1
EXHIBIT 4(e)
AMENDED AND RESTATED
LOAN AGREEMENT
$190,000,000
CREDIT FACILITY
FROM
THE BANK OF NOVA SCOTIA
PNC BANK, OHIO, NATIONAL ASSOCIATION
NATIONSBANK, N.A.
WACHOVIA BANK OF GEORGIA, N.A.
ABN AMRO BANK N.V.
AND
BANK ONE, N.A.
(COLLECTIVELY, THE "LENDERS")
AND
THE BANK OF NOVA SCOTIA
AND
PNC BANK, OHIO, NATIONAL ASSOCIATION
AS AGENT FOR THE LENDERS
TO
WORTHINGTON INDUSTRIES, INC. ("BORROWER")
DATED AS OF MAY 30, 1997
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TABLE OF CONTENTS
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Page
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1. DEFINITIONS................................................................................... 1
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1.1 DEFINED TERMS............................................................... 1
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1.2 OTHER DEFINITIONAL PROVISIONS.............................................. 15
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1.3 ADDITIONAL DEFINITIONAL PROVISIONS.......................................... 15
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2. CREDIT FACILITIES............................................................................. 15
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2.1 REVOLVING CREDIT FACILITY................................................... 15
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2.2 THE COMPETITIVE BID FACILITY................................................ 17
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2.3 ADDITIONAL PROVISIONS REGARDING FUNDING..................................... 20
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2.4 PRINCIPAL PAYMENTS.......................................................... 21
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2.5 DEFAULT RATE................................................................ 21
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2.6 TERMINATION OR REDUCTION OF REVOLVING COMMITMENTS........................... 22
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2.7 RECORDS..................................................................... 22
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2.8 ASSUMPTIONS REGARDING NOTICES............................................... 22
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2.9 COMPUTATIONS, FEES, PAYMENTS, ETC........................................... 23
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2.10 ADDITIONAL COSTS............................................................ 24
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2.11 OBLIGATION TO INDEMNIFY..................................................... 26
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2.12 EXTENSION................................................................... 26
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3. CONDITIONS PRECEDENT.......................................................................... 27
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3.1 CLOSING..................................................................... 27
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3.2 EACH ADVANCE................................................................ 27
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4. REPRESENTATIONS AND WARRANTIES................................................................ 28
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4.1 ORGANIZATION................................................................ 28
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4.2 LATEST FINANCIALS........................................................... 28
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4.3 RECENT ADVERSE CHANGES...................................................... 28
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4.4 LITIGATION, ETC............................................................. 28
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4.5 TAXES....................................................................... 28
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4.6 AUTHORITY................................................................... 28
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4.7 OTHER DEFAULTS.............................................................. 29
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4.8 LICENSES, ETC............................................................... 29
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4.9 ERISA....................................................................... 29
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4.10 REGULATION U................................................................ 29
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4.11 CLOSING MEMO................................................................ 29
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4.12 ENVIRONMENTAL MATTERS....................................................... 29
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5. AFFIRMATIVE COVENANTS......................................................................... 29
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5.1 BOOKS AND RECORDS........................................................... 29
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(i)
3
5.2 SEC FILINGS AND SHAREHOLDERS REPORTS........................................ 30
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5.3 QUARTERLY STATEMENTS........................................................ 30
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5.4 ANNUAL STATEMENTS........................................................... 30
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5.5 TAXES....................................................................... 30
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5.6 INSURANCE................................................................... 30
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5.7 COMPLIANCE WITH LAWS........................................................ 30
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5.8 ENVIRONMENTAL VIOLATIONS.................................................... 31
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5.9 ERISA COMPLIANCE............................................................ 31
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5.10 NOTICE OF DEFAULT........................................................... 31
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5.11 CHANGE IN BUSINESS.......................................................... 31
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6. NEGATIVE COVENANTS............................................................................ 31
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6.1 LIENS....................................................................... 31
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6.2 RESTRICTIONS ON INDEBTEDNESS OF CONSOLIDATED SUBSIDIARIES................... 31
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6.3 OWNERSHIP................................................................... 31
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6.4 CONSOLIDATED INDEBTEDNESS TO CAPITALIZATION................................. 32
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6.5 NET WORTH................................................................... 32
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6.6 MERGER...................................................................... 32
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6.7 SALE OF ASSETS.............................................................. 32
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6.8 TRANSACTIONS WITH UNRESTRICTED SUBSIDIARIES................................. 32
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6.9 GOVERNANCE DOCUMENTS........................................................ 32
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7. EVENTS OF DEFAULT............................................................................. 32
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7.1 PAYMENT..................................................................... 32
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7.2 COVENANTS................................................................... 32
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7.3 REPRESENTATIONS AND WARRANTIES.............................................. 33
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7.4 BANKRUPTCY, ETC............................................................. 33
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7.5 BANKRUPTCY, ETC., OF UNRESTRICTED SUBSIDIARY................................ 33
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7.6 JUDGMENTS................................................................... 33
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7.7 OTHER INDEBTEDNESS.......................................................... 33
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8. INTERCREDITOR LIEN AND PAYMENT PROVISIONS..................................................... 34
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8.1 SHARING OF PAYMENTS, ETC.................................................... 34
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8.2 RECEIPT OF PAYMENTS BY LENDERS.............................................. 35
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8.3 DISTRIBUTIONS, ETC.......................................................... 35
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8.4 BENEFIT..................................................................... 36
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9. REPRESENTATIONS AND WARRANTIES TO SURVIVE..................................................... 36
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10. ENVIRONMENTAL INDEMNIFICATION................................................................. 36
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11. AGENTS........................................................................................ 36
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11.1 AUTHORIZATION AND ACTION.................................................... 36
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(ii)
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11.2 AGENTS' RELIANCE, ETC....................................................... 37
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11.3 AGENTS AND THEIR AFFILIATES................................................. 37
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11.4 LENDER CREDIT DECISION...................................................... 38
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11.5 INDEMNIFICATION............................................................. 38
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11.6 SUCCESSOR AGENT............................................................. 38
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11.7 RELATIONS AMONG LENDERS..................................................... 39
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11.8 BENEFIT..................................................................... 39
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12. GENERAL....................................................................................... 39
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12.1 WAIVER...................................................................... 39
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12.2 NOTICES..................................................................... 40
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12.3 SUCCESSORS AND ASSIGNS...................................................... 41
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12.4 MODIFICATIONS............................................................... 43
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12.5 ILLEGALITY.................................................................. 44
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12.6 GENDER, ETC................................................................. 45
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12.7 HEADINGS.................................................................... 45
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12.8 LIABILITY OF LENDERS........................................................ 45
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12.9 EXECUTION IN COUNTERPARTS................................................... 45
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12.10 REMEDIES CUMULATIVE......................................................... 45
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12.11 COSTS, EXPENSES AND LEGAL FEES.............................................. 45
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12.12 INDEMNITY................................................................... 46
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12.13 CONTINUING AGREEMENT........................................................ 46
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12.14 COMPLETE AGREEMENT.......................................................... 46
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12.15 NO THIRD PARTY BENEFICIARIES................................................ 46
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12.16 TAX WITHHOLDING CLAUSE...................................................... 46
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12.17 NO PARTNERSHIP OR JOINT VENTURE............................................. 47
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12.18 GOVERNING LAW AND JURISDICTION; WAIVER OF JURY
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TRIAL................................................................................. 47
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Exhibits
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Exhibit A Form of Designation Agreement..........................................................49
(iii)
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AMENDED AND RESTATED
LOAN AGREEMENT
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WORTHINGTON INDUSTRIES, INC. ("Borrower"), the banks listed on the
signature pages hereof (each individually "Revolving Credit Lender" and
collectively "Revolving Credit Lenders"), and THE BANK OF NOVA SCOTIA and PNC
BANK, OHIO, NATIONAL ASSOCIATION, as agents for the Lenders (as hereinafter
defined) and individually as 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
Loan Agreement between Borrower, Lenders and Agents dated as of April 28, 1995.
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:
"Active Consolidated Subsidiary" will mean a Consolidated
Subsidiary having a net worth in excess of $1,000,000.
"Advance" or "Advances" will mean Revolving Loans and
Competitive Bid Loans made pursuant to this Agreement.
"Administrative Agent" will mean The Bank of Nova Scotia, its
successors and assigns.
"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.
"Affiliate" 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.
"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.
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"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.
"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 1/2% 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.
"Alternate Base Rate Advance" will mean any Advance
or Converted Advance that bears interest based upon the Alternate Base Rate.
"Applicable Margin" will mean:
a. 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 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 Xxxxx'x Investor Service, Inc. is
different from the rating received from Standard & Poors Ratings Service, a
division of XxXxxx-Xxxx 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.
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b. as to Competitive Bid Loans that bear
interest at the Euro-Rate, the margin specified in the related Competitive Bid
accepted by Borrower.
"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.
"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, amendments or waivers to this Agreement or any of the
documents executed in connection with any of the Obligations.
"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.
"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".
"Borrower's Account" will mean the account of Borrower at
Administrative Agent designated by Administrative Agent for use hereunder.
"Borrowing" will mean an Advance made on a given Borrowing
Date.
"Borrowing Date" will mean the date on which an Advance is
made.
"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.
"Capitalization" will mean Consolidated Indebtedness plus Net
Worth. "Closing" will mean the execution and delivery of the documents listed on
the Closing Memo.
"Closing Date" will mean April 28, 1995.
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"Closing Memo" will mean the Amended and Restated Closing
Memorandum between Borrower and Documentation Agent in connection with the
transactions represented by this Agreement.
"Code" will mean the Internal Revenue Code of 1986, as
amended or supplemented from time to time.
"Competitive Bid Borrowings" will mean the amount of
Competitive Bid Loans outstanding at any particular time.
"Competitive Bid Conditions" will mean the conditions set
forth in SECTION 2.2 and 3, below, and in the Competitive Bid Notes.
"Competitive Bid Facility" will mean the credit facility
described in SECTION 2.2 below.
"Competitive Bid Lender" will mean any Lender that makes a
Competitive Bid Loan, its successors and assigns.
"Competitive Bid Loans" will mean the Advances described in
SECTION 2.2, below.
"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.
"Competitive Bid Rate" will mean the interest rate applicable
to a Competitive Bid or a Competitive Bid Loan.
"Competitive Bid Request" 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.
"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.
"Compliance Certificate" will mean the Amended and Restated
Compliance Certification in the form delivered to Borrower by Documentation
Agent.
"Consolidated Group" will mean Borrower and those of its
Subsidiaries treated as Consolidated Subsidiaries for purposes of this
Agreement.
"Consolidated Indebtedness" will mean at any date, the
Indebtedness of Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis as of such date.
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"Consolidated Subsidiary" 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.
"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.
"Converted Advance" will mean a Revolving Advance where the
rate of interest originally elected has been converted by means of a Conversion.
"Credit Facilities" will mean the Revolving Credit Facility
and the Competitive Bid Facility evidenced by this Agreement as described in
SECTION 2, below.
"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.
"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).
"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.
"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.
"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.
"Designating Lender" shall have the meaning assigned to such
term in Section 12.3.7.
"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.
"Documentation Agent" will mean PNC Bank, Ohio, National
Association, its successors and assigns.
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"Dollars" will mean lawful money of the United States of
America.
"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.
"ERISA" will mean the Employee Retirement Income Security Act
of 1974, or any successor statute, as amended or supplemented from time to time.
"ERISA Affiliate" will mean any person (as defined in Section
3(a) 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.
"Event of Default" will have the meaning set forth in
Section 7.
"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.
"Euro-Rate" will mean, with respect to the Revolving 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:
Average of London interbank offered rates on LIBOR page of
Euro-Rate = Reuters Monitor Money Rate Service or appropriate successor
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1.00 - Euro-Rate Reserve Percentage
"Euro-Rate Advance" will mean any Advance or Converted
Advance that bears interest based upon the Euro-Rate.
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"Euro-Rate Competitive Bid Loan" will mean a Competitive Bid
Loan with interest based upon the Euro-Rate.
"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.
