EXHIBIT 4(j)(v)
SECOND AMENDMENT dated as of November 22, 2002 (this "Second
Amendment") to the Five-Year Revolving Credit Agreement, dated as of May 10,
2002 (as previously amended through the date hereof, the "Existing Credit
Agreement"), among Worthington Industries, Inc., the Lenders and PNC Bank,
National Association, as Administrative Agent, Issuing Lender and Swingline
Lender.
The Borrower has notified the Administrative Agent that the Borrower
intends to terminate its existing 364-Day Credit Facility (as defined below) and
simultaneously effect an increase of up to 50% of the Commitments of the Lenders
under the Existing Credit Agreement (together, the "Conversion"). The Borrower
has requested that, in connection with and in order to complete the Conversion,
the Lenders agree to amend the Existing Credit Agreement to (i) provide for an
increase in the Commitments of the Lenders as provided on Annex A to this Second
Amendment for an aggregate of Revolving Commitments of $235,000,000, and (ii)
add The Bank of Nova Scotia as Documentation Agent under the Amended Credit
Agreement (as defined below). The parties hereto have agreed, subject to the
terms and conditions hereof, to amend the Existing Credit Agreement as provided
herein.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Existing Credit Agreement (the Existing
Credit Agreement, as amended by, and together with, this Second Amendment, and
as hereinafter amended, modified, extended or restated from time to time, being
called the "Amended Credit Agreement").
Accordingly, the parties hereby agree as follows:
PART I
AMENDMENTS TO THE EXISTING CREDIT AGREEMENT
SUBPART 1.01 Amendments to Recitals. The Recitals of the Existing
Credit Agreement are hereby amended by replacing, in the second paragraph
thereof, the number "155,000,000" with the number "235,000,000".
SUBPART 1.02 Amendments to Section 1.01.
(a) Section 1.01 of the Existing Credit Agreement is hereby
amended by inserting the following definitions into such Section in the
appropriate alphabetical sequence:
"Second Amendment" means the Second Amendment, dated as of
November 22, 2002, to this Agreement as theretofore in effect, among
the Borrower, the Administrative Agent and the Lenders party thereto.
"Second Amendment Effective Date" means the date that the
Second Amendment becomes effective in accordance with Subpart 3.01 of
the Second Amendment.
"Sarbanes-Oxley Act" means the United States Sarbanes-Oxley
Act of 2002.
(b) Section 1.01 of the Existing Credit Agreement is hereby
amended by amending and restating the following definitions in such
Section so that they read in their entireties as follows:
"Swingline Committed Amount" means the lesser of (i)
$20,000,000 or (ii) an amount which, when added to the aggregate
principal amount of all other Loans then outstanding under this
Agreement, does not exceed $235,000,000 or such lesser amount as the
Revolving Committed Amount may be adjusted pursuant to Section 2.11.
"Revolving Committed Amount" means at all times prior to the
Second Amendment Effective Date, $155,000,000, and as of and at all
times subsequent to the Second Amendment Effective Date, $235,000,000,
or such greater or lesser amount to which the Revolving Committed
Amount may be adjusted pursuant to Section 2.11.
(c) Section 1.01 of the Existing Credit Agreement is hereby
amended by deleting the defined term "364-Day Credit Agreement" in its
entirety.
SUBPART 1.03 Amendments to Section 2.01. Clause (b) of the Section 2.01
is hereby amended by replacing the comma before the romanette "(iv)" with the
word "and", and by deleting the text beginning at the words "and (v)" through
the end of the sentence.
SUBPART 1.04 Amendments to Section 7.03. Clause (iii) of Section 7.03
of the Existing Credit Agreement is hereby amended by inserting the words ", in
each case only to the extent that the making or incurrence of any such advance
or obligation to any director or executive officer (or equivalent thereof) would
not be in violation of Section 402 of the Sarbanes-Oxley Act" immediately
following the words "business purposes".
SUBPART 1.05 Amendments to Section 7.14. Clause (c) of Section 7.14 of
the Existing Credit Agreement is hereby amended by deleting the words "the sum
of (A)", by deleting the words "(B) with respect to the 364-Day Credit
Agreement, the Revolving Committed Amount (as defined in the 364-Day Credit
Agreement) thereunder plus", and by changing the references to "(C)" and "(D)"
therein to "(B)" and "(C)", respectively.
SUBPART 1.06 Amendments to Section 9.01. Clause (a) of Section 9.01 is
hereby amended as follows:
(a) by replacing, after the words "PNC Bank, National
Association, as Administrative Agent" the word "and" with a comma; and
(b) by inserting, after the words "Co-Syndication Agents" the
words "and The Bank of Nova Scotia, as Documentation Agent,".
