
telegraphic, telex or other written confirmation from such party of execution of
a counterpart hereof by such party); and
(b) payment by the Company (i) to the Administrative Agent, for the
accounts of the Lenders ratably, of an upfront fee of 0.05% of the Aggregate
Commitment, (ii) to the respective Agents, of fees in the amounts heretofore
mutually agreed upon and (iii) of all other amounts due and payable under the
Credit Agreement and/or this Amendment No. 1;
provided that this Amendment No. 1 shall not become effective or be binding on
any party hereto unless all of the foregoing conditions are satisfied not later
than May 13, 2005. The Administrative Agent shall promptly notify the Company
and the Lenders of the Amendment No. 1 Effective Date, and such notice shall be
conclusive and binding on all parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
THE SERVICEMASTER COMPANY
By: /s/ Eric R. Zarnikow
----------------------------------------------
Name: Eric R. Zarnikow
Title: Senior Vice President & Treasurer
By: /s/ Ernest J. Mrozek
----------------------------------------------
Name: Ernest J. Mrozek
Title: President and Chief Financial Officer
JPMORGAN CHASE BANK, N.A.
(formerly known as JPMORGAN CHASE BANK),
individually and as Joint Lead Arranger and
Syndication Agent
By: /s/ Randolph Cates
-------------------------------------------
Name: Randolph Cates
Title: Vice President
BANK OF AMERICA, N.A.,
individually and as Syndication Agent
By: /s/ Charles R. Dickerson
-------------------------------------------
Name: Charles R. Dickerson
Title: Managing Director
SUNTRUST BANK,
individually and as Administrative Agent
By: /s/ Brian M. Davis
-------------------------------------------
Name: Brian M. Davis
Title: Director
U.S. BANK NATIONAL ASSOCIATION
(formerly known as U.S. BANK), individually and as
Documentation Agent
By: /s/ Michael P. Dickman
-----------------------------------------
Name: Michael P. Dickman
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Documentation Agent
By: /s/ John G. Taylor
-----------------------------------------
Name: John G. Taylor
Title: Vice President
FIFTH THIRD BANK (CHICAGO),
a Michigan Banking Corporation, individually and
as Co-Agent
By: /s/ Kim Puszczewicz
-------------------------------------------
Name: Kim Puszczewicz
Title: Assistant Vice President
LASALLE BANK NATIONAL ASSOCIATION,
individually and as Co-Agent
By: /s/ Peg Laughlin
-------------------------------------------
Name: Peg Laughlin
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Mark O'Connor
-------------------------------------------
Name: Mark O'Connor
Title: Vice President
FIRST TENNESSEE BANK, NATIONAL ASSOCIATION
By: /s/ James H. Moore
-------------------------------------------
Name: James H. Moore
Title: Senior Vice President
NATIONAL CITY BANK
By: /s/ Jon R. Hinard
-------------------------------------------
Name: Jon R. Hinard
Title: Senior Vice President
MIZUHO CORPORATE BANK, LTD.
By: /s/ Raymond Ventura
-------------------------------------------
Name: Raymond Ventura
Title: Senior Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Matthew R. Krajniak
-------------------------------------------
Name: Matthew R. Krajniak
Title: Assistant Vice President
PNC BANK, N.A.
By: /s/ Hana M. Deiter
-------------------------------------------
Name: Hana M. Deiter
Title: Manager Director
THE NORTHERN TRUST COMPANY
By: /s/ Chris McKean
-------------------------------------------
Name: Chris McKean
Title: Vice President
E.SUN COMMERCIAL BANK, LTD., LOS ANGELES BRANCH
By: /s/ Benjamin Lin
-------------------------------------------
Name: Benjamin Lin
Title: EVP & General Manager
EXHIBIT "K"
FORM OF EXTENSION AGREEMENT
SunTrust Bank,
as Administrative Agent
under the Credit Agreement
referred to below
Ladies and Gentlemen:
The undersigned hereby agrees to extend, effective [Extension Date],
the Termination Date under the Credit Agreement dated as of May 19, 2004 (as
amended from time to time, the "Credit Agreement") among The ServiceMaster
Company, a Delaware corporation (the "Company"), the Subsidiaries referred to
therein, the Lenders party thereto, SunTrust Bank, as Administrative Agent (the
"Administrative Agent"), JPMorgan Chase Bank, N.A. and Bank of America, N.A., as
Syndication Agents and U.S. Bank and Wachovia Bank, as Documentation Agents, for
one year to [date to which the Termination Date is extended]. Terms defined in
the Credit Agreement are used herein with the same meaning.
This Extension Agreement shall be construed in accordance with and
governed by the law of the State of New York.
[LENDERS]
By:----------------------------------------
Name:
Title:
Agreed and accepted:
THE SERVICEMASTER COMPANY
By:-------------------------------------
Name:
Title:
SUNTRUST BANK, as
Administrative Agent
By:-------------------------------------
Name:
Title: