EXECUTION EXHIBIT 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as of
July 20, 2007 and is entered into by and among THE XXXXXXX & XXXXXX COMPANY, a
Delaware corporation (the "Borrower"), CERTAIN OF THE GUARANTORS executing the
signature pages hereto, CERTAIN LENDERS AND SYNTHETIC INVESTORS (as such terms
are defined in the hereinafter described Credit Agreement) listed on the
signature pages hereto (the "Lenders"), and CREDIT SUISSE, CAYMAN ISLANDS
BRANCH, as Administrative Agent (in such capacity, "Administrative Agent") and
as Collateral Agent (in such capacity, "Collateral Agent"), and is made with
reference to that certain CREDIT AGREEMENT dated as of February 22, 2006 (as
amended by the First Amendment dated as of July 9, 2007, the "Credit Agreement")
by and among Borrower, Lenders, Administrative Agent and the other agents party
thereto. Capitalized terms used herein without definition shall have the same
meanings herein as set forth in the Credit Agreement after giving effect to this
Amendment.
RECITALS
WHEREAS, the Borrower has requested that the Lenders and the Synthetic
Investors agree to amend certain provisions of the Credit Agreement as provided
for herein; and
WHEREAS, subject to certain conditions provided for herein, the Lenders and
the Synthetic Investors are willing to agree to such amendments.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION I. Amendments
1.1 Amendments to Section 1: Definitions.
-------------------------------------
Section 1.1 of the Credit Agreement is hereby amended by adding the
following definitions in proper alphabetical sequence:
"Second Amendment" means that certain Second Amendment to Credit
Agreement dated as of July 20, 2007 among the Borrower, the Administrative
Agent, the Collateral Agent and the Lenders and Synthetic Investors listed
on the signature pages thereto.
"Second Amendment Effective Date" means the date of satisfaction of
the conditions referred to in Section II of the Second Amendment.
1.2 Amendments to Section 2.12: Fees.
---------------------------------
Section 2.12(b) (Letter of Credit Fees) of the Credit Agreement is hereby
amended by inserting the phrase "equal to a percentage per annum as agreed to by
each Issuer acting in its sole and individual discretion but in no case greater
than" immediately following the words "an issuance fee" and immediately
preceding "0.125%" in clause (i) therein.
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1.3 Amendments to Schedule I: Commitments.
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Schedule I of the Credit Agreement is hereby amended by deleting it in its
entirety and replacing it with the new Schedule I annexed hereto as Exhibit A.
Each Lender that is not, prior to the Second Amendment Effective Date a party to
the Credit Agreement as a Lender (i) confirms that it has received a copy of the
Credit Agreement and the other Loan Documents, together with copies of the most
recent financial statements of the Borrower delivered pursuant thereto and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Amendment; (ii) agrees that it
has, independently and without reliance upon the Administrative Agent, the
Collateral Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Amendment; (iii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Collateral 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 the Loan Documents; (iv) appoints and authorizes the Administrative Agent
and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Loan Documents as are delegated to
the Administrative Agent and the Collateral Agent by the terms thereof, together
with such powers and discretion as are reasonably incidental thereto; and (v)
agrees that it is a "Lender" under the Loan Documents and will perform in
accordance with their terms all of the obligations that by the terms of the Loan
Documents are required to be performed by it as a Lender. The Administrative
Agent and each Lender hereby agrees that the Increased Amount Date for the New
Revolving Commitments set forth on the new Schedule I annexed hereto as Exhibit
A shall be the Second Amendment Effective Date, notwithstanding that the
Increased Amount Date is less than 10 Business Days after the date of the notice
of the New Revolving Commitments delivered by the Borrower to the Administrative
Agent pursuant to Section 2.18
1.4 Amendments to Schedule II: Applicable Commitment Fee Rate and Applicable
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Margin.
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Schedule II of the Credit Agreement is hereby amended by deleting it in its
entirety and replacing it with the new Schedule II annexed hereto as Exhibit B.
