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EXHIBIT 4(e)
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SECOND AMENDED AND RESTATED LOAN AGREEMENT
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SECOND AMENDED AND RESTATED
LOAN AGREEMENT
$300,000,000
CREDIT FACILITY
FROM
THE BANK OF NOVA SCOTIA
PNC BANK, NATIONAL ASSOCIATION
NATIONSBANK, N.A.
WACHOVIA BANK OF GEORGIA, N.A.
NBD BANK
BANK ONE, N.A.
AND
NATIONAL CITY BANK
(COLLECTIVELY, THE "LENDERS")
AND
THE BANK OF NOVA SCOTIA
AND
PNC BANK, NATIONAL ASSOCIATION
AS AGENT FOR THE LENDERS
TO
WORTHINGTON INDUSTRIES, INC. ("BORROWER")
DATED AS OF OCTOBER 14, 1998
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TABLE OF CONTENTS
1. Definitions..............................................................................1
1.1 Defined Terms.....................................................................1
1.2 Other Definitional Provisions....................................................20
1.3 Additional Definitional Provisions...............................................20
2. Credit Facilities.......................................................................20
2.1 Revolving Credit Facility........................................................20
2.2 The Competitive Bid Facility.....................................................23
2.3 Secondary Revolving Credit Facility..............................................27
2.4 Additional Provisions Regarding Funding..........................................29
2.5 Principal Payments...............................................................30
2.6 Default Rate.....................................................................31
2.7 Termination or Reduction of Revolving Commitments................................31
2.8 Termination or Reduction of Secondary Revolving Credit Commitments...............31
2.9 Records..........................................................................32
2.10 Assumptions Regarding Notices....................................................32
2.11 Computations, Fees, Payments, Etc................................................33
2.12 Additional Costs.................................................................36
2.13 Obligation to Indemnify..........................................................37
2.14 Extension........................................................................38
2.15 Increase of Total Revolving Credit Commitment....................................39
3. Conditions Precedent....................................................................39
3.1 Closing..........................................................................40
3.2 Each Advance.....................................................................40
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4. Representations and Warranties..........................................................40
4.1 Organization.....................................................................40
4.2 Latest Financials................................................................40
4.3 Recent Adverse Changes...........................................................40
4.4 Litigation, Etc..................................................................41
4.5 Taxes............................................................................41
4.6 Authority........................................................................41
4.7 Other Defaults...................................................................41
4.8 Licenses, Etc....................................................................41
4.9 ERISA............................................................................42
4.10 Regulation U.....................................................................42
4.11 Closing Memo.....................................................................42
4.12 Environmental Matters............................................................42
5. Affirmative Covenants...................................................................42
5.1 Books and Records................................................................42
5.2 SEC Filings and Shareholders Reports.............................................42
5.3 Quarterly Statements.............................................................42
5.4 Annual Statements................................................................43
5.5 Taxes............................................................................43
5.6 Insurance........................................................................43
5.7 Compliance with Laws.............................................................43
5.8 Environmental Violations.........................................................44
5.9 ERISA Compliance.................................................................44
5.10 Notice of Default................................................................44
5.11 Change in Business...............................................................44
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6. Negative Covenants......................................................................44
6.1 Liens............................................................................44
6.2 Restrictions on Indebtedness of Consolidated Subsidiaries........................44
6.3 Ownership........................................................................44
6.4 Consolidated Indebtedness to Capitalization......................................45
6.5 Net Worth........................................................................45
6.6 Merger...........................................................................45
6.7 Sale of Assets...................................................................45
6.8 Transactions with Unrestricted Subsidiaries......................................45
6.9 Governance Documents.............................................................45
7. Events of Default.......................................................................45
7.1 Payment..........................................................................46
7.2 Covenants........................................................................46
7.3 Representations and Warranties...................................................46
7.4 Bankruptcy, Etc., of Borrower or an Active Consolidated Subsidiary...............46
7.5 Bankruptcy, Etc., of Unrestricted Subsidiary.....................................46
7.6 Judgments........................................................................46
7.7 Other Indebtedness...............................................................47
8. Intercreditor Lien and Payment Provisions...............................................47
8.1 Sharing of Payments, Etc.........................................................47
8.2 Receipt of Payments by Lenders...................................................49
8.3 Distributions, Etc...............................................................49
8.4 Benefit..........................................................................50
9. Representations and Warranties to Survive...............................................50
10. Environmental Indemnification...........................................................50
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11. Agents..................................................................................50
11.1 Authorization and Action.........................................................50
11.2 Agents' Reliance, Etc............................................................51
11.3 Agents and Their Affiliates......................................................52
11.4 Lender Credit Decision...........................................................52
11.5 Indemnification..................................................................52
11.6 Successor Agent..................................................................53
11.7 Relations Among Lenders..........................................................53
11.8 Benefit..........................................................................53
12. General.................................................................................53
12.1 Waiver...........................................................................53
12.2 Notices..........................................................................54
12.3 Successors and Assigns...........................................................56
12.4 Modifications....................................................................60
12.5 Illegality.......................................................................60
12.6 Gender, Etc......................................................................60
12.7 Headings.........................................................................61
12.8 Liability of Lenders.............................................................61
12.9 Execution in Counterparts........................................................61
12.10 Remedies Cumulative..............................................................61
12.11 Costs, Expenses and Legal Fees...................................................61
12.12 Indemnity........................................................................62
12.13 Continuing Agreement.............................................................62
12.14 Complete Agreement...............................................................62
12.15 No Third Party Beneficiaries.....................................................62
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12.16 Tax Withholding Clause...........................................................63
12.17 No Partnership or Joint Venture..................................................63
12.18 Governing Law and Jurisdiction; Waiver of Jury Trial.............................64
Exhibit A.......................................................................................67
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SECOND
AMENDED AND RESTATED
LOAN AGREEMENT
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WORTHINGTON INDUSTRIES, INC., an Ohio corporation, the successor in
interest to Worthington Industries, Inc., a Delaware corporation ("Borrower"),
the banks listed on the Amended and Restated Schedule 1 (each individually
"Revolving Credit Lender" and collectively "Revolving Credit Lenders"), the
banks listed on Schedule 2 (each individually "Secondary Revolving Credit
Lender" and collectively, "Secondary Revolving Credit Lenders") and THE BANK OF
NOVA SCOTIA and PNC BANK, NATIONAL ASSOCIATION, the successor in interest to PNC
Bank, Ohio, National Association, as agents for the Lenders (as hereinafter
defined) and individually as Revolving Credit Lenders and Secondary Revolving
Credit Lenders (individually, the "Agent" and jointly and severally, "Agents"),
hereby agree as set forth in the following sections of this Agreement. This
Agreement completely amends and restates the Amended and Restated Loan Agreement
between Borrower, Lenders and Agents dated as of May 30, 1997. All references in
the Loan Documents (as hereinafter defined) to the "Loan Agreement" will mean
this Agreement and all amendments hereto and restatements hereof.
1. DEFINITIONS.
1.1 DEFINED TERMS. For purposes of this Agreement the following
terms will have the following meanings:
1.1.1 "Active Consolidated Subsidiary(ies)" will mean a
Consolidated Subsidiary having a net worth in excess
of $1,000,000.
1.1.2 "Advance" or "Advances" will mean Revolving Loans,
Secondary Revolving Credit Loans, and Competitive Bid
Loans made pursuant to this Agreement.
1.1.3 "Administrative Agent" will mean The Bank of Nova
Scotia, its successors and assigns.
1.1.4 "Administrative Agent's Account" will mean the
account of Administrative Agent maintained by
Administrative Agent at its office for purpose of
receipt of funds hereunder and as designated by
Administrative Agent in a written notice to Borrower
and Lenders.
1.1.5 "Affiliate(s)" will mean, with respect to any Person
(a) any other Person directly or indirectly
controlling, controlled by or under common control
with such Person, or (b) any Person who is a director
or officer of such Person or any Subsidiary thereof.
A Person will be deemed to control another Person if
such Person possesses, directly or indirectly, the
power to (i) vote ten percent (10%) or more of the
voting equity of such other Person, or (ii) direct or
cause the direction of the management and policies of
such other Person, whether through voting securities,
by contract or otherwise.
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1.1.6 "Aggregate Outstanding Revolving Credit" will mean an
amount equal to the aggregate unpaid principal amount
of all Revolving Loans and of all Competitive Bid
Loans.
1.1.7 "Aggregate Outstanding Secondary Revolving Credit"
will mean an amount equal to the aggregate unpaid
principal amount of all Secondary Revolving Credit
Loans.
1.1.8 "Agreement" will mean this Loan Agreement and any
amendments or supplements thereto made from time to
time in accordance with the terms of this Agreement.
1.1.9 "Alternate Base Rate" will mean the higher of: (i)
the average of the Base Rate of each of the Agents or
(ii) the Federal Funds Rate plus 0.5% per annum. Any
change in the Alternate Base Rate due to a change in
the Base Rate or the Federal Funds Rate will be
effective on the effective date of such change in the
Base Rate or the Federal Funds Rate without notice to
Borrower. The Administrative Agent will provide
Borrower notice of any change in the Alternate Base
Rate as soon as practicable but in any event within
24 hours, provided, however, that any failure of
Administrative Agent to provide such notice will not
affect the effectiveness of the change in the
Alternate Base Rate.
1.1.10 "Alternate Base Rate Advance" will mean any Advance
or Converted Advance that bears interest based upon
the Alternate Base Rate.
1.1.11 "Alternate Secondary Revolving Credit Base Rate" will
mean the higher of: (i) the average of the Base Rate
of each of the Agents or (ii) the Federal Funds Rate
plus 0.55% per annum. Any change in the Alternate
Secondary Revolving Credit Base Rate due to a change
in the Base Rate or the Federal Funds Rate will be
effective on the effective date of such change in the
Base Rate or the Federal Funds Rate without notice to
Borrower. The Administrative Agent will provide
Borrower notice of any change in the Alternate
Secondary Revolving Credit Base Rate as soon as
practicable but in any event within 24 hours,
provided, however, that any failure of Administrative
Agent to provide such notice will not affect the
effectiveness of the change in the Alternate
Secondary Revolving Credit Base Rate.
1.1.12 "Alternate Secondary Revolving Credit Base Rate
Advance" will mean any Advance or Converted Advance
that bears interest based upon the Alternate
Secondary Revolving Credit Base Rate.
1.1.13 "Applicable Margin" will mean:
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1.1.13.1 as to Revolving Loans that bear interest at
the Euro-Rate, initially 18.5 basis points;
provided that such rate will be adjusted as
follows based on Borrower's Senior Unsecured Debt
Rating determined as of the end of the Borrower's
previous quarter:
SENIOR UNSECURED DEBT RATING APPLICABLE MARGIN
(IN BASIS POINTS)
greater than or equal to A/A2 17.0
A-/A3 18.5
BBB+/Baa1 20.0
BBB/Baa2 22.5
less than BBB/Baa2 25.0
The Applicable Margin as to Revolving Loans that bear
interest at the Euro-Rate will be adjusted as of the
first day of the fiscal quarter based upon the Senior
Unsecured Debt Rating as determined by Administrative
Agent. In the event that Borrower's Senior Unsecured
Debt Rating by Moody's Investor Service, Inc. is
different from the rating received from Standard &
Poors Ratings Service, a division of McGraw-Hill
Companies, Inc. ("Standard & Poors"), the higher of
the two ratings will control. Such adjustments will
apply to all outstanding Revolving Loans that bear
interest at the Euro-Rate and to any such Advances
made or converted on or after such date.
1.1.13.2 as to Competitive Bid Loans that bear
interest at the Euro-Rate, the margin specified
in the related Competitive Bid accepted by
Borrower.
1.1.14 "Applicable Secondary Revolving Credit Margin" will
mean as to Secondary Revolving Credit Loans that bear
interest at the Euro-Rate, initially 20.0 basis
points; provided that such rate will be adjusted as
follows based on Borrower's Senior Unsecured Debt
Rating determined as of the end of the Borrower's
previous quarter:
SENIOR UNSECURED DEBT RATING APPLICABLE SECONDARY
REVOLVING CREDIT
MARGIN
(IN BASIS POINTS)
greater than or equal to A/A2 18.5
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A-/A3 20.0
BBB+/Baa1 21.5
BBB/Baa2 24.0
less than BBB/Baa2 26.5
The Applicable Secondary Revolving Credit Margin as
to Secondary Revolving Credit Loans that bear
interest at the Euro-Rate will be adjusted as of the
first day of the fiscal quarter based upon the Senior
Unsecured Debt Rating as determined by Administrative
Agent. In the event that Borrower's Senior Unsecured
Debt Rating by Moody's Investor Service, Inc. is
different from the rating received from Standard &
Poors Ratings Service, a division of McGraw-Hill
Companies, Inc. ("Standard & Poors"), the higher of
the two ratings will control. Such adjustments will
apply to all outstanding Secondary Revolving Credit
Loans that bear interest at the Euro-Rate and to any
such Advances made or converted on or after such
date.
1.1.15 "Assignment and Acceptance" will mean a form
substantially in the form of the Amended and Restated
Assignment and Acceptance form delivered to each
Revolving Credit Lender to transfer interests in its
Loans.
1.1.16 "Attorneys Fees" will mean the reasonable value of
the services (and all costs and expenses related
thereto) of the attorneys (and all paralegals and
other staff employed by such attorneys) employed by
Lender from time to time to: (i) take any action in
or with respect to any suit or proceedings
(bankruptcy or otherwise) relating to this Agreement;
(ii) enforce any of Lender's rights to collect any of
the Obligations; (iii) give Lender advice with
respect to this Agreement, including but not limited
to advice in connection with any default, workout or
bankruptcy; and (iv) prepare any amendments,
restatements, or waivers to this Agreement or any of
the documents executed in connection with any of the
Obligations.
1.1.17 "Available Commitment" will mean, as to any Revolving
Credit Lender at any time, an amount equal to the
excess, if any, of (a) such Revolving Credit Lender's
Revolving Commitment over (b) the then outstanding
Revolving Loans made by such Revolving Credit Lender.
1.1.18 "Available Secondary Revolving Credit Commitment"
will mean, as to any Secondary Revolving Credit
Lender at any time, an amount equal to the excess, if
any, of (a) such Secondary Revolving Credit Lender's
Secondary Revolving Credit Commitment over (b) the
then outstanding
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Secondary Revolving Credit Loans made by such
Secondary Revolving Credit Lender.
1.1.19 "Base Rate" will mean the rates established by each
of the Administrative Agent and the Documentation
Agent from time to time based on its consolidation of
various factors, including money market, business and
competitive factors, and is not necessarily its most
favored interest rate, provided that in no event will
the Base Rate of either Agent exceed such Agent's
announced "prime rate".
1.1.20 "Borrower's Account" will mean the account of
Borrower at Administrative Agent designated by
Administrative Agent for use hereunder.
1.1.21 "Borrowing" will mean an Advance made on a given
Borrowing Date.
1.1.22 "Borrowing Date" will mean the date on which an
Advance is made.
1.1.23 "Business Day" will mean a day of the year on which
banks located in New York, New York are not required
or authorized to close and, if the applicable
Business Day relates to any Euro-Rate Advance, such
day must also be a day on which dealings are carried
on in the London interbank market.
1.1.24 "Capitalization" will mean Consolidated Indebtedness
plus Net Worth.
1.1.25 "Closing" will mean the execution and delivery of the
documents listed on the Closing Memo.
1.1.26 "Closing Date" will mean April 28, 1995.
1.1.27 "Closing Memo" will mean the Amended and Restated
Closing Memorandum between Borrower and Documentation
Agent in connection with the transactions represented
by this Agreement.
1.1.28 "Code" will mean the Internal Revenue Code of 1986,
as amended or supplemented from time to time.
1.1.29 "Competitive Bid Borrowings" will mean the amount of
Competitive Bid Loans outstanding at any particular
time.
1.1.30 "Competitive Bid Conditions" will mean the conditions
set forth in Section 2.2 and 3, below, and in the
Competitive Bid Notes.
1.1.31 "Competitive Bid Facility" will mean the credit
facility described in Section 2.2 below.
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1.1.32 "Competitive Bid Lender" will mean any Lender that
makes a Competitive Bid Loan, its successors and
assigns.
1.1.33 "Competitive Bid Loans" will mean the Advances
described in Section 2.2, below.
1.1.34 "Competitive Bid Notes" will mean collectively the
Amended and Restated Competitive Bid Notes evidencing
the Competitive Bid Facility described in Section
2.2, below, and will include all amendments thereto
and any future restatements thereof.
1.1.35 "Competitive Bid Rate" will mean the interest rate
applicable to a Competitive Bid or a Competitive Bid
Loan.
1.1.36 "Competitive Bid Request(s)" will mean the form for
requesting Competitive Bid Loans in the form of the
Amended and Restated Competitive Bid Requests
delivered by Documentation Agent to Borrower, and all
amendments thereto and any future restatements
thereof.
1.1.37 "Competitive Bids" will mean offers by Revolving
Credit Lenders to make Competitive Bid Loans made in
accordance with Section 2.2, below, pursuant to the
form for requesting Competitive Bid Loans delivered
by Documentation Agent to Revolving Credit Lenders in
connection with the Closing and all amendments
thereto and restatements thereof.
1.1.38 "Compliance Certificate" will mean the Amended and
Restated Compliance Certification in the form
delivered to Borrower by Documentation Agent.
1.1.39 "Consolidated Group" will mean Borrower and those of
its Subsidiaries treated as Consolidated Subsidiaries
for purposes of this Agreement.
1.1.40 "Consolidated Indebtedness" will mean at any date,
the Indebtedness of Borrower and its Consolidated
Subsidiaries, determined on a consolidated basis as
of such date.
1.1.41 "Consolidated Subsidiary(ies)" will mean at any date
any Subsidiary the accounts of which would be
consolidated with those of Borrower in its
consolidated financial statements if such statements
were prepared as of such date, but excluding any
Unrestricted Subsidiary.
1.1.42 "Conversion" or "Converted" will mean the switching
from one rate mode to another for a particular
Advance or Converted Advance in accordance with the
terms of this Agreement.
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1.1.43 "Converted Advance" will mean a Revolving Advance or
Secondary Revolving Credit Advance where the rate of
interest originally elected has been converted by
means of a Conversion.
1.1.44 "Credit Facilities" will mean the Revolving Credit
Facility, the Secondary Revolving Credit Facility and
the Competitive Bid Facility evidenced by this
Agreement as described in Section 2, below.
1.1.45 "Current Audited Financial Statements" will mean
Borrower's audited consolidated balance sheet dated
May 31, 1994 and Borrower's related audited
consolidated statements of earnings, shareholders'
equity and cash flows for the fiscal year ended May
31, 1994, all as set forth in Borrower's Form 10-K
for the year ended May 31, 1994.
