Exhibit 10.2 to 1997 Form 10-K
$750,000,000
FIVE-YEAR
CREDIT AGREEMENT
dated as of April 1, 1997
among
THE SERVICEMASTER COMPANY LIMITED PARTNERSHIP,
THE LENDERS
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
and
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Documentation Agent
- -------------------------------------------------------------------------------
J.P. MORGAN SECURITIES INC.,
Arranger
BANK OF AMERICA NT & SA
and
NATIONSBANK, N.A.,
as Co-Agents
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1. Defined Terms........................................ 1
1.2. Accounting Terms and Determinations.................. 21
1.3. Rules of Construction................................ 21
1.4. Rounding............................................. 21
ARTICLE II
THE FACILITY
2.1. The Facility......................................... 21
2.1.1. Description of Facility.................... 21
2.1.2. Availability of Facility; Required Payments.22
2.2. Committed Advances................................... 22
2.2.1. Committed Advances..................... 22
2.2.2. Types of Committed Advances............ 23
2.2.3. Method of Selecting Types and Interest
Periods for New Committed Advances..... 23
2.2.4. Conversion and Continuation of Outstanding
Committed Advances..................... 23
2.3. Competitive Bid Advances............................. 25
2.3.1. Competitive Bid Option; Repayment of
Competitive Bid Advances............... 25
2.3.2. Competitive Bid Quote Request.......... 25
2.3.3. Submission and Contents of Competitive
Bid Quotes............................. 26
2.3.4. Acceptance and Notice by the Borrower.. 28
2.3.5. Allocation by the Borrower............. 28
2.3.6. Notice by the Borrower to the
Administrative Agent................... 29
2.4. Facility Fees........................................ 29
2.5. General Facility Terms............................... 29
2.5.1. Method of Borrowing.................... 29
2.5.2. Minimum Amount of Each Committed
Advance................................ 30
2.5.3. Optional Principal Payments............ 30
2.5.4. Interest Periods....................... 30
2.5.5. Rate after Maturity.................... 31
2.5.6. Interest Payment Dates; Interest Basis. 31
2.5.7. Method of Payment...................... 32
2.5.8. Notes.................................. 32
Page i
2.5.9. Notification of Advances, Interest Rates and Prepayments................... 33
2.5.10. Non-Receipt of Funds by the Administrative Agent........................... 33
2.5.11. Cancellation............................................................... 33
2.5.12. Lending Installations...................................................... 34
2.5.13. Currency Equivalents....................................................... 34
2.5.14. Taxes...................................................................... 35
2.5.15. Regulation D Compensation.................................................. 37
2.6. Optional Increase in Commitments......................................................... 38
2.7 Letters of Credit........................................................................ 39
2.7.1. Availability..................................................................... 39
2.7.2. Procedure for Issuance........................................................... 40
2.7.3. Reimbursement of Drawings........................................................ 40
2.7.4. Obligations Absolute............................................................. 41
2.7.5. Indemnity........................................................................ 42
2.7.6. Letter of Credit Fees............................................................ 43
2.7.7. Stop Issuance Notice............................................................. 44
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1 Yield Protection......................................................................... 44
3.2. Changes in Capital Adequacy Regulations.................................................. 45
3.3. Availability of Types of Advances........................................................ 46
3.4. Funding Indemnification.................................................................. 47
3.5. Lender Statements; Limit on Retroactivity; Survival of Indemnity......................... 47
3.6. Foreign Subsidiary Costs................................................................. 48
3.7. Replacement of Lenders................................................................... 48
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance or Letter of Credit...................................................... 49
4.2. Initial Advance or Letter of Credit for each Eligible Subsidiary......................... 51
4.3. Each Advance or Letter of Credit......................................................... 51
Page ii
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
5.1. Organization and Authority............................................................... 52
5.2. Organization and Authority of Subsidiaries............................................... 53
5.3. Organization and Authority of Corporate General Partner.................................. 53
5.4. Business and Property.................................................................... 54
5.5. Financial Statements..................................................................... 54
5.6. Full Disclosure.......................................................................... 54
5.7. Pending Litigation....................................................................... 55
5.8. Loan Documents are Legal, Valid, Binding and Authorized.................................. 55
5.9. Governmental Consent..................................................................... 56
5.10. Taxes.................................................................................... 56
5.11. Employee Retirement Income Security Act of 1974.......................................... 56
5.12. Investment Company Act................................................................... 56
5.13. Compliance with Environmental Laws....................................................... 57
5.14. Regulations U and X...................................................................... 57
ARTICLE VI
COVENANTS
6.1.1. Information................................................................ 57
6.1.2. Use of Parent Information.................................................. 59
6.2. Use of Proceeds.......................................................................... 59
6.3. Notice of Default........................................................................ 59
6.4. Inspection............................................................................... 60
6.5. Legal Existence, Etc..................................................................... 60
6.6. Insurance................................................................................ 60
6.7. Taxes, Claims for Labor and Materials, Compliance with Laws.............................. 60
6.8. Maintenance, Etc......................................................................... 61
6.9. Nature of Business....................................................................... 61
6.10. Restricted Payments...................................................................... 61
6.11. Payment of Dividends by Subsidiaries..................................................... 62
6.12. Transactions with Affiliates............................................................. 62
6.13. Negative Pledge.......................................................................... 62
6.14. Consolidations, Mergers and Sales of Assets.............................................. 64
6.15. Leverage Test............................................................................ 65
6.16. Subsidiary Debt Limitation............................................................... 65
Page iii
ARTICLE VII
DEFAULTS
7.1. .........................................................................................65
7.2. .........................................................................................65
7.3. .........................................................................................66
7.4. .........................................................................................66
7.5. .........................................................................................66
7.6. .........................................................................................66
7.7. .........................................................................................66
7.8. .........................................................................................66
7.9. .........................................................................................67
7.10. .........................................................................................67
7.11. .........................................................................................67
7.12. .........................................................................................67
7.13. .........................................................................................67
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration............................................................................. 68
8.2 Amendments............................................................................... 68
8.3. Preservation of Rights................................................................... 69
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations.............................................................. 70
9.2. Headings................................................................................. 70
9.3. Entire Agreement......................................................................... 70
9.4. Several Obligations...................................................................... 70
9.5. Expenses; Indemnification................................................................ 70
9.6. Numbers of Documents..................................................................... 72
9.7. Severability of Provisions............................................................... 72
9.8. Nonliability of Lenders.................................................................. 72
9.9. CHOICE OF LAW............................................................................ 72
9.10. CONSENT TO JURISDICTION.................................................................. 72
9.11. WAIVER OF JURY TRIAL..................................................................... 73
9.12. Confidentiality.......................................................................... 73
Page iv
ARTICLE X
THE AGENTS
10.1. Appointment.............................................................................. 73
10.2. Powers................................................................................... 73
10.3. General Immunity......................................................................... 73
10.4. No Responsibility for Loans, Recitals, etc............................................... 74
10.5. Action on Instructions of Lenders........................................................ 74
10.6. Employment of Agents and Counsel......................................................... 74
10.7. Reliance on Documents; Counsel........................................................... 75
10.8. Agent's Reimbursement and Indemnification................................................ 75
10.9. Rights as a Lender....................................................................... 75
10.10. Lender Credit Decision................................................................... 75
10.11. Successor Agent.......................................................................... 76
10.12. Agents' Fees............................................................................. 76
ARTICLE XI
SETOFF RATABLE PAYMENTS
11.1. Setoff................................................................................... 76
11.2. Ratable Payments......................................................................... 77
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns................................................................... 77
12.2. Participations........................................................................... 78
12.2.1. Permitted Participants; Effect............................................. 78
12.2.2. Voting Rights.............................................................. 78
12.3. Assignments.............................................................................. 79
12.3.1. Permitted Assignments...................................................... 79
12.3.2. Effect; Effective Date..................................................... 79
12.4. Dissemination of Information............................................................. 80
12.5. Tax Treatment............................................................................ 80
12.6. Increased Costs.......................................................................... 80
Page v
ARTICLE XIII
NOTICES
13.1. Giving Notice............................................................................ 80
ARTICLE XIV
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
14.1. Existence and Power...................................................................... 81
14.2. Corporate or Partnership and Governmental Authorization; Contravention................... 81
14.3. Binding Effect........................................................................... 81
14.4. Taxes.................................................................................... 81
ARTICLE XV
GUARANTY
15.1. The Guaranty............................................................................. 82
15.2. Guaranty Unconditional................................................................... 82
15.3. Discharge Only Upon Payment In Full; Reinstatement In Certain Circumstances.............. 83
15.4. Waiver by the Company.................................................................... 83
15.5. Subrogation.............................................................................. 84
15.6. Stay of Acceleration..................................................................... 84
ARTICLE XVI
COUNTERPARTS; EFFECTIVENESS
Page vi
PRICING SCHEDULE
Schedule 6.11 Subsidiary Restrictions
Exhibit "A" Note
Exhibit "B-1" Form of Opinion of Kirkland & Ellis
Exhibit "B-2" Form of Opinion of General Counsel
Exhibit "C" Form of Competitive Bid Quote Request
Exhibit "D" Form of Competitive Bid Quote
Exhibit "E" Form of Assignment Agreement
Exhibit "F" Form of Loan/Credit Related Money Transfer
Instruction
Exhibit "G" Form of Election to Participate
Exhibit "H" Form of Election to Terminate
Exhibit "I" Form of Opinion of Counsel for Eligible
Subsidiary
Exhibit "J" Form of Opinion of Counsel for the Agents
Page vii
FIVE-YEAR
CREDIT AGREEMENT
This Five-Year Credit Agreement, dated as of April 1, 1997, is
among The ServiceMaster Company Limited Partnership, the Lenders, The First
National Bank of Chicago, as Administrative Agent, and Morgan Guaranty Trust
Company of New York, as Documentation Agent. The parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used in this Agreement:
"Absolute Rate" means, with respect to a Loan made by a given
Lender for the relevant Absolute Rate Interest Period, the rate of interest per
annum (rounded to the nearest 1/100 of 1%) offered by such Lender and accepted
by the Borrower pursuant to Section 2.3.4.
"Absolute Rate Advance" means a borrowing hereunder consisting
of the aggregate amount of the several Absolute Rate Loans made by some or all
of the Lenders to the Borrower at the same time and for the same Absolute Rate
Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive
Bid Quotes setting forth Absolute Rates pursuant to Section 2.3.
"Absolute Rate Interest Period" means, with respect to an
Absolute Rate Advance or an Absolute Rate Loan, a period of not less than 7 days
commencing on a Business Day selected by the Borrower pursuant to this
Agreement. If such Absolute Rate Interest Period would end on a day which is not
a Business Day, such Absolute Rate Interest Period shall end on the next
succeeding Business Day.
"Absolute Rate Loan" means a Loan which bears interest at an
Absolute Rate.
"Acquiring Person" means any Person (other than the Parent,
the Surviving Parent and the Surviving Company) or group of two or more Persons
acting as a partnership, limited partnership, syndicate, or other group for the
purpose of acquiring, holding or disposing of Equity Interests of the Company,
Page 1
the Surviving Company, the Parent or the Surviving Parent, together with all
affiliates and associates (as defined in Rule 12b-2 under the Securities and
Exchange Act of 1934, as amended) of such Person or Persons.
"Administrative Agent" means The First National Bank of
Chicago in its capacity as contractual representative for 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.
"Administrative Questionnaire" means, with respect to each
Lender, an administrative questionnaire in a form satisfactory to the
Administrative Agent and submitted to the Administrative Agent (with a copy to
the Company) duly completed by each Lender.
"Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Loans made by some or all of the Lenders to the
Borrower of the same Type (or on the same interest basis in the case of
Competitive Bid Advances) and, in the case of Fixed Rate Advances, for the same
Interest Period and includes a Competitive Bid Advance.
"Affected Lender" is defined in Section 3.7.
"Affiliate" means any Person (other than a Subsidiary) which
directly or indirectly controls, or is controlled by, or is under common control
with, the Company. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of Voting Equity Interest,
by contract or otherwise.
"Agent" means the Administrative Agent or the Documentation
Agent and "Agents" means both of the foregoing.
"Aggregate Commitment" means the aggregate of the Commitments
of all the Lenders hereunder, as reduced from time to time pursuant to the terms
hereof.
"Agreement" means this Credit Agreement, as it may be amended
or modified and in effect from time to time.
Page 2
"Alternate Base Rate" means, on any date and with respect to
all Floating Rate Advances, a fluctuating rate of interest per annum equal to
the higher of (i) the Federal Funds Effective Rate most recently determined by
the Administrative Agent plus 1/2% per annum and (ii) the Corporate Base Rate.
Changes in the rate of interest on each Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. The Administrative
Agent will give notice promptly to the Borrowers and the Lenders of changes in
the Alternate Base Rate, provided, however, that the Administrative Agent's
failure to give any such notice will not affect any Borrower's obligation to pay
interest to the Lenders on Floating Rate Advances at the then effective
Alternate Base Rate.
"Alternative Currency" means British Sterling, German Marks,
French Francs, Japanese Yen, Dutch Guilders, Swedish Kronor and any other
currency (other than Dollars) which is freely transferable and convertible into
Dollars in the London interbank market which has been expressly approved in
writing as an Alternative Currency for purposes hereof by all Lenders.
"Annual Report" is defined in Section 5.4.
"Applicable Margin" means the respective margin percentages
for each Committed Fixed Rate Advance determined in accordance with the Pricing
Schedule.
"Approved Multiple" means (a) in respect of any borrowing or
prepayment of a Floating Rate Advance, $1,000,000 or any larger integral
multiple of $1,000,000, (b) in the case of any other Advance denominated in
Dollars, $5,000,000 or any larger integral multiple of $1,000,000 and (c) in the
case of any Advance denominated in an Alternative Currency, such multiples of
such currency as the Administrative Agent deems appropriate and reasonably
comparable to a $3,000,000 minimum Dollar Amount.
"Article" means an article of this Agreement unless another
document is specifically referenced.
Page 3
"Assessment Rate" means, for any CD Interest Period, the net
assessment rate per annum payable to the Federal Deposit Insurance Corporation
(or any successor) for the insurance of domestic deposits of the Administrative
Agent during the calendar year in which the first day of such CD Interest Period
falls, as estimated by the Administrative Agent on the first day of such CD
Interest Period.
"Board of Directors" prior to the Effective Date of the
Reorganization means the Board of Directors of the Corporate General Partner and
on or after the Effective Date of the Reorganization means the Board of
Directors of the Company.
"Borrower" means any Obligor in its capacity as borrower of a
Loan or Advance hereunder or as account party in respect of a Letter of Credit
hereunder, and "Borrowers" means all such borrowers and account parties.
References to "the Borrower" in relation to any Loan, Advance or Letter of
Credit are to the Borrower which has borrowed or which proposes to borrow such
Loan or Advance or which is the account party in respect of such Letter of
Credit.
"Borrowing Date" means a date on which an Advance is made or
to be made hereunder.
"British Sterling" means the lawful currency of the United
Kingdom.
"Business Day" means (i) with respect to any borrowing,
payment or rate selection of Eurocurrency Committed Advances or Eurocurrency Bid
Rate Advances, a day other than Saturday or Sunday on which banks are open for
business in Chicago and New York City and on which dealings in the relevant
currency are carried on in the London interbank market and, where funds are to
be paid or made available in an Alternative Currency, on which commercial banks
are open for domestic and international business in the place where such funds
are paid or made available and (ii) for all other purposes, a day other than
Saturday or Sunday on which banks are open for business in Chicago and New York
City.
"CD Interest Period" means, with respect to a Fixed CD Rate
Advance or a Fixed CD Rate Loan, a period of 30, 60, 90 or 180 days commencing
on a Business Day selected by the Borrower pursuant to this Agreement. If such
CD Interest Period would end on a day which is not a Business Day, such CD
Interest Period shall end on the next succeeding Business Day.
Page 4
"Change of Control" shall be deemed to have occurred:
(a) prior to the Effective Date of the Reorganization, on the date on which:
(i) the Corporate General Partner ceases to have a Controlling
General Partnership Interest in both the Company and the Parent; or
(ii) Voting Stock of the Corporate General Partner sufficient to
elect at least a majority of its board of directors ceases to be
subject to the voting trust arrangement described in the Form 10-K; or
(iii) Continuing Directors cease to constitute a majority of the
board of directors of the Corporate General Partner; or
(iv) an Acquiring Person shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of more than 30% (or if such Acquiring Person is WMX
Technologies, Inc. or one of its subsidiaries, 40%) of the Limited
Partnership Interests in the Company or the Parent; and
(b) on and after the Effective Date of the Reorganization,
on the date on which:
(i) Continuing Directors cease to constitute a majority of the
board of directors of the Surviving Parent or, if the Surviving Parent
and the Surviving Company shall have merged or consolidated, of the
Surviving Company; or
(ii) the Surviving Company shall cease to be a subsidiary of the
Surviving Parent (except by reason of a merger or consolidation between
them or the liquidation of the Surviving Company into the Surviving
Parent); or
(iii) an Acquiring Person shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of more than 30% (or if such Acquiring Person is WMX
Technologies, Inc. or one of its subsidiaries, 40%) of the Voting Stock
in the Surviving Company or the Surviving Parent.
For avoidance of doubt, the Reorganization and related transactions described in
the Proxy Statement do not in and of themselves give rise to a Change of
Control.
Page 5
"Commitment" means, for each Lender, the obligation of the
Lender to make Loans to the Borrowers and/or to participate in Letters of Credit
for the account of the Borrowers, all in an aggregate amount not exceeding the
amount set forth opposite its signature below or as set forth in an applicable
Assignment Agreement substantially in the form of Exhibit "E" hereto received by
the Administrative Agent under the terms of Section 12.3, as such amount may be
modified from time to time pursuant to the terms of this Agreement.
"Committed Advance" means a borrowing hereunder consisting of
the aggregate amount of the several Committed Loans made by the Lenders to the
Borrower at the same time, of the same Type and, in the case of Fixed Rate
Advances, for the same Interest Period.
"Committed Borrowing Notice" is defined in Section 2.2.3.
"Committed Fixed Rate Advance" means a Fixed CD Rate Advance
or a Eurocurrency Committed Advance.
"Committed Loan" means a Loan made by a Lender pursuant to
Section 2.2.
"Company" means The ServiceMaster Company Limited Partnership,
a Delaware limited partnership and its permitted successors and assigns
including the Surviving Company following the assumption of the obligations of
the Company hereunder pursuant to Section 6.14.
"Competitive Bid Advance" means a borrowing hereunder
consisting of the aggregate amount of the several Competitive Bid Loans made by
some or all of the Lenders to the Borrower at the same time, at the same
interest basis, and for the same Interest Period.
"Competitive Bid Borrowing Notice" isdefined in Section 2.3.4.
"Competitive Bid Loan" means a Eurocurrency Bid Rate Loan or
an Absolute Rate Loan, as the case may be.
"Competitive Bid Margin" means the margin above or below the
applicable Eurocurrency Base Rate offered for a Eurocurrency Bid Rate Loan,
expressed as a percentage (rounded to the nearest 1/100 of 1%) to be added or
subtracted from such Eurocurrency Base Rate.
Page 6
"Competitive Bid Quote" means a Competitive Bid Quote
substantially in the form of Exhibit "D" hereto completed and delivered by a
Lender to the Borrower in accordance with Section 2.3.3
"Competitive Bid Quote Request" means a Competitive Bid Quote
Request substantially in the form of Exhibit "C" hereto completed and delivered
by the Borrower in accordance with Section 2.3.3.
"Consolidated Debt" means at any date, without duplication,
the Debt of the Company and its Consolidated Subsidiaries, determined on a
consolidated basis as of such date.
"Consolidated EBIT" means, for any fiscal period, without
duplication, Consolidated Net Income for such period plus, to the extent
deducted in determining Consolidated Net Income for such period, the aggregate
amount of (i) Consolidated Interest Expense and (ii) income tax expense.
"Consolidated EBITDA" means, for any fiscal period, without
duplication, Consolidated EBIT for such period plus to the extent deducted in
determining Consolidated Net Income for such period, the aggregate amount of
depreciation and amortization. In the event of a purchase by the Company or a
Consolidated Subsidiary of all or any portion of the minority interest in SMCS,
Consolidated EBITDA for any period of four consecutive fiscal quarters ending on
or after the date of such purchase and prior to the first anniversary thereof
shall be determined as if such purchase had been made on the first day of such
four-quarter period.
"Consolidated Interest Expense" means, for any fiscal period,
without duplication, the interest expense of the Company and its Consolidated
Subsidiaries plus dividends accrued on preferred stock of the Company or a
Consolidated Subsidiary which constitutes Debt, all determined on a consolidated
basis for such period.
"Consolidated Net Income" means, for any fiscal period,
without duplication, the net income of the Company and its Consolidated
Subsidiaries (before dividends on preferred stock of the Company) determined on
a consolidated basis for such period, exclusive of the effect of (i) any
extraordinary or other unusual gain and (ii) any extraordinary or other unusual
losses, write-offs or write-downs to the extent that such losses, write-offs or
write-downs do not represent a cash expenditure in such period and will not
represent a cash expenditure in any future period.
Page 7
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity which would be consolidated with the Company in its consolidated
financial statements if such statements were prepared as of such date in
accordance with GAAP.
"Continuing Director" means (i) a director of the Corporate
General Partner at the date of this Agreement and (ii) an individual who after
the date of this Agreement becomes a director of the Corporate General Partner
(including any successor Corporate General Partner) or, after the Effective Date
of the Reorganization, of the Company and/or the Parent (x) in connection with
the death, disability or retirement of an incumbent director, or otherwise in
the ordinary course of the affairs of the corporation and (y) whose election was
effected or recommended by a majority of the Continuing Directors then in office
(or by a nominating committee appointed by such a majority of Continuing
Directors). For avoidance of doubt, the foregoing definition contemplates that
the same individuals would successively constitute the Continuing Directors of
the Corporate General Partner, any successor Corporate General Partner and, upon
consummation of the Reorganization, the Parent and/or the Company, subject to
normal turnover.
"Controlling General Partner Interest" means a General
Partnership Interest which permits the owner of such General Partnership
Interest to direct the management of a general partnership or a limited
partnership.
"Conversion/Continuation Notice" is defined in Section 2.2.4.
"Corporate Base Rate" means a rate per annum equal to the
corporate base rate of interest announced by the Administrative Agent from time
to time, changing when and as said corporate base rate changes.
"Corporate General Partner" means ServiceMaster Management
Corporation, a Delaware corporation, and its successors.
Page 8
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable or accrued expenses arising
in the ordinary course of business, (iv) all obligations of such Person as
lessee which are capitalized in accordance with GAAP, (v) all obligations
(absolute or contingent) of such Person to reimburse any bank or other Person
issuing a letter of credit or similar instrument, (vi) any preferred stock
issued by such Person which is redeemable otherwise than at the sole option of
such Person for consideration other than Equity Interests in such Person, in the
Company or in the Parent, (vii) all Debt secured by a Lien on any asset of such
Person, whether or not such Debt is otherwise an obligation of such Person, and
(viii) all Guaranties by such Person of Debt of others.
"Debt Limit" means, at any date, the product of (a)
Consolidated EBITDA for the period of four consecutive fiscal quarters ending at
the date of the balance sheet most recently delivered (or required to be
delivered) on or prior to such date pursuant to Section 5.5 or 6.1 and (b) the
applicable Leverage Factor.
"Default" means an event described in Article VII.
"Derivatives Obligations" of any Person means all obligations
of such Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
Any determination of the amount of Derivatives Obligations owing at any time
shall be calculated net of offsets available at such time under any applicable
netting agreement.
"Disclosure Documents" is defined in Section 5.4.
"Documentation Agent" means Morgan, in its capacity as the
contractual representative for all of the Banks for purposes of this Agreement,
as designated and appointed in accordance with Article X, any successor thereto
as provided herein.
Page 9
"Dollar Amount" means (i) in relation to any Advance or Letter
of Credit Liabilities denominated in Dollars, the aggregate principal or face
amount thereof and (ii) in relation to any Advance or Letter of Credit
Liabilities denominated in an Alternative Currency, the equivalent amount
thereof in Dollars determined by the Administrative Agent pursuant to Section
2.5.13. The Dollar Amount of any Advance or Letter of Credit Liabilities
denominated in an Alternative Currency at any date is the Dollar Amount thereof
determined as of such date or, if no Dollar Amount is determined as of such date
in accordance with Section 2.5.13, then determined as of the then most recent
date for which such a determination has been made. Any Advance or Letter of
Credit Liabilities denominated in an Alternative Currency shall be deemed
utilization of the Commitments in an amount equal to the Dollar Amount thereof.
"Dollars" and the sign "$" mean the lawful currency of the
United States of America.
"D&P" means Duff & Phelps, Inc.
"Dutch Gilders" means the lawful currency of The Netherlands.
"Effective Date of the Reorganization" means the date upon
which the Reorganization shall be effective.
"Election to Participate" means an Election to Participate
substantially in the form of Exhibit "G" hereto.
"Election to Terminate" means an Election to Terminate
substantially in the form of Exhibit "H" hereto.
"Eligible Subsidiary" means any Subsidiary of the Company as
to which an Election to Participate shall have been delivered to the Agents and
as to which an Election to Terminate shall not have been delivered to the
Agents. Each such Election to Participate and Election to Terminate shall be
duly executed on behalf of such Subsidiary and the Company. The delivery of an
Election to Terminate with respect to an Eligible Subsidiary shall not affect
any obligation of such Eligible Subsidiary theretofore incurred. The
Administrative Agent shall promptly give notice to the Lenders of the receipt of
any Election to Participate or Election to Terminate.