SECTION II. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the date hereof only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Second
Amendment Effective Date"):
A. Execution. The Administrative Agent shall have received a counterpart
signature page of this Amendment duly executed by the Borrower, each of the
Guarantors and 100 % of all the affected Lenders and affected Synthetic
Investors (it being understood that such unanimous vote may be obtained
following the utilization by the Borrower of its option to cause the assignment
of the Loans held by or amounts on deposit in the Sub-Account of, as the case
may be, any Non-Consenting Lender pursuant to subsection 11.1(c) of the Credit
Agreement).
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B. Opinions. The Administrative Agent shall have received favorable written
opinions of (a) Xxxxx Xxxxx L.L.P., counsel to the Loan Parties and (b) Xxxxx X.
Xxxxxxxx, Vice President, General Counsel and Corporate Secretary of the
Borrower, in each case dated as of the Second Amendment Effective Date
addressing such matters as the Administrative Agent may reasonably request.
SECTION III. REAFFIRMATION OF CREDIT SUPPORT
A. Each of the Borrower and each Guarantor (each, individually, a "Credit
Support Party" and, collectively, the "Credit Support Parties") has read this
Amendment and consents to the terms hereof and further hereby confirms and
agrees that, notwithstanding the effectiveness of this Amendment, the
obligations of such Credit Support Party under, and the Liens granted by such
Credit Support Party as collateral security for the Indebtedness, obligations
and liabilities evidenced by the Credit Agreement and the other Loan Documents
pursuant to, each of the Loan Documents to which such Credit Support Party is a
party shall not be impaired and each of the Loan Documents to which such Credit
Support Party is a party is, and shall continue to be, in full force and effect
and are hereby confirmed and ratified in all respects
B. Each Credit Support Party (other than the Borrower) acknowledges and
agrees that (i) notwithstanding the conditions to effectiveness set forth in
this Amendment, such Credit Support Party is not required by the terms of the
Credit Agreement or any other Loan Document to consent to the amendments to the
Credit Agreement effected pursuant to this Amendment and (ii) nothing in the
Credit Agreement, this Amendment or any other Loan Document shall be deemed to
require the consent of such Credit Support Party to any future amendments to the
Credit Agreement.
SECTION IV. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and Synthetic Investors to enter into this
Amendment and to amend the Credit Agreement in the manner provided herein, the
Borrower represents and warrants to each Lender and each Synthetic Investor that
the following statements are true and correct in all material respects:
A. Corporate Power and Authority. The Borrower and each Guarantor has all
requisite corporate or other organizational power and authority to enter into
this Amendment and to carry out the transactions contemplated by, and perform
its obligations under, the Credit Agreement and the other Loan Documents.
B. Authorization of Agreements. The execution and delivery of this
Amendment has been duly authorized by all necessary corporate or other
organizational action on the part of the Borrower and each Guarantor.
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C. No Conflict. The execution and delivery by the Borrower and each
Guarantor of this Amendment does not and will not (i) violate (A) any provision
of any law, statute, rule or regulation, or of the certificate or articles of
incorporation or partnership agreement, other constitutive documents or by-laws
of the Borrower or any such Guarantor or (B) any applicable order of any court
or any rule, regulation or order of any Governmental Authority, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under any Contractual Obligation of the
Borrower or any Guarantor, where any such conflict, violation, breach or default
referred to in clause (i) or (ii) of this Section IV.C., individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect, (iii)
except as permitted under the Credit Agreement, result in or require the
creation or imposition of any Lien upon any of the properties or assets of the
Borrower or any such Guarantor (other than any Liens created under any of the
Loan Documents in favor of Collateral Agent on behalf of Lenders), or (iv)
require any approval of stockholders or partners or any approval or consent of
any Person under any Contractual Obligation of the Borrower or any Guarantor
except for such approvals or consents which will be obtained on or before the
Second Amendment Effective Date and except for any such approvals or consents
the failure of which to obtain will not have a Material Adverse Effect.