1.1.46 "Current Financial Statements" will mean the Current
Audited Financial Statements and Borrower's unaudited
consolidated balance sheet dated November 30, 1994
and Borrower's related unaudited consolidated
statements of earnings, shareholders' equity and cash
flows for the six months ended November 30, 1994, all
as set forth in Borrower's Form 10-Q for the six
months ended November 30, 1994 (subject to normal
year-end adjustments).
1.1.47 "Default" will mean any event or condition which,
with the passage of time or the giving of notice or
both, would constitute an Event of Default.
1.1.48 "Default Rate" will mean the Alternate Base Rate in
effect, from time to time, plus two percent (2%) per
annum, but not more than the highest rate permitted
by applicable law.
1.1.49 "Designated Lender" will mean any Person who has been
designated by a Revolving Credit Lender to fund
Competitive Bid Loans and has executed a Designation
Agreement and thereby become a party to this
Agreement pursuant to Section 12.3.7.
1.1.50 "Designating Lender" shall have the meaning assigned
to such term in Section 12.3.7.
1.1.51 "Designation Agreement" means a designation agreement
entered into by a Revolving Credit Lender and a
Designated Lender and accepted by the Agent, in
substantially the form of Exhibit A hereto.
1.1.52 "Documentation Agent" will mean PNC Bank, National
Association, its successors and assigns.
1.1.53 "Dollars" will mean lawful money of the United States
of America.
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1.1.54 "Environmental Laws" will mean any and all federal,
state, local and foreign statutes, laws, judicial
decisions, regulations, ordinances, rules, judgments,
orders, decrees, injunctions, permits, concessions,
grants, franchises, licenses, agreements and other
governmental restrictions relating to the
environment, the effect of the environment on human
health or to the emission, discharge or release of
pollutants, contaminants, Hazardous Wastes or
substances into the environment including, without
limitation, ambient air, surface water, ground water,
or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants,
contaminants, Hazardous Wastes or substances or the
clean-up or other remediation thereof.
1.1.55 "ERISA" will mean the Employee Retirement Income
Security Act of 1974, or any successor statute, as
amended or supplemented from time to time.
1.1.56 "ERISA Affiliate" will mean any person (as defined in
Section 3.1 of ERISA) including each trade or
business (whether or not incorporated) that together
with Borrower, or any Subsidiary thereof, would be
deemed to be a "single employer" or member of the
same "controlled group" within the meaning of Section
414 of the Code.
1.1.57 "Event of Default" will have the meaning set forth in
Section 7.
1.1.58 "Eurocurrency Liabilities" will have the meaning
assigned to that term in Regulation D of the Board of
Governors of the Federal Reserve System, as in effect
from time to time.
1.1.59 "Euro-Rate" will mean, with respect to the Revolving
Loans or Secondary Revolving Credit Loans comprising
any Advance or Converted Advance to which the
Euro-Rate applies for an Interest Period, the
interest rate per annum determined by the
Administrative Agent by dividing (the resulting
quotient will be rounded upward to the nearest
1/100th of 1% per annum): (i) the rate of interest
determined by the Administrative Agent in accordance
with its usual procedures (which determination will
be conclusive absent manifest error) to be the
average of the London interbank offered rates set
forth on the "LIBOR" page of the Reuters Monitor
Money Rate Service (or appropriate successor, or if
Reuters or its successor ceases to provide such
quotes, a comparable replacement determined by the
Administrative Agent) at approximately 11:00 a.m.
London time two (2) Business Days prior to the first
day of such Interest Period for an amount comparable
to such Advance or Converted Advance and having a
borrowing date and maturity comparable to such
Interest Period by (ii) a number equal to 1.00 minus
the Euro-Rate Reserve Percentage. The Euro-Rate may
also be expressed by the following formula:
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Average of London interbank offered rates on LIBOR
page of Euro-Rate =
Reuters Monitor Money Rate Service
or appropriate successor
-----------------------------------
1.00 - Euro-Rate Reserve Percentage
1.1.60 "Euro-Rate Advance" will mean any Advance or
Converted Advance that bears interest based upon the
Euro-Rate.
1.1.61 "Euro-Rate Competitive Bid Loan(s)" will mean a
Competitive Bid Loan with interest based upon the
Euro-Rate.
1.1.62 "Euro-Rate Reserve Percentage" of Lender for the
Interest Period for any Euro-Rate Advance will mean
the reserve percentage applicable, if any, as
determined by Administrative Agent, during such
Interest Period (or, if more than one such percentage
will be so applicable, the daily average of such
percentages for those days in such Interest Period
during which any such percentage are applicable)
under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve
requirement (including, without limitation, any
emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to
liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such
Interest Period.
1.1.63 "Federal Funds Rate" will mean, for any period, a
fluctuating interest rate per annum equal for each
day during such period to 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 next
preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the
quotations for such day for such transactions
received by Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
1.1.64 "Fixed Rate" will mean with respect to each Fixed
Rate Advance, the rate specified in the Competitive
Bid accepted by Borrower with respect to such Fixed
Rate Advance.
1.1.65 "Fixed Rate Advance" will mean any Advance that bears
interest based upon a Fixed Rate.
1.1.66 "Fixed Rate Competitive Bid Loan" will mean a
Competitive Bid Loan with interest based upon the
Fixed Rate.
1.1.67 "GAAP" will mean generally accepted accounting
principles.
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1.1.68 "Governmental Authority" will mean any nation or
government, any state or other political subdivision
thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative
functions of or pertaining to government, including,
without limitation, any department, commission,
board, bureau, agency, administration, service or
other instrumentality of the United States of
America, of any state, the District of Columbia,
municipality or any other governmental entity.
1.1.69 "Hazardous Wastes", "hazardous substances" and
"pollutants or contaminants" will mean any
substances, waste, pollutant or contaminant now or
hereafter included with any respective terms under
any now existing or hereinafter enacted or amended
federal, state or local statute, ordinance, code or
regulation designed to protect the environment,
including but not limited to the Comprehensive
Environmental Response, Compensation, and Liability
Act, 42 U.S.C. Section 9601 et seq. ("CERCLA").
1.1.70 "Indebtedness" will mean, for any Person at any date,
without duplication, (i) all obligations of such
Person for borrowed money, (ii) all obligations of
such Person evidenced by bond, 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
arising in the ordinary course of business, (iv) all
obligations of such Person as lessee that are
capitalized in accordance with generally accepted
accounting principles, (v) all Indebtedness of others
guaranteed by such Person and (vi) all contingent or
non-contingent obligations of such Person to
reimburse any bank or other Person in respect of
amounts paid or payable (currently or in the future,
on a contingent or non-contingent basis) under a
letter of credit or similar instrument; provided,
however, that in calculating Borrower's Indebtedness,
Borrower's "DECS" Exchangeable Notes relating to its
investment in Rouge Steel will be excluded from
Borrower's Indebtedness.
1.1.71 "Interest Period" will mean, for each Advance or
Converted Advance bearing interest at the Euro-Rate,
or each Advance bearing interest at the Fixed Rate,
the period commencing on the date of such Advance or
Converted Advance, through and including the last day
of the period selected by Borrower pursuant to the
provisions below. The duration of each such Interest
Period will be thirty, sixty, ninety or one hundred
eighty days for Euro-Rate Advances and the number of
days selected by Borrower for Fixed Rate Advances,
except as such is limited below, in each case as
Borrower may select; provided, however, that:
1.1.71.1 Borrower may not select any Interest Period
for any Advances or Converted Advances which end
after the Termination Date or the Secondary
Revolving Credit Termination Date, as applicable;
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1.1.71.2 whenever the last day of any such Interest
Period would otherwise occur on a day other than
a Business Day, the last day of such Interest
Period will be extended to occur on the next
succeeding Business Day; and
1.1.71.3 Fixed Rate Advances will have a minimum
interest period of 7 days and a maximum Interest
Period of 180 days.
1.1.72 "Lender(s)" will mean any Revolving Credit Lender,
Secondary Revolving Credit Lender, or Designated
Lender.
1.1.73 "Loan Documents" will mean this Agreement, the Notes
and the documents listed on the Closing Memo.
1.1.74 "Loans" will mean any and all advances of funds under
this Agreement or any of the Notes.
1.1.75 "Majority Lenders" will mean, when taken in the
aggregate: (i) prior to any acceleration of the Loans
by Agents, Revolving Credit Lenders and Secondary
Revolving Credit Lenders holding at least fifty-one
percent (51%) of the Total Commitment and (ii) after
any acceleration of the Loans by Agents, Lenders
holding at least fifty-one percent (51%) of the
outstanding Loans, in any case, as adjusted from time
to time.
1.1.76 "Material Adverse Effect" will mean an effect on the
business, financial condition, assets or liabilities
of Borrower and its Consolidated Subsidiaries,
considered on a consolidated basis, which, when
combined on a cumulative basis with other changes in
the business, financial condition, assets and
liabilities of Borrower and its Consolidated
Subsidiaries, considered on a consolidated basis: (i)
would have an adverse effect on the ability of
Borrower to perform its obligations under the Loan
Documents or (ii) would result in a material adverse
change in the financial condition of Borrower and its
Consolidated Subsidiaries, considered on a
consolidated basis.
1.1.77 "Multiemployer Plan" will mean a multiemployer plan
as defined in Section 4001(a)(3) of ERISA to which
Borrower or any ERISA Affiliate (other than one
considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Code Section 414) is making
or accruing an obligation to make contributions, or
has within any of the preceding five plan years made
or accrued an obligation to make contributions.
1.1.78 "Net Worth," at any particular time, will mean assets
minus liabilities, as determined in accordance with
GAAP. Net Worth will be calculated on a consolidated
basis for Borrower and its Consolidated Subsidiaries.
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1.1.79 "Notes" will mean the Revolving Notes, the Secondary
Revolving Credit Notes and the Competitive Bid Notes
of Borrower to the Lenders outstanding by Borrower to
any Lender from time to time evidencing the Revolving
Loans, the Secondary Revolving Credit Loans, and the
Competitive Bid Loans, and will include any
amendments, extensions and renewals made thereto from
time to time.
1.1.80 "Notice(s) of Borrowing" will mean the notice
required under Section 2.1, below, in the form
delivered by Documentation Agent to Borrower in
connection with the Closing.
1.1.81 "Notice(s) of Prepayment" will mean the notice
required under Section 2.5, below, in connection with
a prepayment of any of the Loans in the form
delivered by Documentation Agent to Borrower in
connection with the Closing.
1.1.82 "Notice(s) of Secondary Revolving Credit Borrowing"
will mean the notice required under Section 2.3,
below, in the form delivered by Documentation Agent
to Borrower in connection with the Closing.
1.1.83 "Notices" will mean all Notices of Borrowing, Notices
of Prepayment, Competitive Bid Requests, any notice
of termination or reduction of Revolving Commitments
or the Secondary Revolving Credit Commitments and any
other notices under this Agreement.
1.1.84 "Obligations" will mean and include all loans,
advances, debts, liabilities, obligations, covenants
and duties owing to Agents and/or any or all of
Lenders from Borrower of any kind or nature arising
under this Agreement, the Notes or any of the Loan
Documents, whether direct or indirect, absolute or
contingent, joint or several, due or to become due,
now existing or hereafter arising, and all charges,
expenses, fees, including but not limited to
reasonable Attorneys Fees, and any other sums
chargeable to Borrower under any of the Obligations.
1.1.85 "PBGC" will mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.
1.1.86 "Permitted Liens" will mean:
1.1.86.1 liens securing the payment of taxes, either
not yet due or the validity of which is being
contested by the Person being charged in good
faith by appropriate proceedings, and as to which
it has set aside on its books adequate reserves
to the extent required by GAAP;
1.1.86.2 deposits under workers' compensation,
unemployment insurance and social security laws,
or to secure the performance
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of bids, tenders, contracts (other than for the
repayment of borrowed money) or leases, or to
secure statutory obligations or surety or appeal
bonds, or to secure indemnity, performance or
other similar bonds in the ordinary course of
business;
1.1.86.3 liens imposed by law, such as carriers',
warehousemen's or mechanics' liens, incurred by
it in good faith in the ordinary course of
business;
1.1.86.4 purchase money liens incurred in the
connection with the acquisition of capital assets
limited to the specific assets acquired with such
financing (subject to the acquisition of such
assets and incurrence of such debt being
otherwise permitted by the terms of this
Agreement);
1.1.86.5 liens existing on the date of this Agreement
securing Indebtedness outstanding on the date of
this Agreement in aggregate principal amount not
exceeding $10,700,000;
1.1.86.6 any lien existing on any asset of any
corporation at the time such corporation becomes
a Subsidiary and not created in contemplation of
such event;
1.1.86.7 any lien on any asset of any corporation
existing at the time such corporation is merged
or consolidated with or into Borrower or a
Subsidiary and not created in contemplation of
such event;
1.1.86.8 any lien existing on any asset prior to the
acquisition thereof by Borrower or a Subsidiary
and not created in contemplation of such event;
1.1.86.9 any lien arising out of the refinancing,
extension, renewal or refunding of any
Indebtedness secured by any lien permitted by any
of the foregoing Section 1.1.86.4 through
1.1.86.8 of this definition, provided that such
Indebtedness is not increased and is not secured
by any additional assets;
1.1.86.10 liens incidental to the conduct of its
business or the ownership of its assets which (i)
do not secure Indebtedness or derivative
obligations, (ii) do not secure any obligation,
or related series of obligations, in an amount
exceeding $20,000,000 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;
1.1.86.11 liens on cash and cash equivalents securing
derivative obligations, provided that the
aggregate amount of cash
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equivalents subject to such liens may at no time
exceed $10,000,000;
1.1.86.12 any attachment lien being contested in good
faith and by proceedings promptly initiated and
diligently conducted, unless the attachment
giving rise thereto will not, within sixty days
after the entry thereof, have been discharged or
fully bonded or will not have been discharged
within sixty days after the termination of any
such bond;
1.1.86.13 any judgment lien, unless the judgment it
secures will not, within sixty days after the
entry thereof, have been discharged or execution
thereof stayed pending appeal, or will not have
been discharged within sixty days after the
expiration of any such stay;
1.1.86.14 easements, rights-of-way, zoning
restrictions and other restrictions, charges or
encumbrances incurred in the ordinary course of
business and not materially interfering with the
ordinary conduct of the business;
1.1.86.15 any lien on property of a Subsidiary
securing Indebtedness of such Subsidiary owing to
Borrower or a Consolidated Subsidiary; and
1.1.86.16 liens to banks arising from the issuance of
letters of credit issued by such banks ("issuing
banks") on the following: (i) any and all
shipping documents, warehouse receipts, policies
or certificates of insurance and other document
accompanying or relative to drafts drawn under
any credit, and any draft drawn thereunder
(whether or not such documents, goods or other
property be released to or upon the order of
Borrower or any Subsidiary under a security
agreement or trust or bailee receipt or
otherwise), and the proceeds of each and all of
the foregoing; (ii) the balance of every deposit
account, now or at any time hereafter existing,
of Borrower or any Subsidiary with the issuing
banks, and any other claims of Borrower or any
Subsidiary against the issuing banks; and all
property claims and demands and all rights and
interests therein of Borrower or any Subsidiary
and all evidences thereof and all proceeds
thereof which have been or at any time will be
delivered to or otherwise come into the issuing
bank's possession, custody or control, or into
the possession, custody or control of any bailee
for the issuing bank or of any of its agents or
correspondents for the account of the issuing
bank, for any purpose, whether or not the express
purpose of being used by the issuing bank as
collateral security or for the safekeeping or for
any other or different purpose, the issuing bank
being deemed to have possession or control of all
of such property actually in
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transit to or from or set apart for the issuing
bank, any bailee for the issuing bank or any of
its correspondents for others acting in its
behalf, it being understood that the receipt at
any time by the issuing bank, or any of its
bailees, agents or correspondents, or other
security, of whatever nature, including cash,
will not be deemed a waiver of any of the issuing
bank's rights or power hereunder; (iii) all
property shipped under or pursuant to or in
connection with any credit or drafts drawn
thereunder or in any way related thereto, and all
proceeds thereof; (iv) all additions to and
substitutions for any of the property enumerated
above in this subsection.
1.1.87 "Person" will mean an individual, partnership,
corporation (including a business trust), joint stock
company, trust, unincorporated association, joint
venture or other entity, or a government or any
political subdivision or agency thereof.
1.1.88 "Plan" will mean any pension plan subject to the
provisions of Title IV of ERISA or Section 412 of the
Code and which is maintained for employees of
Borrower or any ERISA Affiliate.
1.1.89 "Prepayment Premium" will mean the following and will
be applicable regardless of whether or not such
prepayment is in full or in part, or voluntary, on
default or otherwise:
1.1.89.1 as to Euro-Rate Advances and Fixed Rate
Advances, an amount equal to the excess of the
interest that would have been received from
Borrower by Administrative Agent for the account
of Lender at the rate applicable to the portion
of the Advance prepaid during the remaining
portion of the relevant Interest Period, over the
return which Lender could have obtained if it
invested the amount of such prepayment at the
Euro-Rate that would have been in effect if an
Interest Period began on the date of such
prepayment; and such funds had remained invested
until the expiration of the relevant Interest
Period; and
1.1.89.2 as to Alternate Base Rate Advances or
Alternate Secondary Revolving Credit Base Rate
Advances, zero.
1.1.90 "Ratable Portion" will mean: (i) as to Revolving
Loans, with respect to any Revolving Credit Lender, a
fraction (expressed as a percentage), the numerator
of which will be the amount of such Revolving Credit
Lender's Revolving Commitment, and the denominator of
which will be the aggregate amount of all of
Revolving Credit Lenders' Revolving Commitments;
provided, however, that as to any Revolving Credit
Lender that fails or refuses to make its Ratable
Portion of any Advance, such Revolving Credit
Lender's Ratable Portion of payments
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distributable to Revolving Credit Lenders will be
adjusted accordingly; (ii) as to Secondary Revolving
Credit Loans, with respect to any Secondary Revolving
Credit Lender, a fraction (expressed as a
percentage), the numerator of which will be the
amount of such Secondary Revolving Credit Lender's
Secondary Revolving Credit Commitment, and the
denominator of which will be the aggregate amount of
all of Secondary Revolving Credit Lenders' Secondary
Revolving Credit Commitments; provided, --------
however, that as to any Secondary Revolving Credit
Lender that fails or refuses to make its Ratable
Portion of any Advance, such Secondary Revolving
Credit Lender's Ratable Portion of payments
distributable to Secondary Revolving Credit Lenders
will be adjusted accordingly; and (iii) as to
Competitive Bid Loans, with respect to any Lender, a
fraction (expressed as a percentage), the numerator
of which will be the amount of such Lender's
outstanding Competitive Bid Loans, and the
denominator of which will be the aggregate amount of
all of Lenders' outstanding Competitive Bid Loans;
provided, however, that -------- as to any Revolving
Credit Lender that fails or refuses to make its
Ratable Portion of any Advance, such Revolving Credit
Lender's Ratable Portion of payments distributable to
Lenders will be adjusted accordingly and interest on
Competitive Bid Loans will be allocated pro rata
based on interest actually due each Lender.