SUBPART 1.07 Amendments to Schedules and Exhibits. The Existing Credit
Agreement is hereby amended by replacing Schedule 1.01A (Lenders and
Commitments) to the Existing Credit Agreement with Annex A attached to this
Second Amendment.
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PART II
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SUBPART 2.01 Representations and Warranties. The Borrower hereby
represents and warrants as of the date hereof and on and as of the Effective
Date to each Lender and the Administrative Agent, as follows:
(a) The representations and warranties set forth in Article V
of the Amended Credit Agreement, and in each other Loan Document, are
true and correct in all material respects at and as if made as of the
date hereof and on and as of the Effective Date except to the extent
such representations and warranties expressly relate to an earlier
date.
(b) The Borrower is in compliance with all the terms and
conditions of the Amended Credit Agreement and the other Loan Documents
on its part to be observed or performed, and no Default or Event of
Default has occurred and is continuing.
(c) The execution, delivery and performance by the Borrower of
this Second Amendment have been duly authorized by all requisite
corporate action.
(d) This Second Amendment and the Amended Credit Agreement
constitute the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective
terms.
(e) The execution, delivery and performance by the Borrower of
this Second Amendment and the Amended Credit Agreement will not (i)
violate, contravene or conflict with any requirement of Law applicable
to the Borrower or its properties, (ii) violate or conflict with any
provision of the Borrower's Organization Documents, or (iii) result in
the breach of or constitute a default under any indenture or other
agreement or instrument to which the Borrower is a party.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.01 Conditions to Effectiveness. This Second Amendment shall
become effective on the first date (the "Effective Date") upon which all of the
following conditions have been satisfied:
(a) Executed Loan Documents. Receipt by the Administrative
Agent of duly executed copies of: (i) this Second Amendment, which when
taken together bear the signatures of the Borrower, the Required
Lenders, each Lender increasing the amount of its Revolving Commitment
pursuant to this Second Amendment and the Administrative Agent, in form
and substance satisfactory to the Lenders in their sole discretion.
(b) Opinions of Counsel. The Administrative Agent shall have
received from Counsel for the Borrower, an opinion addressed to the
Administrative Agent, the
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Collateral Agent and each Lender, dated the Effective Date,
substantially in the form of Exhibit F to the Amended Credit Agreement.
(c) Consents and Approvals. On the Effective Date, all
necessary governmental (domestic or foreign), regulatory and third
party approvals (including, without limitation, with respect to real
property leases and license agreements relating to intellectual
property) in connection with the transactions contemplated by the
Amended Credit Agreement and otherwise referred to herein or therein
shall have been obtained and remain in full force and effect, without
any action being taken by any competent authority which could restrain
or prevent such transactions or impose, in the reasonable judgment of
the Administrative Agent, materially adverse conditions upon the
consummation of such transactions.
(d) Litigation; Judgments. On the Effective Date, there shall
be no actions, suits, proceedings or investigations pending or, to the
knowledge of the Borrower, threatened (i) with respect to this Second
Amendment, the Amended Credit Agreement or the transactions
contemplated hereby or thereby or (ii) which the Administrative Agent
or the Required Lenders shall reasonably determine would reasonably be
expected to have a Material Adverse Effect.
(e) Repayment of 364-Day Credit Facility. The Administrative
Agent shall be satisfied that no later than as of the Effective Date,
the commitments under the 364-Day Revolving Credit Agreement dated as
of May 10, 2002, as amended through the Second Amendment Effective
Date, among the Borrower, the Lenders party thereto and PNC Bank,
National Association, as Agent for the Lenders (the "364-Day Credit
Facility"), shall be terminated, all loans outstanding under the
364-Day Credit Facility shall be repaid in full, together with accrued
interest thereon (including, without limitation, any prepayment
premium), and all other amounts owing pursuant to the 364-Day Credit
Facility shall be repaid in full.
(f) Conversion Fee. The Administrative Agent shall have
confirmed receipt from the Borrower, on behalf of each Lender
increasing its Commitment pursuant to this Second Amendment (each, an
"Increasing Lender") of a fee equal to the amount determined by
multiplying (i) the aggregate principal amount of the increase in each
Increasing Lender's Commitment by (ii) 0.0025 (such amount in the
aggregate, the "Conversion Fee").
(g) Payment of Fees. All costs, fees and expenses due to the
Administrative Agent, the Collateral Agent and the Lenders on or before
the Effective Date incurred in connection with the Existing Credit
Agreement and this Second Amendment, including, without limitation, the
Conversion Fee, shall have been paid.
(h) Counsel Fees. The Administrative Agent shall have received
full payment from the Borrower of all fees and expenses of Mayer,
Brown, Rowe & Maw incurred in connection with this Second Amendment
which are billed through the Effective Date.