"Equity Interest" means, in the case of a corporation, stock
of any class, and in the case of a partnership or a limited partnership, a
General Partnership Interest or Limited Partnership Interest, but excluding
preferred stock which constitutes Debt.
Page 10
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Eurocurrency Auction" means a solicitation of Competitive Bid
Quotes setting forth Competitive Bid Margins pursuant to Section 2.3.
"Eurocurrency Base Rate" means, with respect to a Eurocurrency
Committed Advance, a Eurocurrency Committed Loan, a Eurocurrency Bid Rate
Advance or a Eurocurrency Bid Rate Loan for the relevant Eurocurrency Interest
Period, the average of the respective rates per annum at which deposits in
Dollars or, in the case of any Eurocurrency Loan denominated in an Alternative
Currency, the relevant Alternative Currency are offered to each of the Reference
Banks in the London interbank market at approximately 11:00 a.m. (London time)
two Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Loan of such Reference Bank
to which such Interest Period is to apply and for a period of time comparable to
such Interest Period (or, in the case of a Competitive Bid Advance, the amount
which would have been the amount of the Loan of such Reference Bank if such
Advance were a Committed Advance).
"Eurocurrency Bid Rate" means, with respect to a Loan made by
a given Lender for the relevant Eurocurrency Interest Period, the sum of (i) the
Eurocurrency Base Rate and (ii) the Competitive Bid Margin offered by such
Lender and accepted by the Borrower pursuant to Section 2.3.4(i).
"Eurocurrency Bid Rate Advance" means a Competitive Bid
Advance which bears interest at a Eurocurrency Bid Rate.
"Eurocurrency Bid Rate Loan" means a Competitive Bid Loan
which bears interest at a Eurocurrency Bid Rate.
"Eurocurrency Committed Advance" means an Advance which bears
interest at a Eurocurrency Rate requested by the Borrower pursuant to Section
2.2.
"Eurocurrency Committed Loan" means a Loan which bears
interest at a Eurocurrency Rate requested by the Borrower pursuant to Section
2.2.
Page 11
"Eurocurrency Interest Period" means, with respect to a
Eurocurrency Committed Advance, a Eurocurrency Committed Loan, a Eurocurrency
Bid Rate Advance or a Eurocurrency Bid Rate Loan, a period of one, two, three or
six months commencing on a Business Day selected by the Borrower pursuant to
this Agreement. Such Eurocurrency Interest Period shall end on the day which
corresponds numerically to such date of commencement one, two, three or six
months thereafter, provided, however, that any such period which begins on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such period)
shall end on the last Business Day of a calendar month. If a Eurocurrency
Interest Period would otherwise end on a day which is not a Business Day, such
Eurocurrency Interest Period shall end on the next succeeding Business Day,
provided, however, that if such next succeeding Business Day falls in a new
month, such Eurocurrency Interest Period shall end on the immediately preceding
Business Day.
"Eurocurrency Loan" means a Eurocurrency Committed Loan or a
Eurocurrency Bid Rate Loan, as applicable.
"Eurocurrency Rate" means, with respect to a Eurocurrency
Committed Advance or a Eurocurrency Committed Loan for the relevant Eurocurrency
Interest Period, the sum of (a) the Eurocurrency Base Rate applicable to such
Eurocurrency Interest Period plus (b) the Applicable Margin.
"Federal Funds Effective Rate" means, for any period, a
fluctuating interest rate per annum equal for each day during such period to (i)
the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York; or (ii) 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) for such day on such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by the Administrative Agent.
"Financial Officers" means with respect to the Company and any
Eligible Subsidiary, prior to the Effective Date of the Reorganization, the
Chief Financial Officer or Treasurer of the Corporate General Partner and
subsequent to the Effective Date of the Reorganization, the Chief Financial
Officer or Treasurer of the Company.
Page 12
"First Chicago" means The First National Bank of Chicago in
its individual capacity, and its successors and assigns (by merger or
otherwise).
"Fixed CD Base Rate" means, with respect to a Fixed CD Rate
Advance or a Fixed CD Rate Loan for the relevant CD Interest Period, the rate
determined by the Administrative Agent to be the arithmetic average of the rates
reported to the Administrative Agent as the prevailing bid rate for the purchase
at face value at or before 10:00 a.m. (Chicago time) on the first day of such CD
Interest Period by three certificate of deposit dealers in New York or Chicago
of recognized standing selected by the Administrative Agent of certificates of
deposit of each Reference Bank in the approximate amount of such Reference
Bank's relevant Fixed CD Rate Loan and having a maturity approximately equal to
such CD Interest Period.
"Fixed CD Rate" means, with respect to a Fixed CD Rate Advance
or Fixed CD Rate Loan for the relevant CD Interest Period, a rate per annum
equal to the sum of (i) the quotient of (a) the Fixed CD Base Rate applicable to
that CD Interest Period, divided by (b) one minus the Reserve Requirement
(expressed as a decimal) applicable to that CD Interest Period, plus (ii) the
Assessment Rate applicable to that CD Interest Period, plus (iii) the Applicable
Margin.
"Fixed CD Rate Advance" means an Advance which bears interest
at a Fixed CD Rate.
"Fixed CD Rate Loan" means a Loan which bears interest at a
Fixed CD Rate.
"Fixed Rate" means the Fixed CD Rate, the Eurocurrency Rate,
the Eurocurrency Bid Rate or the Absolute Rate.
"Fixed Rate Advance" means an Advance which bears interest at
a Fixed Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed
Rate.
"Floating Rate" means, for any day, a rate per annum equal to
the Alternate Base Rate.
"Floating Rate Advance" means an Advance which bears interest
at the Floating Rate.
Page 13
"Floating Rate Loan" means a Loan which bears interest at the
Floating Rate.
"Form 10-K" is defined in Section 5.4.
"French Francs" means the lawful currency of France.
"GAAP" means generally accepted accounting principles in
effect from time to time in the United States of America.
"General Partnership Interest" means the interest of a general
partner in a general partnership and the interest of a general partner in a
limited partnership.
"German Marks" means the lawful currency of Germany.
"Guaranties" by any Person means all obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
Debt of any other Person (the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, all obligations incurred through
an agreement, contingent or otherwise, by such Person: (i) to purchase such Debt
or any property or assets constituting security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of such Debt, (y) to maintain
income, working capital or other balance sheet condition or otherwise to advance
or make available funds for the purchase or payment of such Debt, or (iii) to
lease property or to purchase Securities or other property or services primarily
for the purpose of assuring the owner of such Debt of the ability of the primary
obligor to make payment of the Debt, or (iv) otherwise to assure the owner of
the Debt of the primary obligor against loss in respect thereof. For the
purposes of all computations made under this Agreement, a Guaranty in respect of
any Debt shall be deemed to be Debt equal to the principal amount of such Debt
which has been guaranteed.
"Interest Coverage Ratio" means, as at the last day of any
fiscal quarter, the ratio of Consolidated EBIT for the period of four fiscal
quarters then ended to Consolidated Interest Expense for such four-quarter
period.
Page 14
"Interest Period" means a CD Interest Period, a Eurocurrency
Interest Period or an Absolute Rate Interest Period.
"Issuing Bank" means any Lender which shall have been
appointed an Issuing Bank for purposes of this Agreement by the Company and
which shall have accepted such appointment in a signed writing. A copy of each
such appointment and acceptance shall be promptly furnished to the
Administrative Agent.
"Issuing Bank Limit" means, with respect to any Issuing Bank,
such amount, if any, less than the Letter of Credit Commitment which such
Issuing Bank and the Company shall have agreed as the limit on the aggregate
Dollar Amount and/or amounts of particular currencies of Letter of Credit
Liabilities at any time in respect of Letters of Credit issued by such Issuing
Bank hereunder.
"Japanese Yen" means the lawful currency of Japan.
"Lenders" means the financial institutions listed on the
signature pages of this Agreement and their respective successors and assigns
including the Issuing Bank in such capacity.
"Lending Installation" means any office, branch, subsidiary or
affiliate of any Lender or the Administrative Agent.
"LC Fee Rate" means a rate per annum for letter of credit fees
determined in accordance with the Pricing Schedule.
"Letter of Credit" means a letter of credit issued or to be
issued hereunder by an Issuing Bank in accordance with Section 2.7.
"Letter of Credit Commitment" means the lesser of (x)
$150,000,000 and (y) the Aggregate Commitment.
"Letter of Credit Liabilities" means, for any Lender and at
any time, such Lender's ratable participation in the sum of (x) the aggregate
amount then owing by the Borrowers in respect of amounts drawn under Letters of
Credit and (y) the aggregate amount then available for drawing under all Letters
of Credit.
Page 15
"Leverage Factor" means, with respect to any period of four
consecutive fiscal quarters, if such period ends (a) prior to the fiscal quarter
in which the Effective Date of the Reorganization occurs, 4.25, (b) with the
fiscal quarter in which the Effective Date of the Reorganization occurs, 4.25,
(c) with the fiscal quarter immediately following the fiscal quarter in which
the Effective Date of the Reorganization occurs, 4.05, (d) with the second
fiscal quarter following the fiscal quarter in which the Effective Date of
Reorganization occurs, 3.825 and (e) with any fiscal quarter thereafter, 3.6.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset. For the purpose of this Agreement, the Company or any Subsidiary shall be
deemed to own subject to a Lien (i) any asset that it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement or other title retention agreement relating to such asset or any
capital lease or (ii) any account receivable transferred by it with recourse for
collectibility (including any such transfer subject to a holdback or similar
arrangement which effectively imposes the risk of collectibility upon the
transferor).
"Limited Partnership Interest" means the interest of a limited
partner in a limited partnership.
"Loan" means, with respect to a Lender, such Lender's portion,
if any, of any Advance.
"Loan Documents" means this Agreement, the Notes and each
Election to Participate and Election to Terminate.
"Material Adverse Effect" means (i) a material adverse effect
on the properties, business, operations or financial condition of the Company
and its Subsidiaries taken as a whole, (ii) a material adverse effect on the
ability of the Company to perform its obligations under the Loan Documents or
(iii) any material impairment of the rights and remedies of the Agents and the
Lenders against the Obligors under the Loan Documents.
"Material Commitment" means a legally binding commitment by
one or more banks or other financial institutions to extend credit to the
Company and/or its Subsidiaries in an aggregate amount of $25,000,000 or more
pursuant to a written agreement signed by the Company or a Subsidiary.
"Material Subsidiary" means (i) any Eligible Subsidiary and
(ii) any other Subsidiary which has consolidated assets or consolidated annual
revenues of more than $10,000,000.
"Moody's" means Moody's Investors Service, Inc.
Page 16
"Morgan" means Morgan Guaranty Trust Company of New York in
its individual capacity, and its successors and assigns.
"Note" means a promissory note in substantially the form of
Exhibit "A" hereto, duly executed and delivered to the Documentation Agent by
the Borrower for the account of a Lender and payable to the order of such
Lender, including any amendment, modification, renewal or replacement of such
promissory note.
"Notice of Issuance" has the meaning set forth in
Section 2.7.2.
"Obligations" means all unpaid principal of and accrued and
unpaid interest on the Notes, all accrued and unpaid fees and all other
reimbursements, indemnities or other obligations of the Obligors to any Lender
or Agent arising under the Loan Documents.
"Obligor" means the Company or any Eligible Subsidiary, and
"Obligors" means all of them.
"Parent" means The ServiceMaster Limited Partnership, a
Delaware limited partnership, and its successors, including any corporate
successor resulting from the Reorganization.
"Partnership Interest" means Limited Partnership Interests and
General PartnershipInterests.
"Payment Date" means the fifteenth day of each March, June,
September, and December.
"Person" means any corporation, limited liability company,
natural person, firm, joint venture, partnership, trust, unincorporated
organization, enterprise, government or any department or agency of any
government.
"Plans" is defined in Section 5.11.
"Pricing Level" is defined in the Pricing Schedule.
"Pricing Schedule" means the Schedule hereto entitled "Pricing
Schedule".
Page 17
"Proxy Statement" means the Proxy Statement/Prospectus dated
December 11, 1991 of the Parent.
"Reference Banks" means Bank of America NT & SA, NationsBank,
N.A., First Chicago and Morgan. If any such Reference Bank ceases to be a
Lender, the Company and the Agents shall designate another Lender as a
replacement Reference Bank.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System from time to time in effect and shall include any
successor or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of the
Federal Reserve System.
"Regulations U and X" means Regulations U and X of the Board
of Governors of the Federal Reserve System from time to time in effect and shall
include any successor or other regulations or official interpretations of said
Board of Governors relating to the extension of credit by banks for the purpose
of purchasing or carrying margin stock applicable to member banks of the Federal
Reserve System.
"Reorganization" means the change in the organizational
structure of the ServiceMaster enterprise substantially as described in the
Proxy Statement.
"Replacement Lender" is defined in Section 3.7.
"Required Lenders" means Lenders in the aggregate having at
least 66-2/3% of the Aggregate Commitment or, if the Aggregate Commitment has
been terminated, Lenders in the aggregate holding at least 66-2/3% of the sum of
the aggregate unpaid Dollar Amount of the outstanding Advances and the aggregate
Dollar Amount of all Letter of Credit Liabilities.
"Reserve Requirement" means, with respect to a Eurocurrency
Interest Period or a CD Interest Period, the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other reserves)
which is imposed under Regulation D on new non-personal time deposits of
$100,000 or more with a maturity equal to that of the CD Interest Period (in the
case of Fixed CD Rate Advances or Fixed CD Rate Loans) or on Eurocurrency
liabilities (in the case of Eurocurrency Committed Advances or Eurocurrency
Committed Loans). The Reserve Requirement shall be adjusted automatically on and
as of the effective date of any change in the applicable reserve requirement.
Page 18
"Restricted Payments" means, without duplication:
(a) the declaration or payment by the Company of any
dividends or distributions, either in cash or property, on any
Equity Interest of the Company (except dividends or other
distributions to the extent payable solely in Partnership
Interests of the Company or capital stock of the Company);
(b) the purchase, acquisition, redemption or
retirement by the Company directly or indirectly, or through
any Subsidiary, of any Equity Interest of the Company or the
Parent or any warrants, rights or options to purchase or
acquire any Equity Interest of the Company or the Parent; and
(c) to the extent not included in clause (a) or (b)
above, any other payment or distribution by the Company,
either directly or indirectly or through any Subsidiary, in
respect of any Equity Interest of the Company or the Parent.
"SMCS" means ServiceMaster Consumer Services Limited
Partnership, a Delaware limited partnership.
"SMMS" means ServiceMaster Management Services Limited
Partnership, a Delaware limited partnership.
"Section" means a numbered section of this Agreement, unless
another document is specifically referenced.
"Security" shall have the same meaning as in Section (2)(1) of
the Securities Act of 1933, as amended.
"S&P" means Standard & Poor's Ratings Group.
"Stop Issuance Notice" is defined in Section 2.7.7.
Page 19
The term "subsidiary" means, as to any particular parent
business entity, any business entity of which such parent business entity and/or
one or more business entities which are themselves subsidiaries of such parent
business entity, (i) in the case of any corporation, own more than 50% of the
Voting Stock, or (ii) in the case of any partnership other than SMCS and SMMS,
own a Controlling General Partnership Interest and, if any such partnership is a
limited partnership, own more than 50% of the Limited Partnership Interest;
provided, however, SMCS and SMMS shall be deemed subsidiaries of the Company so
long as (i) prior to the Effective Date of the Reorganization the Controlling
General Partnership Interest shall be owned by the Corporate General Partner and
(ii) the Company owns more than 50% of the Partnership Interests therein.
The term "Subsidiary" means a subsidiary of the Company.
"Surviving Company" means ServiceMaster Corporation, a
Delaware corporation, which as part of the Reorganization, shall be a
wholly-owned Subsidiary of the Surviving Parent, and its successors. As part of
the Reorganization the Parent and the Company will be liquidated into the
Surviving Company and the Surviving Company will assume the obligations of the
Company under the Loan Documents pursuant to Section 6.14.
"Surviving Parent" means ServiceMaster Incorporated, a
Delaware corporation, which shall own 100% of the outstanding Voting Stock of
the Company following the consummation of the Reorganization, and its
successors. The Surviving Company and the Surviving Parent may merge or
consolidate as part of or following the Reorganization, in which case the
resulting or surviving entity shall be the Surviving Company for purposes of
this Agreement, or the Surviving Company may liquidate into the Surviving
Parent, in which case the Surviving Parent shall become and be the Surviving
Company, all in accordance with Section 6.14.
"Swedish Kronor" means the lawful currency of the Kingdom of
Sweden.
"Termination Date" means April 1, 2002, unless the Commitments
are earlier terminated pursuant to the terms hereof.
"364-Day Agreement" means the 364-Day Credit Agreement dated
as of April 1, 1997 among the Company, the Lenders listed therein, First
Chicago, as Administrative Agent and Morgan, as Documentation Agent.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Loan or Advance, its nature
as a Floating Rate Advance or Loan, Fixed CD Rate Advance or Loan, Eurocurrency
Committed Advance or Loan in a particular currency, Eurocurrency Bid Rate
Advance or Loan in a particular currency or Absolute Rate Advance or Loan.
Page 20
"Unmatured Default" means an event which, but for the lapse of
time or the giving of notice, or both, would constitute a Default.
"Voting Equity Interest" means Voting Stock and General
Partnership Interests.
"Voting Stock" means Securities of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled to
elect a majority of the corporate directors (or Persons performing similar
functions).
"WMX Repurchase" is defined in Section 6.2.
The foregoing definitions shall be equally applicable to both
the singular and plural forms of the defined terms.
1.2. Accounting Terms and Determinations.2. Accounting Terms
and . Unless otherwise specified herein, all accounting terms used herein shall
be interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Parent's independent public accountants) with the most
recent audited consolidated financial statements of the Parent and its
Consolidated Subsidiaries delivered to the Banks; provided that, if the Company
notifies the Documentation Agent that the Company wishes to amend any covenant
in Article VI to eliminate the fact of any change in GAAP on the operation of
such covenant (or if the Documentation Agent notifies the Company that the
Required Lenders wish to amend Article VI for such purpose), then the Company's
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to
the Company and the Required Lenders.
1.3 Rules of Construction. Any reference contained in any of the Loan
Documents to "knowledge" or "awareness" of the Company or any Eligible
Subsidiary shall be deemed limited to the "knowledge" or "awareness" of one or
more Financial Officers.
1.4 Rounding. All determinations of rates per annum under this Agreement
shall be rounded to the nearest 1/100th of 1% (with 0.0050% being rounded upward
to 0.01%).
Page 21
ARTICLE II
THE FACILITY
2.1. The Facility.
2.1.1 Description of Facility. The Lenders grant to the Borrowers a
revolving credit facility pursuant to which, and upon the terms and subject to
the conditions herein set out:
(i) each Lender severally agrees to make Committed Loans in
Dollars or (in the case of Eurocurrency Committed Loans) in Alternative
Currencies to the Borrowers in accordance with Section 2.2;
(ii) each Lender may, in its sole discretion, make bids to make
Competitive Bid Loans in Dollars or (in the case of Eurocurrency Bid
Rate Loans) in Alternative Currencies to the Borrowers in accordance
with Section 2.3;
(iii) each Issuing Bank shall, on the terms and conditions set
forth in Section 2.7, issue Letters of Credit for the account of the
Borrowers, and each Lender shall participate therein ratably in the
proportion which its Commitment bears to the Aggregate Commitment; and
(iv) in no event may the sum of the aggregate Dollar Amount of
all outstanding Advances to all Borrowers (including both the Committed
Advances and the Competitive Bid Advances) plus the aggregate Dollar
Amount of all Letter of Credit Liabilities exceed the Aggregate
Commitment.
2.1.2. Availability of Facility; Required Payments.1.2.
Availability of . Subject to the terms and conditions set forth in this
Agreement, the facility is available from the date of this Agreement to the
Termination Date, and the Borrowers may borrow, repay and reborrow at any time
prior to the Termination Date. The Commitments hereunder shall expire on the
Termination Date and all outstanding Advances and all other unpaid Obligations
shall be paid in full on the Termination Date.
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2.2. Committed Advances
2.2.1. Committed Advances. From and including the date of this
Agreement and prior to the Termination Date, each Lender severally agrees, on
the terms and conditions set forth in this Agreement, to make Committed Loans to
the Borrowers from time to time in Dollar Amounts not to exceed in the aggregate
at any one time outstanding to all Borrowers the amount of such Lender's
Commitment less the aggregate Dollar Amount, at such time, of such Lender's
Letter of Credit Liabilities. Each Committed Advance hereunder shall consist of
borrowings made from the several Lenders ratably in proportion to the ratio that
their respective Commitments bear to the Aggregate Commitment. The Committed
Advances shall be evidenced by the Notes and shall be repaid as provided by the
terms of Section 2.1.2.
2.2.2. The Committed Advances may be Floating Rate Advances,
Fixed CD Rate Advances or Eurocurrency es Committed Advances, or a combination
thereof, selected by the Borrower in accordance with Sections 2.2.3 and 2.2.4.
2.2.3. Method of Selecting Types and Interest Periods for New
Committed . The Borrower shall select the Type of Advance and, in the case of
each Fixed Rate Advance, the Interest Period applicable to each Committed
Advance from time to time. The Borrower shall give the Administrative Agent
notice (a "Committed Borrowing Notice") not later than 10:00 a.m. (Chicago time)
on the Borrowing Date of each Floating Rate Advance, two Business Days before
the Borrowing Date of each Fixed CD Rate Advance, three Business Days before the
Borrowing Date for each Eurocurrency Committed Advance denominated in Dollars
and five Business Days before the Borrowing Date for each Eurocurrency Committed
Advance denominated in an Alternative Currency. A Committed Borrowing Notice
shall specify:
(i) the Borrowing Date, which shall be a Business Day, of such
Committed Advance;
(ii) the aggregate principal amount of such Committed Advance;
(iii) the Type of Committed Advance selected (including, in the case
of a Eurocurrency Committed Advance, the currency in which such Advance
is to be denominated); and
Page 23
(iv) in the case of each Committed Fixed Rate Advance, the Interest
Period applicable thereto (which may not end after the Termination
Date).
Subject to Section 3.3, each Committed Borrowing Notice shall be irrevocable.
2.2.4. Conversion and Continuation of Outstanding Committed
Advances. Floating Rate Advances shall continue as Floating Rate Advances unless
and until such Floating Rate Advances are either prepaid in accordance with
Section 2.5.3 or converted into Committed Fixed Rate Advances denominated in
Dollars. Unless sooner prepaid in accordance with Section 2.5.3 or converted in
accordance with this Section, each Committed Fixed Rate Advance of any Type
shall continue as a Fixed Rate Advance of such Type until the end of the then
applicable Interest Period therefor, at which time (x) if such Fixed Rate
Advance is a Committed Fixed Rate Advance denominated in Dollars such Committed
Fixed Rate Advance shall be automatically converted into a Floating Rate Advance
unless the Borrower shall have given the Administrative Agent a timely notice of
prepayment thereof pursuant to Section 2.5.3 or a timely Conversion/Continuation
Notice requesting that, at the end of such Interest Period, such Committed Fixed
Rate Advance either continue as a Committed Fixed Rate Advance of such Type for
the same or another Interest Period or be converted into an Advance of another
Type denominated in Dollars and (y) subject to Section 2.5.13(b), if such Fixed
Rate Advance is a Committed Fixed Rate Advance denominated in an Alternative
Currency, such Committed Fixed Rate Advance shall be automatically continued as
a Committed Fixed Rate Advance in the same Alternative Currency for an
additional Interest Period of one month, unless the Borrower shall have given
the Administrative Agent a timely notice of prepayment thereof pursuant to
Section 2.5.3 or a timely Continuation Notice requesting that at the end of such
Interest Period such Committed Fixed Rate Advance continue as a Committed Fixed
Rate Advance for another Interest Period. If the Administrative Agent does not
receive such timely notice of prepayment or Continuation Notice, it shall notify
the Lenders to such effect on the date such notice is due. Subject to the terms
of Section 2.5.2, the Borrower may elect from time to time to convert all or any
part of a Committed Advance of any Type denominated in Dollars into any other
Type or Types of Committed Advances denominated in Dollars; provided that any
conversion of any Committed Fixed Rate Advance on any day other than the last
day of the Interest Period applicable thereto shall be subject to Section 3.4.
Page 24
The Borrower shall give the Administrative Agent notice (a
"Conversion/Continuation Notice") of each conversion of a Committed Advance or
continuation of a Committed Fixed Rate Advance not later than 10:00 a.m.
(Chicago time) on the date of, in the case of a conversion into a Floating Rate
Advance, or two Business Days, in the case of a conversion into or continuation
of a Fixed CD Rate Advance, three Business Days, in the case of a conversion
into or continuation of a Eurocurrency Committed Advance denominated in Dollars
or five Business Days, in the case of a continuation of a Eurocurrency Committed
Advance denominated in an Alternative Currency, 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 Committed Advance which is
to be converted or continued; and
(iii) the amount and Type(s) of Committed Advance(s) into which such
Committed Advance is to be converted or continued and, in the case of a
conversion into or continuation of a Committed Fixed Rate Advance, the
duration of the Interest Period applicable thereto (which may not end
after the Termination Date).
Subject to Section 3.3, each Conversion/Continuation Notice shall be
irrevocable. Changes in the currency in which an Advance is denominated may not
be effected by a conversion pursuant to this Section 2.2.4.