1.1.91 "Reportable Event" will mean any reportable event as
defined in Section 4043(b) of ERISA or the
regulations issued thereunder with respect to a Plan
(other than a Plan maintained by an ERISA Affiliate
which is considered an ERISA Affiliate only pursuant
to subsection (m) or (o) of Code Section 414).
1.1.92 "Responsible Officer" will mean, with respect to any
Person its chairman, chief executive officer,
president, chief financial officer, controller,
treasurer or an assistant treasurer with respect to
Compliance Certificates and notices of termination or
reduction of the Total Commitments and with respect
to any other Notices hereunder, any officers or
employees authorized by resolutions delivered by
Borrower to Administrative Agent from time to time.
1.1.93 "Revolving Advance" or "Revolving Advances" will mean
Revolving Loans made pursuant to this Agreement.
1.1.94 "Revised Closing Date" will mean May 30, 1997.
1.1.95 "Revolving Commitment(s)" will mean, as to any
Revolving Credit Lender, the dollar amount set forth
opposite its name on the Amended and Restated
Schedule 1 hereto under the heading Revolving
Commitment, as such amount may be reduced from time
to time pursuant to this Agreement.
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1.1.96 "Revolving Conditions" will mean the conditions set
forth in Sections 2.1 and 3, below, and in the
Revolving Notes.
1.1.97 "Revolving Credit Facility" will mean collectively
the credit facility described in Section 2.1, below.
1.1.98 "Revolving Credit Facility Fee" will mean the fee
specified in Section 2.11.2.1, below.
1.1.99 "Revolving Loans" will mean the Advances described in
Section 2.1, below.
1.1.100 "Revolving Notes" will mean collectively the notes
evidencing the evidencing the credit facility
described in Section 2.1, below, which will be in the
form of the Amended and Restated Revolving Credit
Notes delivered by Borrower to Revolving Credit
Lenders dated the Revised Closing Date 1997, and will
include all amendments, extensions and renewals made
thereto from time to time.
1.1.101 "Second Revised Closing Date" will mean October 14,
1998.
1.1.102 "Secondary Revolving Credit Advance" or "Secondary
Revolving Credit Advances" will mean Secondary
Revolving Credit Loans made pursuant to this
Agreement.
1.1.103 "Secondary Revolving Credit Commitment(s)" will mean,
as to any Secondary Revolving Credit Lender, the
dollar amount set forth opposite its name on the
Schedule 2 hereto under the heading Secondary
Revolving Credit Commitment, as such amount may be
reduced from time to time pursuant to this Agreement.
1.1.104 "Secondary Revolving Credit Conditions" will mean the
conditions set forth in Sections 2.3 and 3, below,
and in the Secondary Revolving Credit Notes.
1.1.105 "Secondary Revolving Credit Facility" will mean
collectively the credit facility described in Section
2.3, below.
1.1.106 "Secondary Revolving Credit Facility Fee" will mean
the fee specified in Section 2.11.2.2, below.
1.1.107 "Secondary Revolving Credit Loans" will mean the
Advances described in Section 2.3, below.
1.1.108 "Secondary Revolving Credit Notes" will mean
collectively the notes evidencing the evidencing the
credit facility described in Section 2.3,
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below, which will be in the form of the Secondary
Revolving Credit Notes delivered by Borrower to
Secondary Revolving Credit Lenders dated the Second
Revised Closing Date, and will include all
amendments, extensions and renewals made thereto from
time to time.
1.1.109 "Secondary Revolving Credit Notice of Borrowing" will
mean the notice required under Section 2.3, below, in
the form delivered by Documentation Agent to Borrower
in connection with the Closing.
1.1.110 "Secondary Revolving Credit Termination Date" will
mean September 30, 1999; provided, however, that the
Secondary Revolving Credit Termination Date will in
no event be later than the date on which all of the
Secondary Revolving Credit Commitments for the Credit
Facilities will have been terminated in whole,
whether by expiration or upon acceleration.
1.1.111 "Senior Unsecured Debt Rating" will mean the rating
given to Borrower's senior unsecured debt by Moody's
Investors Service, Inc. (or any successor to its
securities ratings business) or by Standard & Poor's
Corporation (or any successor to its securities
ratings business).
1.1.112 "Side Letter" will mean the letter between the
Documentation Agent, Administrative Agent and
Borrower relating to certain fees executed in
connection with the arrangement of the Credit
Facilities.
1.1.113 "Subsidiary" will mean any corporation or other
entity of which securities or other ownership
interests having ordinary voting power to elect a
majority of the board of directors or other persons
performing similar functions are at the time directly
or indirectly owned by Borrower.
1.1.114 "Termination Date" will mean May 30, 2003; provided,
however, that the Termination Date will in no event
be later than the date on which all of the Revolving
Commitments for the Credit Facilities will have been
terminated in whole, whether by expiration or upon
acceleration.
1.1.115 "Total Commitment" will mean the sum of the Total
Revolving Credit Commitment plus the Total Secondary
Revolving Credit Commitment, as such amount may be
reduced, from time to time, in accordance with the
terms of this Agreement.
1.1.116 "Total Revolving Credit Commitment" will mean the
aggregate of the Revolving Commitments, which in no
event will exceed $190,000,000 in the aggregate,
except as otherwise provided in Section 2.15.
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1.1.117 "Total Secondary Revolving Credit Commitment" will
mean the aggregate of the Secondary Revolving Credit
Commitments, which in no event will exceed
$110,000,000 in the aggregate.
1.1.118 "UCC" will mean the Uniform Commercial Code as
adopted by the applicable state or states.
1.1.119 "Unrestricted Subsidiary" will mean any Subsidiary
which would otherwise be a Consolidated Subsidiary,
but which has been designated as an Unrestricted
Subsidiary by Borrower pursuant to the provisions
hereof. Borrower will deliver to Documentation Agent
a list of any Subsidiaries it wishes to designate as
Unrestricted Subsidiaries, if any, as of the closing
of this Agreement. Thereafter, from time to time
Borrower may at its option:
1.1.119.1 designate any Consolidated Subsidiary as an
Unrestricted Subsidiary but only if: (i)
immediately after giving effect to such change in
designation no condition or event will exist
which constitutes a Default or an Event of
Default and (ii) the elimination of the
Subsidiary from the Consolidated Group would not
have a Material Adverse Effect, provided,
however, that Borrower may not designate any
Consolidated Subsidiaries as Unrestricted
Subsidiaries if the aggregate operating income of
the Consolidated Subsidiaries so designated at
that time would account for more than 30% of the
consolidated operating income of the Borrower and
its Consolidated Subsidiaries for the most
recently completed four fiscal quarters.
Thereafter, for purposes of this calculation: (i)
operating income of Unrestricted Subsidiaries
will be excluded from the consolidated operating
income of the Borrower and its Consolidated
Subsidiaries and (ii) fiscal quarters used
previously will be excluded; and
1.1.119.2 designate any Unrestricted Subsidiary which
otherwise meets the definition of a Consolidated
Subsidiary, as a Consolidated Subsidiary, if but
only if, immediately after giving effect to such
change in designation: (i) any and all
outstanding Indebtedness of such Subsidiary could
then have been incurred in compliance with this
Agreement and (ii) no condition or event will
exist which constitutes a Default or an Event of
Default, provided, however, that if Borrower has
designated a Subsidiary which was previously
treated as a Consolidated Subsidiary as an
Unrestricted Subsidiary during the term of this
Agreement, Borrower may not again designate such
Subsidiary as a Consolidated Subsidiary without
the consent of the Majority Lenders.
Any change in designation will be made by Borrower
giving written notice to the Administrative Agent not
less than thirty nor more than
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sixty days prior to the date for such change in
designation, in each case specifying such date and
the name of the Subsidiary whose designation is to be
so changed, which notice will be accompanied by an
officer's certificate certifying that the conditions
required for such change in designation will not be
violated. Administrative Agent then in turn will send
a copy of such designation request to Lenders.
Notwithstanding the foregoing, if due to an
acquisition or other event which would cause an
entity which was not previously a Consolidated
Subsidiary to become a Consolidated Subsidiary,
Borrower may immediately elect to have such entity
not become a Consolidated Subsidiary, but instead to
be designated as an Unrestricted Subsidiary, without
regard to the notice period set forth above.
1.1.120 "Withdrawal Liability" will mean liability to a
Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of
Title IV of ERISA.
1.2 OTHER DEFINITIONAL PROVISIONS. Capitalized terms used herein
and not otherwise defined herein will have the meanings given
such terms in the Notes. Unless otherwise specified, all
accounting terms used herein will be interpreted, all
accounting determinations hereunder will be made, and all
financial statements required to be delivered hereunder will
be prepared in accordance with GAAP as in effect from time to
time, applied on a basis consistent (except for changes
concurred in by Borrower's independent public accountants)
with the Current Audited Financial Statements; provided that,
if Borrower notifies the Agents that Borrower wishes to amend
any covenant in Section 6 to eliminate a material variation in
the operation of such covenant by virtue of a change in GAAP
(or if Agents notify Borrower that the Majority Lenders wish
to amend Section 6 for such purpose), then Borrower's
compliance with such covenant will 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
Borrower and the Majority Lenders.
1.3 ADDITIONAL DEFINITIONAL PROVISIONS. All terms defined in this
Agreement in the singular will have comparable meanings when
used in the plural and vice-versa. The words "hereof,"
"herein" and "hereunder" and words of similar import when used
in this Agreement will mean this Agreement as a whole and not
any particular provision of this Agreement.
2. CREDIT FACILITIES.
2.1 REVOLVING CREDIT FACILITY.
2.1.1 BORROWINGS. Each Revolving Credit Lender severally
agrees to make, subject to the terms and conditions
herein set forth, loans to Borrower on any Business
Day during the period from the Closing Date to the
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Business Day preceding the Termination Date upon the
request of Borrower in an amount not to exceed the
Available Commitment of such Revolving Credit Lender;
provided that:
2.1.1.1 the Aggregate Outstanding Revolving Credit
will not exceed at any time the Total Revolving
Credit Commitment, except as provided in Section
2.15;
2.1.1.2 the making of Competitive Bid Loans by a
Revolving Credit Lender will not change the
obligation of such Revolving Credit Lender to
make Revolving Loans hereunder up to its
Available Commitment;
2.1.1.3 within the above-described limits, Borrower
may borrow and reborrow under this Section; and
2.1.1.4 the Revolving Loans will be evidenced by the
Revolving Notes and will bear interest and be
payable in the manner set forth herein.
2.1.2 MANNER OF BORROWINGS. Borrower will give
Administrative Agent a Notice of Borrowing with
respect to each Borrowing under the Revolving Credit
Facility, not later than 11:00 a.m. (New York, New
York time) three Business Days prior to the proposed
Borrowing Date with respect to Euro-Rate Advances and
on the same Business Day as the proposed Borrowing
Date with respect to Alternate Base Rate Advances.
Administrative Agent will give to each Revolving
Credit Lender prompt notice thereof by telex,
telecopier or cable. Each Notice of Borrowing will be
by telex, telecopier or cable (or by telephonic
notice confirmed in writing by a Notice of Borrowing
delivered no later than the close of business on the
day on which such telephonic notice is given),
specifying therein all matters required by such
Notice, including but not limited to the requested:
(i) Borrowing Date and (ii) aggregate amount of such
Borrowing. Each Borrowing will be in an aggregate
principal amount of $5,000,000 or in integral
multiples of $1,000,000 in excess thereof. Each
Revolving Credit Lender will, before 11:00 a.m. (New
York, New York time) on the Borrowing Date, make
available for Administrative Agent's Account, in same
day funds, such Revolving Credit Lender's Ratable
Portion of such Borrowing. After Administrative
Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Section 3
hereof, Administrative Agent will make such funds
available to Borrower by crediting Borrower's
Account.
2.1.3 RATES OF INTEREST.
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2.1.3.1 Borrower will pay Administrative Agent for
the account of Revolving Credit Lenders interest
on the outstanding principal balance of each
Advance or Converted Advance under the Revolving
Credit Facility from the date of each such
Advance or Converted Advance until paid at a rate
of interest equal to: (i) the Alternate Base Rate
or (ii) the Applicable Margin plus the Euro-Rate,
as such rate is selected by Borrower in each
Notice of Borrowing and for the Interest Period
selected in such Notice of Borrowing.
2.1.3.2 Notwithstanding any of the foregoing to the
contrary, in the event that: (i) no interest rate
is selected, (ii) no Interest Period is selected,
or (iii) an Interest Period expires and no new
interest rate is selected in a Notice of
Borrowing with respect to an Advance or Converted
Advance, the rate of interest payable on such
Advance or Converted Advance under the Revolving
Credit Facility will be the rate for Alternate
Base Rate Advances until otherwise elected in
connection with a Conversion.
2.1.4 CONVERSIONS. Borrower may on any Business Day, upon
delivering to Administrative Agent a Notice of
Borrowing specifying a "Conversion" not later than
11:00 a.m. (New York, New York time) on the third
Business Day prior to the proposed conversion,
convert all or any portion of Euro-Rate Advances or
Alternate Base Rate Advances under the Revolving
Credit Facility into an Advance or Advances in a
different rate mode; provided, however, that: (i) any
conversion of any Euro-Rate Advances will be in a
minimum amount of $5,000,000 and integral multiples
of $1,000,000 in excess thereof and (ii) any
conversion of any Euro-Rate Advances will be made
effective only on the last day of the Interest Period
for such Advances. No conversion will be effective
unless a proper, timely and fully completed Notice of
Borrowing specifying a Conversion is delivered to
Administrative Agent.
2.1.5 INTEREST PAYMENTS. Interest will accrue from the date
of each Advance or Converted Advance under the
Revolving Credit Facility. Accrued interest on each
Alternate Base Rate Advance will be due and payable
quarterly commencing on the last day of each fiscal
quarter following such Alternate Base Rate Advance;
provided, however, that interest on Alternate Base
Rate Advances will be due and payable upon payment in
full of all such Advances. Accrued interest on each
Euro-Rate Advance will be due and payable at the end
of the applicable Interest Period; provided, however,
that interest on each Euro-Rate Advance will be due
and payable at least every ninety days.
2.2 THE COMPETITIVE BID FACILITY.
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2.2.1 COMPETITIVE BID PROCEDURE.
2.2.1.1 Borrower may request the Revolving Credit
Lenders to make Competitive Bids in respect of an
aggregate amount of Competitive Bid Borrowings at
any time outstanding not in excess of: (i) the
Total Revolving Credit Commitment in effect at
such time less (ii) the Aggregate Outstanding
Revolving Credit at such time. In order to
request Competitive Bids, Borrower will pay
Administrative Agent a fee as set forth in the
Side Letter and hand deliver or telecopy to the
Administrative Agent a duly completed Competitive
Bid Request: (a) by 11:00 a.m. (New York, New
York time) five Business Days prior to the
proposed Borrowing for a Euro-Rate Competitive
Bid Loan; (b) by 11:00 a.m. (New York, New York
time) three Business Days prior to the proposed
Borrowing for a Fixed Rate Competitive Bid Loan.
A Competitive Bid Request that does not conform
substantially to the format of the form delivered
by Documentation Agent to Borrower and Revolving
Credit Lenders in connection with the Closing may
be rejected in the Administrative Agent's sole
discretion, and the Administrative Agent will
promptly notify Borrower of such rejection by
telecopier. Promptly after its receipt of a
Competitive Bid Request that is not rejected as
aforesaid, the Administrative Agent will invite
by telecopier (in the form delivered by
Documentation Agent to Borrower and Revolving
Credit Lenders in connection with the Closing)
the Revolving Credit Lenders to bid, on the terms
and conditions of this Agreement, to make
Competitive Bid Loans pursuant to the Competitive
Bid Request.
2.2.1.2 Each Revolving Credit Lender may, in its sole
discretion, make one or more Competitive Bids to
Borrower responsive to any Competitive Bid
Request. Each Competitive Bid by a Revolving
Credit Lender must be received by the
Administrative Agent via telecopier, in the form
delivered by Documentation Agent to Borrower and
Revolving Credit Lenders in connection with the
Closing, (i) in the case of a Euro-Rate
Competitive Bid Loan, not later than 2:00 p.m.
(New York, New York time) four Business Days
before a proposed Competitive Bid Loan and (ii)
in the case of a Fixed Rate Competitive Bid Loan,
not later than 10:00 a.m. (New York, New York
time) one Business Day before the day of a
proposed Competitive Bid Loan. Multiple bids will
be accepted by the Administrative Agent.
Competitive Bids that do not conform
substantially to the form delivered by
Documentation Agent to Borrower and Revolving
Credit Lenders in connection with the Closing may
be rejected by the Administrative Agent after
conferring with, and upon the instruction of,
Borrower; and the Administrative Agent will
notify the Revolving Credit Lender
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making such nonconforming bid of such rejection
as soon as practicable. Each Competitive Bid will
refer to this Agreement and specify: (i) the
principal amount (which will be in a minimum
principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and
which may equal the entire principal amount of
the Competitive Bid Loan requested by Borrower)
of the Competitive Bid Loan or Loans that the
Revolving Credit Lender is willing to make to
Borrower (such Competitive Bid Loan or Loans may
be funded by such Lender's Designated Lender as
provided in Section 2.2.1.5 and 12.3.7, however,
such Lender shall not be required to specify in
its Competitive Bid whether such Competitive Bid
Loans will be funded by such Designated Lender),
(ii) the Competitive Bid Rate or Rates at which
the Revolving Credit Lender is prepared to make
the Competitive Bid Loan or Loans and (iii) if
applicable, the Interest Period and the last day
thereof. If any Revolving Credit Lender will
elect not to make a Competitive Bid, such
Revolving Credit Lender will so notify the
Administrative Agent via telecopier: (i) in the
case of Euro-Rate Competitive Bid Loans, not
later than 2:00 p.m. (New York, New York time)
four Business Days before a proposed Competitive
Borrowing, and (ii) in the case of all other
Competitive Bid Loans, not later than 10:00 a.m.
(New York, New York time) one Business Day before
a proposed Competitive Bid Loan; provided,
however, that failure by any Revolving Credit
Lender to give such notice will not cause such
Revolving Credit Lender to be obligated to make
any Competitive Bid Loan as part of such
Competitive Bid Loan. A Competitive Bid submitted
by a Revolving Credit Lender pursuant to this
Section, if such bid has not been conveyed to
Borrower, will be irrevocable absent consent from
Administrative Agent.