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(i) Officer's Certificates. The Administrative Agent shall
have received a certificate or certificates executed by a Responsible
Officer of the Borrower as of the Effective Date stating that
immediately prior to and after giving effect to the Second Amendment
and the transactions contemplated hereby: (1) no Default or Event of
Default has occurred and is continuing; and (2) all representations and
warranties made by the Borrower in any Loan Document are true and
correct in all material respects at and as if made as of such date,
except to the extent they expressly relate to an earlier date.
(j) Other. The Administrative Agent shall have received such
other documents, instruments, agreements or information as may be
reasonably requested by the Administrative Agent.
All corporate and legal proceedings and instruments and
agreements relating to the transactions contemplated by this Second Amendment or
in any other document delivered in connection herewith or therewith shall be
satisfactory in form and substance to the Administrative Agent and its counsel,
and the Administrative Agent shall have received all information and copies of
all documents and papers, including records of corporate proceedings,
governmental approvals, good standing certificates and bring-down telegrams, if
any, which the Administrative Agent reasonably may have requested in connection
therewith, such documents and papers where appropriate to be certified by proper
corporate or governmental authorities. The documents referred to in this Subpart
shall be delivered to the Administrative Agent no later than the Effective Date.
The certificates and opinions referred to in this Section shall be dated the
Effective Date.
PART IV
GENERAL PROVISIONS
SUBPART 4.01 APPLICABLE LAW. THIS SECOND AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES.
SUBPART 4.02 Counterparts. This Second Amendment may be executed in any
number of counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one agreement. Delivery of an
executed counterpart of a signature page to this Second Amendment by facsimile
shall be effective as delivery of a manually executed counterpart of this Second
Amendment.
SUBPART 4.03 Loan Documents. Except as expressly set forth herein, the
amendments provided herein shall not by implication or otherwise limit,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders or the Administrative Agent under the Amended Credit Agreement or any
other Loan Document, nor shall they constitute a waiver of any Event of Default,
nor shall they alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Amended Credit
Agreement or any other Loan Document. Each of the amendments provided herein
shall apply and be effective
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only with respect to the provisions of the Amended Credit Agreement specifically
referred to by such amendments. Except as expressly amended herein, the Amended
Credit Agreement and the other Loan Documents shall continue in full force and
effect in accordance with the provisions thereof. As used in the Amended Credit
Agreement, the terms "Agreement", "herein", "hereinafter", "hereunder", "hereto"
and words of similar import shall mean, from and after the date hereof, the
Amended Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed by duly authorized officers, all as of the date
first above written.
WORTHINGTON INDUSTRIES, INC.
By: /s/ John T. Baldwin
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Name: John T. Baldwin
Title: Vice President and CFO
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PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/ David B. Gookin
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Name: David B. Gookin
Title: Managing Director
PNC BANK, NATIONAL ASSOCIATION
as Swingline Lender
By: /s/ David B. Gookin
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Name: David B. Gookin
Title: Managing Director
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ David B. Gookin
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Name: David B. Gookin
Title: Managing Director
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By:
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Name:
Title:
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THE BANK OF NOVA SCOTIA, as Documentation Agent
and as a Lender
By: /s/ N. Bell
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Name: N. Bell
Title: Sr. Manager - Loan Operations
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CREDIT SUISSE FIRST BOSTON CAYMAN
ISLANDS BRANCH, as a Lender
By: /s/ Bill O'Daly /s/ Cassandra Droogan
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Name: Bill Daly Name: Cassandra Droogan
Title: Director Title: Associate
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FIFTH THIRD BANK (CENTRAL OHIO),
as a Lender
By: /s/ John K. Beardslee
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Name: John K. Beardslee
Title: Vice President
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U.S. BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ R. H. Fried
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Name: R. H. Fried
Title: Vice President
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CIBC, INC., as a Lender
By: /s/ Lindsay Gordon
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Name: Lindsay Gordon
Title: Executive Director, CIBC World
Markets Corp as Agent
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COMERICA BANK, as a Lender
By: /s/ Dan M. Roman
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Name: Dan M. Roman
Title: 1st Vice President
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THE HUNTINGTON NATIONAL BANK,
as a Lender
By: /s/ Nancy J. Cracolice
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Name: Nancy J. Cracolice
Title: Vice President
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JPMORGAN CHASE BANK,
as a Lender
By:
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Name:
Title:
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NATIONAL CITY BANK, as a Lender
By: /s/ William J. Whitley
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Name: William J. Whitley
Title: Senior Vice President
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Mary D. Falck
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Name: Mary D. Falck
Title: Senior Vice President
By: /s/ Steven M. Buehler
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Name: Steven M. Buehler
Title: Vice President
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MELLON BANK, NA, as a Lender
By:
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Name:
Title:
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CITICORP USA, INC., as a Lender
By: /s/ Larry Farley
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Name: Larry Farley
Title: Director
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THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ David Sullivan
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Name: David Sullivan
Title: Vice President
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