2.3. Competitive Bid Advances.
2.3.1. Competitive Bid Option; Repayment of Competitive Bid
Advances. In addition to Committed Advances pursuant to Section 2.2, but subject
to the terms and conditions set forth in this Agreement (including, without
limitation, the limitation set forth in Section 2.1.1(iv) as to the maximum
aggregate Dollar Amount of all outstanding Advances and Letter of Credit
Liabilities hereunder and the limitation set forth in Section 4.3(iii) as to the
minimum credit standing for Competitive Bid Advances), any Borrower may, as set
forth in this Section 2.3, request the Lenders, prior to the Termination Date,
Page 25
to make offers to make Competitive Bid Advances to such Borrower. Each Lender
may, but shall have no obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the manner set forth in
this Section 2.3. Competitive Bid Advances shall be evidenced by the Notes. Each
Competitive Bid Advance shall be repaid in full by the Borrower on the last day
of the Interest Period applicable thereto.
2.3.2. When the Borrower wishes to request offers to make
Competitive Bid Loans under Section 2.3, it shall transmit to each Lender by
telex or telecopy a Competitive Bid Quote Request so as to be received no later
than (i) 10:00 a.m. (Chicago time) at least five Business Days prior to the
Borrowing Date proposed therein, in the case of a Eurocurrency Auction
denominated in Dollars, (ii) 10:00 a.m. (Chicago time) at least seven Business
Days prior to the Borrowing Date, in the case of a Eurocurrency Auction
denominated in an Alternative Currency or (iii) 10:00 a.m. (Chicago time) at
least one Business Day prior to the Borrowing Date proposed therein, in the case
of an Absolute Rate Auction specifying:
(a) the proposed Borrowing Date, which shall be a Business Day,
for the proposed Competitive Bid Advance;
(b) the aggregate principal amountof such Competitive Bid Advance;
(c) whether the Competitive Bid Quotes requested are to set forth
a Competitive Bid Margin or an Absolute Rate, or both;
(d) in the case of a Eurocurrency Auction, the currency in which
the Loans are to be denominated; and
(e) the Interest Period applicable thereto (which may not end
after the Termination Date).
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period and for a Eurocurrency Auction and an Absolute Rate Auction in a
single Competitive Bid Quote Request. No Competitive Bid Quote Request shall be
given within 3 Business Days of any other Competitive Bid Quote Request. Each
Competitive Bid Quote Request shall be in an Approved Multiple.
Page 26
2.3.3. Submission and Contents of Competitive Bid Quotes.
(i) Each Lender may, in its sole discretion, submit to the
Borrower a Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Invitation for Competitive Bid Quotes.
Each Competitive Bid Quote must comply with the requirements of this Section
2.3.3 and must be submitted to the Borrower by telecopy at its address specified
in or pursuant to Article XIII not later than (a) 1:00 p.m. (Chicago time) at
least three Business Days prior to the proposed Borrowing Date, in the case of a
Eurocurrency Auction denominated in Dollars, (b) 1:00 p.m. (Chicago time) at
least five Business Days prior to the proposed Borrowing Date, in the case of a
Eurocurrency Auction denominated in an Alternative Currency or (c) 9:00 a.m.
(Chicago time) on the proposed Borrowing Date, in the case of an Absolute Rate
Auction. Subject to Articles IV and VIII, any Competitive Bid Quote so made
shall be irrevocable.
(ii) Each Competitive Bid Quote shall in any case specify:
(a) the proposed Borrowing Date, which shall be the same as
that set forth in the applicable Invitation for Competitive Bid Quotes;
(b) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount (1) may be
greater than, less than or equal to the Commitment of the quoting
Lender, (2) must be an Approved Multiple and (3) may not exceed the
principal amount of Competitive Bid Loans for which offers were
requested;
(c) in the case of a Eurocurrency Auction, the Competitive Bid
Margin offered for each such Competitive Bid Loan;
(d) the limit, if any, as to the aggregate principal amount of
the Competitive Bid Loans from such Lender which may be accepted by the
Borrower;
(e) in the case of an Absolute Rate Auction, the Absolute Rate
offered for each such Competitive Bid Loan;
(f) the applicable Interest Period; and
(g) the identity of the quoting Lender.
Page 27
(iii) The Borrower shall reject any Competitive Bid Quote that:
(a) is not substantially in the form of Exhibit "D" hereto or
does not specify all of the information required by Section 2.3.3(ii);
(b) contains qualifying, conditional or similar language,
other than any such language contained in Exhibit "D" hereto;
(c) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes; or
(d) arrives after the time set forth in Section 2.3.3(i).
If any Competitive Bid Quote shall be rejected pursuant to this Section
2.3.3(iii), then the Borrower shall notify the relevant Lender of such rejection
as soon as practical.
2.3.4. Acceptance and Notice by the Borrower.3.4. Acceptance
and Notice by . Not later than (a) 2:00 p.m. (Chicago time) at least three
Business Days prior to the proposed Borrowing Date, in the case of a
Eurocurrency Auction denominated in Dollars, (b) 2:00 p.m. (Chicago time) at
least five Business Days prior to the proposed Borrowing Date, in the case of a
Eurocurrency Auction denominated in an Alternative Currency or (c) 10:00 a.m.
(Chicago time) on the proposed Borrowing Date, in the case of an Absolute Rate
Auction, the Borrower shall notify each Lender of its acceptance or rejection of
the offers so notified to it pursuant to Section 2.3.3; provided, however, that
the failure by the Borrower to give such notice to any Lender shall be deemed to
be a rejection by the Borrower of all such offers made by such Lender. In the
case of acceptance, such notice (a "Competitive Bid Borrowing Notice") shall
specify the aggregate principal amount of offers for each Interest Period that
are accepted. The Borrower may accept or reject any Competitive Bid Quote in
whole or in part (subject to the terms of Section 2.3.3(ii)(d)); provided that:
(a) the aggregate principal amount of each Competitive Bid
Advance may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request;
(b) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins or Absolute Rates, as the case may
be; and
(c) the Borrower may not accept any offer of the type
described in Section 2.3.3(iii) or that otherwise fails to comply with
the requirements of this Agreement for the purpose of obtaining a
Competitive Bid Loan under this Agreement.
Page 28
2.3.5. Allocation by the Borrower. If offers are made by two or more
Lenders with the same Competitive Bid Margins or Absolute Rates, as the case may
be, for a greater aggregate principal amount than the amount in respect of which
offers are permitted to be accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Borrower among such Lenders as nearly as
possible (in such multiples, not greater than $1,000,000 (or the equivalent in
an Alternative Currency), as the Borrower may deem appropriate) in proportion to
the aggregate principal amount of such offers. Allocations by the Borrower of
the amounts of Competitive Bid Loans shall be conclusive in the absence of
manifest error. The Borrower shall promptly, but in any event on the same
Business Day in the case of Eurocurrency Bid Rate Advances, and by 11:00 a.m.
(Chicago time) in the case of Absolute Rate Advances, notify each Lender that
submitted a Competitive Bid Quote of its receipt of a Competitive Bid Borrowing
Notice and the aggregate principal amount of such Competitive Bid Advance
allocated to each participating Lender.
2.3.6. Notice by the Borrower to the Administrative Agent.3.6.
Notice by the . Promptly, but in any event on the same Business Day that the
Borrower issues any Competitive Bid Borrowing Notice, the Borrower shall give
the Administrative Agent notice of the amount, maturity, applicable interest
rate and Lender for each Competitive Bid Loan accepted by the Borrower pursuant
to such Competitive Bid Borrowing Notice.
2.4. Facility Fees. The Company hereby agrees to pay to the
Administrative Agent for the account of each Lender, ratably in the proportion
that such Lender's Commitment bears to the Aggregate Commitment, a per annum
facility fee at the Facility Fee Rate (determined daily in accordance with the
Pricing Schedule) on the daily amount of the Aggregate Commitment, payable
quarterly in arrears on each Payment Date and on the Termination Date. All
accrued facility fees hereunder shall be payable on the effective date of any
termination of the obligations of the Lenders to make Loans hereunder.
Page 29
2.5. General Facility Terms.
2.5.1. Not later than (i) 12:00 noon (Chicago time) on each
Borrowing Date for each Advance denominated in Dollars and (ii) the funding
deadline designated by the Administrative Agent in the case of any Advance
denominated in an Alternative Currency (which shall be no earlier than 10:00
a.m. local time in the place of payment and no later than 12:00 noon (Chicago
time)), each Lender shall make available its Loan or Loans, if any, in
immediately available funds, to the Administrative Agent at its address
specified pursuant to Article XIII or at such other location as the
Administrative Agent shall direct. The Administrative Agent shall promptly
deposit the funds so received from the Lenders in the Borrower's account at the
Administrative Agent's main office in Chicago or as otherwise directed by the
Borrower. Notwithstanding the foregoing provisions of this Section 2.5.1, to the
extent that a Loan made to a Borrower by a Lender matures on the Borrowing Date
of a requested Loan to such Borrower in the same currency, such Lender shall
apply the proceeds of the Loan it is then making to the repayment of principal
of the maturing Loan.
2.5.2. Minimum Amount of Each Committed Advance.5.2. Minimum
Amount of Each . Except as contemplated by Section 2.7.3, each Committed Advance
shall be in an Approved Multiple; provided, however, that any Floating Rate
Advance may be in the aggregate amount of the unused Aggregate Commitment.
2.5.3. The Borrower may from time to time pay all of its
outstanding Committed Advances, or, in an Approved Multiple, any portion of the
outstanding Committed Advances upon (i) in the case of any Floating Rate
Advance, notice to the Administrative Agent not later than 10:00 a.m. (Chicago
time) on the date of prepayment, (ii) in the case of any Fixed CD Rate Advance,
two Business Days' prior notice to the Administrative Agent, (iii) in the case
of any Eurocurrency Committed Advance denominated in Dollars, three Business
Days' prior notice to the Administrative Agent and (iv) in the case of any
Eurocurrency Committed Advance denominated in an Alternative Currency, five
Business Days' prior notice to the Administrative Agent. Any such notice of
prepayment shall be irrevocable. All such payments shall be made in immediately
available funds to the Administrative Agent at the Administrative Agent's
address specified in Article XIII or at any other location specified by the
Administrative Agent in accordance with Section 2.5.7 not later than (i) noon
(Chicago time) on the date of payment for each Advance denominated in Dollars
and (ii) the funding deadline designated by the Administrative Agent in the case
of any Advance denominated in
Page 30
an Alternative Currency (which should be no earlier than 10:00 a.m. local time
in the place of payment and no later than 12:00 noon (Chicago time)). Subject to
Section 2.5.13(a), a Competitive Bid Advance may not be prepaid prior to the
last day of its applicable Interest Period without the prior consent of the
Lender which originally made such Loan, which consent may be given or withheld
at the Lender's sole and absolute discretion, provided that no Competitive Bid
Advance may be prepaid if there exists a Default. Any prepayment of a Fixed Rate
Advance prior to the end of its applicable Interest Period shall be subject to
the indemnity provisions of Section 3.4.
2.5.4. Subject to the provisions of Section 2.5.5, each Advance
shall bear interest from and including the first day of the Interest Period
applicable thereto to (but not including) the earlier of (i) the last day of
such Interest Period or (ii) the date of any earlier prepayment as permitted by
Section 2.5.3, at the interest rate determined as applicable to such Advance,
payable in the currency of such Advance.
2.5.5. Except as provided in the next sentence, any Advance not
paid at maturity, whether by acceleration or otherwise, shall bear interest
until paid in full at a rate per annum equal to (i) in the case of an Advance
denominated in Dollars, the Alternate Base Rate plus 2% per annum, payable upon
demand and (ii) in the case of an Advance denominated in an Alternative
Currency, the sum of 2% plus the Applicable Margin for Eurocurrency Committed
Advances for such day plus the quotient obtained by dividing (x) the average of
the respective rates per annum at which one day (or, if such amount due remains
unpaid more than five Business Days, then for such other period of time not
longer than three months as the Administrative Agent may select) deposits in
such Alternative Currency in an amount approximately equal to such overdue
payment due to each of the Reference Banks (or, in the case of a Competitive Bid
Advance, the amount which would have been due to each Reference Bank if such
Advance were a Committed Advance) are offered to such Reference Bank in the
London interbank market for the applicable period determined as provided above
by (y) 1.00 minus the Reserve Requirement. In the case of a Fixed Rate Advance
the maturity of which is accelerated, such Fixed Rate Advance shall bear
interest for the remainder of the applicable Interest Period (or until paid if
paid prior to the end of such Interest Period), at the higher of the rate
otherwise applicable to such Fixed Rate Advance for such Interest Period plus 2%
per annum or the applicable rate specified in the preceding sentence.
Page 31
2.5.6. Interest Payment Dates; Interest Basis.5.6. Interest
Payment Dates; . Interest accrued on each Fixed Rate Advance shall be payable on
the last day of its applicable Interest Period, on any date on which such Fixed
Rate Advance is prepaid or converted, and at the maturity of such Advance.
Interest accrued on each Floating Rate Advance shall be payable on each Payment
Date, on any date on which such Floating Rate Advance is prepaid, and at the
maturity of such Advance. Interest accrued on each Fixed Rate Advance having an
Interest Period longer than three months shall also be payable on the last day
of each 90 day interval (in the case of Fixed CD Rate Advances or Absolute Rate
Advances) or three-month interval (in the case of Eurocurrency Committed
Advances or Eurocurrency Bid Rate Advances) during such Interest Period.
Interest on Fixed Rate Loans, facility fees and letter of credit fees hereunder
shall be calculated for actual days elapsed on the basis of a 360-day year.
Interest on Floating Rate Loans shall be calculated for actual days elapsed on
the basis of a 365-day year, or, when applicable, 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 the deadline specified pursuant
to Section 2.5.7. If any payment of principal of or interest on an Advance 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 in connection with
such payment.
2.5.7. Subject to the last sentence of Section 2.5.1 and to
Section 2.7.3., all payments of principal, interest, and fees hereunder shall be
made by (i) noon (local time) for each payment in Dollars and (ii) the funding
deadline designated by the Administrative Agent for each payment in an
Alternative Currency (which shall be no earlier than 10:00 a.m. local time in
the place of payment and no later than 12:00 noon (Chicago time)), on the date
when due in immediately available funds to the Administrative Agent at the
Administrative Agent's address specified pursuant to Article XIII, or at any
other location specified in writing by the Administrative Agent to the Borrower
and shall be distributed by the Administrative Agent ratably among all Lenders
in the case of fees and payments in respect of Committed Advances and ratably
among the applicable Lenders in respect of Competitive Bid Advances. Each
payment delivered to the Administrative Agent for the account of any Lender
shall be
Page 32
delivered promptly by the Administrative Agent to such Lender in the same type
of funds which the Administrative Agent received at its address specified
pursuant to Article XIII or at any location specified in a notice received by
the Administrative Agent from such Lender. All payments of the principal of and
interest on any Loan shall be made in the currency in which such Loan is
denominated.
2.5.8. Each Lender is hereby authorized to record on the schedule
attached to each of its Notes, or otherwise record in accordance with its usual
practice, the date and amount of each of its Loans evidenced by such Note;
provided, however, that any failure to so record shall not affect the Obligors'
obligations under any Loan Document.
2.5.9. Notification of Advances, Interest Rates and
Prepayments. The Administrative Agent will notify each Lender of the contents of
each Aggregate Commitment reduction notice, Committed Borrowing Notice,
Conversion/Continuation Notice and repayment notice received by it hereunder
promptly and in any event before the close of business on the same Business Day
of receipt thereof (or, in the case of borrowing notices with respect to
Floating Rate Advances and Absolute Rate Advances, within one hour of receipt
thereof). The Administrative Agent will notify each Lender of the interest rate
applicable to each Fixed Rate Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.
2.5.10. 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 date 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 scheduled payment, the Administrative Agent may assume that such
scheduled payment has been made. The Administrative Agent may, but shall not be
obligated to, make the amount of such scheduled 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 scheduled payment to
Page 33
the Administrative Agent, the recipient of such scheduled 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 scheduled payment by a
Lender, the Federal Funds Effective Rate for such day or (y) in the case of
scheduled payment by the Borrower, the interest rate applicable to the relevant
Loan.
2.5.11. The Company may at any time after the date hereof cancel
the Aggregate Commitment, in whole, or in a minimum aggregate amount of
$10,000,000 (and in integral multiples of $1,000,000 if in excess thereof)
ratably among the Lenders upon written notice to the Administrative Agent not
later than 10:00 a.m. (Chicago time) on the effective date of cancellation
specified therein, which notice shall specify the amount of such reduction;
provided, however, no such notice of cancellation shall be effective to the
extent that it would reduce the Aggregate Commitment to an amount which would be
less than the sum of the aggregate Dollar Amount of Loans outstanding at the
time such cancellation is to take effect plus the aggregate Dollar Amount of all
Letter of Credit Liabilities at such time. Any notice of cancellation given
pursuant to this Section 2.5.11 shall be irrevocable and shall specify the date
upon which such cancellation is to take effect.
2.5.12. Subject to Section 12.6, each Lender may, by written
(including telex or telecopy) notice to the Administrative Agent and the
Company, book its Loans and Letter of Credit Liabilities at any Lending
Installation selected by such Lender and may from time to time change its
Lending Installation and for whose account Loan and Letter of Credit payments
are to be made. Each Lender will notify the Administrative Agent and the Company
on or prior to the date of this Agreement of the Lending Installation which it
intends to utilize for each type of Loan and Letter of Credit hereunder.
2.5.13. Currency Equivalents. (a) The Administrative Agent shall
determine the Dollar Amount of each Advance denominated in an Alternative
Currency as of the first day of each Interest Period applicable thereto, and in
the case of any such Interest Period of more than three months, at three month
intervals after the first day thereof. The Administrative Agent shall determine
the Dollar Amount of any Letter of Credit Liabilities denominated in an
Alternative Currency on the date of issuance of the related Letter of Credit and
at three-month intervals thereafter. The Administrative Agent shall promptly
notify the Borrower and the Lenders of each Dollar Amount so determined by it.
Each such determination shall be based on the
Page 34
spot rate at which in accordance with normal banking procedures the
Administrative Agent could purchase the Alternative Currency with Dollars in the
interbank market in London at 11:00 a.m. (London time) two Business Days prior
to the date as of which such Dollar Amount is to be determined. If after giving
effect to any such determination of a Dollar Amount, the sum of the aggregate
Dollar Amount of all outstanding Advances plus the aggregate Dollar Amount of
all Letter of Credit Liabilities exceeds the Aggregate Commitment, the Borrowers
shall within five Business Days prepay outstanding Advances (as selected by the
Company) to the extent necessary to eliminate such excess; provided that such
prepayment shall be applied to outstanding Committed Advances to the extent
necessary to prepay such Advances in full before prepayment of any Competitive
Bid Advances pursuant to this Section 2.5.13(a).
(b) If for the purpose of obtaining judgment in any court it
is necessary to convert a sum due from any Obligor hereunder or under any of the
Notes in the currency expressed to be payable herein or under the Notes (the
"specified currency") into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the specified currency with such other
currency at the Administrative Agent's London office at 11:00 a.m. (London time)
on the Business Day preceding that on which final judgment is given. The
obligations of each Obligor in respect of any sum due to any Lender or the
Administrative Agent hereunder or under any Note shall, notwithstanding any
judgment in a currency other than the specified currency, be discharged only to
the extent that on the Business Day following receipt by such Lender or the
Administrative Agent (as the case may be) of any sum adjudged to be so due in
such other currency such Lender or the Administrative Agent (as the case may be)
may in accordance with normal banking procedures purchase the specified currency
with such other currency; if the amount of the specified currency so purchased
Page 35
is less than the sum originally due to such Lender or the Administrative Agent,
as the case may be, in the specified currency, each Obligor agrees, to the
fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent, as the case may be, against such loss, and if the amount
of the specified currency so purchased exceeds (a) the sum originally due to any
Lender or the Administrative Agent, as the case may be, in the specified
currency and (b) any amounts shared with other Lenders as a result of
allocations of such excess as a disproportionate payment to such Lender under
Article XI, such Lender or the Administrative Agent, as the case may be, agrees
to remit such excess to the Company for the account of the Obligors.
2.5.14. Taxes. (a) Any and all payments by a Borrower hereunder
or under the Notes shall be made free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto excluding, (i) in the
case of each Lender and Agent, taxes imposed on its income, and franchise or
similar taxes imposed on it, by the jurisdiction under the laws of which such
Lender or Agent is organized or any political subdivision thereof and taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction of
such Lender's applicable Lending Installation or any political subdivision
thereof and (ii) in the case of each Lender, any United States withholding tax
imposed on such payments but only to the extent not attributable to a change in
law, regulation, treaty or interpretation after the time such Lender first
becomes a party to this Agreement (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities arising out of or related to
this Agreement being hereinafter referred to as "Taxes"). If any Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender or Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.5.14) such Lender or Agent (as the case may be) receives an amount equal to
the sum it would have received had no deductions been made, (ii) such Borrower
shall make such deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law and provide such Lender or Agent (as the case may be) with a
receipt or other evidence of such payment.
(b) In addition, each Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or under the Notes
or from the execution, delivery, enforcement or registration of, or otherwise
with respect to, the Loan Documents or the Letters of Credit (hereinafter
referred to as "Other Taxes").
Page 36
(c) Each Borrower will indemnify each Lender and Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.5.14) paid by such Lender or Agent and any liability including penalties,
interest and expenses arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted by the relevant
taxing authority or other governmental entity. This indemnification shall be
made to the Administrative Agent for the account of such Lender or Agent (as the
case may be) within 30 days from the date such Lender or Agent makes written
demand therefor (with a copy, in the case of a demand by a Lender or the
Documentation Agent, of such demand to the Administrative Agent). If a Lender or
Agent shall become aware that it is entitled to receive a refund in respect of
Taxes or Other Taxes as to which it has been indemnified by a Borrower pursuant
to this Section 2.5.14, it shall promptly notify such Borrower of the
availability of such refund and, unless such Lender or Agent determines in good
faith that it is not in its best interests to do so, shall apply for such
refund. If any Lender or Agent receives a refund in respect of any Taxes or
Other Taxes as to which it has been indemnified by a Borrower pursuant to this
Section 2.5.14, it shall promptly notify such Borrower of such refund and shall
promptly repay such refund to such Borrower (to the extent of amounts that have
been paid by such Borrower under this Section 2.5.14 with respect to such
refund), net of all out-of-pocket expenses of such Lender or Agent in obtaining
such refund; provided that the Borrower, upon the request of such Lender or
Agent agrees to return such refund (plus penalties, interest or other charges)
to such Lender or Agent in the event such Lender or Agent is required to repay
such refund.
(d) Notwithstanding the foregoing, unless, prior to the
initial Borrowing Date (in the case of a Lender listed on the signature pages
hereto), and prior to the effective date of the Assignment and Acceptance by
which it became a Lender (in the case of Lender that became a Lender pursuant to
such Assignment and Acceptance), and in each case from time to time thereafter,
if requested by the Company or the Administrative Agent, each Lender organized
under the laws of a jurisdiction outside the United States shall have provided
the Company and the Administrative Agent with the forms prescribed by the
Page 37
Internal Revenue Service of the United States certifying as to such Lender's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments of interest to be made to such Lender
hereunder or other documents satisfactory to the Company which, in each case,
shall indicate that all payments to be made to such Lender hereunder are not
subject to United States withholding tax or are subject to such taxes at a rate
reduced to zero by an applicable tax treaty, neither the Company nor any other
Borrower shall have any obligation under the last sentence of Section 2.5.14(a)
to make any payments to or for the benefit of such Lender in respect of Taxes
imposed by the United States of America unless such Lender is unable to provide
such form as a result of a change in law or treaty after the time such Lender
becomes a party to this Agreement.
2.5.15. For so long as any Lender maintains reserves against
"Eurocurrency liabilities" (or any other category of liabilities which includes
deposits by reference to which interest rate on Eurocurrency Committed Loans is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of such Lender to United States
residents), and as a result the cost to such Lender (or its Lending
Installation) of making or maintaining any of its Eurocurrency Committed Loans
is increased, then such Lender may require the Borrower to pay,
contemporaneously with each payment of interest on such Loans, additional
interest on the related Eurocurrency Committed Loan of such Lender at a rate per
annum up to but not exceeding the excess of (i)(A) the applicable Eurocurrency
Base Rate divided by (B) one minus the Reserve Requirement over (ii) the
applicable Eurocurrency Base Rate. Any Lender wishing to require payment of such
additional interest (x) shall so notify the Borrower and the Administrative
Agent, in which case such additional interest on the Eurocurrency Committed
Loans of such Lender shall be payable to such Lender at the place indicated in
such notice with respect to each Interest Period which commences at least three
Business Days after the giving of such notice and (y) shall furnish to the
Borrower at least five Business Days prior to each date on which interest is
payable on the Eurocurrency Committed Loans a certificate setting forth the
amount to which such Lender is then entitled under this Section.
2.6. Optional Increase in Commitments. At any time, if no Default
or Unmatured Default shall have occurred and be continuing, the Company ts. may,
if it so elects, increase the aggregate amount of the Commitments, either by
designating one or more banks or other financial institutions not theretofore a
Lender to become a Lender (such designation to be effective only with the prior
written consent of the Administrative Agent, which
Page 38
consent will not be unreasonably withheld, and of each Issuing Bank that (x) has
issued a Letter of Credit as to which there are Letter of Credit Liabilities at
such time or (y) has a commitment to issue Letters of Credit at such time) or by
agreeing with one or more existing Lenders that such Lender's Commitment shall
be increased. Upon execution and delivery by the Company and each such Lender or
bank or other financial institution of an instrument in form reasonably
satisfactory to the Administrative Agent, such existing Lender shall have a
Commitment as therein set forth or such bank or other financial institution
shall become a Lender with a Commitment as therein set forth and all the rights
and obligations of a Lender with such a Commitment hereunder; provided:
(a) that the Company shall provide prompt notice
of such increase to the Administrative Agent, who shall
promptly notify the Lenders;
(b) that the amount of such increase is not less
than $10,000,000;
(c) that the amount of such increase, together
with all other increases in the aggregate amount of the
Commitments pursuant to this Section 2.6 since the date of
this Agreement, does not exceed $250,000,000; and
(d) that after giving effect to such increase,
no Lender has a Commitment in an amount greater than 20% of
the aggregate amount of the Commitments.