2.2.1.3 The Administrative Agent will promptly notify
Borrower by telecopier of all the Competitive
Bids made, the Competitive Bid Rate, the Interest
Period and the principal amount of each
Competitive Bid Loan in respect of which a
Competitive Bid was made and the identity of the
Revolving Credit Lender that made each bid. The
Administrative Agent will send a copy of all
Competitive Bids to Borrower for its records as
soon as practicable after completion of the
bidding process set forth in this Section.
2.2.1.4 Borrower may in its sole and absolute
discretion, subject only to the provisions of
this subsection, accept or reject any Competitive
Bid or portion thereof. Borrower will notify the
Administrative Agent by telephone, confirmed by
telecopier in the form of a Competitive Bid
Accept/Reject Letter, whether and
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to what extent it has decided to accept or reject
any of or all the bids referred to in this
Section: (i) in the case of a Euro-Rate
Competitive Bid Loan, not later than 11:00 a.m.
(New York, New York time) three Business Days
before a proposed Competitive Bid Loan, and (ii)
in the case of all other Competitive Bid Loans,
not later than 11:00 a.m. (New York, New York
time) one Business Day before the day of proposed
Competitive Bid Loan; provided, however, that:
(i) the failure by Borrower to give such notice
will be deemed to be a rejection of all the bids,
(ii) Borrower will not accept a bid or portion
thereof made at a particular Competitive Bid Rate
if Borrower has decided to reject a bid made at a
lower Competitive Bid Rate, (iii) the aggregate
amount of the Competitive Bids accepted by
Borrower will not exceed the principal amount
specified in the Competitive Bid Request, (iv) if
Borrower will accept a bid or bids made at a
particular Competitive Bid Rate but the amount of
such bid or bids will cause the total amount of
bids to be accepted by Borrower to exceed the
amount specified in the Competitive Bid Request,
then Borrower will accept a portion of such bid
or bids in an amount equal to the amount
specified in the Competitive Bid Request less the
amount of all other Competitive Bids accepted
with respect to such Competitive Bid Request,
which acceptance, in the case of multiple bids at
such Competitive Bid Rate, will be made pro rata
in accordance with the amount of each such bid at
such Competitive Bid Rate, and (v) except
pursuant to clause (iv) above, no bid will be
accepted for a Competitive Bid Loan unless such
Competitive Bid Loan is in a minimum principal
amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof; provided further,
however, that if a Competitive Bid Loan must be
in an amount less than $1,000,000 because of the
provisions of clause (iv) above, such Competitive
Bid Loan may be for a minimum of $1,000,000 or
any integral multiple thereof, and in calculating
the pro rata allocation of acceptances of
portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv) the
amounts will be rounded to integral multiples of
$1,000,000 in a manner which will be in the
discretion of Borrower. A notice given by
Borrower pursuant to this subsection will be
irrevocable.
2.2.1.5 The Administrative Agent will promptly notify
each bidding Revolving Credit Lender whether or
not its Competitive Bid has been accepted (and if
so, in what amount and at what Competitive Bid
Rate) by telecopy sent by the Administrative
Agent, and each successful bidder will thereupon
become bound, subject to the other applicable
conditions hereof, to make the Competitive Bid
Loan in respect of which its bid has been
accepted; provided however, that Lender may
designate its Designated Lender to
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fund a Competitive Bid Loan on its behalf as
described in Section 12.3.7. Any Designated
Lender which funds a Competitive Bid Loan will on
and after the time of such funding become the
obligee under such Competitive Bid Loan and be
entitled to receive payment thereof when due. No
Revolving Credit Lender shall be relieved of its
obligation to fund a Competitive Bid Loan, and no
Designated Lender shall assume such obligation,
prior to the time such Competitive Bid Loan is
funded.
2.2.1.6 A Competitive Bid Request will not be made
within three Business Days after the date of any
previous Competitive Bid Request.
2.2.1.7 If the Administrative Agent elects to submit
a Competitive Bid in its capacity as a Revolving
Credit Lender, it will submit such bid directly
to Borrower one half of an hour earlier than the
latest time at which the other Revolving Credit
Lenders are required to submit their bids to the
Administrative Agent pursuant to this Section.
2.2.2 RATES OF INTEREST.
2.2.2.1 Borrower will pay Administrative Agent for
the account of Lender interest on the outstanding
principal balance of each Competitive Bid Loan
hereunder from the date of each such Advance
until paid at a rate of interest equal to: (i)
the Fixed Rate or (ii) the Applicable Margin plus
the Euro-Rate, as such rate is accepted by
Borrower for each Competitive Bid Loan.
2.2.2.2 Notwithstanding anything to the contrary
contained herein, in the event that a Competitive
Bid Loan matures and is not repaid, it will bear
interest at the Default Rate.
2.2.3 PAYMENTS.
2.2.3.1 Interest will accrue from the date of each
Advance under the Competitive Bid Facility.
Accrued interest on each Advance under the
Competitive Bid Facility will be due and payable
at the end of the applicable Interest Period;
provided, however, that interest on each such
Advance will be due and payable at least every
ninety days.
2.2.3.2 Principal of each Competitive Bid Loan will
be due at the time specified in Section 2.5.1.
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2.2.4 PREPAYMENTS. The Borrower may not prepay the
Competitive Bid Loans unless specifically
provided to the contrary in the Competitive Bid
made by such Lender.
2.3 SECONDARY REVOLVING CREDIT FACILITY.
2.3.1 BORROWINGS. Each Secondary Revolving Credit Lender
severally agrees to make, subject to the terms and
conditions herein set forth, loans to Borrower on any
Business Day during the period from the Closing Date
to the Business Day preceding the Secondary Revolving
Credit Termination Date upon the request of Borrower
in an amount not to exceed the Available Secondary
Revolving Credit Commitment of such Secondary
Revolving Credit Lender; provided that:
2.3.1.1 the Aggregate Outstanding Secondary Revolving
Credit Loans will not exceed at any time the
Total Secondary Revolving Credit Commitment;
2.3.1.2 within the above-described limits, Borrower
may borrow and reborrow under this Section; and
2.3.1.3 the Secondary Revolving Credit Loans will be
evidenced by the Secondary Revolving Credit Notes
and will bear interest and be payable in the
manner set forth herein.
2.3.2 MANNER OF BORROWINGS. Borrower will give
Administrative Agent a Secondary Revolving Credit
Notice of Borrowing with respect to each Borrowing
under the Secondary Revolving Credit Facility, not
later than 11:00 a.m. (New York, New York time) three
Business Days prior to the proposed Borrowing Date
with respect to Euro-Rate Advances and on the same
Business Day as the proposed Borrowing Date with
respect to Alternate Secondary Revolving Credit Base
Rate Advances. Administrative Agent will give to each
Secondary Revolving Credit Lender prompt notice
thereof by telex, telecopier or cable. Each Secondary
Revolving Credit Notice of Borrowing will be by
telex, telecopier or cable (or by telephonic notice
confirmed in writing by a Secondary Revolving Credit
Notice of Borrowing delivered no later than the close
of business on the day on which such telephonic
notice is given), specifying therein all matters
required by such Notice, including but not limited to
the requested: (i) Borrowing Date and (ii) aggregate
amount of such Borrowing. Each Borrowing will be in
an aggregate principal amount of $5,000,000 or in
integral multiples of $1,000,000 in excess thereof.
Each Secondary Revolving Credit Lender will, before
11:00 a.m. (New York, New York time) on the Borrowing
Date, make available for Administrative Agent's
Account, in same day funds, such Secondary Revolving
Credit Lender's Ratable Portion of such Borrowing.
After Administrative Agent's receipt of such funds
and
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upon fulfillment of the applicable conditions set
forth in Section 3 hereof, Administrative Agent will
make such funds available to Borrower by crediting
Borrower's Account.
2.3.3 RATES OF INTEREST.
2.3.3.1 Borrower will pay Administrative Agent for
the account of Secondary Revolving Credit Lenders
interest on the outstanding principal balance of
each Advance or Converted Advance under the
Secondary Revolving Credit Facility from the date
of each such Advance or Converted Advance until
paid at a rate of interest equal to: (i) the
Alternate Secondary Revolving Credit Base Rate or
(ii) the Applicable Secondary Revolving Credit
Margin plus the Euro-Rate, as such rate is
selected by Borrower in each Secondary Revolving
Credit Notice of Borrowing and for the Interest
Period selected in such Secondary Revolving
Credit Notice of Borrowing.
2.3.3.2 Notwithstanding any of the foregoing to the
contrary, in the event that: (i) no interest rate
is selected, (ii) no Interest Period is selected,
or (iii) an Interest Period expires and no new
interest rate is selected in a Secondary
Revolving Credit Notice of Borrowing with respect
to an Advance or Converted Advance, the rate of
interest payable on such Advance or Converted
Advance under the Secondary Revolving Credit
Facility will be the rate for Alternate Secondary
Revolving Credit Base Rate Advances until
otherwise elected in connection with a
Conversion.
2.3.4 CONVERSIONS. Borrower may on any Business Day, upon
delivering to Administrative Agent a Secondary
Revolving Credit Notice of Borrowing specifying a
"Conversion" not later than 11:00 a.m. (New York, New
York time) on the third Business Day prior to the
proposed conversion, convert all or any portion of
Euro-Rate Advances or Alternate Secondary Revolving
Credit Base Rate Advances under the Secondary
Revolving Credit Facility into an Advance or Advances
in a different rate mode; provided, however, that:
(i) any conversion of any Euro-Rate Advances will be
in a minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess thereof and (ii)
any conversion of any Euro-Rate Advances will be made
effective only on the last day of the Interest Period
for such Advances. No conversion will be effective
unless a proper, timely and fully completed Secondary
Revolving Credit Notice of Borrowing specifying a
Conversion is delivered to Administrative Agent.
2.3.5 INTEREST PAYMENTS. Interest will accrue from the date
of each Advance or Converted Advance under the
Secondary Revolving Credit Facility.
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Accrued interest on each Alternate Secondary
Revolving Credit Base Rate Advance will be due and
payable quarterly commencing on the last day of each
fiscal quarter following such Alternate Secondary
Revolving Credit Base Rate Advance; provided,
however, that interest on Alternate Secondary
Revolving Credit Base Rate Advances will be due and
payable upon payment in full of all such Advances.
Accrued interest on each Euro-Rate Advance will be
due and payable at the end of the applicable Interest
Period; provided, however, that interest on each
Euro-Rate Advance will be due and payable at least
every ninety days.
2.4 ADDITIONAL PROVISIONS REGARDING FUNDING.
2.4.1 As to all Advances, Administrative Agent may assume
that each Lender (or its Designated Lender, if
applicable) will make its Advances available to
Administrative Agent on the Borrowing Date in
accordance with this Agreement, and Administrative
Agent may, but will not be obligated to, advance to
Borrower on such Lender's behalf such Lender's
Advance, or any portion of such share, for the
account of such Lender unless such Lender will have
notified Administrative Agent in writing prior to
10:00 a.m. (New York, New York time) on the Borrowing
Date that funds will not be made available by such
Lender for such Advance, in which case Administrative
Agent promptly will notify Borrower of such fact. If
any such funds are so advanced by Administrative
Agent, such Lender and Borrower severally agree to
pay such amount to Administrative Agent, forthwith on
demand, together with interest thereon for each day
from the date such amount is made available to
Borrower until the date such amount is paid to
Administrative Agent, at (i) in the case of Borrower,
a rate per annum equal to the interest rate payable
by Borrower with respect to such Loan in effect from
time to time while such Advance is outstanding and
(ii) in the case of such Lender, one percent (1%) in
excess of the Federal Funds Rate. If such Lender will
pay to Administrative Agent such amount, such amount
so paid will constitute such Lender's Advance as part
of such Borrowing.
2.4.2 No Lender's obligation to make any Advance will be
affected by any other Lender's failure to make funds
available for the same or any other Borrowing, nor
will any Lender be liable for the failure of any
other Lender to fulfill an obligation to make any
Advance.
2.4.3 Borrower will not be entitled to request any Advance
which, if made, would result in an aggregate of more
than twelve separate interest rates being applicable
under all of the Notes at any one time. For purposes
of the foregoing, Advances having different Interest
Periods, regardless of whether they have the same
interest rate, will be considered separate Advances.
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2.5 PRINCIPAL PAYMENTS.
2.5.1 LOANS. Borrower will pay: (i) to Administrative Agent
for the account of Revolving Credit Lenders the
outstanding principal amount of, and all accrued and
unpaid interest on, all Revolving Loans on the
Termination Date; (ii) to Administrative Agent for
the account of Secondary Revolving Credit Lenders the
outstanding principal amount of, and all accrued and
unpaid interest on, all Secondary Revolving Credit
Loans on the Secondary Revolving Credit Termination
Date; and (iii) to the Administrative Agent for the
account of each Competitive Bid Lender the
outstanding principal amount of each Competitive Bid
Loan on the earlier to occur of: (a) the maturity
date of each Competitive Bid Loan or (b) the
Termination Date.
2.5.2 OPTIONAL PREPAYMENT OF THE CREDIT FACILITIES. Subject
to the terms and conditions of this Agreement,
Borrower may elect to prepay all or any part of a
Revolving Loan or Secondary Revolving Credit Loan at
any time by delivering to Administrative Agent a
Notice of Prepayment, at least one Business Day prior
to the proposed prepayment date in the case of a
Alternate Base Rate Advance or an Alternate Secondary
Revolving Credit Base Rate Advance, and at least
three Business Days prior to the proposed date of
prepayment in the case of any other type of Revolving
Loan or Secondary Revolving Credit Loan, provided
that each such partial prepayment of any Revolving
Loan or Secondary Revolving Credit Loan will be in an
aggregate principal amount of $5,000,000 or in
integral multiples of $1,000,000 in excess thereof
and provided further that each prepayment of any
Revolving Loan or Secondary Revolving Credit Loan
will be accompanied by payment of the accrued
interest to the date of prepayment on the principal
amount prepaid and any applicable Prepayment Premium.
Each Notice of Prepayment must specify, as to each
Revolving Loan and each Secondary Revolving Credit
Loan being prepaid, the proposed prepayment date, the
Revolving Loan or Secondary Revolving Credit Loan
being prepaid and the aggregate principal amount of
the prepayment. All prepayments will be paid to
Administrative Agent.
2.5.3 MANDATORY PREPAYMENT OF THE CREDIT FACILITIES. In the
event that: (i) the Aggregate Outstanding Revolving
Credit Loans would in whole or in part exceed any
applicable Revolving Conditions or Competitive Bid
Conditions, whether after giving effect to any
reduction or termination of the Total Revolving
Credit Commitment or otherwise; or (ii) the Aggregate
Outstanding Secondary Revolving Credit Loans would in
whole or in part exceed any applicable Secondary
Revolving Credit Conditions, whether after giving
effect to any reduction or termination of the Total
Secondary Revolving Credit Commitment or
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otherwise, then Borrower immediately will make a
prepayment of principal in an amount sufficient to
eliminate the excess, provided further that each such
prepayment (other than a prepayment of an Alternate
Base Rate Advance or an Alternate Secondary Revolving
Credit Base Rate Advance, in which case a interest
will be due on the next regularly scheduled payment
date for interest for Alternate Base Rate Advances or
Alternate Secondary Revolving Credit Base Rate
Advance and on the Termination Date or Secondary
Revolving Credit Termination Date, as applicable)
will be accompanied by payment of the accrued
interest to the date of prepayment on the principal
amount prepaid and any applicable Prepayment Premium.
2.6 DEFAULT RATE. At the option of the Required Lenders, upon the
occurrence of any Event of Default, the unpaid principal
amount of each Advance, and to the extent not paid when due,
the unpaid amount of all interest, fees, expenses and other
amounts payable hereunder, will bear interest at the Default
Rate in effect from time to time.
2.7 TERMINATION OR REDUCTION OF REVOLVING COMMITMENTS. Borrower
will have the right from time to time to terminate or reduce
the Total Revolving Credit Commitment, upon not less than
three days' prior notice by Borrower to Administrative Agent
in writing or by telecopy or facsimile transmission, which
notice will: (i) specify the effective date of such
termination or reduction, (ii) be irrevocable and effective
only upon receipt by Administrative Agent and (iii) be signed
by an Responsible Officer; provided, however, that after
giving effect to any such termination or reduction, all
Revolving Conditions set forth in Section 2.1.1 must be
satisfied. Any optional reduction of the amount of the Total
Commitment will be in the amount of $5,000,000 or in integral
multiples of $1,000,000 in excess thereof or in the full
amount of the Total Commitment as then in effect. Any
termination or reduction pursuant to this Section will be
permanent. Administrative Agent promptly will give notice to
each Revolving Credit Lender of any termination or reduction
hereunder. Any such termination or reduction will be
accompanied by a payment of the accrued but unpaid Revolving
Credit Facility Fee with respect to the amount of the Total
Commitment that is terminated or reduced.
2.8 TERMINATION OR REDUCTION OF SECONDARY REVOLVING CREDIT
COMMITMENTS. Borrower will have the right from time to time to
terminate or reduce the Total Secondary Revolving Credit
Commitment, upon not less than three days' prior notice by
Borrower to Administrative Agent in writing or by telecopy or
facsimile transmission, which notice will: (i) specify the
effective date of such termination or reduction, (ii) be
irrevocable and effective only upon receipt by Administrative
Agent and (iii) be signed by an Responsible Officer; provided,
however, that after giving effect to any such termination or
reduction, all Secondary Revolving Credit Conditions set forth
in Section 2.3.1 must be satisfied. Any optional reduction of
the amount of the Total Secondary Revolving Credit Commitment
will be in the amount of $5,000,000 or in integral multiples
of $1,000,000 in excess thereof or
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in the full amount of the Total Secondary Revolving Credit
Commitment as then in effect. Any termination or reduction
pursuant to this Section will be permanent. Administrative
Agent promptly will give notice to each Secondary Revolving
Credit Lender of any termination or reduction hereunder. Any
such termination or reduction will be accompanied by a payment
of the accrued but unpaid Secondary Revolving Credit Facility
Fee with respect to the amount of the Total Secondary
Revolving Credit Commitment that is terminated or reduced.
2.9 RECORDS. Each Lender is hereby authorized by Borrower to
record in its books and records, the date, amount, Interest
Rate, and applicable Interest Period, if any, of each Advance
made to Borrower, the date and amount of each payment of
principal or interest thereon, which books and records will
constitute prima facie evidence of the accuracy of the
information so recorded, provided, however, that failure of
any Lender to record, or any error in recording, any such
information will not relieve Borrower of its obligations to
repay the outstanding principal amount of the Advances, all
accrued interest thereon, and other amounts payable with
respect thereto in accordance with the terms of the Notes and
this Agreement. The information as reflected by records
maintained by Administrative Agent related to Advances will
prevail, absent manifest error, in the event that the
information as reflected by the records maintained by Borrower
differs from Administrative Agent's records in any respect.