D. Governmental Consents. No action, consent or approval of, registration
or filing with or any other action by any Governmental Authority is or will be
required in connection with the execution and delivery by the Borrower or any
Guarantor, except for such actions, consents and approvals the failure of which
to obtain or make could not reasonably be expected to result in a Material
Adverse Effect or which have been obtained and are in full force and effect.
E. Binding Obligation. This Amendment has been duly executed and delivered
by the Borrower and each Guarantor and constitutes a legal, valid and binding
obligation of the Borrower and each such Guarantor, enforceable against the
Borrower and each Guarantor in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors' rights generally and
except as enforceability may be limited by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
F. Incorporation of Representations and Warranties from Credit Agreement.
The representations and warranties contained in Article IV of the Credit
Agreement are and will be true and correct in all material respects on and as of
the Second Amendment Effective Date to the same extent as though made on and as
of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true and correct
in all material respects on and as of such earlier date.
G. Absence of Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Default, except for the events
expressly being waived hereby.
SECTION V. MISCELLANEOUS
A. Effect on the Credit Agreement and the Other Loan Documents.
(i) Except as specifically modified by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
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(ii) The execution, delivery and performance of this Amendment shall
not constitute a waiver of any provision of, or operate as a waiver of any
right, power or remedy of any Agent, Lender or Synthetic Investor under,
the Credit Agreement or any of the other Loan Documents except as otherwise
expressly provided for herein.
B. Headings. Section and Subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive effect.
C. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
D. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWER: THE XXXXXXX & XXXXXX COMPANY
By: /s/ Xxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Treasurer
GUARANTORS: AMERICON, INC.
APPLIED SYNERGISTICS, INC.
XXXXXXX & XXXXXX CHINA HOLDINGS, INC.
XXXXXXX & XXXXXX CONSTRUCTION CO., INC.
XXXXXXX & XXXXXX DENMARK HOLDINGS, INC.
XXXXXXX & XXXXXX EBENSBURG POWER, INC.
XXXXXXX & XXXXXX INTERNATIONAL SALES AND SERVICE
CORPORATION
XXXXXXX & XXXXXX INTERNATIONAL, INC.
DIAMOND POWER AUSTRALIA HOLDINGS, INC.
DIAMOND POWER CHINA HOLDINGS, INC.
DIAMOND POWER EQUITY INVESTMENTS, INC.
DIAMOND POWER INTERNATIONAL, INC.
PALM BEACH RESOURCE RECOVERY CORPORATION
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Assistant Treasurer of each of the above-
listed Guarantors
AMERICON EQUIPMENT SERVICES, INC.
B&W SERVICE COMPANY
XXXXXXX & XXXXXX EQUITY INVESTMENTS, INC.
DIAMOND OPERATING CO., INC.
POWER SYSTEMS OPERATIONS, INC.