Upon any increase in the aggregate amount of the Commitments pursuant to this
Section 2.6, within five Business Days, in the case of each Floating Rate
Advance then outstanding, and at the end of the then current Interest Period
with respect thereto, in the case of each Committed Fixed Rate Advance then
outstanding, the Borrower shall prepay or repay such Advance in its entirety
and, to the extent the Borrower elects to do so and subject to the conditions
specified in Article IV, the Borrower shall reborrow Committed Loans from the
Lenders in proportion to their respective Commitments after giving effect to
such increase, until such time as all outstanding Committed Loans are held by
the Lenders in such proportion.
Page 39
2.7 Letters of Credit.
2.7.1. Availability. Subject to the terms and conditions
hereof, each Issuing Bank agrees to issue Letters of Credit hereunder from time
to time before the tenth day before the Termination Date upon the request of any
Borrower; provided that, immediately after each Letter of Credit is issued, (i)
the Letter of Credit Liabilities in respect of Letters of Credit issued by such
Issuing Bank shall not exceed its Issuing Bank Limit, (ii) the aggregate Dollar
Amount of all Letter of Credit Liabilities shall not exceed the Letter of Credit
Commitment and (iii) the aggregate Dollar Amount at such time of the Letter of
Credit Liabilities plus the aggregate Dollar Amount of all outstanding Advances
shall not exceed the Aggregate Commitment. Upon the date of issuance by an
Issuing Bank of a Letter of Credit, the Issuing Bank shall be deemed, without
further action by any party hereto, to have sold to each Lender, and each Lender
shall be deemed, without further action by any party hereto, to have purchased
from such Issuing Bank, a participation in such Letter of Credit and the related
Letter of Credit Liabilities in the proportion their respective Commitments bear
to the Aggregate Commitment.
2.7.2. Procedure for Issuance. The Borrower shall give the
Issuing Bank notice at least three Business Days prior to the requested issuance
of a Letter of Credit specifying the date such Letter of Credit is to be issued,
specifying the currency in which such Letter of Credit is to be denominated
(which shall be Dollars or an Alternative Currency) and the amount thereof, and
describing the other terms of such Letter of Credit and the nature of the
transactions to be supported thereby (such notice, including any such notice
given in connection with the extension of a Letter of Credit, a "Notice of
Issuance"). Upon receipt of a Notice of Issuance, the Issuing Bank 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 Letter of Credit. The issuance by the Issuing
Bank of each Letter of Credit shall, in addition to the conditions precedent set
forth in Article IV, be subject to the conditions precedent that such Letter of
Credit shall be in such form and contain such terms as shall be satisfactory to
the Issuing Bank (consistent with its
Page 40
customary procedures and policies for the issuance of letters of credit
generally) and that the Borrower and (if other than the Borrower) the Company
shall have executed and delivered such other instruments and agreements relating
to such Letter of Credit as the Issuing Bank shall have reasonably requested.
The Borrower shall also pay to the Issuing Bank for its own account issuance,
drawing, amendment and extension charges in the amounts and at the times agreed
between the Borrower and the Issuing Bank. The extension or renewal of any
Letter of Credit shall be deemed to be an issuance of such Letter of Credit. If
any Letter of Credit contains a provision pursuant to which it is automatically
extended unless notice of termination is given by the Issuing Bank, the Issuing
Bank shall timely give such notice of termination if a Stop Issuance Notice is
in effect. No Letter of Credit shall have a term extending or be so extendible
beyond the fifth Business Day preceding the Termination Date.
2.7.3. Reimbursement of Drawings. Upon receipt from the
beneficiary of any Letter of Credit of any notice of a drawing under such Letter
of Credit, the Issuing Bank shall notify the Administrative Agent and the
Adminis-trative Agent shall promptly notify the Borrower and each other Lender
as to the amount to be paid as a result of such demand or drawing and the
payment date. The Borrower shall be irrevocably and unconditionally obligated to
reimburse the Issuing Bank on such payment date for any amounts paid by the
Issuing Bank upon any drawing under any Letter of Credit, without presentment,
demand, protest or other formalities of any kind. All such amounts paid by the
Issuing Bank and remaining unpaid by the Borrower shall bear interest, payable
on demand, for each day from the date of payment by the Issuing Bank until paid
in full by the Obligors at the rate per annum specified in Section 2.5.5 for the
relevant currency. In addition, each Lender will pay to the Administrative
Agent, for the account of the Issuing Bank, immediately upon the Issuing Bank's
demand at any time during the period from the date of payment by the Issuing
Bank until reimbursement therefor in full by the Obligors, an amount equal to
such Lender's ratable share of such drawing (in proportion to its participation
therein), together with interest on such amount for each day from the date of
the Issuing Bank's demand for such payment (or, if such demand is made less than
two hours prior to the funding deadline for the relevant currency on such date
specified pursuant to Section 2.5.7, from the next succeeding Business Day) to
the date of payment by such Lender of such amount at the applicable rate per
annum specified in Section 2.5.10 for the relevant currency. The Issuing Bank
will pay to each Lender ratably all amounts received from the Obligors for
application in payment of their reimbursement obligations in respect of any
Letter of Credit, but only to the extent such Lender has made payment to the
Issuing Bank in respect of such Letter of Credit pursuant hereto. In the case of
a drawing under a Letter of Credit denominated in Dollars, the Borrower shall,
unless it gives not less than one Business Day's notice to the Administrative
Agent to the contrary, be deemed to have timely given a Committed Borrowing
Notice for a Floating Rate Advance on the date of such drawing in the exact
amount due the Issuing Bank hereunder on such date, and the Administrative Agent
shall apply the proceeds of such Advance to make payment thereof.
Page 41
2.7.4. Obligations Absolute. The obligations of the Borrower and
each Lender under Section 2.7.3 shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement, under all circumstances whatsoever, including without limitation
the following circumstances:
(a) any lack of validity or enforce-ability of
this Agreement or any Letter of Credit or any document related
hereto or thereto;
(b) any amendment, waiver of or any consent to
departure from all or any of the provisions of this Agreement,
any Letter of Credit or any document related hereto or
thereto;
(c) the use which may be made of the Letter of
Credit by, or any acts or omission of, a beneficiary of a
Letter of Credit (or any Person for whom the beneficiary may
be acting);
(d) the existence of any claim, set-off, defense
or other rights that any Obligor may have at any time against
a beneficiary of a Letter of Credit (or any Person for whom
the beneficiary may be acting), the Lenders (including the
Issuing Bank) or any other Person, whether in connection with
this Agreement or the Letter of Credit or any document related
hereto or thereto or any unrelated transaction;
(e) any statement or any other document
presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein
being untrue or inaccurate in any respect whatsoever;
(f) payment under a Letter of Credit to the
beneficiary of such Letter of Credit against presentation to
the Issuing Bank of a draft or certificate that does not
comply with the terms of the Letter of Credit; or
Page 42
(g) any other act or omission to act or delay of
any kind by any Lender (including the Issuing Bank), the
Administrative Agent or any other Person or any other event or
circumstance whatsoever that might, but for the provisions of
this subsection (g), constitute a legal or equitable discharge
of any Obligor's or Lender's obligations hereunder;
provided that the provisions of this Section 2.7.4 shall not relieve the Issuing
Bank from responsibility for its own gross negligence or wilful misconduct.
2.7.5. Indemnity. The Company hereby indemnifies and holds
harmless each Lender (including each Issuing Bank) and the Administrative Agent
from and against any and all claims, damages, losses, liabilities, costs or
expenses which such Lender or the Administrative Agent may incur (including,
without limitation, any claims, damages, losses, liabilities, costs or expenses
which any Issuing Bank may incur by reason of or in connection with the failure
of any other Lender to fulfill or comply with its obligations to such Issuing
Bank hereunder (but nothing herein contained shall affect any rights the Company
may have against such defaulting Lender)), and none of the Lenders (including an
Issuing Bank) nor the Administrative Agent nor any of their officers or
directors or employees or agents shall be liable or responsible, by reason of or
in connection with the execution and delivery or transfer of or payment or
failure to pay under any Letter of Credit, including without limitation any of
the circumstances enumerated in Section 2.7.4 above, as well as (i) any error,
omission, interruption or delay in transmission or delivery of any messages, by
mail, cable, telegraph, telex or otherwise, (ii) any error in interpretation of
technical terms, (iii) any loss or delay in the transmission of any document
required in order to make a drawing under a Letter of Credit, (iv) any
consequences arising from causes beyond the control of the Issuing Bank,
including without limitation any government acts, or any other circumstances
whatsoever in making or failing to make payment under such Letter of Credit;
provided that the Company shall not be required to indemnify the Issuing Bank
for any claims, damages, losses, liabilities, costs or expenses, and the Company
shall have a claim for direct (but not conse-quential) damage suffered by it, to
the extent found by a court of competent jurisdiction to have been caused by (x)
the willful misconduct or gross negligence of the Issuing Bank in determining
whether a request presented under any Letter of Credit complied with the terms
of such Letter of Credit or (y) the Issuing Bank's failure to pay under any
Letter of Credit after the presentation to it of a request strictly complying
with the terms and conditions of the Letter of Credit. Nothing in this Section
2.7.5 is intended to limit the obligations of any Obligor under any other
provision of this Agreement. To the extent the Company does not indemnify an
Issuing Bank as required by this subsection, the Lenders agree to do so ratably
in accordance with their Commitments.
Page 43
2.7.6. Letter of Credit Fees. The Company shall pay to the
Administrative Agent (i) for the account of the Lenders ratably a letter of
credit fee accruing daily on the aggregate amount then available for drawing
under all Letters of Credit at the LC Fee Rate and (ii) for the account of each
Issuing Bank a Letter of Credit fronting fee accruing daily on the aggregate
amount then available for drawing under all Letters of Credit issued by such
Issuing Bank at a rate per annum as determined from time to time by the Company
and such Issuing Bank. Accrued fees under this Section in respect of each Letter
of Credit shall be payable in the currency in which such Letter of Credit is
denominated quarterly in arrears on each Payment Date and upon the date of
termination of the Commitments in their entirety.
2.7.7. Stop Issuance Notice. If the Required Lenders determine at
any time that the conditions set forth in Section 4.3 would not be satisfied at
such time, then the Required Lenders may request that the Administrative Agent
issue a "Stop Issuance Notice", and the Adminis-trative Agent shall issue such
notice to the Company and to each Issuing Bank. Such Stop Issuance Notice shall
be withdrawn upon a determination by the Required Lenders that the circumstances
giving rise thereto no longer exist. No Letter of Credit shall be issued while a
Stop Issuance Notice is in effect.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. Yield Protection. If, after the date of this Agreement, the
adoption of any law or the application of any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law), or any change therein, or any change in the interpretation or
administration thereof, or the compliance of any Lender therewith,
(i) with respect to Committed Loans bearing interest at a
Fixed Rate, or Letters of Credit, imposes or increases or deems
applicable any reserve, assessment, insurance charge, special deposit
or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any applicable Lending
Installation (other than reserves and assessments taken into account in
determining the interest rate applicable to Committed Advances bearing
interest at a Fixed Rate or for which such Lender is compensated
pursuant to Section 2.5.15), or
Page 44
(ii) with respect to Committed Loans bearing interest at a Fixed
Rate, or Letters of Credit, imposes any other condition,
the result of which is to increase the cost to any Lender or any applicable
Lending Installation of making, funding or maintaining such Loans, or of
issuing, maintaining or participating in Letters of Credit, or reduces any
amount receivable by any Lender or any applicable Lending Installation in
connection therewith, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference to the amount of such
Loans held by it, such Letters of Credit participated in by it or such amounts
received by it, by an amount deemed material by such Lender, then, within 30
days of demand by such Lender, the Borrower shall pay such Lender that portion
of such increased expense incurred or reduction in an amount received which such
Lender reasonably and in good faith determines is attributable to the making,
funding and maintaining of such Loans by it or to issuing, maintaining or
participating in Letters of Credit.
3.2. Changes in Capital Adequacy Regulations. If a Lender
reasonably and in good faith determines that the amount of
capital required or expected to be maintained by such Lender, any Lending
Installation of such Lender or any corporation controlling such Lender
attributable to this Agreement, the Loans or the Letters of Credit or its
obligation to make Loans or to issue or participate in Letters of Credit
hereunder is increased as a result of a Change (as hereafter defined), then,
within 15 days of demand by such Lender, the Company shall pay such Lender the
amount which such Lender reasonably and in good faith determines is necessary to
compensate it for any reduction in the rate of return on capital to an amount
below that which such Lender could have achieved but for such Change and is
attributable to this Agreement, the Loans or the Letters of Credit or its
obligation to make Loans or to issue or participate in Letters of Credit
hereunder, provided, however, that the effect of any Change shall be determined
based on the effect on such Lender that would be applicable to such Lender if
such Lender was maintaining the highest credit quality as determined by the
applicable regulatory authorities at the time of such Change. "Change" means (i)
Page 45
any change after the date of this Agreement in the Risk-Based Capital Guidelines
or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) of general applicability
after the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "Risk-Based Capital Guidelines" means (i)
the risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
3.3. Availability of Types of Advances. If the Required Lenders
reasonably and in good faith determine that (i) deposits of a type and vances
maturity appropriate to match fund Committed Advances bearing interest at a
Fixed Rate are not available or (ii) solely in the case of a Eurocurrency
Committed Advance denominated in an Alternative Currency, the interest
applicable to such Committed Advance does not accurately reflect the funding
cost of such Committed Advance, then the Administrative Agent shall forthwith
give notice thereof to the Company and the Lenders, whereupon until the
Administrative Agent notifies the Company that the circumstances giving rise to
such suspension no longer exist, the obligations of the Lenders to make Fixed CD
Rate Loans or Eurocurrency Loans (in the affected currency), or to convert
outstanding Loans into such Loans or continue outstanding Loans as such Loans
for an additional Interest Period, shall be suspended and (i) any affected
outstanding Committed Advance denominated in Dollars shall be converted into a
Floating Rate Advance on the last day of the then current Interest Period
applicable thereto, (ii) any affected Committed Advance denominated in Dollars
for which a Committed Borrowing Notice has previously been given shall instead
be made as a Floating Rate Advance, unless the Borrower elects not to borrow
such Advance by giving one Business Day's notice to the Administrative Agent to
such effect, (iii) any affected outstanding Committed Advance denominated in an
Alternative Currency shall mature and be due and payable on the last day of the
then current Interest
Page 46
Period applicable thereto and (iv) any affected Eurocurrency Advance denominated
in an Alternative Currency for which a Committed Borrowing Notice or a
Competitive Bid Borrowing Notice has previously been given shall be canceled.
Nothing in this Section 3.3 shall affect any right of the Borrower to borrow or
convert outstanding Loans into Loans of a Type not affected by the circumstances
described above under and in accordance with the other applicable provisions of
this Agreement. If any Lender determines that maintenance of any of its
Eurocurrency Loans would violate any applicable law, rule, regulation or
directive, whether or not having the force of law, then such Lender may by
notice to the Company, through the Administrative Agent, require that such
Eurocurrency Loans be converted to an unaffected Type of Loan on the last day of
the then current Interest Period applicable thereto, if such Lender may lawfully
maintain such Loan to such date, or on such earlier date as such Lender may
require if it is not able lawfully to maintain such Loan to such date.
3.4. Funding Indemnification. If any payment of a Fixed Rate Loan
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or any Fixed Rate Loan
is converted to a Loan of a different Type on a date which is not the last day
of the applicable Interest Period (except pursuant to the last sentence of
Section 3.3), or the Borrower fails to prepay any Fixed Rate Loan after notice
of prepayment has been given in accordance with Section 2.5.3, or a Fixed Rate
Advance is not made, converted or continued on the date specified by the
Borrower for any reason other than default by the Lenders, the Borrower will
indemnify each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain the Fixed Rate Advance.
3.5. Lender Statements; Limit on Retroactivity; Survival of
Indemnity. To the extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its Fixed Rate Loans or Letters
of Credit to reduce any liability of the Borrower or the Company to such Lender
under Section 3.1, 3.2 or 3.6 or to avoid the unavailability of a Type of
Committed Advance under Section 3.3, so long as such designation is not
disadvantageous to such Lender. Each Lender shall deliver a written statement of
such Lender as to the amount due, if any, under Section 3.1, 3.2, 3.3, 3.4 or
3.6. Such written statement shall set forth in reasonable detail the
Page 47
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Fixed Rate Loan shall
be calculated as though each Lender funded its Fixed Rate Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit used
as a reference in determining the Fixed Rate applicable to such Loan, whether in
fact that is the case or not. The Borrower or the Company, as the case may be,
shall only be obligated to compensate any Lender under Section 3.1, 3.2, 3.4 or
3.6 for any amount arising or accruing during (i) any time or period commencing
not more than 90 days prior to the date on which such Lender notifies the
Administrative Agent and the Company that it proposes to demand such
compensation and identifies to the Administrative Agent and the Company the
statute, regulation or other basis upon which the claimed compensation is or
will be based and (ii) any time or period during which, because of the
retroactive application of such statute, regulation or other such basis, such
Lender did not know that such amount would arise or accrue. Unless otherwise
provided herein, the amount specified in the written statement shall be payable
on demand after receipt by the Borrower or the Company, as the case may be, of
the written statement. The obligations of the Obligors under Sections 3.1, 3.2,
3.4 and 3.6 shall survive payment of any other of the Obligations and the
termination of this Agreement.
3.6. Foreign Subsidiary Costs. If any Lender determines reasonably and
in good faith that the cost to such Lender of making or maintaining any Loan to
an Eligible Subsidiary or of issuing, maintaining or participating in any Letter
of Credit for the account of any Eligible Subsidiary is increased, or the amount
of any sum received or receivable by any Lender (or its Lending Installation) is
reduced by an amount deemed by such Lender to be material, by reason of the fact
that such Eligible Subsidiary is incorporated in, or conducts business in, a
jurisdiction outside the United States of America, the Company shall indemnify
such Lender for such increased cost or reduction within 30 days after demand by
such Lender (with a copy to the Administrative Agent). A certificate of such
Lender claiming compensation under this Section 3.6 and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error.
Page 48
3.7. Replacement of Lenders. In the event a Lender (an "Affected
Lender") shall have: (i) failed to either fund its ratable share of any
Committed Advance which such Lender is obligated to fund under the terms of
Section 2.2 or its share of any Competitive Bid Advance which such Lender is
obligated to fund under the terms of Section 2.3, and in either case such
failure has not been cured within five Business Days, (ii) either repudiated its
obligations under this Agreement or failed to reaffirm such obligations in
writing within ten Business Days of a written request therefor from the Company
(with a copy to each Agent), or (iii) made demand for additional amounts
pursuant to Sections 2.5.14, 3.1, 3.2 or 3.6, as a result of any condition
described in any such Section, then, unless such Affected Lender has theretofore
taken steps to remove or cure, and has removed or cured within ten Business
Days, such failure or the conditions creating the cause for such demand for such
additional amounts, as the case may be, the Company may require the Affected
Lender to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in Sections 12.1, 12.2 and 12.3) all its
interests, rights and obligations under this Agreement to a bank designated by
the Company and which is reasonably acceptable to the Agents (such bank being
herein called a "Replacement Lender"); provided, that (i) no such assignment
shall conflict with any law, rule or regulation or order of any state, federal
or local governmental authority, (ii) the Replacement Lender shall pay to the
Affected Lender in immediately available funds on the date of such assignment
the principal of and interest accrued to the date of payment on the Loans made
by it hereunder and all other amounts accrued for its account or owed to it
hereunder (including, without limitation, any amount which would be payable
pursuant to Section 3.4 in connection with a prepayment in full of the Loans of
the Affected Lender on the date of such assignment) and (iii) such Replacement
Lender shall be satisfactory to each Issuing Bank. Each Lender agrees to use its
best efforts to notify the Company as promptly as practicable upon such Lender's
becoming aware that circumstances exist which would cause any Obligor to become
obligated to pay additional amounts to such Lender pursuant to Sections 2.5.14,
3.1, 3.2 or 3.6.
Page 49
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance or Letter of Credit. No Lender shall be
required to make the initial Advance hereunder and no Issuing Bank shall be
obligated to issue (or shall issue) any Letter of Credit unless the Company has
furnished or caused to be furnished to the Documentation Agent:
(i) Copies of (x) the limited partnership agreement of the
Company, together with all amendments thereto, and (y) the Company's
Certificate of Limited Partnership as filed with the Secretary of State
of Delaware, all certified by a Financial Officer or the President of
the Company.
(ii) Copies, certified by a Financial Officer, of the Corporate
General Partner's Certificate of Incorporation, By-Laws and Board of
Directors' resolutions authorizing the execution, delivery and
performance of the Loan Documents on behalf of the Company.
(iii) An incumbency certificate, executed by a Financial Officer,
which shall identify by name and title and bear the signature of the
Financial Officers authorized to sign the Loan Documents and to make
borrowings and request issuance of Letters of Credit hereunder, upon
which certificate the Lenders shall be entitled to rely until informed
of any change in writing by the Company.
(iv) Copies of a long-form certificate of the Secretary of State of
the State of Delaware, dated reasonably near the date hereof, listing
the Certificate of Limited Partnership of the Company and each
amendment, if any, thereto, on file in the office of the Secretary of
State of the State of Delaware and stating that such documents are the
only charter documents of the Company on file in the office of the
Secretary of State of the State of Delaware and that the Company is a
limited partnership in good standing in the State of Delaware.
(v) A written opinion of the Company's special counsel, Kirkland &
Ellis, in substantially the form of Exhibit "B-l" hereto.
(vi) A written opinion of the General Counsel to the Company, Vernon
T. Squires, Esq., in substantially the form of Exhibit "B-2" hereto.
(vii) The Notes of the Company payable to the order of each of the
Lenders.
Page 50
(viii) A certificate, signed by a Financial Officer, (i) stating that
no Default or Unmatured Default has occurred and is continuing and (ii)
setting forth the Pricing Level as at the date of delivery of such
certificate.
(ix) A duly completed Loan/Credit Related Money Transfer
Instruction for the Company in substantially the form of Exhibit "F"
hereto.
(x) A written opinion of Davis Polk & Wardwell, special counsel for
the Agents, in substantially the form of Exhibit "J" hereto.
(xi) Such other documents as the Documentation Agent or its counsel
may have reasonably requested.
The Documentation Agent shall promptly notify the other parties hereto of its
receipt of the foregoing documents.
4.2. Initial Advance or Letter of Credit for each Eligible
Subsidiary. No Lender shall be required to make the initial Advance hereunder to
any Eligible Subsidiary and no Issuing Bank shall be obligated to issue (or
shall issue) the initial Letter of Credit for the account of any Eligible
Subsidiary unless such Eligible Subsidiary has furnished or caused to be
furnished to the Documentation Agent:
(i) The Notes of such Eligible Subsidiary payable to the order of
each Lender.
(ii) An opinion of counsel for such Eligible Subsidiary reasonably
acceptable to the Documentation Agent, substantially in the form of
Exhibit "I" hereto and covering such additional matters relating to the
transactions contemplated hereby as the Documentation Agent or the
Required Lenders may reasonably request.
(iii) All documents which the Documentation Agent may reasonably
request relating to the existence of such Eligible Subsidiary, the
corporate or partnership authority for and the validity of the Election
to Participate of such Eligible Subsidiary, this Agreement and the
Notes of such Eligible Subsidiary, and any other matters relevant
thereto, all in form and substance reasonably satisfactory to the
Documentation Agent.
(iv) A duly completed Loan/Credit Related Money Transfer
Instruction for such Eligible Subsidiary in substantially the form of
Exhibit "F" hereto.
The Documentation Agent shall promptly notify the other parties hereto of its
receipt of the foregoing documents.
Page 51
4.3. Each Advance or Letter of Credit. No Lender shall be required to
make any Advance (including, without limitation, the initial Advance hereunder)
and no Issuing Bank shall be required to issue (or renew or extend the term of)
any Letter of Credit (including, without limitation, the initial Letter of
Credit hereunder), unless on the applicable Borrowing Date or date of issuance:
(i) Prior to and after giving effect to such Advance or
issuance there exists no Default or Unmatured Default.
(ii) The representations and warranties of the Company and (if
other than the Company) the Borrower contained in Articles V and XIV of
this Agreement are true and correct in all material respects as of such
date, other than (x) Sections 5.4, 5.5(a) and 5.6, which
representations and warranties are made only as of the date of this
Agreement and (y) in the case of any Committed Advance which does not
result in an increase in the aggregate Dollar Amount of Committed
Advances at the time outstanding, Sections 5.5(b) and 5.7.
(iii) In the case of any Competitive Bid Advance, the
Company's senior unsecured debt without third-party credit enhancement
is rated at least BBB-(Baa3) by at least one of S&P, Moody's or D&P.
(iv) In the case of any issuance of a Letter of Credit, no
Stop Issuance Notice shall be in effect.
Each borrowing of an Advance and request for issuance of a
Letter of Credit shall constitute a representation and warranty by the Company
and (if other than the Company) the Borrower that the conditions contained in
Section 4.3(i) and (ii) have been satisfied.
Page 52
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Lenders that:
5.1. Organization and Authority.
(a) prior to the Effective Date of the Reorganization, is a
limited partnership duly organized and validly existing under the laws
of the State of Delaware and on and after the Effective Date of the
Reorganization, will be duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation;
(b) has all requisite power and authority and all necessary
licenses and permits to own and operate its properties and to carry on
its business as now conducted;
(c) is duly licensed or qualified and is in good standing as a
foreign limited partnership (to the extent qualification as a foreign
limited partnership is permitted by statute), or, on and after the
Reorganization, as a foreign corporation, in each jurisdiction wherein
the failure to be so qualified would reasonably be expected to have a
Material Adverse Effect; and
(d) does not believe that the inability of the Company to
qualify as a foreign limited partnership in any state in which such
qualification is not permitted by law will have a Material Adverse
Effect.