"Facility Fee" will mean the fee specified in SECTION
2.9.2(a), below.
"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.
"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.
"Fixed Rate Advance" will mean any Advance that bears
interest based upon a Fixed Rate.
"Fixed Rate Competitive Bid Loan" will mean a Competitive Bid
Loan with interest based upon the Fixed Rate.
"GAAP" will mean generally accepted accounting principles.
"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.
"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,
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including but not limited to the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. SECTION 9601 ET SEQ. ("CERCLA").
"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.
"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:
A. Borrower may not select any Interest
Period for any Advances or Converted Advances which end after
the Termination Date;
B. 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
C. Fixed Rate Advances will have a minimum
interest period of 7 days and a maximum Interest Period of
180 days.
"Lender" will mean any Revolving Credit Lender or Designated
Lender. "Loan Documents" will mean this Agreement, the Notes and the documents
listed on the Closing Memo.
"Loans" will mean any and all advances of funds under this
Agreement or any of the Notes.
"Majority Lenders" will mean, when taken in the aggregate:
(i) prior to any acceleration of the Loans by Agents, Revolving Credit Lenders
holding at least fifty-one percent (51%) of the Total Commitment and (ii) after
any acceleration of the Loans by Agents,
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Lenders holding at least fifty-one percent (51%) of the outstanding Loans, in
any case, as adjusted from time to time.
"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.
"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.
"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.
"Notes" will mean the Revolving Notes and the Competitive Bid
Notes of Borrower to the Lenders dated as of _________, 1997 evidencing the
Revolving Loans and the Competitive Bid Loans, and will include any amendments,
extensions and renewals made thereto from time to time.
"Notice 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.
"Notice of Prepayment" will mean the notice required under
SECTION 2.4, 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.
"Notices" will mean all Notices of Borrowing, Notices of
Prepayment, Competitive Bid Requests, any notice of termination or reduction of
Revolving Commitments and any other notices under this Agreement.
"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.
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"PBGC" will mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"Permitted Liens" will mean:
a. 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;
b. deposits under workers' compensation,
unemployment insurance and social security laws, or to
secure the performance 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;
c. liens imposed by law, such as carriers',
warehousemen's or mechanics' liens, incurred by it in good
faith in the ordinary course of business;
d. 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);
e. 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;
f. 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;
g. 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;
h. any lien existing on any asset prior to the
acquisition thereof by Borrower or a Subsidiary and not
created in contemplation of such event;
i. any lien arising out of the refinancing,
extension, renewal or refunding of any Indebtedness secured
by any lien permitted by any of the foregoing clauses
(d)-(h) of this definition, provided that such Indebtedness
is not increased and is not secured by any additional
assets;
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j. 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;
k. liens on cash and cash equivalents securing
derivative obligations, provided that the aggregate amount
of cash equivalents subject to such liens may at no time
exceed $10,000,000;
l. 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;
m. 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;
n. 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;
o. any lien on property of a Subsidiary securing
Indebtedness of such Subsidiary owing to Borrower or a
Consolidated Subsidiary; and
p. 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
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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 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.
"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.
"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.
"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:
a. 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
b. as to Alternate Base Rate Advances, zero.
"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 distributable to Revolving Credit Lenders will be adjusted accordingly
and (ii) 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
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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.
"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).
"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.
"Revised Closing Date" will mean May ___, 1997.
"Revolving Commitment" 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.
"Revolving Conditions" will mean the conditions set forth in
SECTIONS 2.1 and 3, below, and in the Revolving Notes.
"Revolving Credit Facility" will mean collectively the credit
facility described in SECTION 2.1, below.
"Revolving Loans" will mean the Advances described in SECTION
2.1, below.
"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.
"Senior Unsecured Debt Rating" will mean the rating given to
Borrower's senior unsecured debt by Xxxxx'x 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).
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"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.
"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.
"Termination Date" will mean five years from the Revised
Closing Date, subject to extensions as provided in SECTION 2.12, below;
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.
"Total Commitment" will mean $190,000,000, as such amount may
be reduced, from time to time, in accordance with the terms of this Agreement.
"Total Revolving Commitment" will mean the aggregate of the
Revolving Commitments.