REVLOC RECLAMATION SERVICE, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary
NATIONAL ECOLOGY COMPANY
NORTH COUNTY RECYCLING, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Secretary and Treasurer
AGENT and LENDER: CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Administrative Agent, Lender, Synthetic Investor and
Collateral Agent
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Associate
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
ALLIED IRISH BANKS, PLC
By: /s/ Xxxxxx Xxxx
----------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
THE BANK OF NOVA SCOTIA
By: /s/ X. Xxxxx
--------------------------------------
Name: X. Xxxxx
Title: Director
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
BNP PARIBAS
By: /s/ Pierre-Xxxxxxxx Xxxxxx
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Name: Pierre-Xxxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Managing Director
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
CALYON NEW YORK BRANCH
By: /s/ Page Dillehunt
--------------------------------------
Name: Page Dillehunt
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Director
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
NATIXIS
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Director
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
NATIONAL CITY BANK
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Vice President
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
PNC BANK, NATIONAL ASSOCIATION
By: /s/ X. X. Xxxxx
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Name: X. X. Xxxxx
Title: Managing Director
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx III
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Name: Xxxxxx X. Xxxxxxxx III
Title: Senior Vice President
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
AMEGY BANK N.A.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Banking Officer
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
BANK OF SCOTLAND
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: First Vice President
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
COMPASS BANK
By: /s/ Xxx Xxxxxx
--------------------------------------
Name: Xxx Xxxxxx
Title: Senior Vice President
LENDERS and
SYNTHETIC INVESTORS
By signing below, you have indicated your
consent to the Second Amendment to the Credit
Agreement
Name of Institution:
WHITNEY NATIONAL BANK
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice President
EXHIBIT A
Schedule I
To Credit Agreement
Lender Revolving Commitment
------------------------------------------- ------------------------------------
BNP $40,000,000.00
Credit Suisse, Cayman Islands Branch $40,000,000.00
JPMorgan Chase Bank, N.A. $40,000,000.00
The Bank of Nova Scotia $40,000,000.00
Wachovia Bank, National Association $40,000,000.00
Bank of America, N.A. $35,000,000.00
Calyon New York Branch $35,000,000.00
Xxxxx Fargo Bank, N.A. $35,000,000.00
Bank of Scotland $18,000,000.00
Amegy Bank National Association $17,000,000.00
Compass Bank $16,000,000.00
Whitney National Bank $15,000,000.00
Natixis Banques Populaires $12,000,000.00
PNC Bank, National Association $8,000,000.00
Allied Irish Bank, PLC. $5,000,000.00
National City Bank $4,000,000.00
Total $400,000,000.00
EXHIBIT B
Schedule II
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Applicable Commitment Fee Rate and Applicable Margin
----------------------------------------------------
1. Applicable Commitment Fee Rate
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"Applicable Commitment Fee Rate" means, with respect to the Revolving Facility,
the applicable percentage per annum on the undrawn portion of the Revolving
Commitments, determined by reference to the credit ratings of the Facilities by
each of S&P and Xxxxx'x, respectively, in effect from time to time as set forth
below; provided that if no such credit rating is available from either S&P or
Xxxxx'x then the Applicable Commitment Fee Rate shall be the highest rate set
forth below; provided further that if the ratings from Xxxxx'x and S&P fall
within one different level set forth below, pricing shall be based on the higher
rating, provided further that if the ratings from Xxxxx'x and S&P fall within
two different levels set forth below, pricing shall be based on the level one
level higher than the lowest of the two ratings:
Commitment Fee for Revolving Facility
Credit Ratings Commitment Fee
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Baa2 or BBB or better 0.250%
Baa3 or BBB- 0.300%
Less than Baa3 or BBB- 0.375%
2. Applicable Margin
-----------------
"Applicable Margin" means, with respect to Revolving Loans that are (i)
Eurodollar Rate Loans, a percentage, per annum, determined by reference to the
credit ratings of the Facilities by each of S&P and Xxxxx'x, respectively, in
effect from time to time as set forth below; provided that if no such credit
rating is available from either S&P or Xxxxx'x then the Applicable Margin shall
be the highest margin set forth below; provided further that if the ratings from
Xxxxx'x and S&P fall within one different level set forth below, pricing shall
be based on the higher rating, provided further that if the ratings from Xxxxx'x
and S&P fall within two different levels set forth below, pricing shall be based
on the level one level higher than the lowest of the two ratings:
Credit Ratings Applicable Margin for Revolving Loans
--------------------------------------------------------------------------------
Baa2 or BBB or better 1.00%
Baa3 or BBB- 1.25%
Ba1 or BB+ 1.50%
Less than Ba1 or BB+ 1.75%
and (ii) with respect to Revolving Loans that are Base Rate Loans, an amount
equal to (a) the Applicable Margin for Eurodollar Rate Loans as set forth above,
as applicable, minus (b) 1.00% per annum.