5.2. Organization and Authority of Subsidiaries.
Each Material Subsidiary:
(a) is a limited partnership, general partnership or
corporation, duly organized, validly existing and, where applicable, in
good standing under the laws of its jurisdiction of incorporation or
the jurisdiction where organized, as the case may be;
(b) has all requisite power and authority and all necessary
licenses and permits to own and operate its properties and to carry on
its business as now conducted; and
(c) is duly licensed or qualified and is in good standing as a
foreign corporation or partnership (to the extent qualification as a
foreign partnership is permitted by statute), as the case may be, in
each jurisdiction wherein the failure to be so qualified would
reasonably be expected to have a Material Adverse Effect.
The Company does not believe that the inability of any Material Subsidiary which
is a partnership to qualify as a foreign partnership in any state in which such
qualification is not permitted by law will have a Material Adverse Effect.
Page 53
5.3. Organization and Authority of Corporate General
Partner. The Corporate General Partner:
(a) is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(b) has all requisite power and authority and all necessary
licenses and permits to own and operate its properties and to carry on
its business as now conducted; and
(c) is duly licensed or qualified and is in good standing as a
foreign corporation in each jurisdiction wherein the failure to be so
qualified would reasonably be expected to have a Material Adverse
Effect.
5.4. Business and Property. The Lenders have each heretofore been
furnished with a copy of the Annual Report of the Parent on Form 10-K for the
fiscal year ended December 31, 1996 (the "Form 10-K"), the Annual Report to
Shareholders of the Parent for the fiscal year ended December 31, 1996 (the
"Annual Report") and the Information Memorandum dated March, 1997 (the
"Information Memorandum") of the Company, which Information Memorandum generally
sets forth the business conducted by the Company and its Subsidiaries and the
principal properties of the Company and its Subsidiaries. The Form 10-K, the
Annual Report, and the Information Memorandum are hereinafter referred to as the
"Disclosure Documents."
5.5. Financial Statements. (a) The consolidated balance sheets of
the Parent and its subsidiaries as of December 31, 1996, and the statements of
income and cash flows for the fiscal year ended on said date accompanied by a
report thereon containing an opinion unqualified as to scope limitations imposed
by the Parent and otherwise without qualification except as therein noted, by
Arthur Andersen LLP, have been prepared in accordance with GAAP consistently
applied except as therein noted, fairly present in all material respects the
financial position of the Company and its Subsidiaries as of such date and the
results of their operations and cash flows for such period.
(b) Since December 31, 1996, no event or condition has occurred which
has had or which would reasonably be expected to have a material adverse effect
on the properties, business, operations or financial condition of the Company
and its Subsidiaries taken as a whole.
Page 54
5.6. Full disclusure. The financial statements referred to in
Section 5.5 do not, nor do the Disclosure Documents or any other written
statement furnished by the Parent or any Obligor to the Agents or the Lenders in
connection with the negotiation of the Loan Documents, contain any untrue
statement of a material fact or omit a material fact necessary to make the
statements contained therein or herein not misleading as of the dates thereof.
There is no fact peculiar to the Company or its Subsidiaries which the Company
has not disclosed to the Lenders in writing which materially affects adversely
nor, so far as the Company can foresee, will materially affect adversely the
properties, business, operations or financial condition of the Company and its
Subsidiaries taken as a whole.
5.7. Pending Litigation. There are no proceedings pending or, to
the knowledge of the Company threatened, against or affecting the Company, any
of its General Partners, its Parent or any Subsidiary in any court or before any
governmental authority or arbitration board or tribunal which would reasonably
be expected to have a Material Adverse Effect. Neither the Company nor any
Subsidiary is in default with respect to any order of any court or governmental
authority or arbitration board or tribunal which would reasonably be expected to
have a Material Adverse Effect.
5.8. Loan Documents are Legal, Valid, Binding and
Authorized. The execution and delivery of the Loan Documents by the Company and
compliance by the Company with all of the provisions of the Loan Documents
(a) are within the power of the Company and have been duly
authorized by proper action on the part of the Company; and
(b) will not violate in any material respect any provisions of
any law or any order of any court or governmental authority or agency
and will not conflict with or result in any breach of any of the terms,
conditions or provisions of, or constitute a default under the limited
partnership agreement of the Company or any indenture or other
agreement or instrument governing Debt or any other material agreement
or instrument to which the Company is a party or by which it may be
bound or result in the imposition of any liens or encumbrances on any
property of the Company.
Page 55
The execution and delivery by the Company of the Loan Documents and the
performance of its obligations thereunder have been duly authorized by proper
corporate and partnership proceedings, and the Loan Documents constitute legal,
valid and binding obligations of the Company enforceable against the Company in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
5.9. Government Consent. No approval, consent or withholding of
objection on the part of any regulatory body, state, Federal or local, is
necessary in connection with the execution, delivery and performance by the
Company of the Loan Documents or compliance by the Company with any of the
provisions of the Loan Documents.
5.10. Taxes. All United States Federal income tax returns and all
other material tax returns required to be filed by the Parent, the Company or
any Subsidiary in any jurisdiction have, in fact, been filed, and all taxes, and
all material assessments, fees and other governmental charges upon the Parent,
the Company or any Subsidiary or upon any of their respective properties, income
or franchises, which are shown to be due and payable in such returns have been
paid. The Company does not know of any proposed additional tax assessment
against the Parent, the Company or any Subsidiary for which adequate provision
has not been made on its accounts. To the best of the Company's knowledge, the
provisions for taxes on the books of the Parent, the Company and each Subsidiary
are adequate for all open years, and for its current fiscal period.
5.11. Employee Retirement Income Security Act of 1974.
The consummation of the transactions provided for in this Agreement
and compliance by the Company with the provisions of the Loan Documents will not
involve any prohibited transaction within the meaning of the ERISA or Section
4975 of the Code. No "employee pension benefit plans", as defined in ERISA
("Plans"), maintained by the Company or any Person which is under common control
with the Company within the meaning of Section 4001(b) of ERISA, nor any trusts
created thereunder, have incurred any "accumulated funding deficiency" as
defined in Section 302 of ERISA. Neither the Company nor, to the best of the
Company's knowledge, any Person which is under common control with the Company,
within the meaning of Section 4001(b) of ERISA, maintains any "qualified defined
benefit plan" as defined in ERISA.
Page 56
5.12. Investment Company Act. Neither the Company nor any
Subsidiary is an "investment company" or an "affiliated person" thereof or an
"affiliated person" of such affiliated person as such terms are defined in the
Investment Company Act of 1940, as amended.
5.13. Compliance with Environmental Laws. Neither the Company nor
any Subsidiary is in violation of any applicable Federal, state, or local Laws
laws, statutes, rules, regulations or ordinances relating to public health,
safety or the environment, including, without limitation, relating to releases,
discharges, emissions or disposals to air, water, land or ground water, to the
withdrawal or use of ground water, to the use, handling or disposal of
polychlorinated biphenyls (PCB's), asbestos or urea formaldehyde, to the
treatment, storage, disposal or management of hazardous substances (including,
without limitation, petroleum, crude oil or any fraction thereof, or other
hydrocarbons), pollutants or contaminants, to exposure to toxic, hazardous or
other controlled, prohibited or regulated substances which violation would
reasonably be expected to have a Material Adverse Effect.
5.14. Regulations U and X. Margin stock (as defined in Regulations U and X)
constitutes less than 25% of those assets of the Company and its Subsidiaries
which are subject to any limitation on sale, pledge, or other restriction
hereunder.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1.1. Information. The Company will deliver to each of the Lenders:
(a) as soon as available and in any event within 120 days
after the end of each fiscal year of the Company, consolidated and
consolidating balance sheets of the Company and its Consolidated
Subsidiaries (subject to Section 6.1.2) as of the end of such fiscal
year and the related consolidated and consolidating statements of
income and cash flows for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, such
consolidated statements to be reported on in a manner which satisfies
the financial reporting requirements of the Securities and Exchange
Commission by a firm of independent public accountants of nationally
recognized standing;
Page 57
(b) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the
Company, the internally prepared consolidated and consolidating balance
sheets of the Company and its Consolidated Subsidiaries (subject to
Section 6.1.2) as of the end of such quarter and the related
consolidated and consolidating statements of income and cash flows for
such quarter and for the portion of the Company's fiscal year ended at
the end of such quarter, setting forth in the case of such statements
of income and cash flows in comparative form the figures for the
corresponding quarter and the corresponding portion of the Company's
previous fiscal year, all certified (subject to normal year-end
adjustments and the absence of footnotes) as to fairness of
presentation, GAAP and consistency by a Financial Officer of the
Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of a
Financial Officer of the Company (i) setting forth in reasonable detail
the calculations required to establish whether the Company was in
compliance with the requirements of Sections 6.10, 6.15 and 6.16 on the
date of such financial statements, (ii) stating whether any Default or
Unmatured Default exists on the date of such certificate and, if any
Default or Unmatured Default then exists, setting forth the details
thereof and the action which the Company is taking or proposes to take
with respect thereto and (iii) setting forth the Interest Coverage
Ratio as at the date of such financial statements and the Pricing Level
as at the date of delivery of such certificate;
(d) promptly upon the mailing thereof to the securityholders
of the Parent generally, copies of all financial statements, reports
and proxy statements so mailed;
(e) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) which the Company or
the Parent shall have filed with the Securities and Exchange
Commission; and
Page 58
(f) from time to time such additional information regarding
the financial position or business of the Company and its Subsidiaries
as the Administrative Agent, at the request of any Lender, may
reasonably request.
6.1.2. Use of Parent Information. If the certificate furnished
pursuant to Section 6.1(c) shall state that (i) the financial on statements of
the Parent and its subsidiaries fairly present in all material respects the
financial condition of the Company and its Consolidated Subsidiaries for the
period in respect of which such certificate shall be given and (ii) the
consolidated revenue of the Company and its Consolidated Subsidiaries
constitutes at least 98% of the consolidated revenues of the Parent and its
subsidiaries and that the combined assets of the Company and its Consolidated
Subsidiaries constitute at least 98% of the consolidated assets of the Parent
and its subsidiaries, then the Company may furnish consolidated financial
statements of the Parent otherwise complying with the requirements of subsection
(a) or (b) above, as applicable, in lieu of the consolidated financial
statements of the Company specified therein. The consolidating financial
statements required by such subsections shall be prepared in substantially the
same format as those set forth in the Information Memorandum.
6.2. Use of Proceeds. The Company will, and will cause each of its
Subsidiaries to, use the proceeds of the Advances for general corporate
purposes, including a distribution by the Company to the Parent in the
approximate amount of $626,000,000 to provide funds to enable the Parent to
repurchase from WMX Technologies, Inc. and its subsidiaries ("WMX") limited
partnership interests in the Parent and options to acquire limited partnership
interests in the Parent held by WMX (the "WMX Repurchase"). The Letters of
Credit will be used for general corporate purposes. The Company will not, nor
will it permit any Subsidiary to, use the proceeds of any Advance or Letter of
Credit in violation of Regulations U and X.
6.3. Notice of Default. Upon the obtaining of actual knowledge thereof
by a Financial Officer, the Company will, and will cause each of its
Subsidiaries to, give prompt notice in writing to the Administrative Agent of
(i) the occurrence of any Default or Unmatured Default and what actions the
Company proposes to take with respect thereto, if any, and (ii) any other
development, financial or otherwise, which would reasonably be expected to have
a material adverse effect on the properties, business, operations or financial
condition of the Company and its Subsidiaries taken as a whole.
Page 59
6.4. Inspection. The Company will, and will cause each Subsidiary to,
permit the Lenders, by their respective representatives and agents, to inspect
any of the properties, corporate books and financial records of the Company and
each Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Company and each Subsidiary, and to discuss the
affairs, finances and accounts of the Company and each Subsidiary with, and to
be advised as to the same by, their respective officers at such reasonable times
and intervals as the Lenders may reasonably designate.
6.5. Legal Existence, Etc. The Company will preserve and keep in force
and effect, and will cause each Material Subsidiary to preserve and keep in
force and effect, its legal existence as a limited partnership, general
partnership or as a corporation, as the case may be, and all licenses and
permits necessary to the proper conduct of its business, provided that the
foregoing shall not prevent (x) any transaction permitted by Section 6.14
(including without limitation the Reorganization), (y) the merger or
consolidation of any Eligible Subsidiary with, or the liquidation of any
Eligible Subsidiary into, any other Eligible Subsidiary or, subject to Section
6.14, the Company or (z) the merger or consolidation of any other Material
Subsidiary with or the liquidation of any other Material Subsidiary into any
other Subsidiary or, subject to Section 6.14, the Company.
6.6. Insurance. The Company will maintain, and will cause each
Subsidiary to maintain, insurance coverage by financially sound and reputable
insurers in such forms and amounts and against such risks as are customary for
companies of similar size and financial strength engaged in the same or similar
business activities and owning and operating similar properties.
6.7. Taxes, Claims for Labor and Materials, Compliance with Laws.
The Company will promptly pay and discharge, and will cause each Subsidiary
promptly to pay and discharge all material lawful taxes, assessments and
governmental charges or levies imposed upon the Company or such Subsidiary,
respectively, or upon or in respect of all or any material part of the property
or business of the Company or such Subsidiary, all trade accounts payable in
accordance with usual and customary business terms, and all claims for work,
labor or materials, which if unpaid might become a lien or charge upon any
material property of the Company or such Subsidiary, provided the Company or
Page 60
such Subsidiary shall not be required to pay any such tax, assessment, charge,
levy, account payable or claim if (i) the validity, applicability or amount
thereof is being contested in good faith by appropriate actions or proceedings
which will prevent the forfeiture or sale of any material property of the
Company or such Subsidiary or any material interference with the use thereof by
the Company or such Subsidiary, and (ii) the Company or such Subsidiary shall
set aside on its books, reserves deemed by it to be adequate with respect
thereto. The Company will promptly comply, and will cause each Subsidiary to
comply, in all material respects with all laws, ordinances or governmental rules
and regulations to which it is subject, including without limitation, ERISA, the
Occupational Safety and Health Act of 1970, Federal Insecticide, Fungicide and
Rodenticide Act and Federal Environmental Pesticide Control Act of 1972 and all
laws, ordinances, governmental rules and regulations relating to environmental
protection in all applicable jurisdictions, the violation of which would
reasonably be expected to have a Material Adverse Effect.
6.8. Maintenance, Etc. The Company will maintain, preserve and keep,
and will cause each Subsidiary to maintain, preserve and keep, its properties
which are used in the conduct of its business (whether owned in fee or a
leasehold interest) in good repair and working order and from time to time will
make all necessary repairs, replacements, renewals and additions so that at all
times (in the Company's reasonable judgment) the efficiency thereof shall be
maintained, except where the failure to do so would not reasonably be expected
to have a Material Adverse Effect.
6.9. Nature of Business. Neither the Company nor any Subsidiary will
engage in any business if, as a result, the general nature of the business,
taken on a consolidated basis, which would then be engaged in by the Company and
its Subsidiaries would be substantially changed from the general nature of the
business engaged in by the Company and its Subsidiaries and described in the
Annual Report.
Page 61
6.10. Restricted Payments. The Company will not make any Restricted
Payment if at the time of such Restricted Payment and after the giving effect
thereto a Default shall have occurred and be continuing. In addition, the
Company will not make any Restricted Payment if after giving effect thereto the
aggregate amount of Restricted Payments made during the period from and after
April 1, 1995 to and including the date of the making of the Restricted Payment
in question would exceed the sum of (i) Consolidated Net Income for such period,
computed on a cumulative basis for such entire period, (ii) the net proceeds
(whether cash or other property, and in the case of other property, at a value
determined by the Company reasonably and in good faith) to the Company from the
issue or sale of Equity Interests in the Company or the Parent on or after April
1, 1995 and (iii) $100,000,000.
For the purposes of this Section 6.10 the amount of any
Restricted Payment declared, paid or distributed in property of the Company
shall be deemed to be the greater of the book value or fair market value (as
determined in good faith by the Board of Directors) of such property at the time
of the making of the Restricted Payment in question.
6.11. Payment of Dividends by Subsidiaries. The Company will
not and will not permit any Subsidiary to enter into any agreement which
restricts the ability of any Subsidiary to declare any dividend or to make any
distribution on any Equity Interest of such Subsidiary, other than the
restrictions set forth in Schedule 6.11.
6.12. Transactions with Affiliates. The Company will not, and
will not permit any Subsidiary to, enter into or be a party to, any tes.
material transaction or arrangement with any Affiliate (including without
limitation, the purchase from, sale to or exchange of property with, or the
rendering of any service by or for, any Affiliate), except in the ordinary
course of and pursuant to the reasonable requirements of the Company's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than would reasonably be expected to be obtained
in a comparable arm's-length transaction with a Person other than an Affiliate;
provided that the foregoing shall not prevent the transactions described in the
Proxy Statement relating to the Reorganization. For the purposes of this Section
6.12, the incurrence of Debt which is payable to the Parent or the Surviving
Parent shall not be prohibited so long as such Debt is permitted pursuant to
Section 6.15 and shall have terms which are comparable to the terms which would
reasonably be expected to be obtained in an arm's-length transaction with a
Person other than an Affiliate. It is understood that the relationship between
the Company and the Corporate General Partner established by the Company's
agreement of limited partnership, and the performance of such agreement by the
parties thereto, do not contravene this Section 6.12.
Page 62
6.13. Negative Pledge. Neither the Company nor any Subsidiary will
create, assume or suffer to exist any Lien on any asset now owned or hereafter
acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement;
(b) any Lien existing on any asset of any corporation or other
entity at the time such corporation or other entity becomes a
Subsidiary and not created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of acquiring
such asset, provided that such Lien attaches to such asset concurrently
with or within 90 days after the acquisition thereof;
(d) any Lien on any asset of any corporation or other entity
existing at the time such corporation or other entity is merged or
consolidated with or into the Company or a Subsidiary and not created
in contemplation of such event, provided that such Lien does not extend
to any additional assets;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Company or a Subsidiary and not created in contemplation
of such acquisition;
(f) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing clauses of this Section, provided that such Debt is
not increased and is not secured by any additional assets;
(g) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Company in accordance with
GAAP;
(h) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business that are not overdue for a period of more than 30 days or that
are being contested in good faith and by appropriate proceedings and
Liens securing judgments but only to the extent for an amount and for a
period not resulting in a Default under Section 7.6 hereof;
Page 63
(i) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(j) deposits to secure the performance of bids, trade
contracts (other than for Debt or Derivatives Obligations), leases,
statutory obligations, surety bonds, appeal bonds with respect to
judgments not exceeding $25,000,000, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(k) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of property or minor imperfections in title
thereto that, in the aggregate, are not material in amount, and that do
not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business
of the Company and its Subsidiaries;
(l) other Liens arising in the ordinary course of its business
which (i) do not secure Debt or Derivatives Obligations, (ii) do not
secure any obligation in an amount exceeding $25,000,000 and (iii) do
not in the aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its business;
(m) Liens arising from receivables financings accounted for as
sales under generally accepted accounting principles; provided that the
aggregate unrecovered investment of the purchasers shall at no time
exceed $100,000,000 (plus accrued interest);
(n) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed $10,000,000;
and
(o) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt in an aggregate principal or face amount at
any date not to exceed $25,000,000.
Page 64
6.14. Consolidations, Mergers and Sales of Assets.
(a) The Company will not (i) consolidate or merge with or into any other
Person or (ii) sell, lease or otherwise transfer all or substantially all of its
assets to any other Person, provided that the foregoing provisions of this
Section 6.14 shall not preclude (w) consummation of the Reorganization, (x) the
liquidation of the Surviving Company into the Surviving Parent, (y) any merger
or consolidation to which the Company is a party or (z) with the prior written
consent of the Required Lenders, the sale or other transfer of all or
substantially all of the assets of the Company so long as, in the case of each
of (w), (x), (y) and (z), (i) at the time the Surviving Company, in the case of
the Reorganization, the Surviving Parent, in the case of a liquidation of the
Surviving Company into it, the surviving entity, in the case of a merger or
consolidation, or the transferee, in the case of a sale of all or substantially
all of the assets of the Company, is organized under the laws of the United
States of America or a state thereof and (except in the case of a merger in
which the Company is the surviving entity) expressly assumes all obligations of
the Company under the Loan Documents pursuant to an instrument in form and
substance reasonably satisfactory to the Required Lenders and (ii) after giving
effect thereto, no Default or Unmatured Default shall have occurred and be
continuing.
(b) The Company will not sell, lease or otherwise transfer,
directly or indirectly, in any period of four consecutive fiscal quarters assets
having an aggregate net book value greater than 20% of the consolidated total
assets of the Company and its Subsidiaries at the commencement of such period;
provided that this subsection (b) shall not apply to sale or other disposition
in the ordinary course of business of inventory or obsolete equipment.
6.15. Leverage Test. Consolidated Debt shall at no time exceed the
Debt Limit.
6.16. Subsidiary Debt Limitation. The aggregate Debt of Subsidiaries,
exclusive of (i) Debt under this Agreement and the 364-Day Agreement and (ii)
Debt owing to the Company or a Subsidiary, shall at no time exceed 20% of the
Debt Limit.
Page 65
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events
shall constitute a Default:
7.1. Any representation or warranty made or deemed made under Article IV by
any Obligor to the Lenders or the Administrative Agent under or in connection
with this Agreement or any certificate or other document delivered in connection
with this Agreement or any other Loan Document shall be materially false on the
date as of which made or deemed made.
7.2 Nonpayment of principal of any Note or any Letter of Credit Liability
when due, or nonpayment of interest upon any Note or of any facility fee or
letter of credit fee or other obligations under any of the Loan Documents within
five days after the same becomes due.
7.3 The breach by the Company of any of the terms or provisions of Sections
6.10 through 6.16.
7.4 The breach by the Company (other than a breach which constitutes a
Default under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of this
Agreement which is not remedied within thirty days after the earlier of (a) any
Financial Officer of the Company having knowledge of such breach or (b) written
notice from the Administrative Agent or any Lender.
7.5 Default by the Company or any Subsidiary in the payment of the
principal of or interest on any Debt and/or Derivatives Obligations in an
aggregate amount of $25,000,000 or more, as and when the same shall become due
and payable by the lapse of time, by declaration, by call for redemption or
otherwise, and such default shall continue beyond the period of grace, if any,
allowed with respect thereto.
7.6 Default or the happening of any event shall occur under any indenture,
agreement, or other instrument under which any Material Commitment is made or
any Debt of the Company or any Subsidiary in an aggregate amount of $25,000,000
or more is outstanding and such default or event shall continue for a period of
time sufficient to permit the acceleration of the maturity of any Debt of the
Company or any Subsidiary outstanding thereunder or to permit termination of any
Material Commitment, provided any such default which exists solely on account of
the Reorganization shall not constitute a Default or Unmatured Default under
this Section 7.6 once such default shall have been waived by the holders of such
Debt or the makers of such Material Commitment.
Page 66
7.7 The Corporate General Partner shall withdraw from the Company (except
in connection with the Reorganization) and no successor Corporate General
Partner shall have been elected prior thereto or substantially simultaneously
therewith in accordance with Section 12.1 of the limited partnership agreement
of the Company.
7.8 A custodian, trustee or receiver is appointed for the Company, the
Corporate General Partner or any Material Subsidiary or for the major part of
the property of any of the foregoing and is not discharged within 30 days after
such appointment.
7.9 Final judgment or judgments for the payment of money aggregating in
excess of $25,000,000 is or are outstanding against the Company or any
Subsidiary and such judgments have remained unpaid, unvacated, unbonded or
unstayed by appeal or otherwise for a period of 30 days.
7.10 The Company, the Corporate General Partner or any Material Subsidiary
becomes insolvent or bankrupt, is generally not paying its debts as they become
due or makes an assignment for the benefit of creditors, or the Company, the
Corporate General Partner or any Material Subsidiary causes or suffers an order
for relief to be entered with respect to it under applicable Federal bankruptcy
law or applies for or consents to the appointment of a custodian, trustee or
receiver for the Company, the Corporate General Partner or such Material
Subsidiary or for the major part of the property of any of the foregoing.
7.11 Bankruptcy, reorganization, arrangement or insolvency proceedings, or
other proceedings for relief under any bankruptcy or similar law or laws for the
relief of debtors, are instituted by or against the Company, the Corporate
General Partner or any Material Subsidiary, and, if instituted against the
Company, the Corporate General Partner or any Material Subsidiary, are consented
to or are not dismissed within 60 days after such institution.
7.12 Any Change of Control shall occur.
7.13.The Guaranty of the Company under Article XV shall cease to be in full
force and effect or the Company shall contest in any manner the validity,
binding nature or enforceability of Article XV, in either case at a time when
any Loans are outstanding hereunder to an Eligible Subsidiary.
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ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. (a) If any Default described in Section 7.8, 7.10
or 7.11 occurs with respect to the Company, the obligations of the Lenders to
make Loans hereunder and of the Issuing Banks to issue Letters of Credit
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without presentment, demand, protest or notice of any
kind (all of which the Company hereby expressly waives) or any other election or
action on the part of the Administrative Agent or any Lender. If any other
Default occurs, the Required Lenders may terminate or suspend the obligations of
the Lenders to make Loans hereunder and of the Issuing Banks to issue Letters of
Credit hereunder, or declare the Obligations to be due and payable, or both, in
either case upon written notice to the Company, whereupon the Obligations shall
become immediately due and payable, without presentment, demand, protest or
further notice of any kind, all of which each Obligor hereby expressly waives.