2.10 ASSUMPTIONS REGARDING NOTICES.
2.10.1 RESPONSIBLE OFFICERS. Any Responsible Officer of
Borrower may submit a Notice on behalf of Borrower.
Agents and each Lender will be entitled to rely
conclusively on each Responsible Officer's authority
to submit a Notice on behalf of Borrower until Agents
receive written notice from Borrower to the contrary.
Except in the case where Agents have reasonable cause
to believe a written or oral notice is unauthorized,
Agents will have no duty to verify the authenticity
of the signature appearing on any written Notice and,
with respect to an oral Notice, Agents will have no
duty to verify the identity of any Person
representing himself as one of the Responsible
Officers entitled to make such a request on behalf of
Borrower.
2.10.2 NO LIABILITY. Neither Agents nor any Lender will
incur any liability to Borrower in acting upon any
Notice which Agent or such Lender believes in good
faith to have been given by a Responsible Officer or
for otherwise acting in good faith in accordance with
this Section 2 and, upon Agents' accepting any
Notice, Borrower will have effectively elected the
Borrowing, conversion, continuation, prepayment,
reduction or termination thereunder.
2.10.3 NOTICE IRREVOCABLE. Any Notice (whether telephonic,
telecopy, or facsimile or otherwise) given or deemed
to have been given pursuant to this Section will be
irrevocable.
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2.11 COMPUTATIONS, FEES, PAYMENTS, ETC.
2.11.1 COMPUTATIONS. All computations of interest and of
fees hereunder will be made by Administrative Agent
on the basis of: (i) for Alternate Base Rate
Advances, Alternate Secondary Revolving Credit Base
Rate Advances, Fixed Rate Advances and fees and
expenses due hereunder, a 365/366 day year and (ii)
in the case of Euro-Rate Advances, a 360 day year, in
each case for the actual number of days (including
the first day but excluding the last day) occurring
in the period for which such interest or fees are
payable. Each determination by Administrative Agent
of an Interest Rate or fee hereunder will be
conclusive and binding for all purposes, absent
manifest error. Whenever any payment to be made by
Borrower hereunder or under any of the other Loan
Documents is stated to be due on a day other than a
Business Day, such payment will be made on the next
succeeding Business Day, and such extension of time
will in such case be included in the computation of
payment of interest or fees, as the case may be.
2.11.2 FEES. The fees described in this subsection represent
compensation for services rendered and to be rendered
separate and apart from the lending of money or the
provision of credit and do not constitute
compensation for the use or forbearance of money, and
the obligation of Borrower to pay such fees will be
in addition to and not in lieu of the obligation of
Borrower to pay interest, other fees and expenses
otherwise described herein or in the other Loan
Documents. The following fees will be paid by
Borrower:
2.11.2.1 REVOLVING CREDIT FACILITY FEE. Borrower will
pay to Administrative Agent for the account of
Revolving Credit Lenders a Revolving Credit
Facility Fee from and including the Closing Date
to the Termination Date, computed based on the
Senior Unsecured Debt Rating; provided that, in
the event that Borrower's Senior Unsecured Debt
Rating by Moody's Investor Service, Inc. is
different from the rating received from Standard
& Poors Corporation, the higher of the two
ratings will control, which rating will be
determined as of the end of the previous fiscal
quarter and at the applicable rate set forth
below on the Total Revolving Credit Commitment,
such fee to be payable quarterly in arrears on
last day of each fiscal quarter of Borrower and
upon the Termination Date and to be shared by
Revolving Credit Lenders in their Ratable
Portions:
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SENIOR UNSECURED DEBT RATING REVOLVING CREDIT
FACILITY FEE (IN
BASIS POINTS)
greater than or equal to A/A2 8.0
A-/A3 9.0
BBB+/Baa1 10.0
BBB/Baa2 12.5
less than BBB/Baa2 15.0
2.11.2.2 SECONDARY REVOLVING CREDIT FACILITY FEE.
Borrower will pay to Administrative Agent for the
account of Secondary Revolving Credit Lenders a
Secondary Revolving Credit Facility Fee from and
including the Closing Date to the Secondary
Revolving Credit Termination Date, computed based
on the Senior Unsecured Debt Rating; provided
that, in the event that Borrower's Senior
Unsecured Debt Rating by Moody's Investor
Service, Inc. is different from the rating
received from Standard & Poors Corporation, the
higher of the two ratings will control, which
rating will be determined as of the end of the
previous fiscal quarter and at the applicable
rate set forth below on the Total Secondary
Revolving Credit Commitment, such fee to be
payable quarterly in arrears on last day of each
fiscal quarter of Borrower and upon the Secondary
Revolving Credit Termination Date and to be
shared by Secondary Revolving Credit Lenders in
their Ratable Portions:
SENIOR UNSECURED DEBT RATING SECONDARY REVOLVING
CREDIT FACILITY FEE
(IN BASIS POINTS)
greater than or equal to A/A2 6.5
A-/A3 7.5
BBB+/Baa1 8.5
BBB/Baa2 11.0
less than BBB/Baa2 13.5
2.11.2.3 UTILIZATION FEE. In the event that and for
so long as Borrower has Secondary Revolving
Credit Loans outstanding at any time totaling
more than 50% of the Total Secondary Revolving
Credit Commitment, Borrower agrees that each tier
of the Applicable Secondary Revolving Credit
Margin as set forth in Section 1.1.14 will be
increased by five basis points (the "Utilization
Fee").
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2.11.2.4 DOCUMENTATION AGENT CLOSING EXPENSES. All
out-of-pocket expenses, including reasonable
legal expenses incurred by Documentation Agent in
connection with the preparation, negotiation,
execution and delivery of this Agreement and the
other Loan Documents and the closing of the
Credit Facilities, will be paid by Borrower to
Documentation Agent for the account of
Documentation Agent on the Closing Date.
2.11.2.5 AGENTS FEES. The fees for the Agents will be
set forth in the Side Letter.
2.11.3 PAYMENTS. Borrower will make each payment hereunder
and under the Notes, as the case may be, not later
than 11:00 a.m. (New York, New York time) on the day
when due by deposit to Administrative Agent's Account
in same day funds. Amounts received by Administrative
Agent after 11:00 a.m. (New York, New York time) on
any Business Day will be deemed to have been received
on the next Business Day. Subject to the foregoing,
Administrative Agent will cause to be distributed to
each Lender on the Business Day of receipt by
Administrative Agent an amount equal to the amount of
such payment then due such Lender. Payments when
received will be applied in the following order: (i)
to charges, fees and expenses (including Attorneys'
Fees) due Agents and/or Lenders, (ii) to accrued
interest and (iii) to principal.
2.11.4 FAILURE TO MAKE PAYMENTS BY BORROWER. Unless
Administrative Agent will have received notice from
Borrower prior to the date on which any payment is
due to Administrative Agent hereunder that Borrower
will not make such payment in full, Administrative
Agent may assume that Borrower has made such payment
in full to Administrative Agent on such date and
Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due
such Lender. If and to the extent Borrower will not
have so made such payment in full to Administrative
Agent, each Lender will repay to Administrative Agent
forthwith on demand such amount distributed to such
Lender together with interest thereon, for each day
from the date such amount is distributed to such
Lender until the date such Lender repays such amount
to Administrative Agent, at the Federal Funds Rate.
If and to the extent Borrower makes only partial
payment to Administrative Agent, each Lender will
repay to Administrative Agent, in accordance with
this Section, only the amount distributed to such
Lender by Administrative Agent, with interest
thereon, that exceeds the Ratable Portion of the
partial payment received by Administrative Agent from
Borrower.
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2.12 ADDITIONAL COSTS.
2.12.1 TAXES, RESERVE REQUIREMENTS, ETC. In the event that
any applicable law, rule or regulation now or
hereafter in effect and whether or not presently
applicable to any of Lenders, or any interpretation
or administration thereof by any Governmental
Authority charged with the interpretation or
administration thereof, or compliance by Lenders with
any guideline, request or directive of any such
authority (whether or not having the force of law),
will (i) subject any Lender to any tax or affect the
basis of taxation of payments to any of Lenders of
any amounts payable by Borrower under this Agreement
(other than taxes imposed on the overall net income
of any of Lenders, by the jurisdiction, or by any
political subdivision or taxing authority of any such
jurisdiction, in which any Lender has its principal
office), or (ii) will impose, modify or deem
applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for
the account of, or credit extended by any of Lenders
(including but not limited to a request or
requirement which affects the manner in which any of
Lenders allocates capital resources to its
commitments or obligations, including without
limitation its obligations under this Agreement, the
Loans and other obligations) or (iii) will impose any
other condition affecting this Agreement, any of the
Obligations or any of the Loan Documents, and the
result of any of the foregoing is to increase the
direct or indirect cost of making, funding or
maintaining the Loans or the other Obligations or to
reduce the amount of any sum received or receivable
by any of Lenders thereon, calculated on a net basis
for any one or related series of the foregoing
events, then Borrower will pay to such Lenders from
time to time, upon request by any of such Lenders,
with a copy of such request to be provided to
Administrative Agent, additional amounts sufficient
to compensate such Lenders for such increased cost or
reduced sum receivable.
2.12.2 CAPITAL ADEQUACY. If either: (i) the introduction of,
or any change in or in the interpretation or
administration of, any United States or foreign law,
rule or regulation, or (ii) compliance with any
directive, guidelines or request from any central
bank or other governmental authority (whether or not
having the force of law), promulgated, made, or that
becomes effective (in whole or in part) after the
date hereof affects or would affect the amount of
capital required or expected to be maintained by any
of Lenders or any corporation directly or indirectly
owning or controlling any of Lenders and any Lender
determines that such introduction, change or
compliance has or would have the effect of reducing
the rate of return on Lender's capital or on the
capital of such owning or controlling corporation as
a consequence of its obligations hereunder or under
any of the Loans, or other Obligations or any
commitment to lend thereunder or relating thereto,
calculated on a net basis for any one or related
series of the foregoing events, to a level
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below that which any Lender or such owning or
controlling corporation could have achieved but for
such introduction, change or compliance (after taking
into account such Lender's policies or the policies
of such owning or controlling corporation, as the
case may be, regarding capital adequacy) by an amount
deemed by such Lender (in its sole discretion) to be
material, then, from time to time, Borrower will pay
to such Lender such additional amount or amounts as
will compensate such Lender for such reduction.
2.12.3 CERTIFICATE OF LENDER. To the extent reasonably
practicable, each Lender will give Borrower prompt
written notice of any claim under this Section 2.12
and will take steps to minimize the impact of any of
the events described in Sections 2.12.1 and/or
2.12.2, above, by transferring its Revolving
Commitment, Secondary Revolving Credit Commitment,
and its Revolving Loans and Secondary Revolving
Credit Loans outstanding, as applicable, hereunder to
another office, branch, subsidiary or affiliate of
such Lender, so long as such action is not
disadvantageous to such Lender. A certificate of a
Lender setting forth such amount or amounts as will
be necessary to compensate Lender as specified in
Sections 2.12.1 and/or 2.12.2, above, which will
include detailed explanations and calculations, will
be delivered to Borrower and will be conclusive
absent manifest error. Borrower will pay
Administrative Agent for the account of Lender the
amount shown as due on any such certificate within
five (5) days after its receipt of the same. Failure
on the part of any Lender to deliver any such
certificate will not constitute a waiver of such
Lender's rights to demand compensation for any
particular period or any future period. The
protection of this Section will be available to any
Lender regardless of any possible contention of
invalidity or inapplicability of the law, regulation,
etc., that results in the claim for compensation
under this Section, but if any law, regulation, etc.,
is later found to be invalid or inapplicable, each
Lender promptly will return to Borrower any sums
received under this Section. The agreements and
obligations contained in this Section will survive
the payment in full of the Obligations and any
termination of this Agreement.
2.13 OBLIGATION TO INDEMNIFY. In the event of Borrower's failure to
accept the proceeds from an Advance after making a request
therefor, Administrative Agent will immediately prepay such
Advance and Borrower will pay to Administrative Agent for the
account of Lenders on written demand an amount equal to
interest that would have accrued on such Advance plus any
applicable Prepayment Premium, calculated through the date of
such prepayment by Administrative agent of such amounts. The
obligations of Borrower under this Section will survive the
payment in full of the Obligations and any termination of this
Agreement.
2.14 EXTENSION. Upon the written request of Borrower to the Agents
at least sixty but not more than ninety days prior to the
first and second anniversary of the Revised
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Closing Date, each Revolving Credit Lender in its sole
discretion may extend its Revolving Commitment in each case
for an additional period of one year. In no event, however,
will any Revolving Credit Lender be under any obligation to
extend its Revolving Commitment beyond the initial Termination
Date. Each Revolving Credit Lender will have thirty days from
its receipt of an extension request to respond to Borrower and
Administrative Agent in writing; and if no such written
response is so received, such Revolving Credit Lender will be
deemed to have elected not to extend its Revolving Commitment.
In the event that any Revolving Credit Lender elects not to
extend its Revolving Commitment, such Revolving Credit Lender,
on the written request of Borrower, will resign its position
as an Agent hereunder if such Revolving Credit Lender is an
Agent, and Borrower will have the following options, provided
that: (i) no Event of Default or Default exists hereunder and
(ii) Revolving Credit Lenders holding at least 40% of the
Total Commitment have agreed to extend their Revolving
Commitments:
2.14.1 upon thirty days prior written notice to Revolving
Credit Lenders: (i) terminate upon the expiration of
such thirty days the Revolving Commitment of the
Revolving Credit Lender or Revolving Credit Lenders
that do not agree to extend, (ii) pay Administrative
Agent upon the expiration of such thirty days for the
account of such Revolving Credit Lender or Revolving
Credit Lenders all sums due hereunder, which payment
will not be shared by Revolving Credit Lenders
hereunder, (iii) permanently reduce the Total
Commitment by the Revolving Commitments of such
Revolving Credit Lender or Revolving Credit Lenders
who do not agree to extend and (iv) extend the
Revolving Commitments of the Revolving Credit Lenders
who have agreed to extend;
2.14.2 upon thirty days prior written notice to Revolving
Credit Lenders: (i) terminate effective upon the
initial Termination Date the Revolving Commitment of
the Revolving Credit Lender or Revolving Credit
Lenders that do not agree to extend, (ii) pay
Administrative Agent on the initial Termination Date
for the account of such Revolving Credit Lender or
Revolving Credit Lenders that do not agree to extend
all sums due hereunder, which payment will not be
shared by Revolving Credit Lenders hereunder, (iii)
permanently reduce effective upon the initial
Termination Date the Total Commitment by the
Revolving Commitments of such Revolving Credit Lender
or Revolving Credit Lenders who do not agree to
extend and (iv) extend the Revolving Commitments of
the Revolving Credit Lenders who have agreed to
extend;
2.14.3 upon ninety days prior written notice to Revolving
Credit Lenders: (i) terminate effective upon the
expiration of such ninety days the Revolving
Commitment of the Revolving Credit Lender or
Revolving Credit Lenders that do not agree to extend,
(ii) pay Administrative
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Agent on the expiration of such ninety days for the
account of such Revolving Credit Lender or Revolving
Credit Lenders all sums due hereunder, which payment
will not be shared by Revolving Credit Lenders
hereunder, (iii) within such ninety day period find a
replacement Revolving Credit Lender or Revolving
Credit Lenders acceptable to Borrower that will
execute a counterpart of this Agreement and other
documents reasonably acceptable to Agents and (iv)
extend the Revolving Commitments of the Revolving
Credit Lenders who have agreed to extend.
2.15 INCREASE OF TOTAL REVOLVING CREDIT COMMITMENT.Upon the written
request of Borrower in the form of the Advice Of Increase
given to the Agents at least forty-five but not more than
ninety days prior to the effective date of the requested
increase, Borrower may request an increase in the amount of
the Total Revolving Credit Commitment to an amount not in
excess of $250,000,000 (the "Increased Commitment"). Each
Revolving Credit Lender in its sole discretion may participate
pro rata in the Increased Commitment; provided, however that
in no event will any Revolving Credit Lender be under any
obligation to increase its Revolving Commitment beyond its
Revolving Commitment as set forth on Amended and Restated
Schedule 1. Each Revolving Credit Lender will have twenty-one
days from its receipt of an increase request to respond to
Borrower and Administrative Agent in writing; and if no such
written response is so received, such Revolving Credit Lender
will be deemed to have elected not to increase its Revolving
Commitment. In the event that one or more of the Revolving
Credit Lenders elect not to increase such Revolving Credit
Lender's Revolving Commitment, then Borrower and the Agents
may distribute such unsubscribed portion of the Increased
Commitment among one or more of the other Revolving Credit
Lenders who elect to participate in the Increased Commitment
in such a fashion as Borrower and the Agents decide in the
exercise of their reasonable discretion. In the event that any
of the Revolving Credit Lenders elect to make any portion of
the Increased Commitment available to Borrower, each such
Revolving Credit Lender agrees to provide Documentation Agent
with such documentation as may be reasonably requested by such
Documentation Agent to document the additional extension, as
determined by such Documentation Agent in the exercise of its
reasonable discretion.
3. CONDITIONS PRECEDENT.
3.1 CLOSING. Lenders' obligations to close this Agreement are
subject to the fulfillment of each of the following
conditions:
3.1.1 CLOSING MEMO. Lenders have received each of the
documents listed on the Closing Memo, all in form and
substance reasonably satisfactory to Agents.
3.1.2 OTHER CONDITIONS. The conditions set forth in Section
3.2, below, will have been fully satisfied whether or
not an initial Advance is taken.
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3.2 EACH ADVANCE. The obligation of each Lender to make any
Advance is subject to the fulfillment of each of the following
conditions to the reasonable satisfaction of Administrative
Agent:
3.2.1 NO DEFAULTS. There does not exist any Default or
Event of Default either before or after giving effect
thereto.
3.2.2 ACCURACY. The representations and warranties
contained in this Agreement and in the other Loan
Documents are true, correct and complete in all
respects on and as of the day of the making of any
Borrowing.
3.2.3 NOTICES. Agents will have received all required
Notices.
4. REPRESENTATIONS AND WARRANTIES. To induce Lenders to extend the Credit
Facilities herein contemplated, Borrower hereby represents and warrants
as follows:
4.1 ORGANIZATION. Borrower and each of its Active Consolidated
Subsidiaries is a corporation duly organized and in good
standing under the laws of the state of its incorporation, is
duly qualified in all jurisdictions where required by the
conduct of its business or ownership of its assets, except
where the failure to so qualify would not have a Material
Adverse Effect, and has the power and authority to own and
operate its assets and to conduct its business as is now done.
4.2 LATEST FINANCIALS. The Current Financial Statements as
delivered to Lenders, fairly present in conformity with GAAP
the consolidated financial position of Borrower and its
Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such
period.
4.3 RECENT ADVERSE CHANGES. Between the date of the Current
Audited Financial Statements and Closing, neither Borrower nor
any Consolidated Subsidiary has, to the extent it would have a
Material Adverse Effect: (i) suffered any damage, destruction
or loss, (ii) incurred any material obligations or
liabilities, whether accrued, absolute, contingent or
otherwise, (iii) discharged or satisfied any material lien or
encumbrance of any kind or (iv) suffered any other materially
adverse event or condition of any character.
4.4 LITIGATION, ETC. As of the date hereof, there are no actions,
suits, proceedings or governmental investigations pending, or,
to its knowledge, threatened against Borrower or any of its
Consolidated Subsidiaries which, in the reasonable judgment of
Borrower, would result in a Material Adverse Effect.
4.5 TAXES. United States Federal income tax returns of Borrower
and its Consolidated Subsidiaries have been examined and
closed through the fiscal year ended May 31, 1990. Borrower
and its Consolidated Subsidiaries have filed all United States
Federal income tax returns and all other material tax returns
which
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are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment
received by Borrower or any Consolidated Subsidiary. The
charges, accruals and reserves on the books of Borrower and
its Consolidated Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of Borrower,
adequate.
4.6 AUTHORITY. Borrower has full power and authority to enter into
the transactions provided for in this Agreement. The documents
to be executed by it in connection with this Agreement, when
executed and delivered by it will constitute the legal, valid
and binding obligations of it enforceable in accordance with
their respective terms except as such enforceability may be
limited by applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws in effect from time to time
affecting the rights of creditors generally and except as such
enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in law or in equity).
4.7 OTHER DEFAULTS. There does not now exist any material default
or violation by Borrower or any Consolidated Subsidiary of or
under any of the terms, conditions or obligations of: (i) its
Articles or Certificate of Incorporation and Regulations or
Bylaws, as applicable, (ii) any indenture, mortgage, deed of
trust, franchise, permit, contract, agreement, or other
instrument to which it is a party or by which it is bound or
(iii) any law, regulation, ruling, order, injunction, decree,
condition or other requirement applicable to or imposed upon
it by any law or by any governmental authority, court or
agency; and the transactions contemplated by this Agreement
and the Loan Documents will not result in any such default or
violation. As used herein, a material default or violation
will mean one which would result in a Material Adverse Effect.
4.8 LICENSES, ETC. Borrower and each of its Consolidated
Subsidiaries has obtained any and all licenses, permits,
franchises, or other governmental authorizations necessary for
the ownership of its properties and the conduct of its
business, except where failure to obtain any such item would
not cause a Material Adverse Effect.
4.9 ERISA. Borrower and each of its Consolidated Subsidiaries is
in compliance with the applicable provisions of ERISA and the
regulations and published interpretations thereunder, to the
extent necessary to avoid a Material Adverse Effect.
4.10 REGULATION U. No part of the proceeds of any Loans will be
used to purchase or carry any margin stock (as such term is
defined in Regulation U of the Board of Governors of the
Federal Reserve System).
4.11 CLOSING MEMO. The information contained in each of the
documents listed on the Closing Memo to be executed or
delivered by it or relating to it is complete and correct in
all material respects.
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4.12 ENVIRONMENTAL MATTERS. Borrower and its Consolidated
Subsidiaries are in material compliance with Environmental
Laws and neither Borrower nor any of its Consolidated
Subsidiaries are subject to any liability or obligation under
any Environmental Laws which would have a Material Adverse
Effect.
5. AFFIRMATIVE COVENANTS. Borrower covenants and agrees that from the date
of execution of this Agreement until all Obligations to Lenders have
been fully paid and this Agreement terminated, Borrower will:
5.1 BOOKS AND RECORDS. Maintain proper books of account and other
records and enter therein complete and accurate entries and
records of all of its transactions and give representatives of
Agents, at Revolving Credit Lenders' expense, reasonable
access thereto at all reasonable times, including permission
to examine, copy and make abstracts from any of such books and
records and such other information as it may from time to time
reasonably request. In addition, it will be available to
Agents, or cause its officers to be available from time to
time upon reasonable notice to discuss the status of the
Loans, its business and any statements, records or documents
furnished or made available to Agents in connection with this
Agreement.
5.2 SEC FILINGS AND SHAREHOLDERS REPORTS. Deliver to each
Revolving Credit Lender within 14 days of the filing or
distribution thereof: (i) copies of all periodic reports on
Forms 10-K, 10-Q and 8-K which it may make to or file with the
Securities Exchange Commission, and with its 10-K and 10-Q
filings, a Compliance Certificate and (ii) its quarterly and
annual reports to its shareholders.
5.3 QUARTERLY STATEMENTS. If Borrower is not required to file 10-Q
filings with the Securities Exchange Commission or does not
file the same within forty-five days after the end of each
fiscal quarter, furnish Revolving Credit Lenders within
forty-five days after the end of each fiscal quarter
internally prepared financial statements with respect to such
fiscal quarter, which financial statements will include a
balance sheet as of the end of such period and earnings,
shareholders' equity and cash flow statements for such period
and: (i) be accompanied by a Compliance Certificate, and (ii)
be on a consolidated basis for Borrower and its Consolidated
Subsidiaries, if any, in accordance with GAAP, subject to
normal year-end adjustments.
5.4 ANNUAL STATEMENTS. If Borrower is not required to file 10-K
filings with the Securities Exchange Commission or does not
file the same within ninety days after the end of each fiscal
year, furnish each Revolving Credit Lender within ninety days
after the end of each fiscal year Borrower's annual audited
financial statements with respect to such fiscal year, which
financial statements will include a balance sheet as of the
end of such period and earnings, shareholders' equity and cash
flow statements for such period and: (i) be accompanied by a
Compliance Certificate, (ii) be on a consolidated basis for
Borrower and its Consolidated Subsidiaries, if any, in
accordance with GAAP, and (iii) contain the unqualified
opinion of an independent certified public accountant
reasonably acceptable to
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Administrative Agent; examination will have been made in
accordance with generally accepted auditing standards and such
opinion will contain a report reasonably satisfactory to
Administrative Agent setting forth any inconsistency in the
application of generally accepted accounting principles with
the preceding years' statements, if any.
5.5 TAXES. Pay and discharge when due all material taxes,
assessments, charges, levies and other similar liabilities
imposed upon it, its income, profits, property or business,
except those which currently are being contested in good faith
by appropriate proceedings and for which it has set aside
adequate reserves or made other adequate provision with
respect thereto. As used herein, material will mean those
items which could result in a Material Adverse Effect if not
so paid or discharged.
5.6 INSURANCE. Keep its insurable real and personal property
insured with responsible insurance companies against loss or
damage from hazards and maintain public liability insurance,
all in an amount reasonably consistent with Borrower's current
practices.
5.7 COMPLIANCE WITH LAWS. Comply in all material respects with all
laws and regulations applicable to it and to the operation of
its business, including without limitation those relating to
environmental and health matters, and do all things necessary
to maintain, renew and keep in full force and effect all
rights, permits, licenses, certificates, satisfactory
clearances and franchises necessary to enable it to continue
its business, to the extent its failure to comply with or do
any of the foregoing could result in a Material Adverse
Effect.
5.8 ENVIRONMENTAL VIOLATIONS. Promptly notify Administrative Agent
of any violation by it of any Environmental Law; to the extent
such violation would, in the reasonable judgment of Borrower,
have a Material Adverse Effect.
5.9 ERISA COMPLIANCE. To the extent necessary to prevent a
Material Adverse Effect, Borrower will, and will cause each of
its Consolidated Subsidiaries to, comply in all material
respects with the applicable provisions of ERISA. Borrower
will promptly furnish to Administrative Agent, information
relating to: (i) any Reportable Event, (ii) any Plan
termination or any intention of Plan termination, (iii) any
failure to make any payment to the PBGC or any other payment
with respect to a Plan or (iv) any possible Withdrawal
Liability with respect to a Multiemployer Plan, to the extent
any of the foregoing could have a Material Adverse Effect.
5.10 NOTICE OF DEFAULT. Notify Administrative Agent in writing
within five Business Days after it knows or has reason to know
of the occurrence of an Event of Default.
5.11 CHANGE IN BUSINESS. Not make any change in its business which
would cause the type of business primarily conducted by
Borrower and its Consolidated
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Subsidiaries, considered on a consolidated basis, to be
materially different from the type of business primarily being
conducted on the date hereof.
6. NEGATIVE COVENANTS. Borrower covenants and agrees that from the date of
execution of this Agreement until all of the Obligations have been
fully paid and this Agreement terminated:
6.1 LIENS. Borrower will not and will cause its Consolidated
Subsidiaries to not incur, create, assume, become or be liable
in any way, or suffer to exist any mortgage, pledge, lien,
charge, or other encumbrance of any nature whatsoever on any
of its assets, now or hereafter owned, other than Permitted
Liens.
6.2 RESTRICTIONS ON INDEBTEDNESS OF CONSOLIDATED SUBSIDIARIES..
Borrower will not permit any Consolidated Subsidiary to become
or to be liable in respect of any Indebtedness, other than:
(i) Indebtedness of a corporation existing at the time such
corporation becomes a Subsidiary and not created in
contemplation of such event, (ii) Indebtedness to Borrower or
another Consolidated Subsidiary, and (iii) other Indebtedness
of Consolidated Subsidiaries in an aggregate principal amount
at any time outstanding not exceeding 15% of Borrower's Net
Worth.
6.3 OWNERSHIP. Borrower will not permit or suffer any Person or
its Affiliates (other than John H. McConnell, John P.
McConnell, their Affiliates or a group in which the foregoing
are a principal participant) to acquire 30% or more of the
stock (or equivalent ownership or controlling interest) having
by the terms thereof ordinary voting power to elect a majority
of the directors of Borrower (irrespective of whether or not
at the time stock of any class or classes of Borrower will
have or might have voting power by reason of the happening of
any contingency).
6.4 CONSOLIDATED INDEBTEDNESS TO CAPITALIZATION. Borrower will not
permit the ratio of Borrower's Consolidated Indebtedness to
Borrower's Capitalization to be greater than 50% calculated as
of the end of each fiscal quarter of Borrower.
6.5 NET WORTH. Borrower will not permit Borrower's Net Worth to be
less than $450,000,000 calculated as of the end of each fiscal
quarter of Borrower.
6.6 MERGER. Borrower will not merge or consolidate with or into
any other Person unless either (i) Borrower is the surviving
entity or (ii) Borrower merges or consolidates with a
Consolidated Subsidiary and the surviving corporation: (a) is
organized and existing under the laws of a state of the United
States, (b) has the majority of its property and assets within
the continental limits of the United States of America, and
(c) assumes in writing all of the obligations and liabilities
of Borrower under the Loan Documents; and immediately after
giving effect to such transaction, no condition or event
exists which constitutes a Default or an Event of Default.
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6.7 SALE OF ASSETS. Borrower will not sell, lease, or otherwise
dispose of all or substantially all of Borrower's assets
calculated on a consolidated basis for Borrower and its
Consolidated Subsidiaries.
6.8 TRANSACTIONS WITH UNRESTRICTED SUBSIDIARIES. Borrower and its
Consolidated Subsidiaries will not enter into any material
transaction, including, without limitation, any purchase,
sale, lease or exchange of property or the rendering of any
service, with any Unrestricted Subsidiary unless such
transaction is otherwise permitted under this Agreement and is
on fair and reasonable terms not materially less favorable to
it than it would obtain in a comparable arm's length
transaction with an unrelated entity.
6.9 GOVERNANCE DOCUMENTS. Borrower will not amend or change its
Certificate of Incorporation or its Bylaws in any manner which
is materially adverse to the Lenders.
7. EVENTS OF DEFAULT. Upon the occurrence of any of the following events:
7.1 PAYMENT. The non-payment by Borrower of: (i) any principal
amount of any of the Advances when due, whether by
acceleration or otherwise or (ii) the non-payment by Borrower
of any interest, fees or other amounts owing hereunder or
under any of the other Loan Documents within five days of when
the same is due;
7.2 COVENANTS. The default in the due observance of any covenant
or agreement to be kept or performed by Borrower under the
terms of this Agreement or any of the Loan Documents and the
failure or inability of it to cure such default: (i) within
forty-five (45) days after written notice thereof from
Borrower to Administrative Agent if given within the period
provided in Section 5.10, above, or (ii) if such notice is not
given by Borrower within the period specified in Section 5.10,
within forty-five days of the date Borrower was required to
give notice thereof pursuant to Section 5.10; provided that
such forty-five day grace period will not apply to: (i) any
default which in Administrative Agent's good faith
determination is incapable of cure or (ii) any default in any
covenants listed in Sections 6.3 through 6.7;
7.3 REPRESENTATIONS AND WARRANTIES. Any representation or warranty
made by Borrower in this Agreement is false or erroneous in
any material respect as of the date made;
7.4 BANKRUPTCY, ETC., OF BORROWER OR AN ACTIVE CONSOLIDATED
SUBSIDIARY. Borrower or an Active Consolidated Subsidiary that
is material to the business, operations or financial condition
of Borrower and its Consolidated Subsidiaries considered on a
consolidated basis: (i) dissolves or is the subject of any
dissolution, a winding up or liquidation; (ii) makes a general
assignment for the benefit of creditors; or (iii) files or has
filed against it a petition in bankruptcy, for a
reorganization or an arrangement, or for a receiver, trustee
or similar creditors'
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representative for its property or assets or any part thereof,
or any other proceeding under any federal or state insolvency
law, and if filed against it, the same has not been dismissed
or discharged within sixty days thereof;
7.5 BANKRUPTCY, ETC., OF UNRESTRICTED SUBSIDIARY. An Unrestricted
Subsidiary: (i) makes a general assignment for the benefit of
creditors or (ii) files or has filed against it a petition in
bankruptcy, for a reorganization or an arrangement, or for a
receiver, trustee or similar creditors' representative for its
property or assets or any part thereof, or any other
proceeding under any federal or state insolvency law, and if
filed against it, the same has not been dismissed or
discharged within sixty days thereof, but only if such event
would result in a Material Adverse Effect;
7.6 JUDGMENTS. Unless adequately insured or bonded, the entry of a
final judgment for the payment of money involving more than
$10,000,000 against Borrower and the failure by Borrower: (i)
to discharge the same, or cause it to be discharged, within
thirty days from the date of the order, decree or process
under which or pursuant to which such judgment was entered or
(ii) to secure a stay of execution pending appeal of such
judgment; or the entry of one or more final monetary or
non-monetary judgments or orders against Borrower which,
singly or in the aggregate, does or could reasonably be
expected to cause a Material Adverse Effect; or
7.7 OTHER INDEBTEDNESS. A default by Borrower with respect to any
evidence of Indebtedness in excess of $5,000,000 by it for
borrowed money (other than to Lenders pursuant to this
Agreement), if the effect of such default is to accelerate the
maturity of such Indebtedness or to permit the holder thereof
to cause such Indebtedness to become due prior to the stated
maturity thereof, or if any Indebtedness of it in excess of
$5,000,000 for borrowed money (other than to Lenders pursuant
to this Loan Agreement) is not paid when due and payable,
whether at the due date thereof or a date fixed for prepayment
or otherwise (after the expiration of any applicable grace
period);
then in any such event ("Event of Default"), the Agents, acting
jointly, may, or upon the request of the Majority Lenders will, take
any or all of the following actions (provided that if any Event of
Default specified in Section 7.4, above, as to Borrower, occurs, the
results described in clauses (i) and (ii), below, will occur
automatically): (i) declare the Revolving Commitments terminated, (ii)
declare the Secondary Revolving Credit Commitments terminated, (iii)
declare all principal, interest and other amounts due and payable
hereunder and under the Loan Documents to be immediately due and
payable, without presentment, demand, protest or notice of any kind,
all of which hereby are waived by Borrower, and (iv) exercise any other
rights and remedies provided hereunder, under any of the Loan Documents
and/or by applicable law. After the occurrence of any Event of Default
Lenders are authorized at any time and from time to time without notice
to Borrower to offset, appropriate and apply to all or any part of the
Obligations all moneys, credits, deposits (general or special, demand
or time, provisional or final) and other property of any nature
whatsoever of Borrower now or at any time hereafter in the possession
of, in transit to or from, under the control or custody of, or on
deposit with
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(whether held by Borrower individually or jointly with another party)
any of Lenders and any or all indebtedness at any time owing by such
Lender to or for the credit or account of Borrower. The rights and
remedies of Lenders upon the occurrence of any Event of Default will
include but not be limited to all rights and remedies provided in the
Loan Documents and all rights and remedies provided under applicable
law. Borrower irrevocably waives any right to direct the application of
any payments received by any Lender or Agents from or on behalf of
Borrower after the occurrence of any Event of Default.
8. INTERCREDITOR LIEN AND PAYMENT PROVISIONS.
8.1 SHARING OF PAYMENTS, ETC.
8.1.1 Except as otherwise expressly required by the terms
of this Agreement, each payment or prepayment of
principal, interest, fees, expenses and other charges
under the Credit Facilities and each reduction of the
Total Commitment will be applied pro-rata among
Lenders in accordance with their respective Ratable
Portions applicable thereto.
8.1.2 If any Revolving Credit Lender as to Revolving Loans,
Secondary Revolving Credit Lender as to Secondary
Revolving Credit Loans, or Lender as to Competitive
Bid Loans at any time obtains any payment (whether
voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of
Advances owing to it (other than payments pursuant to
Section 2.13, and payments of fees and expenses to
Agents pursuant to Sections 2.11.2.4 and 2.11.2.5 and
of indemnities and expenses to Agents pursuant to the
terms of this Agreement), in excess of its Ratable
Portion, such Lender will forthwith purchase from the
other Lenders such participations in the Advances, as
applicable, owing to them as will be necessary to
cause such purchasing Lender to share the excess
payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender,
such purchase from each Lender will be rescinded and
such Lender will repay to the purchasing Lender the
purchase price to the extent of such recovery
together with an amount equal to such Lender's
ratable share (according to the proportion of (i) the
amount of such Lender's required payment to (ii) the
total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount
so recovered. Borrower agrees that any Lender so
purchasing a participation from another Lender
pursuant to this Section may, to the fullest extent
permitted by law, exercise all of its rights of
payment (including the right of set-off) with respect
to such participation as fully as if such Lender were
the direct creditor of Borrower in the amount of such
participation.
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8.1.3 Borrower and Lenders further acknowledge that
Administrative Agent will not be obligated to make
any Advances to the extent that any of the other
Lenders do not contribute their Ratable Portion of
any Advance.
8.1.4 Each Lender's Ratable Portion of any payment
hereunder will be reduced to the extent that such
Lender has not contributed its Ratable Portion of any
amount owing to Administrative Agent hereunder.