(b) Each Borrower agrees, in addition to the provisions of Section
8.1(a) hereof, that upon the occurrence and during the continuance of any
Default, it shall, if requested by the Administrative Agent upon the instruction
of the Required Lenders, pay to the Administrative Agent an amount in
immediately available funds (which funds shall be held as collateral pursuant to
arrangements satisfactory to the Administrative Agent) equal to the respective
aggregate amounts of Dollars and Alternative Currencies available for drawing
under all outstanding Letters of Credit issued for the account of such Borrower,
provided that, upon the occurrence of any Event of Default specified in Section
7.10 or 7.11 with respect to such Borrower, such Borrower shall pay such amount
forthwith without any notice or demand or any other act by any Agent or Lender
(including any Issuing Bank).
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8.2. Amendments. Subject to the provisions of this Article VIII, the
Loan Documents may be amended to add or modify any provisions thereof or change
in any manner the rights of the Lenders or the Obligors thereunder or waive any
Default thereunder, but only in a writing signed by the Required Lenders (or the
Documentation Agent with the consent in writing of the Required Lenders) and the
Company (and, if the rights of any Issuing Bank are affected thereby, it);
provided, however, that no such supplemental agreement shall, without the
consent of each Lender affected thereby:
(i) Postpone the date fixed for payment of any Loan or Note or
amount to be reimbursed in respect of any Letter of Credit or
reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon or fees under
Section 2.4. or 2.7.
(ii) Change the percentage of the Commitments or the aggregate
unpaid principal amount, or the number of Lenders, which shall
be required for the Lenders or any of them to take any action
under this Section 8.2 or any other provision (including any
definition) of this Agreement.
(iii)Extend the Termination Date or increase the amount of the Commitment of any
Lender hereunder, or permit any Borrower to assign its rights or
obligations under this Agreement except in connection with the
Reorganization and in compliance with the terms of Section 6.5 and 6.14.
(iv) Amend Section 2.5.13(a), Section 8.1 or this Section 8.2.
(v) Release the Company from its obligations under Article XV.
No amendment of any provision of this Agreement relating to either Agent shall
be effective without the written consent of such Agent. The Administrative Agent
may waive payment of the fee required under Section 12.3.2 without obtaining the
consent of any of the Lenders. No amendment shall, unless signed by an Eligible
Subsidiary, (w) subject such Eligible Subsidiary to any additional obligation,
(x) increase the principal of or rate of interest on any outstanding Loan of
such Eligible Subsidiary, (y) accelerate the stated maturity of any outstanding
Loan of such Eligible Subsidiary or (z) change this proviso.
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8.3. Preservation of Rights. No delay or omission of any Lender or
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.2, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agents and the Lenders until the Obligations have been paid in
full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties
of the Obligors contained in this Agreement shall survive (i) delivery of the
Notes (ii) the making of the Loans and (iii) issuance of the Letters of Credit
herein contemplated.
9.2. Headings. Section headings in the Loan Documents are for
convenience of reference only,
and shall not govern the interpretation of any of the provisions of the Loan
Documents.
9.3. Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Obligors, the Agents and the Lenders and supersede
all prior agreements and understandings among the Obligors, the Agents and the
Lenders relating to the subject matter thereof except as contemplated in Section
10.12.
9.4. Several Obligations. The respective obligations of the Lenders
hereunder are several and not joint and no Lender shall be the partner or agent
of any other (except to the extent to which either Agent is authorized to act as
such). The failure of any Lender to perform any of its obligations hereunder
shall not relieve any other Lender from any of its obligations hereunder. No
Lender shall have any liability for the failure of any other Lender to perform
its obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns.
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9.5. Expenses; Indemnification. (a) The Company shall reimburse (i)
the Agents for any reasonable costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' fees of Davis Polk & Wardwell, special counsel
for the Agents) paid or incurred by either Agent in connection with the
preparation, review, execution, delivery, amendment, modification and
administration of the Loan Document and (ii) the Agents and the Lenders for any
reasonable costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and allocated costs of inside counsel for the Agents
and the Lenders) paid or incurred by either Agent or any Lender in connection
with the collection and enforcement of the Loan Documents, any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or any insolvency or bankruptcy proceedings in respect of
any Obligor.
(b) The Company further agrees to indemnify each Agent and
each Lender, their respective affiliates, and the respective directors,
officers, employees and agents of the foregoing, against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
the Agent or any Lender is a party thereto) (collectively, the "Indemnified
Amounts") which any of them may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the Letters of Credit, the transactions
contemplated hereby or the direct or indirect application or proposed
application of the proceeds of any Loan or Letter of Credit hereunder; provided
that it is understood that the Company shall not, in respect of the legal
expenses of the Lenders in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Lenders designated by
the Agents (except if and to the extent that, owing to existing or potential
conflicts of interest among them, such counsel shall advise that representation
of all Lenders by a single firm would not be appropriate); and provided,
further, that the Company shall not be liable to any Lender for any Indemnified
Amounts (x) resulting from the gross negligence or willful misconduct of such
Lender, its affiliates or any of their respective officers, directors, employees
Page 71
and agents or (y) constituting the costs and expenses of prosecuting a suit or
proceeding commenced by such Lender which is finally determined adversely to
such Lender (any counterclaim asserted against such Lender being treated as a
separate proceeding for this purpose). The obligations of the Company under this
Section 9.5 shall survive the termination of this Agreement.
9.6. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agents may furnish one to each of the Lenders.
9.7. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.8. Nonliability of Lenders. The relationship between the Obligors
and the Lenders and the Agents shall be solely that of debtor and creditor.
Neither Agent nor any Lender shall have any fiduciary responsibilities to any
Obligor. Neither Agent nor any Lender undertakes any responsibility to any
Obligor to review or inform any Obligor of any matter in connection with any
phase of its business or operations.
9.9. Choice of Law. THE LOAN DOCUMENTS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF
THE STATE OF NEW YORK.
9.10. Consent to Jurisdiction. EACH OBLIGOR HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK CITY IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND
EACH OBLIGOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES TO THE EXTENT ALLOWED BY LAW ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE
AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT
OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE
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RIGHT OF EITHER AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST ANY OBLIGOR IN
THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY OBLIGOR
AGAINST EITHER AGENT OR ANY LENDER OR ANY AFFILIATE OF EITHER AGENT OR ANY
LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT
IN NEW YORK CITY, UNLESS SUCH OBLIGOR IS UNABLE TO OBTAIN SUCH JURISDICTION.
9.11. Waiver of Jury Trial. EACH OBLIGOR, AGENT AND LENDER HEREBY
WAIVES TO THE EXTENT ALLOWED BY LAW TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
9.12. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Parent, the Company or any of its
Subsidiaries pursuant to this Agreement in confidence, except for disclosure (i)
to other Lenders and their respective Affiliates, (ii) to legal counsel,
accountants, and other professional advisors to that Lender, (iii) to regulatory
officials upon their request or otherwise pursuant to law or regulation, (iv) as
requested pursuant to or as required by law, regulation, or legal process, (v)
in connection with any legal proceeding to which that Lender is a party, and
(vi) permitted by Section 12.4. The restrictions in this Section 9.12 shall not
apply to any information which is or becomes generally available to the public
other than as a result of disclosure by a Lender or a Lender's representatives.
ARTICLE X
THE AGENTS
10.1. Appointment. First Chicago and Morgan are hereby appointed
Administrative Agent and Documentation Agent, respectively, hereunder and under
each other Loan Document, and each of the Lenders irrevocably authorizes each
such Agent to act as the contractual representative of such Lender. Each such
Agent agrees to act as such upon the express conditions contained in this
Article X. Neither Agent shall have a fiduciary relationship in respect of any
Lender by reason of this Agreement.
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10.2. Powers. Each Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to such Agent by the terms
thereof, together with such powers as are reasonably incidental thereto. Neither
Agent shall have any implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by such Agent.
10.3. General Immunity. Neither Agent nor any of its affiliates nor
any of their respective directors, officers, agents or employees shall be liable
to any Obligor or any Lender for any action taken or omitted to be taken by it
or them in their respective agency capacities under or in connection with this
Agreement except for its own gross negligence or willful misconduct.
10.4. No Responsibility for Loans, Recitals, etc. Neither Agent nor
any of its affiliates nor any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (i) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (ii) the performance or observance
of any of the covenants or agreements of any Obligor under any Loan Document;
(iii) the satisfaction of any condition specified in Article IV, except receipt
of items required to be delivered to such Agent; or (iv) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith, except for the authority of such
Agent's signatory to this Agreement.
10.5. Action on Instructions fo Lenders. Each Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder s and
under any other Loan Document in accordance with written instructions signed by
the Required Lenders (or, where so specified herein, all the Lenders), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all holders of Notes. Each Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first be indemnified to its satisfaction
by the Lenders pro rata against any and all liability, cost and expense that it
may incur by reason of taking or continuing to take any such action, provided
that, such indemnity need not include liability, costs and expenses arising
solely from the gross negligence or willful misconduct of the Agent.
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10.6. Employment of Agents and Counsel. Each Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Each Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. Each Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected in good faith by such Agent,
which counsel may be employees of such Agent or may be counsel for an Obligor.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify each Agent ratably in proportion to their respective
Commitments (i) for any amounts not reimbursed by the Company for which such
Agent is entitled to reimbursement by the Company under the Loan Documents, (ii)
for any other expenses not reimbursed by the Company incurred by such Agent on
behalf of the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever and not
reimbursed by the Company which may be imposed on, incurred by or asserted
against such Agent in any way relating to or arising out of the Loan Documents
or any other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of any
such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of such Agent.
10.9. Rights as a Lender. With respect to its
Commitment, Loans made by it, the Notes issued to it and
any Letter of Credit issued by it, each Agent shall have the same rights and
powers hereunder and under any other Loan Document as any Lender and may
exercise the same as though it were not an Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include each Agent in
its individual capacity. Each Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Company or any of its Subsidiaries.
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10.10. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon either Agent or any other Lender and
based on the financial statements submitted by the Company and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan Documents.
Each Lender also acknowledges that it will, independently and without reliance
upon either Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Loan Documents.
10.11. Successor Agent. Each Agent may resign at any time by giving at
least 30 days' prior written notice thereof to the Lenders and the Company and
such resignation shall be effective upon the appointment of a successor agent.
Upon any such resignation, the Company, with the approval of the Required
Lenders, shall have the right to appoint a successor Agent. If no successor
Agent shall have been so appointed and approved and shall have accepted such
appointment within thirty days after the retiring Agent's giving notice of
resignation, then the retiring Agent may appoint a successor Agent. Such
successor Agent shall be a commercial bank with an office located in the United
States of America having capital and retained earnings of at least
$1,000,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent.
The retiring Agent shall be discharged from its duties and obligations hereunder
and under the other Loan Documents upon the effectiveness of its resignation
hereunder. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article X shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as Agent
hereunder and under the other Loan Documents.
10.12. Agents' Fees. The Company hereby agrees to pay to each Agent
for its sole account such fees as heretofore agreed upon by the Company and such
Agent in writing.
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ARTICLE XI
SETOFF RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if any Obligor becomes insolvent, however
evidenced, or any Default occurs, any indebtedness from any Lender to any
Obligor (including all account balances, whether provisional or final and
whether or not collected or available) may be offset and applied toward the
payment of the Obligations owing by such Obligor to such Lender, whether or not
such Obligations, or any part hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its share of any Advance (other than payments received
pursuant to Article III) or any Letter of Credit Liabilities in a greater
proportion than that received by any other Lender, such Lender agrees, promptly
upon demand, to purchase a portion of the Loans comprising that Advance, or
Letter of Credit Liabilities, as the case may be, held by the other Lenders so
that after such purchase each Lender will hold its ratable proportion of the
unpaid Loans comprising that Advance, or unpaid Letter of Credit Liabilities, as
the case may be. If any Lender, whether in connection with setoff or amounts
which might be subject to setoff or otherwise, receives collateral or other
protection for its Obligations or such amounts which may be subject to setoff,
such Lender agrees, promptly upon demand, to take such action necessary such
that all Lenders share in the benefits of such collateral ratably in the
proportions specified above. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made.
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ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Obligors, the
Agents and the Lenders and their respective successors and assigns, except that
(i) no Obligor shall have the right to assign its rights or obligations under
the Loan Documents (except in a transaction expressly permitted by Section 6.5
or 6.14(a)) and (ii) any assignment by any Lender must be made in compliance
with Section 12.3. Notwithstanding clause (ii) of this Section, any Lender may
at any time, without the consent of any Obligor or either Agent, assign all or
any portion of its rights under this Agreement and its Notes to a Federal
Reserve Bank; provided, however, that no such assignment shall release the
transferor Lender from its obligations hereunder. Each Agent may treat the payee
of any Note as the owner thereof for all purposes hereof unless and until such
payee complies with Section 12.3 in the case of an assignment thereof or, in the
case of any other transfer, a written notice of the transfer is filed with each
Agent. Any assignee or transferee of a Note agrees by acceptance thereof to be
bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the holder of any Note, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Note or of
any Note or Notes issued in exchange therefor.
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12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Note held by such Lender, the
Commitment of such Lender, any Letter of Credit Liabilities of such Lender) or
any other interest of such Lender under the Loan Documents; provided, however,
that, except in the case of (i) a sale of a participation in a Competitive Bid
Loan or (ii) a sale of a participation to any other Lender), such participations
shall require the consent of the Company and shall each be in a minimum amount
of $5,000,000. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the holder of any such Note for all purposes under the Loan Documents, all
amounts payable by the Obligors under this Agreement shall be determined as if
such Lender had not sold such participating interests, and the Obligors, the
Issuing Banks and the Agents shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under the
Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan, Letter of Credit Liabilities or
Commitment in which such Participant has an interest which forgives principal,
interest or fees or reduces the interest rate or fees payable with respect to
any such Loan, Letter of Credit Liabilities or Commitment, postpones any date
fixed for any regularly-scheduled payment of principal of, or interest or fees
on, any such Loan, Letter of Credit Liabilities or Commitment, releases any
guarantor of any such Loan or Letter of Credit Liabilities, if any, or releases
any substantial portion of collateral, if any, securing any such Loan or Letter
of Credit Liabilities.
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12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the ordinary course
of its business and in accordance with applicable law, at any time assign to one
or more banks or other entities ("Purchasers") all or a portion (if such
Purchaser is not a Lender immediately prior to such assignment, in a minimum
amount of $10,000,000) of its rights and obligations under the Loan Documents.
Such assignment shall be substantially in the form of Exhibit "E" hereto. The
consent of the Company, the Issuing Banks and the Agents shall be required prior
to an assignment becoming effective with respect to a Purchaser which is not
both a financial institution and an affiliate of the transferor. Such consents
shall be given in substantially the form attached as Exhibit "II" to Exhibit "E"
hereto.
12.3.2. Effect; Effective Date. Upon (i) delivery to the Company, the
Issuing Banks and the Agents of a notice of assignment, substantially in the
form attached as Exhibit "I" to Exhibit "E" hereto (a "Notice of Assignment"),
together with any consent required by Section 12.3.1, and (ii) payment of a
$3,500 fee to the Administrative Agent by the assignee or assignor Lender for
processing such assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment. On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document executed by the
Lenders and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Obligors, the Issuing Banks, the other Lenders
or the Agents shall be required to release the transferor Lender with respect to
the percentage of the Aggregate Commitment and Loans assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
12.3.2, the transferor Lender, the Agents and the Obligors shall make
appropriate arrangements so that replacement Notes are issued to such transferor
Lender and new Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their respective
Commitments, as adjusted pursuant to such assignment.
12.4. Dissemination of Information. The Obligors authorize each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Company and its Subsidiaries; provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.12 of this Agreement.
Page 80
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Purchaser which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Purchaser, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 2.5.14.
12.6. Increased Costs. Subject to the applicable limitations set forth
therein and to the further provisions of this Section 12.6, each Transferee
shall be entitled to the benefits of Section 2.5.14 and 2.5.15 and Article III
with respect to the rights transferred to it to the same extent as a Lender. No
Transferee (including, for purposes of this Section 12.6, any successor Lending
Installation) of any Lender's rights shall be entitled to receive any greater
payment under Section 2.5.14 or Article III than such Lender would have been
entitled to receive with respect to the rights transferred, unless such transfer
is made with the Company's prior written consent or by reason of the provisions
of Section 3.4 requiring such Lender to designate a different Lending
Installation under certain circumstances or at a time when the circumstances
giving rise to such greater payment did not exist.
ARTICLE XIII
NOTICES
13.1. Giving Notice. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing (including telex or facsimile) and addressed or delivered to such party:
(a) in the case of the Company or either Agent, at its address, facsimile number
or telex number set forth on the signature pages hereof, (b) in the case of any
Lender, at its address, facsimile number or telex number set forth in its
Administrative Questionnaire, (c) in the case of any Eligible Subsidiary, to it
care of the Company and (d) in the case of any party, such other address,
facsimile number or telex number as such party may hereafter specify for the
purpose by notice to the Agents and the Company. All such notices shall be
effective when received at the address specified above.
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ARTICLE XIV
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
Each Eligible Subsidiary shall be deemed by the execution and
delivery of its Election to Participate to have represented and warranted that:
14.1. Existence and Power. It is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization and is a
Subsidiary of the Company.
14.2. Corporate or Partnership and Governmental Authorization;
Contravention. The execution and delivery by it of its Election to Participate
and its Notes, and the performance by it of this Agreement and its Notes, are
within its legal powers, have been duly authorized by all necessary corporate,
partnership or other legal action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not contravene, or
constitute a default under, in any material respect any provision of applicable
law or regulation or of its organizational documents or of any indenture or
other agreement or instrument governing Debt or any other material agreement or
instrument binding upon the Company or such Eligible Subsidiary or result in the
creation or imposition of any liens or encumbrances on any asset of the Company
or any of its Subsidiaries.
14.3. Binding Effect. This Agreement constitutes a legal, valid and binding
agreement of such Eligible Subsidiary and each of its Notes, when executed and
delivered in accordance with this Agreement, will constitute a legal, valid and
binding obligation of such Eligible Subsidiary, in each case enforceable in
accordance with its terms except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally.
14.4. Taxes. Except as disclosed in such Election to Participate, there is
no income, stamp or other tax of any country, or any taxing authority thereof or
therein, imposed by or in the nature of withholding or otherwise, which is
imposed on any payment to be made by such Eligible Subsidiary pursuant hereto or
on its Notes, or is imposed on or by virtue of the execution, delivery or
enforcement of its Election to Participate or of its Notes.
Page 82
ARTICLE XV
GUARANTY
15.1. The Guaranty. The Company hereby unconditionally guarantees the full
and punctual payment (whether at stated maturity, upon acceleration or
otherwise) of the principal of and interest on each Note issued by any Eligible
Subsidiary pursuant to this Agreement, and the full and punctual payment of all
other amounts payable (including, without limitation, the Letter of Credit
Liabilities) by any Eligible Subsidiary under this Agreement. Upon failure by
any Eligible Subsidiary to pay punctually any such amount, the Company shall
forthwith on demand pay the amount not so paid at the place and in the manner
specified in this Agreement.
15.2. Guaranty Unconditional. The obligations of the Company hereunder
shall be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of any Eligible Subsidiary under
this Agreement or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of any Eligible
Subsidiary under this Agreement or any Note;
(iv) any change in the corporate existence, structure or ownership
of any Eligible Subsidiary, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any Eligible
Subsidiary or its assets or any resulting release or discharge of any
obligation of any Eligible Subsidiary contained in this Agreement or
any Note;
Page 83
(v) the existence of any claim, set-off or other rights which
the Company may have at any time against any Eligible Subsidiary,
either Agent, any Issuing Bank, any other Lender or any other Person,
whether in connection herewith or any unrelated transactions, provided
that nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against any
Eligible Subsidiary for any reason of this Agreement or any Note, or
any provision of applicable law or regulation purporting to prohibit
the payment by any Eligible Subsidiary of the principal of or interest
on any Note or any other amount payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by any
Eligible Subsidiary, either Agent, any Issuing Bank or any other Person
or any other circumstance whatsoever which might, but for the
provisions of this paragraph, constitute a legal or equitable discharge
of or defense to the Company's obligations hereunder.
15.3. Discharge Only Upon Payment In Full; Reinstatement In
Certain Cercumstances. The Company's obligations hereunder shall remain in full
force and effect until the Commitments shall have terminated, any outstanding
Letters of Credit shall have expired or terminated and the principal of and
interest on the Notes and the Letter of Credit Liabilities and all other amounts
payable by the Company and each Eligible Subsidiary under this Agreement shall
have been paid in full. If at any time any payment of principal of or interest
on any Note or Letter of Credit Liabilities or any other amount payable by any
Eligible Subsidiary under this Agreement is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of any
Eligible Subsidiary or otherwise, the Company's obligations hereunder with
respect to such payment shall be reinstated at such time as though such payment
had been due but not made at such time.
15.4. Waiver by the Company. The Company irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action be taken by any Person
against any Eligible Subsidiary or any other Person.
Page 84
15.5. Subrogation. Upon making any payment with respect to any Eligible
Subsidiary hereunder, the Company shall be subrogated to the rights of the payee
against such Eligible Subsidiary with respect to such payment; provided that the
Company shall not enforce any payment by way of subrogation until all amounts of
principal of and interest on the Notes and Letter of Credit Liabilities and all
other amounts payable by such Eligible Subsidiary under this Agreement have been
paid in full.
15.6. Stay of Acceleration. In the event that acceleration of the time for
payment of any amount payable by any Eligible Subsidiary under this Agreement or
its Notes is stayed upon insolvency, bankruptcy or reorganization of such
Eligible Subsidiary, all such amounts otherwise subject to acceleration under
the terms of this Agreement shall nonetheless be payable by the Company
hereunder forthwith on demand by the Required Lenders.
ARTICLE XVI
COUNTERPARTS; EFFECTIVENESS
This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one agreement, and any of the
parties hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when the Documentation Agent shall have received
evidence reasonably satisfactory to it that (i) this Agreement has been executed
by the Company, the Agents and the Lenders and (ii) the commitments of the
lenders parties to the Credit Agreement dated as of August 31, 1995 and amended
and restated as of October 15, 1996 among the Company, such lenders and First
Chicago, as administrative agent, and Morgan, as documentation agent (the "Prior
Agreement") shall have terminated and all loans outstanding thereunder and all
accrued interest and fees thereunder shall have been paid in full; provided that
(x) any "Competitive Bid Loan" made by a Lender pursuant to the Prior Agreement
which is outstanding at the time the other conditions to the effectiveness
hereof are satisfied shall remain outstanding on the terms applicable thereto
under the Prior Agreement, and shall be deemed a Competitive Bid Loan made
hereunder on such terms and (y) the Company and the Lenders comprising the
Required Lenders (as defined in the Prior Agreement) hereby agree that the
Commitments (as defined in the Prior Agreement) shall terminate automatically
upon the satisfaction of all other conditions to effectiveness of this
Agreement, without requirement of notice under the Prior Agreement or any other
action by any party hereto or thereto.
Page 85
IN WITNESS WHEREOF, the Company, the Lenders and the Agents
have executed this Agreement as of the date first above written.
THE SERVICEMASTER COMPANY LIMITED
PARTNERSHIP
By: ServiceMaster Management Corporation,
its General Partner
By:/s/ Eric P. Zarnikow
Title: Vice President & Treasurer
Address: One ServiceMaster Way
Downers Grove, IL 60515-1700
Attention: Mr. Eric Zarnikow
Telephone: (630) 271-2361
Facsimile: (630) 271-5604
Page 86
Commitment
$112,500,000 THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Administrative
Agent
By:/s/ Patricia H. Besser
Title: Vice President/Senior Corporate Banker
Address: One First National Plaza
Suite 0324
Chicago, IL 60670
Attention: Patricia H. Besser
Telephone: (312) 732-7703
Facsimile: (312) 732-5296
Page 87
$112,500,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, individually and as
Documentation Agent
By:/s/ Charles H. King
Title: Vice President
Address: 60 Wall Street
New York, NY 10260-0060
Attention: Charles King
Telephone: (212) 648-7138
Facsimile: (212) 648-5336
Page 88
$75,000,000 BANK OF AMERICA ILLINOIS
By:/s/ William F. Sweeney
Title: Vice President
Address: 231 S. LaSalle Street
Chicago, IL 60697
Attention: William F. Sweeney
Telephone: (312) 828-1843
Facsimile: (312) 987-1276
Page 89
$54,375,000 BANK OF MONTREAL
By:/s/ Peter W. Steelman
Title:Director
Address: 115 S. LaSalle, 13 West
Chicago, IL 60603
Attention: Peter W. Steelman
Telephone: (312) 750-3812
Facsimile: (312) 750-3783
Page 90
$54,375,000 THE BANK OF NEW YORK
By:/s/ John M. Lokay, Jr.
Title: Vice President
Address: One Wall Street
New York, NY 10286
Attention: John M. Lokay, Jr.
Telephone: (212) 635-1172
Facsimile: (212) 635-1208-9
Page 91
$43,125,000 CREDIT LYONNAIS CHICAGO BRANCH
By:/s/ Mary Ann Klemm
Title: Vice President
Address: 227 West Monroe Street
Suite 3800
Chicago, IL 60606
Attention: Michael Lord
Assistant Vice President
Telephone: (312) 220-7318
Facsimile: (312) 641-0527
Page 92
$54,375,000 CAISSE NATIONALE DE CREDIT AGRICOLE
By:/s/ Dean Balice
Title: Senior Vice President Branch Manager
Address: 55 East Monroe Street
Chicago, IL 60603-5702
Attention: Dean Balice
Telephone: (312) 917-7449
Facsimile: (312) 372-2830
Page 93
$11,250,000 FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By:/s/ James H. Moore, Jr.
Title: Vice President
Address: 165 Madison Avenue
Memphis, TN 38109-0084
Telephone: (901) 523-4108
Facsimile: (901) 523-4267
Page 94
$54,375,000 MELLON BANK, N.A.
By:/s/ Laurel Larson
Title: Assistant Vice President
Address: 55 West Monroe
Suite 2600
Chicago, IL 60603
Telephone: (312) 357-3408
Facsimile: (3120 357-3414
Page 95
$75,000,000 NATIONSBANK, N.A.
By:/s/ Mary Carol Daly
Title: Vice President
Address: 233 S. Wacker Drive
Suite 2800
Chicago, IL 60606
Telephone: (312) 234-5618
Facsimile: (312) 234-5619
Page 96
$43,125,000 SUNTRUST BANK, ATLANTA
By:/s/ Shelley M. Browne
Title: Vice President
By:/s/ Jennifer P. Harrelson
Title: Senior Vice President
Address: 25 Park Place
Atlanta, GA 30303
Attention: Shelley Browne
Telephone: (404) 658-4918
Facsimile: (404) 588-8505
Page 97
$22,500,000 THE NORTHERN TRUST COMPANY
By:/s/ Diane M. Baer
Title: Second Vice President
Address: 50 S. LaSalle Street
Chicago, IL 60675
Attention: Diane M. Baer
Telephone: (312) 444-5802
Facsimile: (312) 444-5055
Page 98
$37,500,000 THE SANWA BANK, LIMITED, CHICAGO BRANCH
By:/s/ Richard H. Ault
Title: Vice President
Address: 10 S. Wacker Drive
31st Floor
Chicago, IL 60606
Telephone:(312) 368-3011
Facsimile: (312) 346-6677
$750,000,000
============
Page 99
PRICING SCHEDULE
The Applicable Margin or Facility Fee Rate at any date is the
applicable percentage amount set forth in the table below based on the Pricing
Level at such date:
- ------------- ------------------ ------------------ ------------------ ---------------- ---------------- ------------------
Level I Level II Level III Level IV Level V Level VI
- ------------- ------------------ ------------------ ------------------ ---------------- ---------------- ------------------
Applicable 0.150% 0.170% 0.205% 0.225% 0.300% 0.500%
Eurocurrency
Margin
- ------------- ------------------ ------------------ ------------------ ---------------- ---------------- ------------------
Applicable 0.275% 0.295% 0.330% 0.350% 0.425% 0.625%
CD Rate
Margin
- ------------- ------------------ ------------------ ------------------ ---------------- ---------------- ------------------
Facility 0.075% 0.080% 0.095% 0.125% 0.150% 0.250%
Fee Rate
- ------------- ------------------ ------------------ ------------------ ---------------- ---------------- ------------------
LC Fee Rate 0.150% 0.170% 0.205% 0.225% 0.300% 0.500%
- ------------- ------------------ ------------------ ------------------ ---------------- ---------------- ------------------
For purposes of this Schedule, the following terms have the
following meanings:
"Applicable Interest Coverage Ratio" for purposes of
determining what Pricing Level exists at any date means (a) if the Company has
delivered all financial statements and certificates required to be delivered on
or before such date pursuant to subsections (a), (b) and (c) of Section 6.1, the
Interest Coverage Ratio as at the last day of the period covered by the most
recent such financial statements and (b) in all other cases, a ratio of less
than 2.50 to 1.00.
"Debt Rating" means at any date the higher of the credit
ratings, if any, publicly announced by S&P and Moody's for the Company's senior
unsecured debt without third-party credit enhancement (or if only one of S&P or
Moody's shall have assigned a credit rating, then such rating). If the ratings
assigned by S&P and Moody's differ by more than one increment, the Debt Rating
will be the median rating (or the higher of two intermediate ratings if there is
no median rating). If neither S&P nor Moody's assigns such a rating, then the
Pricing Level shall be determined solely on the basis of the Applicable Interest
Coverage Ratio, assuming for purposes of any Pricing Level having alternative
ratings criteria that the lower but not the higher rating criterion is met and
for purposes of any Pricing Level having a single rating criterion that such
criterion is met.
"Level I Pricing" applies at any date if, at such date, (x) if
such date is prior to April 1, 1999, the Debt Rating is A(A2) or better or (y)
if such date is on or after April 1, 1999, either (i) the Debt Rating is A(A2)
or better and the Applicable Interest Coverage Ratio is not less than 6.50 to
1.00 or (ii) the Debt Rating is A-(A3) or better or the Applicable Interest
Coverage Ratio is not less than 8.00 to 1.00.
"Level II Pricing" applies at any date if, at such date, (a)
(x) if such date is prior to April 1, 1999, the Debt Rating is A-(A3) or better
or (y) if such date is on or after April 1, 1999, either (i) the Debt Rating is
A-(A3) or better and the Applicable Interest Coverage Ratio is not less than
5.00 to 1.00 or (ii) the Debt Rating is BBB+(Baa1) or better and the Applicable
Interest Coverage Ratio is not less than 6.50 to 1.00 and (b) no better Pricing
Level applies.
"Level III Pricing" applies at any date if, at such date, (a)
(x) if such date is prior to April 1, 1999, the Debt Rating is BBB+(Baa1) or
better or (y) if such date is on or after April 1, 1999, either (i) the Debt
Rating is BBB+(Baa1) or better and the Applicable Interest Coverage Ratio is not
less than 4.00 to 1.00 or (ii) the Debt Rating is BBB(Baa2) or better and the
Applicable Interest Coverage Ratio is not less than 5.00 to 1.00 and (b) no
better Pricing Level applies.
"Level IV Pricing" applies at any date if, at such date, (a)
(x) if such date is prior to April 1, 1999, the Debt Rating is BBB(Baa2) or
better or (y) if such date is on or after April 1, 1999, either (i) the Debt
Rating is BBB(Baa2) or better and the Applicable Interest Coverage Ratio is not
less than 3.25 to 1.00 or (ii) the Debt Rating is BBB-(Baa3) or better and the
Applicable Interest Coverage Ratio is not less than 4.00 to 1.00 and (b) no
better Pricing Level applies.
"Level V Pricing" applies at any date if, at such date, (a)
(x) if such date is prior to April 1, 1999, the Debt Rating is BBB-(Baa3) or
better or (y) if such date is on or after April 1, 1999 the Debt Rating is
BBB-(Baa3) or better and the Applicable Interest Coverage Ratio is not less than
2.75 to 1.00 and (b) no better Pricing Level applies.
"Level VI Pricing" applies at any date if, at such date, no other
Pricing Level applies.
"Pricing Level" refers to the determination of which of Level
I, Level II, Level III, Level IV, Level V or Level VI applies at any date.
Notwithstanding the foregoing, for so long after the
effectiveness of this Agreement as the credit ratings of the Company remain, as
a result of the WMX Repurchase, on credit watch (with negative implications) or
similar status as publicly announced by either Moody's or S&P, if the Pricing
Level for any date would otherwise be Level I or Level II, the Pricing Level for
such date shall be Level III.
SCHEDULE 6.11
SUBSIDIARY RESTRICTIONS
1. American Home Shield Corporation and its subsidiaries are subject to
regulatory restrictions imposed by various states which limit dividends and
similar payments.
EXHIBIT "A"
NOTE
_________ ___,19__
THE SERVICEMASTER COMPANY LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Company"), promises to pay to the order of ___________ (the
"Lender") the aggregate unpaid principal amount of all Loans made by the Lender
to the Company pursuant to the Five-Year Credit Agreement dated as of April 1,
1997 among the Company, the Lenders named therein, including the Lender, The
First National Bank of Chicago, as Administrative Agent, and Morgan Guaranty
Trust Company of New York, as Documentation Agent (as the same may be amended or
modified, hereinafter referred to as the "Agreement"), in the currencies and on
the dates specified in the Agreement, in immediately available funds at the main
office of The First National Bank of Chicago in Chicago, Illinois, as
Administrative Agent, or as otherwise directed by the Administrative Agent
pursuant to the terms of the Agreement, together with interest, in like currency
and funds, on the unpaid principal amount hereof at the rates and on the dates
specified in the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder; provided, however, that any failure to so record shall not
affect the Company's obligations under any Loan Document.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Agreement, to which Agreement, as it may be amended from
time to time, reference is hereby made for a statement of the terms and
conditions under which this Note may be prepaid or its maturity date
accelerated. Capitalized terms used herein and not otherwise defined herein are
used with the meanings attributed to them in the Agreement.
THE SERVICEMASTER COMPANY
LIMITED PARTNERSHIP
By: ServiceMaster Management Corporation,
its General Partner
By: __________________________________
Title: _______________________________
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF THE SERVICEMASTER COMPANY
LIMITED PARTNERSHIP
Date Currency Maturity Principal Unpaid
and Amount Balance
Principal Paid
Amount of
Loan
- ------ ----------- ------------ ---------- ----------
EXHIBIT "B-1"
FORM OF OPINION OF KIRKLAND & ELLIS
April 1, 1997
To the Lenders who are parties to the
Credit Agreement described herein
Re: The ServiceMaster Company Limited
Partnership Five-Year Credit Agreement
dated as of April 1, 1997
Ladies and Gentlemen:
We have acted as special counsel to The ServiceMaster Company Limited
Partnership, a Delaware limited partnership (the "Company"), in connection with
the negotiation, execution and delivery of the Five-Year Credit Agreement dated
as of April 1, 1997 among the Company, The First National Bank of Chicago,
individually and as Administrative Agent, Morgan Guaranty Trust Company of New
York, individually and as Documentation Agent, and the Lenders named therein,
providing for credits in an aggregate amount not exceeding $750,000,000 at any
one time outstanding (the "Credit Agreement"). Terms used but not otherwise
defined herein are used herein as defined in the Credit Agreement.
For purposes of this opinion, we have examined the following:
(a) the Credit Agreement; and
(b) the proposed notes to be issued by the Company to the Lenders
pursuant to the Credit Agreement (the "Notes").
In addition, in connection with rendering the opinions expressed below
("our opinions"), we have examined and relied upon the originals, or copies
certified or otherwise identified to our satisfaction, of such records,
certificates and other documents, as in our judgment are necessary or
appropriate to enable us to render our opinions. As to various factual matters
material to our opinions, we have relied upon certificates of public officials,
certificates of officers of ServiceMaster Management Corporation, a Delaware
corporation (the "Corporate General Partner") on behalf of the Company and the
representations and warranties contained in Article V of the Credit Agreement.
In addition, in rendering our opinions, we have assumed, with your permission
and without independent verification, that:
(a) the signatures of persons signing all documents in connection with
which our opinions are rendered are genuine and authorized (other than those of
the Company and the Corporate General Partner on the Credit Agreement, the
Notes, and other agreements, certificates and documents entered into in
connection with the closing of the transactions contemplated by the Credit
Agreement);
(b) all documents submitted to us as originals or duplicate originals
are authentic;
(c) all documents submitted to us as copies, whether certified or not,
conform to authentic original documents;
(d) all parties to the documents reviewed by us (other than the Company
and the Corporate General Partner in connection with the Credit Agreement and
other agreements, certificates and documents entered into in connection with the
closing of the transactions contemplated by the Credit Agreement) have full
power and authority to execute, to deliver and to perform their obligations
under such documents and under the documents required or permitted to be
delivered and performed thereunder, and all such documents have been duly
authorized by all necessary action, have been duly executed by such parties,
have been duly delivered by such parties, and are legal, valid and binding
obligations of such parties enforceable in accordance with their terms;
(e) any approval, consent or withholding of objection on the part of,
or filing, registration or qualification with, any governmental body which may
be required in connection with the execution and delivery of the Credit
Agreement on account of your regulatory status has been obtained or made by you;
and
(f) the opinions set forth in the letter to you of even date herewith
from Vernon T. Squires, Esq. are correct.
Based upon and subject to the foregoing, we are of the opinion that:
(1) The Company is a limited partnership, validly existing under the
laws of the State of Delaware, has full partnership power and authority and is
duly authorized to enter into and perform the Credit Agreement and to incur the
obligations to be evidenced by the Notes;
(2) The Corporate General Partner is a corporation validly existing and
in good standing under the laws of the State of Delaware, has full corporate
power and authority and is duly authorized to execute and deliver the Credit
Agreement on behalf of the Company;
(3) The execution and delivery of the Credit Agreement and the Notes by
the Corporate General Partner on behalf of the Company do not conflict with or
result in a breach of any provision of the Amended and Restated Agreement of
Limited Partnership of the Company; and
(4) The Credit Agreement and the Notes have been duly authorized,
executed and delivered by the Corporate General Partner on behalf of the Company
and constitute legal, valid and binding obligations of the Company enforceable
in accordance with their respective terms.
Our opinions are subject to the following further qualifications:
(a) our opinions are subject to the effect of any applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent
conveyance or other similar laws;
(b) the binding effect and the enforceability of the Credit Agreement
and the Notes and the availability of injunctive relief or other equitable
remedies thereunder are subject to the effect of general principles of equity
(regardless of whether enforcement is considered in proceedings at law or in
equity);
(c) the binding effect and the enforceability of the Credit Agreement
and the Notes are subject to the effect of laws and judicial decisions which
have imposed duties and standards of conduct (including, without limitation,
obligations of good faith, fair dealing and reasonableness and any obligation to
demonstrate that enforcement of provisions that are burdensome on a debtor is
reasonably necessary for the protection of the creditor) upon creditors;
(d) we express no opinion as to the enforceability of cumulative
remedies to the extent such cumulative remedies purport to or would have the
effect of compensating the party entitled to the benefits thereof in amounts in
excess of the actual loss suffered by such party or would violate applicable
laws concerning election of remedies;
(e) notwithstanding certain language of the Credit Agreement, you will
be limited to recovering only reasonable expenses, only reasonable attorneys'
fees and legal expenses and only reasonable compensation for funding losses,
increased costs or yield protection;
(f) we express no opinion as to, or the effect or applicability of, any
laws other than the laws of the State of New York, the federal laws of the
United States of America and the General Corporation Law and the Revised Uniform
Limited Partnership Act of the State of Delaware;
(g) requirements in the Credit Agreement specifying that provisions
thereof may only be waived in writing may not be valid, binding or enforceable
to the extent that an oral agreement or an implied agreement by trade practice
or course of conduct has been created modifying any provision of such documents;
(h) we express no opinion as to the enforceability of the
indemnification provisions of the Credit Agreement insofar as said provisions
contravene public policy or might require indemnification or payments to you
with respect to any loss, cost or expense arising out of your gross negligence
or willful misconduct or any violation by you of statutory duties, general
principles of equity or public policy;
(i) waivers of equitable rights and defenses may not be valid, binding
or enforceable under state or federal law and certain rights of debtors and
duties of lenders may not be waived, released, varied or disclaimed by agreement
prior to a default; and
(j) we express no opinion as to the validity, binding effect or
enforceability of Section 9.10 of the Credit Agreement (Consent to
Jurisdiction).
This letter is furnished to you pursuant to Section 4.1(v) of the
Credit Agreement and is not to be used, circulated, quoted or otherwise relied
upon by any other person or entity or for any other purpose.
This opinion is for the benefit of the Lenders and their respective
counsel, and may not be relied upon by any other person. This opinion is limited
to the specific issues addressed and is limited in all respects to laws and
facts existing on the date hereof. By rendering this opinion, we do not
undertake to advise you of any changes in such laws or facts which may occur
after the date hereof.
Very truly yours,
KIRKLAND & ELLIS
EXHIBIT "B-2"
FORM OF OPINION OF GENERAL COUNSEL
April 1, 1997
To the Lenders who are parties to the
Five-Year Credit Agreement described herein
Re: The ServiceMaster Company Limited
Partnership Five-Year Credit Agreement
dated as of April 1, 1997
Ladies and Gentlemen:
I am the Senior Vice President and General Counsel of The ServiceMaster
Company Limited Partnership, a Delaware limited partnership (the "Company") and,
in that capacity, I am familiar with the details of the negotiation, execution
and delivery of the Five-Year Credit Agreement dated as of April 1, 1997 among
the Company, The First National Bank of Chicago, as Administrative Agent, Morgan
Guaranty Trust Company of New York, as Documentation Agent and the Lenders named
therein, providing for credits in an aggregate amount not exceeding $750,000,000
at any one time outstanding (the "Credit Agreement"). I am furnishing this
opinion to you pursuant to Section 4.1(vi) of the Credit Agreement. Unless
otherwise defined herein, capitalized terms used herein have the meanings
assigned to such terms in the Credit Agreement.
For purposes of this opinion, I have examined the following:
(a) the Credit Agreement; and
(b) the proposed notes issued by the Company to the Lenders
pursuant to the Credit Agreement (the "Notes").
In addition, I have also examined such certificates of public
officials, certificates of officers of the Company, and copies of corporate and
partnership documents and records of the Company and other papers, and I have
made such other investigations as I have deemed relevant and necessary as a
basis for my opinions hereinafter set forth. In all such examinations I have
assumed the genuineness of all signatures (other than the signatures of officers
of the Company), the authenticity and completeness of all documents submitted to
me as originals, the due authority of the parties executing such documents
(other than on behalf of the Company) and the conformity to the originals of
documents submitted to me as copies.
Based on the foregoing and subject to the qualifications set forth
below, I am of the opinion that:
(1) No approval, consent or withholding of objection on the part of any
regulatory body, federal, state or local, is necessary in connection with the
execution and delivery of the Credit Agreement or the Notes.
(2) The Company has full power and authority and is duly authorized to
conduct the activities in which it is now engaged and is duly licensed or
qualified and is in good standing as a foreign limited partnership in each
jurisdiction (to the extent qualification of a foreign limited partnership is
permitted by statute) where a failure so to qualify would reasonably be expected
to have a Material Adverse Effect and, in my opinion, the inability of the
Company to qualify as a foreign limited partnership in any state in which such
qualification is not permitted by law will not have a Material Adverse Effect.
(3) Each Material Subsidiary is a corporation or a limited partnership
duly incorporated or organized, as the case may be, validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization, as
the case may be, has full power and authority and is duly authorized to conduct
the activities in which it is now engaged, and is duly licensed or qualified and
is in good standing in each jurisdiction (to the extent qualification of a
foreign limited partnership is permitted by statute) where a failure so to
qualify would reasonably be expected to have a Material Adverse Effect and, in
my opinion, the inability of any Material Subsidiary that is a limited
partnership to qualify as a foreign limited partnership in any state in which
such qualification is not permitted by law will not have a Material Adverse
Effect.
(4) The issuance of the Notes and the execution, delivery and
performance by the Company of the Credit Agreement (i) do not violate in any
material respect any provisions of any law or any order of any court,
governmental authority or agency, (ii) do not conflict with or result in any
breach of any of the terms, conditions or provisions of, or constitute a default
under, the limited partnership agreement of the Company or any agreement or any
debt instrument or other material agreement known to me to which the Company or
any Eligible Subsidiary is a party or by which the Company or any Eligible
Subsidiary may be bound and (iii) will not result in the creation or imposition
of any lien or encumbrance upon any of the property of the Company or any
Eligible Subsidiary.
(5) There are no proceedings pending or, to my knowledge, threatened,
against or affecting the Company, any of its General Partners, its Parent or any
Subsidiary in any court or before any governmental authority or arbitration
board or tribunal which, if adversely determined, would reasonably be expected
to have a Material Adverse Effect. To my knowledge, neither the Company nor any
Subsidiary is in default with respect to any order of any court or governmental
authority, or arbitration board or tribunal which would reasonably be expected
to have a Material Adverse Effect.
(6) No documentary or stamp taxes are payable in connection with the
issuance of the Notes.
(7) Neither the issuance of the Notes nor the use by the Company of all
or any portion of the proceeds of the Advances will violate Regulations U or X
of the Board of Governors of the Federal Reserve System (12 C.F.R. Chapter II).
The opinions expressed in this letter as to enforceability are subject
to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally, to general principles of equity regardless of whether such
enforceability is considered in a proceeding in equity or at law or in a
bankruptcy proceeding, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and applicable laws and court
decisions which may limit the enforceability of certain remedial and other
provisions of the Notes.
The opinions expressed above are limited to the laws of the State of
Illinois, the federal laws of the United States of America, the Delaware General
Corporation Law and the Delaware Revised Uniform Limited Partnership Act, and I
do not express any opinion herein concerning any other law.
The opinions expressed herein are solely for your benefit in connection
with the consummation of the transactions contemplated by the Credit Agreement
and may not be used or relied upon by any Person other than each of you.
Very truly yours,
Vernon T. Squires
Senior Vice President
and General Counsel
EXHIBIT "C"
COMPETITIVE BID QUOTE REQUEST
(Section 2.3.2)
_________, 19__
To: The Lenders parties to the Credit Agreement described
below
From: [Name of Borrower]
Re: Five-Year Credit Agreement (the "Credit Agreement") dated as of April 1,
1997 among The ServiceMaster Company Limited Partnership, the Lenders named
therein, The First National Bank of Chicago, as Administrative Agent, and
Morgan Guaranty Trust Company of New York, as Documentation Agent
We hereby give notice pursuant to Section 2.3.2 of the Credit
Agreement that we request Competitive Bid Quotes for the following proposed
Competitive Bid Advance(s):
Borrowing Date: , 19__
Principal Amount (1) Interest Period (2)
- -------------------- -----------------------
Such Competitive Bid Quotes should offer [a Competitive Bid Margin]
[and] [an Absolute Rate]. [The currency in which the Loans are to be denominated
is __________.] Your Competitive Bid Quote must comply with Section 2.3.3 of the
Credit Agreement and the foregoing. Capitalized terms used herein have the
meanings assigned to them in the Credit Agreement.
Please respond to this request by no later than [1:00 p.m.] [9:00 a.m.]
Chicago time on , 19__.
[NAME OF BORROWER]
By:
Financial Officer
- -----------------------
(1) Amount must be at least (i) $1,000,000 or any larger integral multiple of
$1,000,000 in the case of a Floating Rate Advance, (ii) $5,000,000 or any larger
integral multiple of $1,000,000 in the case of any other Advance denominated in
Dollars or (iii) such amount and multiples as the Administrative Agent deems
appropriate and reasonably comparable to a $3,000,000 minimum Dollar Amount in
the case of any Advance denominated in an Alternative Currency.
(2) One, two, three or six months (Eurocurrency Auction) or not less than 7 days
(Absolute Rate Auction), subject to the provisions of the definitions of
Eurocurrency Interest Period and Absolute Rate Interest Period.
EXHIBIT "D"
COMPETITIVE BID QUOTE
(Section 2.3.3)
____________, 19__
To: [Name of Borrower] (the "Borrower")
Re: Competitive Bid Quote
In response to your request dated _________, 199_, we hereby make the following
Competitive Bid Quote pursuant to Section 2.3.3 of the Credit Agreement
hereinafter referred to and on the following terms:
1. Quoting Lender: _____________________________________________
2. Person to contact at Quoting Lender: ________________________
3. Borrowing Date: ____________, 19__ (3)
4. We hereby offer to make Competitive Bid Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
- ----------------------
(3) As specified in the related Invitation For Competitive Bid Quotes.
Principal Interest [Competitive [Absolute
Amount (4) Period (5) Bid Margin (6)] Rate (7)]
- ----------- ---------- --------------- ---------
[Provided, that the aggregate principal amount of Competitive Bid Loans for
which the above offers may be accepted shall not exceed $_________________.] (8)
- --------------------
(4) Principal amount bid for each Interest Period may not exceed the principal
amount requested. Bids must be made for at least (i) $1,000,000 or any larger
integral multiple of $1,000,000 in the case of a Floating Rate Advance, (ii)
$5,000,000 or any larger integral multiple of $1,000,000 in the case of any
other Advance denominated in Dollars or (iii) such amount and multiples as the
Administrative Agent deems appropriate and reasonably comparable to a $3,000,000
minimum Dollar Amount in the case of any Advance denominated in an Alternative
Currency.
(5) One, two, three or six months (Eurocurrency Auction) or not less than 7 days
(Absolute Rate Auction), as specified in the related Invitation For Competitive
Bid Quotes.
(6) Specify positive or negative percentage (rounded to the nearest 1/100 of 1%)
to be added or subtracted from the Eurocurrency Base Rate.
(7) Specify rate of interest per annum (rounded to the nearest 1/100 of 1%)
(8) Specify the limit, if any, as to the aggregate principal amount of the
Competitive Bid Loans of the quoting Lender which the Borrower may accept (see
Section 2.3.3. (ii)(d)).
We understand and agree that the offers set forth above,
subject to the satisfaction of the applicable conditions set forth in the
Five-Year Credit Agreement dated as of April 1, 1997, among The ServiceMaster
Company Limited Partnership, the Lenders named therein, The First National Bank
of Chicago, as Administrative Agent and Morgan Guaranty Trust Company of New
York, as Documentation Agent (the "Credit Agreement"), irrevocably obligates us
to make the Competitive Bid Loan(s) for which any offer(s) are accepted, in
whole or in part.
Capitalized terms used herein and not otherwise defined herein shall have their
meanings as defined in the Credit Agreement.
Very truly yours,
[NAME OF BANK]
Dated: , 19__ By:
Authorized Officer
EXHIBIT "E"
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement")
between (the "Assignor") and (the "Assignee") is dated as of _________ __, 19__.