8.1.5 Each Lender's obligation to purchase participation
interests pursuant to this Agreement will be absolute
and unconditional.
8.1.6 Each Lender will be entitled to receive from
Administrative Agent its Ratable Portion of interest
on Advances of such Lender only as calculated based
upon funds actually received by Administrative Agent
from each Lender by 11:00 a.m. (New York, New York
time) on the day due from such Lender. Funds received
by Administrative Agent after such cut off time will
be treated as having been received by Administrative
Agent on the next Business Day following the day on
which received.
8.1.7 To the extent that Administrative Agent will have
disbursed a Borrowing on a day prior to receipt by
Administrative Agent of a Lender's Ratable Portion of
such Borrowing, interest accrued and paid on such
unfunded sums will be for the account of
Administrative Agent.
8.2 RECEIPT OF PAYMENTS BY LENDERS. Should any payment or
distribution not permitted by the provisions of this Agreement
or the Loan Documents or proceeds thereof be received by any
Lender upon or with respect to all or any part of the Notes or
Obligations prior to the full payment and satisfaction of the
Obligations in the priority set forth in this Section and the
termination of all financing arrangements between Lenders and
Borrower, such Lender will deliver the same to Administrative
Agent in precisely the form received (except for the
endorsement or assignment of Lender where necessary), for
application to the Obligations (whether due or not due in such
order and manner as set forth herein), and, until so
delivered, the same will be held in trust by such Lender as
property of Administrative Agent on behalf of all of Lenders.
In the event of the failure of any Lender to make any such
endorsement or assignment, Administrative Agent on behalf of
all of Lenders, or any of its officers or employees on behalf
of Administrative Agent on behalf of all of Lenders, is hereby
irrevocably authorized in its own name or in the name of
Lenders to make the same, and is hereby appointed each
Lender's attorney-in-fact for those purposes, that appointment
being coupled with an interest and irrevocable.
8.3 DISTRIBUTIONS, ETC. In the event of any distribution, division
or application, partial or complete, voluntary or involuntary,
by operation of law or otherwise, of all or any part of the
assets of Borrower or the proceeds thereof to creditors of
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Borrower or to any indebtedness, liabilities and obligations
of Borrower, or upon any liquidation, dissolution or other
winding up of Borrower or Borrower's business, or in the event
of any sale (singly or in the aggregate) of all or any
substantial part of the assets of Borrower, or in the event of
any receivership, insolvency or bankruptcy proceeding, or
assignment for the benefit of creditors, or any proceeding by
or against Borrower for any relief under any bankruptcy or
insolvency law or other laws relating to the relief of
debtors, readjustment of indebtedness, reorganization,
compositions or extensions, then and in any such event any
payment or distribution of any kind or character, either in
cash, securities or other property, which will be payable or
deliverable upon or with respect to all or any part of the
Obligations will be paid or delivered directly to
Administrative Agent for application to the Obligations
(whether due or not due in order and manner as set forth
herein) until the Obligations will have been fully paid and
satisfied. Lenders hereby irrevocably authorize and empower
Administrative Agent to demand, sue for, collect and receive
every such payment or distribution and give acquittance
therefor and to file claims and take such other proceedings in
Administrative Agent's own name or in the name of Lenders or
otherwise, as Lender may deem necessary or advisable to carry
out the provisions of this Section. Lenders hereby agree to
execute and deliver to Agents such limited powers of attorney,
assignments, endorsements or other instruments as may be
requested by Agents in order to enable Agents to enforce any
and all claims upon or with respect to the Obligations, and to
collect and receive any and all payments or distributions
which may be payable or deliverable at any time upon or with
respect to the Obligations.
8.4 BENEFIT. The provisions of this Section are solely for the
benefit of Lenders, and may at any time or times be changed by
Lenders pursuant to the terms of this Agreement, as they may
elect but without necessity of notice to or consent or
approval by Borrower or any other Person (other than Lenders
pursuant to the terms of this Agreement with respect to
amendments, modifications, etc.); and neither Borrower nor any
other Person will have any right to rely on or enforce any of
the provisions hereof.
9. REPRESENTATIONS AND WARRANTIES TO SURVIVE. All representations,
warranties, covenants and agreements made by Borrower herein and in the
other Loan Documents will survive the execution and delivery of this
Agreement, the Loan Documents and the issuance of the Notes.
10. ENVIRONMENTAL INDEMNIFICATION. Borrower agrees that it will indemnify
and hold harmless Agents and Lenders from any costs, expenses, clean-up
costs, waste disposal costs, litigation costs, fines, penalties
including without limitation those costs, expenses, and fines within
the meaning of CERCLA and other related liabilities which may arise
under Environmental Laws in connection with the assets of Borrower or
its Consolidated Subsidiaries or the operation of their businesses, to
the extent Agents or Lenders may be held responsible for such items as
a result of this Loan Agreement, any acts or omissions in connection
therewith, or any matters relating thereto. The provisions of this
Section will survive any termination of this Agreement.
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11. AGENTS.
11.1 AUTHORIZATION AND ACTION. Each Lender hereby appoints and
irrevocably authorizes Agents to take such action as agent on
its behalf and to exercise such powers and discretion under
this Agreement and the other Loan Documents as are delegated
to Agents by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto. Without
limitation of the foregoing, each Lender hereby expressly
authorizes Agents to execute, deliver and perform its
obligations hereunder and under each of the Loan Documents to
which either of Agents are a party, and to exercise hereunder
or thereunder all rights, powers and remedies that Agents may
have hereunder or thereunder. Each Lender agrees that any
action taken by Agents in accordance with the provisions of
this Agreement or the Loan Documents, and the exercise by
Agents of the powers set forth herein or therein, together
with such other powers as are reasonably incidental thereto,
will be authorized and binding upon all Lenders. As to any
matters not expressly provided for hereunder or by the Loan
Documents (including, without limitation, enforcement or
collection of the Obligations), Agents will not be required to
exercise any discretion or take any action, but will be
required to act or to refrain from acting (and will be fully
protected in so acting or refraining from acting) upon the
instructions of the Majority Lenders (or if applicable under
Section 12.4 below, all Lenders), and such instructions will
be binding upon all Lenders. The duties of Agents will be
mechanical and administrative in nature and Agents will have
no fiduciary relationship in respect of any Lender. If Agents
will request instructions from any Lenders with respect to any
act or failure to act in connection with this Agreement, the
Credit Facilities or any of the Loan Documents, Agents will be
entitled to refrain from such act or taking such action unless
and until Agents have received instructions and Agents will
have no liability to any Person or Lender by reason of so
refraining. Agents will not be required to take any action
which exposes Agents to personal liability or is contrary to
this Agreement or applicable law.
11.2 AGENTS' RELIANCE, ETC. Neither Agents, any Affiliate of
Agents, nor any of their respective directors, officers,
agents, employees, attorneys or consultants will be liable for
any action taken or omitted to be taken by it or them under or
in connection with this Agreement, any of the Obligations or
any Loan Document, except for its or their own gross
negligence or willful misconduct. Without limitation of the
generality of the foregoing, Agents: (a) may consult with
legal counsel (including counsel for Borrower), independent
public accountants and other experts selected by Agents and
will not be liable for any action taken or omitted to be taken
in good faith by it in accordance with the advice of such
counsel, accountants or experts; (b) make no warranty or
representation to any Lender and will not be responsible to
any Lender for any statements, warranties or representations
made in or in connection with this Agreement, the Notes or any
Loan Document; (c) will not have any duty to ascertain or to
inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement, the
Obligations or any Loan Document on the part of Borrower or as
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to the existence or possible existence of any Default or Event
of Default or to inspect the property (including the books and
records) of Borrower; (d) will not be responsible to any
Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this
Agreement, the Obligations or any Loan Document or any other
instrument or document furnished pursuant thereto; and (e)
will incur no liability under or in respect of this Agreement,
the Obligations or any Loan Document by acting upon any
notice, consent, certificate or other instrument or writing
(which may be by telephone, telegram, cable, telecopy or
telex) believed by it to be genuine and signed or sent by the
proper party or parties. Agents will not be liable for any
apportionment or distribution of payments made by it
reasonably and in good faith pursuant to this Agreement, and
if any such apportionment or distribution is subsequently
determined to have been made in error the sole recourse of any
Person to whom payment was due, but not made, will be to
recover from the recipients of such payments any payment in
excess of the amount to which they are determined to have been
entitled.
11.3 AGENTS AND THEIR AFFILIATES. With respect to its Revolving
Commitments, the Advances made by it and the Notes issued to
it, Agents will have the same rights and powers under the Loan
Documents as any other Lender and may exercise the same as
though they were not Agents; and the term "Lender" or
"Lenders" will, unless otherwise expressly indicated, include
Agents in their individual capacity. Agents and their
Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind
of business with Borrower, Borrower's Affiliates and any
Person who may do business with or own securities of Borrower
or Borrower's Affiliates, all as if they were not Agents and
without any duty to account therefor to Lenders.
11.4 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon Agents 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 Agreement. Each Lender also acknowledges
that it will, independently and without reliance upon Agents
or any other Lender and based on such documents and
information as it will deem appropriate at the time, continue
to make its own credit decisions in taking or not taking
action under or otherwise relating to this Agreement and the
Obligations; and Agents will not have any duty or
responsibility at any time to provide any Lender with any
credit or other information with respect thereto.
11.5 INDEMNIFICATION. Lenders agree to indemnify Agents (to the
extent not reimbursed by Borrower), ratably according to the
sum of their respective Revolving Commitments plus Secondary
Revolving Credit Commitments existing on the date hereof, from
and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against Agents in any way
relating to or arising out of this Agreement, the Notes, the
Obligations or any of the Loan Documents or any action taken
or omitted by Agents under this Agreement, the Notes, the
Obligations or any of the Loan
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Documents, provided that no Lender will be liable for any
portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from Agents' gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse Agents promptly upon demand for its
ratable share of any out-of-pocket expenses incurred by Agents
in connection with the preparation, review, execution,
delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings
or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, the Notes, the
Obligations or any of the Loan Documents, or any of them, to
the extent that Agents are not reimbursed for such expenses by
Borrower. The provisions of this Section will survive the
termination of this Agreement.
11.6 SUCCESSOR AGENTS. Either Agent may resign at any time as Agent
under this Agreement, the Notes or the Loan Documents by
giving written notice thereof to Lenders and Borrower, which
resignation will be effective only upon the appointment of a
successor Agent. Upon any such resignation, the Majority
Lenders will, on behalf of Lenders, appoint a successor Agent,
which will be a commercial bank organized under the laws of
the United States of America or of any State thereof and
having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent will
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent, and the
retiring Agent will be discharged from its duties and
obligations under this Agreement; provided, however, that the
successor Agent will not be considered as a Lender for
purposes of this Agreement unless it is otherwise a Lender.
After any retiring Agent's resignation, the provisions of this
Section will inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this
Agreement. If the other Lenders request either Agent to
resign, then, prior to such resignation, the other Lenders
will cause such Agent to be paid all amounts owed to such
Agent hereunder, including, without limitation, such Agent's
Ratable Portion of all outstanding Advances and other
Obligations.
11.7 RELATIONS AMONG LENDERS. Each Lender agrees that it will not
take or institute any actions or proceedings, against Borrower
under this Agreement or any of the Loan Documents, without the
prior written consent of the Majority Lenders.
11.8 BENEFIT. The provisions of this Section are solely for the
benefit of Agents and Lenders, and may at any time or times be
changed by Lenders as they may elect without necessity of
notice to or consent or approval by Borrower or other Person
(other than Lenders pursuant to Section 12.4, below); and
neither Borrower or other Person will have any right to rely
on or enforce any of the provisions hereof. In performing its
actions and duties under this Agreement Agents act solely as
Agent of Lenders and do not assume or have any obligation
toward or agency relationship with or for Borrower.
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12. GENERAL.
12.1 WAIVER. No delay or omission on the part of any Lender or
Agents to exercise any right or power arising from any Event
of Default will impair any such right or power or be
considered a waiver of any such right or power or a waiver of
any such Event of Default or any acquiescence therein nor will
the action or nonaction of any Lender or Agents in case of
such Event of Default impair any right or power arising as a
result thereof or affect any subsequent default or any other
default of the same or a different nature. No disbursement of
Advances hereunder will constitute a waiver of any of the
conditions to Lenders' or Agents' obligation to make further
disbursements; nor, in the event that Borrower is unable to
satisfy any such condition, will any such disbursement have
the effect of precluding Lenders from thereafter declaring
such inability to be a Default or an Event of Default. No
modification or waiver of any provision of this Agreement or
any of the Loan Documents, nor consent to any departure by
Borrower therefrom, will be established by conduct, custom or
course of dealing; and no modification, waiver or consent will
in any event be effective unless the same is in writing and
specifically refers to this Agreement, and then such waiver or
consent will be effective only in the specific instance and
for the purpose for which given. No notice to or demand on
Borrower in any case will entitle Borrower to any other or
further notice or demand in the same, similar or other
circumstance. Unless otherwise agreed in writing by all
Lenders pursuant to Section 12.4 hereof, the liability of
Borrower will not be affected by any surrender, exchange,
acceptance, or release by Agents or any Lender of any party or
other person or any other guarantee or any security held by it
for any of the Obligations or by Agents' or any Lender's
failure to take any steps to perfect or maintain its lien or
security interest in or to preserve any of its rights to, any
guarantee, security or other collateral for any of the
Obligations, by any delay or omission in exercising any right,
remedy or power with respect to any of the Obligations or any
guarantee or collateral therefor, or by any irregularity,
unenforceability or invalidity of any of the Obligations or
any security or guarantee therefor. Subject to Section 12.4
hereof, Lenders at any time and from time to time, and without
impairing, releasing, discharging or modifying the liabilities
of Borrower hereunder, may (a) without the consent of or
notice to Borrower, change the manner, amount, place or terms
of payment or performance of or interest rates on, or change
or extend the time of payment of, or other terms relating to,
any of the Obligations, (b) renew, substitute, modify, amend
or alter, or grant consents or waivers relating to, any of the
Obligations without the consent of or notice to Borrower, (c)
renew, substitute, modify, amend or alter, or grant consents
or waivers relating to, any guarantee or any security for any
guarantee, (d) apply any and all payments received by a Lender
by whomever paid or however realized, to any of the
Obligations in such order, manner and amount as such Lender
may determine in its sole discretion, (e) deal with any Person
in respect of the Obligations in such manner as such Lender
deems appropriate in its sole discretion and/or (f) substitute
any security or guarantee. Irrespective of the taking or
refraining from the taking of any such action, the obligations
of Borrower will remain in full force and effect. Lenders and
Agents in their sole discretion may determine the
reasonableness of the period which may elapse prior to the
making of demand for
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any payment upon Borrower and need not pursue any remedy or
remedies against Borrower or any other Person before having
recourse against Borrower hereunder.
12.2 NOTICES. All notices, demands, requests, consents, approvals
and other communications required or permitted hereunder will
be in writing and will be conclusively deemed to have been
received by a party hereto and to be effective if delivered
personally to such party, or sent by telex, telecopy (followed
by written confirmation) or other telegraphic means, or by
overnight courier service, or by certified or registered mail,
return receipt requested, postage prepaid, addressed to such
party at the address set forth below or to such other address
as any party may give to the other in writing for such
purpose:
To Administrative Agent: The Bank of Nova Scotia
600 Peach Street, N.E., Suite 2700
Atlanta, Georgia 30308
Attention: Amanda Norsworthy
Telecopier No.: (404) 888-8998
Telephone No.: (404) 877-1551
To Documentation Agent: PNC Bank, National Association
Energy, Metals and Mining
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Attention: David W. Mengel
Telecopier No.: (412) 762-6484
Telephone No.: (412) 762-2524
To Borrower: Worthington Industries, Inc.
1205 Dearborn Drive
Columbus, Ohio 43085
Attention: Treasurer
Telecopier No.: (614) 438-7508
Telephone No.: (614) 438-3187
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With copy with Worthington Industries, Inc.
respect to notices 1205 Dearborn Drive
under Section 7 only: Columbus, Ohio 43085
Attention: General Counsel
Telecopier No.: (614) 840-3706
Telephone No.: (614) 438-3001
To Revolving At their addresses set forth on the
Credit Lenders: Amended and Restated Schedule 1,
attached hereto
To Secondary At their addresses set forth on
Revolving Credit Lenders: Schedule 2, attached hereto
To Designated Lenders: At their addresses set forth in the
applicable Designation Agreement
All such communications, if personally delivered, will be
conclusively deemed to have been received by a party hereto
and to be effective when so delivered, or if sent by telex,
telecopy or telegraphic means, on the day on which
transmitted, or if sent by overnight courier service, on the
day after deposit thereof with such service, or if sent by
certified or registered mail, on the third business day after
the day on which deposited in the mail, except that notices
and communications to Administrative Agent pursuant to Section
2 above, will not be effective until received by
Administrative Agent.
12.3 SUCCESSORS AND ASSIGNS.
12.3.1 This Agreement will be binding upon and inure to the
benefit of Borrower and Lenders and their respective
successors and assigns, provided, however, that
Borrower may not assign this Agreement in whole or in
part without the prior written consent of all of the
Lenders.
12.3.2 Each Lender may, with the prior written consent of
Agents and Borrower, which consent will not be
unreasonably withheld, assign to one or more banks or
other entities all or a portion of its rights and
obligations under this Agreement (including, without
limitation, all or a portion of its Revolving
Commitments, the Secondary Revolving Credit
Commitments, the Advances owing to it and the Note or
Notes held by it); provided, however, that except as
provided in Section 12.3.7, (i) each Revolving Credit
Lender may assign to an Affiliate of such Revolving
Credit Lender that is a bank without any such
consent, and each Secondary Revolving Credit Lender
may assign to an Affiliate of such Secondary
Revolving Credit Lender that is a bank without any
such consent, and each Designated Lender may assign
its Competitive Bid Loan to its Designating Lender or
to another Designated Lender designated by such
Designating Lender and such assignment by a
Designated Lender will not be subject to the
requirements of clauses (ii)
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through (iv) of this Section 12.3.2 provided that the
Designated Lender and Designating Lender notify the
Administrative Agent promptly of such assignment,
(ii) each such assignment will be of a uniform, and
not a varying, percentage of all rights and
obligations under and in respect of all of the Credit
Facilities, (iii) except in the case of an assignment
of all of a Revolving Credit Lender's or a Secondary
Revolving Credit Lender's rights and obligations
under this Agreement, (A) the amount of the Revolving
Commitment of the assigning Revolving Credit Lender
being assigned pursuant to each such assignment
(determined as of the date of the Assignment and
Acceptance with respect to such assignment) will in
no event be less than $5,000,000 and will be an
integral multiple of $1,000,000 and (B) after giving
effect to each such assignment, the amount of the
Revolving Commitment of the assigning Revolving
Credit Lender will in no event be less than
$10,000,000 unless it is reduced to zero; (C) the
amount of the Secondary Revolving Credit Commitment
of the assigning Secondary Revolving Credit Lender
being assigned pursuant to each such assignment
(determined as of the date of the Assignment and
Acceptance with respect to such assignment) will in
no event be less than $5,000,000 and will be an
integral multiple of $1,000,000 and (D) after giving
effect to each such assignment, the amount of the
Secondary Revolving Credit Commitment of the
assigning Secondary Revolving Credit Lender will in
no event be less than $10,000,000 unless it is
reduced to zero, and (iv) the parties to each such
assignment will execute and deliver to Administrative
Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with
any Note or Notes subject to such assignment and, for
the sole account of Administrative Agent, a
processing and recordation fee of $2,500. Upon such
execution, delivery, acceptance and recording, from
and after the effective date specified in such
Assignment and Acceptance, (x) the assignee
thereunder will be a party hereto and, to the extent
that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a
Revolving Credit Lender hereunder or a Secondary
Revolving Credit Lender, depending on the nature of
the commitment being assigned, and (y) Lender
assignor thereunder will, to the extent that rights
and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its
obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the
remaining portion of an assigning Revolving Credit
Lender's or Secondary Revolving Credit Lender's, as
applicable, rights and obligations under this
Agreement, such Revolving Credit Lender or Secondary
Revolving Credit Lender, as the case may be, will
cease to be a party hereto).