The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a
Five-Year Credit Agreement, dated as of April 1, 1997 (which, as it may be
amended, modified, renewed or extended from time to time, is herein called the
"Credit Agreement"), among The ServiceMaster Company Limited Partnership (the
"Company"), the Lenders named therein, The First National Bank of Chicago, as
Administrative Agent, and Morgan Guaranty Trust Company of New York, as
Documentation Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement. The
Assignor desires to assign to the Assignee, and the Assignee desires to assume
from the Assignor, an undivided interest (the "Purchased Percentage") in the
Commitment of the Assignor such that after giving effect to the assignment and
assumption hereinafter provided, the Commitment of the Assignee shall equal
$______________ and its percentage of the Aggregate Commitment shall equal __%.
2. ASSIGNMENT. For and in consideration of the assumption of
obligations by the Assignee set forth in Section 3 hereof and the other
consideration set forth herein, and effective as of the Effective Date (as
hereinafter defined), the Assignor does hereby sell, assign, transfer and convey
to the Assignee all of its right, title and interest in and to the Purchased
Percentage of (i) the Commitment of the Assignor (as in effect on the Effective
Date), (ii) each Committed Loan made by the Assignor outstanding on the
Effective Date, (iii) all Letter of Credit Liabilities of the Assignor on the
Effective Date and (iv) the Credit Agreement and the other Loan Documents.
Pursuant to Section 12.3.2 of the Credit Agreement, on and after the Effective
Date the Assignee shall have the same rights, benefits and obligations as the
Assignor had under the Loan Documents with respect to the Purchased Percentage
of the Loan Documents, all determined as if the Assignee were a "Lender" under
the Credit Agreement with ____% of the Aggregate Commitment. The Effective Date
shall be the later of ______ or two Business Days (or such shorter period agreed
to by the Agents) after a Notice of Assignment substantially in the form of
Exhibit "I" attached hereto and any consents substantially in the form of
Exhibit "II" attached hereto required to be delivered to the Agents by Section
12.3 of the Credit Agreement have been delivered to the Agents. In no event will
the Effective Date occur if the payments required to be made by the Assignee to
the Assignor on the Effective Date under Sections 4 and 5 hereof are not made on
the proposed Effective Date. The Assignor will notify the Assignee of the
proposed Effective Date on the Business Day prior to the proposed Effective
Date.
3. ASSUMPTION. For and in consideration of the assignment of
rights by the Assignor set forth in Section 2 hereof and the other consideration
set forth herein, and effective as of the Effective Date, the Assignee does
hereby accept that assignment, and assume and covenant and agree fully,
completely and timely to perform, comply with and discharge, each and all of the
obligations, duties and liabilities of the Assignor under the Credit Agreement
which are assigned to the Assignee hereunder, which assumption includes, without
limitation, the obligation to fund the unfunded portion of the Aggregate
Commitment and to participate in Letters of Credit outstanding on the Effective
Date or issued thereafter, all in accordance with the provisions set forth in
the Credit Agreement as if the Assignee were a "Lender" under the Credit
Agreement with ___% of the Aggregate Commitment. The Assignee agrees to be bound
by all provisions relating to "Lenders" under and as defined in the Credit
Agreement, including, without limitation, provisions relating to the
dissemination of information and the payment of indemnification.
4. PAYMENT OBLIGATIONS. On and after the Effective Date, the
Assignee shall be entitled to receive from the Administrative Agent all payments
of principal, interest and fees with respect to the Purchased Percentage of the
Assignor's Commitment, Committed Loans and Letter of Credit Liabilities. The
Assignee shall advance funds directly to the Administrative Agent with respect
to each Committed Loan and reimbursement payments made on or after the Effective
Date. In consideration for the transfer of the assigned obligations hereunder,
with respect to each Committed Loan made by the Assignor outstanding on the
Effective Date, the Assignee shall pay the Assignor on the Effective Date (or,
if Assignee so elects with respect to each Committed Loan bearing interest at a
Fixed Rate, on the Payment Date, as hereinafter defined) an amount equal to the
Purchased Percentage of any such Committed Loan. If the Assignee elects to make
such payment on the Effective Date, with respect to any Loan made by Assignor
outstanding on the Effective Date which bears interest at a fixed rate (each an
"Outstanding Fixed Rate Loan"), Assignee shall be entitled to receive interest
at a rate agreed upon by the Assignee and the Assignor (the "Outstanding Fixed
Rate Loan Interest Rate") for the remainder of the existing Interest Period.
When Assignee receives interest on the Purchased Percentage of any Outstanding
Fixed Rate Loan, Assignee shall remit to Assignor the excess of (a) the interest
received by Assignee on the Outstanding Fixed Rate Loan over (b) the Outstanding
Fixed Rate Loan Interest Rate. In the event Assignee elects not to pay the
Assignor the Purchased Percentage of any such Outstanding Fixed Rate Loan on the
Effective Date, the Assignee shall pay the Assignor an amount equal to the
Purchased Percentage of such Outstanding Fixed Rate Loan (a) on the last day of
the Interest Period therefor or (b) on such earlier date agreed to by the
Assignor and the Assignee or (c) on the date on which any such Outstanding Fixed
Rate Loan either becomes due (by acceleration or otherwise) or is prepaid (the
date as described in the foregoing clauses (a), (b) or (c) being hereinafter
referred to as the "Payment Date"). In the event interest for the period from
the Effective Date to but not including the Payment Date is not paid by the
Borrower with respect to any Outstanding Fixed Rate Loan sold by the Assignor to
the Assignee pursuant to the preceding sentence, the Assignee shall pay to the
Assignor interest for such period on such Outstanding Fixed Rate Loan at the
applicable rate provided by the Credit Agreement. In the event of a prepayment
of any Outstanding Fixed Rate Loan, Assignee shall remit to Assignor the excess
of (a) the amount received by the Assignee as breakage costs over (b) the amount
which would have been received by the Assignee as a prepayment penalty if the
amount of prepayment penalty was based on the Outstanding Fixed Rate Loan
Interest Rate. On and after the Effective Date, the Assignee will also remit to
the Assignor any amounts of interest on Loans and fees received from the
Administrative Agent which relate to the Purchased Percentage of Loans made by
the Assignor accrued for periods prior to the Effective Date or the Payment Date
as applicable. In the event that either party hereto receives any payment to
which the other party hereto is entitled under this Assignment Agreement, then
the party receiving such amount shall promptly remit it to the other party
hereto. ***[This Section subject to modification by the Assignor and the
Assignee]***
5. FEES PAYABLE BY ASSIGNEE. On each day on which the Assignee
receives a payment of interest or fees under the Credit Agreement (other than a
payment of interest or fees which the Assignee is obligated to deliver to the
Assignor pursuant to Section 4 hereof, which shall be excluded in determining
fees payable to the Assignor pursuant to this Section), the Assignee shall pay
to the Assignor a fee. The amount of such fee shall be the difference between
(i) the amount of such interest or fee, as applicable, received by the Assignee
and (ii) the amount of the interest or fee, as applicable, which would have been
received by the Assignee if each interest rate was ___ of 1% less than the
interest rate paid by the Company or if the facility fee was ___ of 1% less than
the facility fee paid by the Company pursuant to Section 2.4, as applicable. In
addition, the Assignee agrees to pay __% of the fee required to be paid to the
Administrative Agent pursuant to Section 12.3.2 of the Credit Agreement.
***[This Section subject to modification by the Assignor and the Assignee]***
6. CREDIT DETERMINATION: LIMITATIONS ON ASSIGNORS LIABILITY.
The Assignee represents and warrants to the Assignor that it is capable of
making and has made and shall continue to make its own credit determinations and
analysis based upon such information as the Assignee deemed sufficient to enter
into the transaction contemplated hereby and not based on any statements or
representations by the Assignor, the Agents or any Lender. It is understood and
agreed that the assignment and assumption hereunder are made without recourse to
the Assignor and that the Assignor makes no representation or warranty of any
kind to the Assignee and shall not be responsible for (i) the due execution,
legality, validity, enforceability, genuineness, sufficiency or collectibility
of the Credit Agreement or any other Loan Document, including without
limitation, documents granting the Assignor and the other Lenders a security
interest in assets of the Company or any of its Subsidiaries, or any guarantor,
(ii) any representation, warranty or statement made in or in connection with any
of the Loan Documents, (iii) the financial condition or creditworthiness of any
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) the inspection of any of
the property, books or records of the Company or any of its Subsidiaries, (vi)
the validity, enforceability, perfection, priority, condition, value or
sufficiency of any collateral securing or purporting to secure the Loans.
Neither the Assignor nor any of its officers, directors, employees, agents or
attorneys shall be liable for any mistake, error of judgment, or action taken or
omitted to be taken in connection with the Loans or the Loan Documents, except
for its or their own bad faith or willful misconduct.
7. INDEMNITY. The Assignee agrees to indemnify and hold the
Assignor harmless against any and all losses, costs and expenses (including,
without limitation, reasonable attorneys' fees, which attorneys may be employees
of the Assignee) and liabilities incurred by the Assignor in connection with or
arising in any manner from the Assignee's performance or non-performance of
obligations assumed under this Assignment Agreement.
8. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the
Assignee shall have the right pursuant to Section 12.3 of the Credit Agreement
to assign the rights which are assigned to the Assignee hereunder to any entity
or person, provided that (i) any such subsequent assignment does not violate any
of the terms and conditions of the Loan Documents or any law, rule, regulations
order, writ, judgment, injunction or decree and that any consent required under
the terms of the Loan Documents has been obtained, (ii) the assignee under such
assignment from the Assignee shall agree to assume all of the Assignee's
obligations hereunder in a manner satisfactory to the Assignor and (iii) the
Assignee is not thereby released from any of its obligations to the Assignor
hereunder.
9. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage of the Aggregate Commitment assigned to the
Assignee shall remain the percentage specified in Section 1 hereof and the
dollar amount of the Commitment of the Assignee shall be recalculated based on
the reduced Aggregate Commitment.
10. ENTIRE AGREEMENT. This Assignment Agreement ****[and the
attached consent]**** embody the entire agreement and understanding between the
parties hereto and supersede all prior agreements and understandings between the
parties hereto relating to the subject matter hereof.
11. GOVERNING LAW. This Assignment Agreement shall be governed
by the internal law, and not the law of conflicts, of the State of New York.
12. NOTICES. Notices shall be given under this Assignment
Agreement in the manner set forth in the Credit Agreement. For the purpose
hereof, the addresses of the parties hereto (until notice of a change is
delivered) shall be the address set forth under each party's name on the
signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
EXHIBIT "I"
NOTICE
OF ASSIGNMENT
To: THE SERVICEMASTER COMPANY LIMITED PARTNERSHIP
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Eric R. Zarnikow
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent
60 Wall Street
New York, NY 10260
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
One First National Plaza
Chicago, IL 60670
[ISSUING BANKS]
From: [NAME OF ASSIGNOR]
[NAME OF ASSIGNEE]
, 19__
1. We refer to that Five-Year Credit Agreement, dated as of
April 1, 1997 (which, as it may be amended, modified, renewed or extended from
time to time, is herein called the "Credit Agreement"), among The ServiceMaster
Company Limited Partnership (the "Company"), the Lenders named therein including
____________ (the "Assignor"), The First National Bank of Chicago, as
Administrative Agent, and Morgan Guaranty Trust Company of New York, as
Documentation Agent. Capitalized terms used herein and in any consent delivered
in connection herewith and not otherwise defined herein or in such consent shall
have the meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and
delivered to the Company and the Agents pursuant to Section 12.3.2 of the Credit
Agreement.
3. The Assignor and (the "Assignee") have entered into an
Assignment Agreement, dated as of , 19__, pursuant to which, among other things,
the Assignor has sold, assigned, delegated and transferred to the Assignee, and
the Assignee has purchased, accepted and assumed from the Assignor, an undivided
interest in and to all of the Assignor's rights and obligations under the Credit
Agreement such that Assignee's percentage of the Aggregate Commitment shall
equal __%, effective as of the Effective Date (as hereinafter defined). The
"Effective Date" shall be the later of ____ or two Business Days (or such
shorter period as agreed to by the Agents) after this Notice of Assignment and
any consents and fees required by Sections 12.3.1 and 12.3.2 of the Credit
Agreement have been delivered to the Agents, provided that the Effective Date
shall not occur if any condition precedent agreed to by the Assignor and the
Assignee has not been satisfied.
4. As of this date, the percentage of the Assignor in the
Aggregate Commitment, the Committed Advances and the Letters of Credit is __%.
As of the Effective Date, the percentage of the Assignor in the Aggregate
Commitment, the Committed Advances and the Letters of Credit will be __% (as
such percentage may be reduced or increased by assignments which become
effective prior to the assignment to the Assignee becoming effective) and the
percentage of the Assignee in the Aggregate Commitment, the Committed Advances
and the Letters of Credit and the Letters of Credit will be __%.
5. The Assignor and the Assignee hereby give to the Company
and the Agents notice of the assignment and delegation referred to herein. The
Assignor will confer with the Agents before _______, 19__ to determine if the
assignment to the Assignee will become effective on such date pursuant to
Section 3 hereof, and will confer with the Agents to determine the Effective
Date pursuant to Section 3 hereof if it occurs thereafter. The Assignor shall
notify the Agents if the assignment to the Assignee does not become effective on
any proposed Effective Date as a result of the failure to satisfy the conditions
precedent agreed to by the Assignor and the Assignee. At the request of the
Agent, the Assignor will give the Agents written confirmation of the occurrence
of the Effective Date.
6. The Assignee hereby accepts and assumes the assignment and
delegation referred to herein and agrees as of the Effective Date (i) to perform
fully all of the obligations under the Credit Agreement which it has hereby
assumed and (ii) to be bound by the terms and conditions of the Credit Agreement
as if it were a "Lender".
7. The Assignor and the Assignee request and agree that any
payments to be made by the Administrative Agent to the Assignor on and after the
Effective Date shall, to the extent of the assignment referred to herein, be
made entirely to the Assignee, it being understood that the Assignor and the
Assignee shall make between themselves any desired allocations.
8. The Assignor or the Assignee shall pay to the
Administrative Agent on or before the Effective Date the processing fee of
$3,500 required by Section 12.3.2 of the Credit Agreement.
9. The Assignor and the Assignee request and direct that the
Administrative Agent prepare and cause the Borrower(s) to execute and deliver
[new Notes or, as appropriate,] replacement Notes, to the Assignor and the
Assignee in accordance with Section 12.3.2 of the Credit Agreement. The Assignor
[and the Assignee] agree[s] to deliver to the Administrative Agent the original
Notes received from it by the Borrower(s) upon the Assignor's [and Assignee's]
receipt of new Notes in the amounts set forth above.
10. The Assignee advises the Agents that the address listed
below is its address for notices under the Credit Agreement:
- ------------------
- ------------------
- ------------------
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
Title: Title:
EXHIBIT "II"
CONSENT AND RELEASE
TO: [NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
---------------- ----------------
---------------- ----------------
_________, 19__
1. We acknowledge receipt from (the "Assignor") and
______________________ (the "Assignee") of the Notice of Assignment, dated as of
__________, 19__ (the "Notice"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings attributed to them in the Notice.
****[2. In consideration of the assumption by the Assignee of
the obligations of the Assignor as referred to in the Notice, the Company and
each Issuing Bank hereby (i) irrevocably consents, as required by Section 12.3.1
of the Credit Agreement, to the assignment and delegation referred to in the
Notice and (ii) as of the Effective Date, irrevocably reduces the percentage of
the Assignor in the Aggregate Commitment by the percentage of the Aggregate
Commitment assigned to the Assignee and releases the Assignor from all of its
obligations to the Company or any of its Subsidiaries or to such Issuing Bank
under the Loan Documents to the extent that such obligations have been assumed
by the Assignee]****
3. The Administrative Agent is hereby requested to prepare for
issuance by the relevant Borrower new Notes as requested by the Assignor and the
Assignee in the Notice.
****[4. In consideration of the assumption by the Assignee of
the obligations of the Assignor as referred to in the Notice, the Agents hereby
(i) irrevocably consent, as required by Section 12.3.1 of the Credit Agreement,
to the assignment and delegation referred to in the Notice, (ii) as of the
Effective Date, irrevocably release the Assignor from its obligations to the
Agents under the Loan Documents to the extent that such obligations have been
assumed by the Assignee, and (iii) agree that, as of the Effective Date, the
Agents shall consider the Assignee as a "Lender" for all purposes under the Loan
Documents to the extent of the assignment and delegation referred to in the
Notice.]****
THE SERVICEMASTER COMPANY THE FIRST NATIONAL BANK
LIMITED PARTNERSHIP OF CHICAGO, as Administrative Agent
By: ServiceMaster Management By:
Corporation, its General Title:
Partner
MORGAN GUARANTY TRUST
By: COMPANY OF NEW YORK, as
Title: Documentation Agent
By:
Title:
[ISSUING BANK]
By: ____________________
Title: __________________
* Paragraphs 2 and 4 are to be included only if the consent of the Company, the
Issuing Banks and the Agents is required pursuant to Section 12.3.1 of the
Credit Agreement.
EXHIBIT "F"
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To: The First National Bank of Chicago, as Administrative Agent under the
Credit Agreement described below.
From: [Name of Borrower] (the "Borrower")
Re: Five-Year Credit Agreement, dated as of April 1, 1997 (as the same may
be amended or modified, the "Credit Agreement"), among The
ServiceMaster Company Limited Partnership, the Lenders named therein,
The First National Bank of Chicago, as Administrative Agent, and Morgan
Guaranty Trust Company of New York, as Documentation Agent.
Terms used herein and not otherwise defined shall have the
meanings assigned thereto in the Credit Agreement.
The Administrative Agent is specifically authorized and
directed to act upon the following standing money transfer instructions with
respect to the proceeds of Advances or other extensions of credit from time to
time until receipt by the Administrative Agent of a specific written revocation
of such instructions by the Borrower, provided, however, that the Administrative
Agent may otherwise transfer funds as hereafter directed in writing by the
Borrower in accordance with Section 13.1 of the Credit Agreement.
Facility Identification Number(s)
Customer/Account Name
Transfer Funds To
For Account No.
Reference/Attention To
Authorized Officer (Customer
Representative) Date
(Please Print) Signature
Bank Officer Name Date
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
EXHIBIT "G"
FORM OF ELECTION TO PARTICIPATE
__________, 19__
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Documentation Agent
for the Lenders under the Five-Year Credit Agreement dated as of April 1,
1997 among The ServiceMaster Company Limited Partnership
(the "Company"), the Lenders named therein,
The First National Bank of Chicago, as
Administrative Agent, and the Documentation
Agent
Dear Sirs:
Reference is made to the Credit Agreement described above.
Terms not defined herein which are defined in the Credit Agreement have for the
purposes hereof the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a
[corporation] [partnership] organized under the laws of [jurisdiction of
organization], elects to be an Eligible Subsidiary for purposes of the Credit
Agreement, effective upon your receipt hereof until an Election to Terminate
shall have been delivered to you with respect to the undersigned in accordance
with the Credit Agreement.
The undersigned confirms that the representations and
warranties set forth in Article XIV of the Credit Agreement are true and correct
as to the undersigned as of the date hereof. In particular, [except as disclosed
below,] there is no income, stamp or other tax of any country, or any taxing
authority thereof or therein, imposed by or in the nature of withholding or
otherwise, which is imposed on any payment to be made by the undersigned
pursuant to the Credit Agreement or the Notes of the undersigned, or is imposed
on or by virtue of the execution, delivery or enforcement of this Election to
Participate or of the Notes of the undersigned.
The undersigned agrees to perform all the obligations of an
Eligible Subsidiary under, and to be bound in all respects by the terms of, the
Credit Agreement, including without limitation Sections 9.11 and 9.12 thereof,
as if the undersigned were a signatory party thereto. The undersigned hereby
confirms the authority of the Financial Officers to act on its behalf as to all
matters relating to the Credit Agreement.
The address to which all notices to the undersigned under the
Credit Agreement should be directed is:
This instrument shall be construed in accordance with and
governed by the laws of the State of New York.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By __________________________________
Title:
The undersigned confirms that [name of Eligible Subsidiary] is
an additional Borrower for purposes of the Credit Agreement described above.
THE SERVICEMASTER COMPANY LIMITED
PARTNERSHIP
By: ServiceMaster Management
Corporation, its General Partner
By __________________________________
Title:
Receipt of the above Election to Participate is acknowledged
on and as of the date set forth above.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Documentation Agent
By __________________________________
Title:
EXHIBIT "H"
FORM OF ELECTION TO TERMINATE
__________, 19__
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Documentation Agent
for the Lenders under the Five-Year Credit Agreement dated as of April 1,
1997 among The ServiceMaster Company Limited Partnership
(the "Company"), the Lenders named therein,
The First National Bank of Chicago, as
Administrative Agent, and the Documentation
Agent
Dear Sirs:
Reference is made to the Credit Agreement described above.
Terms not defined herein which are defined in the Credit Agreement have for the
purposes hereof the meaning provided therein.
The undersigned hereby elect to terminate the status of [name
of Eligible Subsidiary], a [corporation] [partnership] organized under the laws
of [jurisdiction of organization] (the "Designated Subsidiary"), as an Eligible
Subsidiary for purposes of the Credit Agreement, effective upon your receipt
hereof. The undersigned represent and warrant that all principal and interest on
all Notes of the Designated Subsidiary and all other amounts payable by the
Designated Subsidiary pursuant to the Credit Agreement have been paid in full on
or prior to the date hereof. Notwithstanding the foregoing, this Election to
Terminate shall not affect any obligation of the Designated Subsidiary under the
Credit Agreement or under any of its Notes heretofore incurred.
This instrument shall be construed in accordance with and
governed by the laws of the State of New York.
Very truly yours,
[NAME OF DESIGNATED SUBSIDIARY]
By __________________________________
Title:
THE SERVICEMASTER COMPANY LIMITED
PARTNERSHIP
By: ServiceMaster Management
Corporation, its General Partner
By __________________________________
Title:
Receipt of the above Election to Terminate is hereby
acknowledged on and as of the date set forth above.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Documentation Agent
By __________________________________
Title:
EXHIBIT "I"
FORM OF OPINION OF COUNSEL FOR ELIGIBLE SUBSIDIARY
__________, 19__
To the Lenders and Agents
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Documentation Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am counsel to [name of Eligible Subsidiary], a [corporation]
[partnership] organized under the laws of [jurisdiction of organization] (the
"Eligible Subsidiary"), and give this opinion pursuant to Section 4.2(b) of the
Five-Year Credit Agreement, dated as of April 1,1997 (as the same may be amended
or modified, the "Credit Agreement"), among The ServiceMaster Company Limited
Partnership (the "Company"), the Lenders named therein, The First National Bank
of Chicago, as Administrative Agent, and Morgan Guaranty Trust Company of New
York, as Documentation Agent. Terms defined in the Credit Agreement are used
herein as therein defined.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as I have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Eligible Subsidiary is a [corporation] [partnership]
duly organized, validly existing and in good standing under the laws of
[jurisdiction of organization], and is a Subsidiary of the Company.
2. The execution and delivery by the Eligible Subsidiary of
its Election to Participate and its Notes and the performance by the Eligible
Subsidiary of its obligations under the Credit Agreement and its Notes are
within the Eligible Subsidiary's legal powers, have been duly authorized by all
necessary [corporate] [partnership] or other legal action, require no action by
or in respect of, or filing with, any governmental body, agency or official and
do not contravene, or constitute a default under, in any material respect any
provision of applicable law or regulation or of the organizational documents of
the Eligible Subsidiary or of any indenture or other agreement or instrument
governing Debt or any other material agreement or instrument binding upon the
Company or the Eligible Subsidiary or result in the creation or imposition of
any Lien on any asset of the Eligible Subsidiary or any of its Subsidiaries.
3. The Election to Participate of the Eligible Subsidiary and
the Credit Agreement constitute valid and binding agreements of the Eligible
Subsidiary and its Notes constitute valid and binding obligations of the
Eligible Subsidiary, in each case enforceable in accordance with its terms,
except as may be limited by (i) bankruptcy, insolvency or other similar laws
affecting the rights and remedies of creditors generally and (ii) general
principles of equity.
4. Except as disclosed in the Election to Participate, there
is no income, stamp or other tax of any country, or any taxing authority thereof
or therein, imposed by or in the nature of withholding or otherwise, which is
imposed on any payment to be made by the Eligible Subsidiary pursuant to the
Credit Agreement or on its Notes, or is imposed on or by virtue of the
execution, delivery or enforcement of its Election to Participate or of its
Notes.
Very truly yours,
EXHIBIT "J"
FORM OF OPINION OF COUNSEL FOR THE AGENTS
April 1, 1997
To the Lenders and the Agents
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Documentation Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the Five-Year
Credit Agreement, dated as of April 1, 1997 (as the same may be amended or
modified, the "Credit Agreement"), among The ServiceMaster Company Limited
Partnership (the "Company"), the Lenders named therein, The First National Bank
of Chicago, as Administrative Agent, and Morgan Guaranty Trust Company of New
York, as Documentation Agent, and have acted as special counsel for the Agents
for the purpose of rendering this opinion pursuant to Section 4.1(x) of the
Credit Agreement. Terms defined in the Credit Agreement are used herein as
therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that
the Credit Agreement constitutes a valid and binding agreement of the Company
and the Notes of the Company constitute valid and binding obligations of the
Company, in each case enforceable in accordance with their respective terms,
except as the same may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York and the
federal laws of the United States of America. To the extent that our opinion
expressed herein involves conclusions as to matters governed by the laws of
other jurisdictions, we have relied, with your permission, on the opinion of
[counsel for the Company], addressed to you and dated the date hereof, copies of
which have been delivered to you, and we have assumed, without independent
investigation, the correctness of the matters set forth in such opinions, our
opinion being subject to the assumptions, qualifications and limitations set
forth in such opinion with respect thereto. In addition, in giving the foregoing
opinion, we express no opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any Lender is located which
limits the rate of interest that such Lender may charge or collect.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by any other person without our prior written consent.
Very truly yours,