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12.3.3 Administrative Agent will maintain at its address
referred to above for notices a copy of each
Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names
and addresses of Lenders and the respective Revolving
Commitments of, and principal amount of the Advances
owing to, each Lender from time to time (the
"Register"). The entries in the Register will be
conclusive and binding for all purposes, absent
manifest error, and Borrower, Administrative Agent
and Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for
all purposes of this Agreement. The Register will be
available for inspection by Borrower or any Lender at
any reasonable time and from time to time upon
reasonable prior notice.
12.3.4 Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee,
together with any Note or Notes subject to such
assignment, Administrative Agent will, if such
Assignment and Acceptance has been completed and is
in substantially the form of delivered to Lenders in
connection with the Closing, (i) accept such
Assignment and Acceptance, (ii) record the
information contained therein in the Register and
(iii) give prompt notice thereof to Borrower. Within
five Business Days after its receipt of such notice,
Borrower, at its own expense, will execute and
deliver to Administrative Agent in exchange for the
surrendered Note or Notes a new Note or Notes to the
order of such assignee in an amount equal to the
applicable Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning
Lender has retained a Commitment hereunder, a new
Note or Notes to the order of the assigning Lender in
an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes will be in an
aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes,
will be dated the effective date of such Assignment
and Acceptance.
12.3.5 Each Lender may sell participation to one or more
banks or other entities in all or a portion of its
rights and obligations under this Agreement
(including, without limitation, all or a portion of
its Revolving Commitments, Secondary Revolving Credit
Commitments, and the Advances owing to it and the
Note or Notes held by it); provided, however, that
(i) such Lender's obligations under this Agreement
(including, without limitation, its Revolving
Commitments and Secondary Revolving Credit
Commitments to Borrower hereunder) will remain
unchanged, (ii) such Lender will remain solely
responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender
will remain the holder of any such Notes for all
purposes of this Agreement, (iv) Borrower, Agents and
the other Lenders will continue to deal solely and
directly with such Lender in connection with such
Lender's rights and obligations under this Agreement
and (v) no
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participant under any such participation will have
any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any
departure by any party therefrom except the following
if so provided in the participation agreement: (i)
changes to the amount of, or rate of interest on, any
Note held by any Lender and (ii) postpone any date
fixed for any payment of principal of, or interest
on, any of the Notes. Notwithstanding the foregoing,
Borrower agrees that each such participant will, to
the extent provided in its participation, be entitled
to the rights and benefits under Section 2.12 and,
subject to Section 7, all rights of setoff under this
Agreement with respect to its participating interest,
in each case, as if such participant were a Lender.
12.3.6 Any Lender may, in connection with any assignment or
participation or proposed assignment or participation
pursuant to this Section, disclose to the assignee or
participant or proposed assignee or participant, any
information relating to Borrower furnished to such
Lender by or on behalf of Borrower.
12.3.7 Any Revolving Credit Lender (each a "Designating
Lender") may at any time designate one or more
Designated Lenders to fund Competitive Bid Loans
which the Designating Lender is required to fund
subject to the terms of this Section 12.3.7 and the
provisions on Section 12.3.2 shall not apply to such
designation. No Revolving Credit Lender shall be
entitled to make more than two such designations. The
parties to each such designation shall execute and
deliver to the Agent, for its acceptance, a
Designation Agreement. Upon such receipt of an
appropriately completed Designation Agreement
executed by a Designating Lender and a designee
representing that it is a Designated Lender, the
Documentation Agent will accept such Designation
Agreement and give prompt notice thereof to the
Borrower, whereupon, from and after the effective
date specified in the Designation Agreement, the
Designated Lender shall become a party to this
Agreement with a right to make Competitive Bid Loans
on behalf of its Designating Lender pursuant to
Section 2.2 after the Borrower has accepted a
Competitive Bid (or a portion thereof) of the
Designating Lender. Each Designating Lender shall
serve as the agent (in its capacity as a Designating
Lender) of the Designated Lender and shall on behalf
of the Designated Lender give and receive all
communications and notices and take all actions
hereunder, including without limitation votes,
approvals, waivers, consents and amendments under or
relating to this Agreement or the other Loan
Documents. Any such notice, communication, vote,
approval, waiver, consent or amendment shall be
signed by the Designating Lender as agent (in its
capacity as a Designating Lender) for the Designated
Lender and shall not be signed by the Designated
Lender. The Borrower, the Agents and
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the Lenders may rely thereon without any requirement
that the Designated Lender sign or acknowledge the
same.
12.4 MODIFICATIONS. No modification, amendment or waiver of any
provision of this Agreement or any of the Loan Documents nor
consent to any departure therefrom by Borrower will in any
event be effective unless the same is in writing signed by the
Majority Lenders and specifically refers to this Agreement,
and then such waiver or consent will be effective only in the
specific instance and for the purpose for which given,
provided, however, that no amendment, waiver or consent will,
unless in writing and signed by all Lenders, (i) except as
provided in Section 2.15, change the percentage amount of the
Revolving Commitments; (ii) change the percentage amount of
the Secondary Revolving Credit Commitments; (iii) change the
aggregate unpaid principal amount of the Notes or the number
of Lenders which will be required for Lenders or any of them
to take any action hereunder; (iv) waive any Event of Default
under Section 7.1 hereof; (v) amend Sections 7, 10, 12.3.1 or
this Section 12.4; (vi) increase any Commitment of any Lender;
(vii) change the rate of interest on any Note held by any
Lender; (viii) postpone any date fixed for any payment of
principal of, or interest on, any of the Notes; or (ix)
release Borrower; and provided further, however, that no
amendment, waiver or consent will, unless in writing and
signed by Agents in addition to all Lenders or the Majority
Lenders, as the case may be, affect the rights or duties of
Agents under this Agreement, the Obligations or any Loan
Document. No notice to or demand on Borrower in any case will
entitle Borrower to any other or further notice or demand in
the same, similar or other circumstance. Notwithstanding
anything to the contrary contained herein, Agents may in their
sole discretion subject to approval of Borrower and without
the consent of the Majority Lenders reduce or increase the
fees or expenses that Borrower is required to pay to Agents
for their own account.
12.5 ILLEGALITY. If fulfillment of any provision hereof or any
transaction related hereto or of any provision of any of the
Loan Documents, at the time performance of such provision is
due, involves transcending the limit of validity prescribed by
law, then ipso facto, the obligation to be fulfilled will be
reduced to the limit of such validity; and if any clause or
provisions herein contained other than the provisions hereof
pertaining to repayment of the Obligations operates or would
prospectively operate to invalidate this Agreement in whole or
in part, then such clause or provision only will be void, as
though not herein contained, and the remainder of this
Agreement will remain operative and in full force and effect;
and if such provision pertains to repayment of the
Obligations, then, at the option of Lenders, all of the
Obligations will become immediately due and payable.
12.6 GENDER, ETC. Whenever used herein, the singular number will
include the plural, the plural the singular and the use of the
masculine, feminine or neuter gender will include all genders.
12.7 HEADINGS. The headings in this Agreement are for convenience
only and will not limit or otherwise affect any of the terms
hereof.
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12.8 LIABILITY OF LENDERS. Borrower hereby agrees that neither
Agents nor Lenders will be chargeable for any negligence,
mistake, act or omission of any accountant, examiner, agent or
attorney selected with reasonable care and in the exercise of
good faith by Lenders in making examinations, investigations
or collections under the Loan Documents, unless Agents or
Lenders actually know that such mistake, negligence, act or
omission is incorrect at the time committed.
12.9 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed will be
deemed to be an original and all of which taken together will
constitute one and the same agreement.
12.10 REMEDIES CUMULATIVE. No single or partial exercise of any
right or remedy by Lenders will preclude any other or further
exercise thereof or the exercise of any other right or remedy.
All remedies hereunder and in any instrument or document
evidencing, securing, guaranteeing or relating to any Loan or
now or hereafter existing at law or in equity or by statute
are cumulative and none of them will be exclusive of the
others or any other remedy. All such rights and remedies may
be exercised separately, successively, concurrently,
independently or cumulatively from time to time and as often
and in such order as Lenders may deem appropriate.
12.11 COSTS, EXPENSES AND LEGAL FEES. Borrower will be solely
responsible for all reasonable fees and expenses for
appraisals, surveys, title insurance, lien searches
environmental reports, recording fees, documentary taxes and
similar items. Borrower agrees to reimburse on demand Agents
and Lenders for all reasonable out-of-pocket costs and
expenses, including, without limitation, due diligence
expenses and reasonable fees and expenses of auditors,
attorneys (which attorneys may be Agent's employees) and
including, without limitation, the reasonable Attorneys Fees
and disbursements and other expenses, expended or incurred in
amending, supplementing, waiving or enforcing provisions of
this Agreement and the other Loan Documents; in enforcing this
Agreement and the other Loan Documents (with respect to the
enforcement of this Agreement and other Loan Documents,
Borrower agrees to reimburse on demand the Lenders for all
reasonable out-of-pocket costs and expenses incurred in
connection with such enforcement); in obtaining advice from
auditors, attorneys and other advisors regarding its rights
and responsibilities under this Agreement and the other Loan
Documents, or the perfection, protection or preservation of
rights and interests hereunder or thereunder; in collecting
any sum which is not paid when due under this Agreement and
the other Loan Documents; in negotiations with respect to any
Default or Event of Default or any restructuring or "working
out" the credit facilities; and/or in the protection,
perfection, preservation and enforcement of any and all rights
of Agents and Lender's in connection with this Agreement and
any of the other Loan Documents, including, without
limitation, the fees and costs incurred in any out-of-court
work-out, any litigation or in any bankruptcy or
reorganization proceeding or similar proceeding.
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12.12 INDEMNITY. Borrower will indemnify, defend and hold harmless
Agents and Lenders, their respective directors, officers,
counsel and employees, from and against all claims, demands,
liabilities, judgments, losses, damages, costs and expenses,
joint or several (including all accounting fees and Attorneys
Fees reasonably incurred), that any such indemnified party may
incur arising under or by reason of this Agreement, any of the
Credit Facilities or Loan Documents, or any act hereunder or
thereunder or with respect hereto or thereto except the
willful misconduct or negligence of such indemnified party.
Without limiting the generality of the foregoing, Borrower
agrees that if, after receipt by Agents or any Lender of any
payment of all or any part of the Obligations, demand is made
at any time upon Agents and/or any Lender for the repayment or
recovery of any amount or amounts received by it in payment or
on account of the Obligations and Agents and/or Lender repays
all or any part of such amount or amounts by reason of any
judgment, decree or order of any court or administrative body,
or by reason of any settlement or compromise of any such
demand, this Agreement will continue in full force and effect
and Borrower will be liable, and will indemnify, defend and
hold harmless Agents and Lenders for the amount or amounts so
repaid. The provisions of this Section will be and remain
effective notwithstanding any contrary action which may have
been taken by Borrower in reliance upon such payment, and any
such contrary action so taken will be without prejudice to
Agents and any Lender's rights under this Agreement and will
be deemed to have been conditioned upon such payment having
become final and irrevocable. The provisions of this Section
will survive the termination of this Agreement.
12.13 CONTINUING AGREEMENT. This Agreement is and is intended to be
a continuing Agreement and will remain in full force and
effect until the Obligations are finally and irrevocably paid
in full and the Credit Facilities are terminated.
12.14 COMPLETE AGREEMENT. This Agreement, together with the exhibits
and schedules hereto, the other Loan Documents and related
documents delivered on the Closing Date, on the Revised
Closing Date, and on the Second Revised Closing Date,
constitutes the entire agreement of the parties hereto
regarding the subject matter hereof and thereof and supersedes
any prior or written agreements or understandings regarding
such subject matter.
12.15 NO THIRD PARTY BENEFICIARIES. Nothing express or implied
herein is intended or will be construed to confer upon or give
any person, firm or corporation, other than the parties
hereto, any right to remedy hereunder or by reasons hereof.
12.16 TAX WITHHOLDING CLAUSE. Each Lender or assignee or participant
of Lender that is not incorporated under the laws of the
United States of America or a state thereof agrees that it
will deliver to each of the Borrower and the Documentation
Agent two (2) duly completed copies of the following: (i)
Internal Revenue Service Form W-9, 4224 or 1001, or other
applicable forms prescribed by the Internal Revenue Service,
certifying that such Lender, assignee or participant is
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entitled to receive payments under this Agreement and the
other Loan Documents without deduction or withholding of any
United Stated federal income taxes, or is subject to such tax
at a reduced rate under an applicable tax treaty, or (ii)
Internal Revenue Service Form W-8 or other applicable form of
certificate of such Lender, assignee or participant indicating
that no such exemption or reduced rate is allowable with
respect to such payments. Each Lender, assignee or participant
required to deliver to Borrower and the Documentation Agent a
form or certificate pursuant to the preceding sentence will
deliver such form or certificate as follows: (A) each Lender
which is a party hereto on the Closing Date will deliver such
form or certificate at least five (5) Business Days prior to
the first date on which any interest or fees are payable by
Borrower hereunder for the account of such Lender; (B) each
assignee or participant will deliver such form or certificate
at least five (5) Business Days before the effective date of
such assignment or participation (unless Documentation Agent
in its sole discretion will permit such form or certificate
less than five (5) Business Days before such date in which
case it will be due on the date specified by Documentation
Agent). Each Lender, assignee or participant that so delivers
a Form W-8, W-9, 4224 or 1001 further undertakes to deliver to
each of Borrower and the Documentation Agent two (2)
additional copies of such form (or a successor form) on or
before the date that such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the
most recent form so delivered by it, and such amendments
thereto or extensions or renewals thereof as may be reasonably
requested by Borrower or Documentation Agent, either
certifying that such Lender, assignee or participant is
entitled to receive payments under this Agreement and the
other Loan Documents without deduction or withholding of any
United States federal income taxes or is subject to such tax
at a reduced rate under an applicable tax treaty or stating
that no such exemption or reduced rate is allowable.
Documentation Agent will be entitled to withhold United States
federal income taxes at the full withholding rate unless
Lender, assignee or participant establishes an exemption or
that it is subject to a reduced rate as established pursuant
to the above provisions.
12.17 NO PARTNERSHIP OR JOINT VENTURE. Nothing contained herein or
in any of the agreements or transactions contemplated hereby
is intended or will be constructed to create any relationship
other than as expressly stated herein or therein and will not
create any joint venture, partnership or other relationship.
12.18 GOVERNING LAW AND JURISDICTION; WAIVER OF JURY TRIAL. THIS
AGREEMENT WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES
OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF OHIO WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES, AND BORROWER HEREBY AGREES TO THE JURISDICTION OF
ANY STATE OR FEDERAL COURT LOCATED WITHIN HAMILTON COUNTY,
OHIO, AND CONSENT THAT ANY SERVICE OF PROCESS MAY BE MADE BY
CERTIFIED MAIL DIRECTED TO BORROWER AT THE ADDRESS SET FORTH
HEREIN FOR NOTICES AND SERVICE SO MADE WILL BE DEEMED TO BE
COMPLETED FIVE (5)
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BUSINESS DAYS AFTER THE SAME HAS BEEN DEPOSITED IN U.S. MAILS,
POSTAGE PREPAID; PROVIDED THAT NOTHING CONTAINED HEREIN WILL
PREVENT AGENTS FROM BRINGING ANY ACTION OR EXERCISING ANY
RIGHTS AGAINST ANY SECURITY OR AGAINST BORROWER INDIVIDUALLY
OR AGAINST ANY PROPERTY OF BORROWER, WITHIN ANY OTHER STATE OR
NATION. BORROWER WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED
HEREUNDER. BORROWER, AGENTS AND LENDERS EACH UNCONDITIONALLY
AND IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH
AGREEMENTS.
Dated as of October 14, 1998.
WORTHINGTON INDUSTRIES, INC.,
as Borrower
By:/s/ John T. Baldwin
------------------------------------
Print Name: John T. Baldwin
----------------------------
Title: Treasurer
---------------------------------
THE BANK OF NOVA SCOTIA,
on its own behalf as Lender and as
Administrative Agent
By:/s/ F.C.H. Ashby
------------------------------------
Print Name: F.C.H. Ashby
----------------------------
Title: Senior Manager Loan Operations
---------------------------------
PNC BANK, NATIONAL ASSOCIATION,
on its own behalf as Lender and as
Documentation Agent,
By:/s/ David W. Mengel
------------------------------------
Print Name: David W. Mengel
----------------------------
Title: Senior Vice President
---------------------------------
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NATIONSBANK, N.A.,
as Lender
By:/s/ Philip S. Durand
------------------------------------
Print Name: Philip S. Durand
----------------------------
Title: Vice President
---------------------------------
WACHOVIA BANK, N.A.,
as Lender
By:/s/ Bradford L. Watkins
------------------------------------
Print Name: Bradford L. Watkins
----------------------------
Title: Vice President
---------------------------------
NBD BANK,
as Lender
By:/s/ Daniel J. Pienta
------------------------------------
Print Name: Daniel J. Pienta
----------------------------
Title: Vice President
---------------------------------
BANK ONE, N.A.,
as Lender
By:/s/ Douglas H. Klamfoth
------------------------------------
Print Name: Douglas H. Klamfoth
----------------------------
Title: Vice President
---------------------------------
NATIONAL CITY BANK,
as Lender
By:/s/ William J. Whitley
------------------------------------
Print Name: William J. Whitley
----------------------------
Title: Senior Vice President
---------------------------------
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