"UCC" will mean the Uniform Commercial Code as adopted by the
applicable state or states.
"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:
a. 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
b. designate any Unrestricted Subsidiary which
otherwise meets the definition of a Consolidated
Subsidiary, as a Consolidated Subsidiary, if
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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 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.
"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.
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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
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:
a. the Aggregate Outstanding Revolving Credit will
not exceed at any time the Total Commitment, except as
provided in Section 2.13;
b. 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;
c. within the above-described limits, Borrower may
borrow and reborrow under this Section; and
d. 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 one Business Day prior to 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.
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
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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.
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 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 by 11:00 a.m. (New
York, New York time) three Business Days prior to the proposed Borrowing. 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
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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
10:00 a.m. (New York, New York time) two 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 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 10:00 a.m. (New York,
New York time) two 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.
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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 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) two 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 a 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 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.
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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 2.4.1.
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 ADDITIONAL PROVISIONS REGARDING FUNDING.
2.3.1 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
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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.
2.3.2 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.
2.3.3 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.
2.4 PRINCIPAL PAYMENTS.
2.4.1 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 and (ii) 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.
2.4.2 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 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, and at least three
Business Days prior to the proposed date of prepayment in the case of any other
type of Revolving Loan, provided that each such partial prepayment of any
Revolving 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 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 being prepaid, the proposed prepayment date, the Revolving
Loan being prepaid and the aggregate principal amount of the prepayment. All
prepayments will be paid to Administrative Agent.
2.4.3 MANDATORY PREPAYMENT OF THE CREDIT FACILITIES. In the
event that the Aggregate Outstanding Revolving Credit 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
Commitment or otherwise, 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,
in which case a interest will be due on the next regularly scheduled payment
date for interest for Alternate Base Rate Advances and on the Termination Date)
will be accompanied by payment
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of the accrued interest to the date of prepayment on the principal amount
prepaid and any applicable Prepayment Premium.
2.5 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.
2.6 TERMINATION OR REDUCTION OF REVOLVING COMMITMENTS 2.6
TERMINATION OR REDUCTION OF REVOLVING COMMITMENTS 2.6 TERMINATION OR REDUCTION
OF REVOLVING COMMITMENTS. Borrower will have the right from time to time to
terminate or reduce the Total 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 Facility Fee with
respect to the amount of the Total Commitment that is terminated or reduced.
2.7 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.
2.8 ASSUMPTIONS REGARDING NOTICES.
2.8.1 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.
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2.8.2 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.
2.8.3 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.
2.9 COMPUTATIONS, FEES, PAYMENTS, ETC.
2.9.1 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, 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.
2.9.2 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:
a. FACILITY FEE. Borrower will pay to
Administrative Agent for the account of Revolving
Credit Lenders a 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 Xxxxx'x 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
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:
SENIOR UNSECURED DEBT RATING APPLICABLE MARGIN
(IN BASIS POINTS)
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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
b. 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.
c. AGENTS FEES. The fees for the Agents
will be set forth in the Side Letter.
2.9.3 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.
2.9.4 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
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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.
2.10 ADDITIONAL COSTS.
2.10.1 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.
2.10.2 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 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.
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2.10.3 CERTIFICATE OF LENDER. To the extent
reasonably practicable, each Lender will give Borrower prompt written notice of
any claim under this SECTION 2.10 and will take steps to minimize the impact of
any of the events described in SECTIONS 2.10.1 AND/OR 2.10.2, above, by
transferring its Revolving Commitment and its Revolving Loans outstanding
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 2.10.1 AND/OR 2.10.2, 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.
2.11 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.
2.12 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 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:
a. 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
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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;
b. 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; or
c. 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 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.
2.13 INCREASE OF TOTAL 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
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 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
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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.
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
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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 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
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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.
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
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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 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.
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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 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 Xxxx X. XxXxxxxxx, Xxxx X. XxXxxxxxx, 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.
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
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giving effect to such transaction, no condition or event exists which
constitutes a Default or an Event of Default.
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 7.2 COVENANTS 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' 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;
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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 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 (iii) 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 (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.
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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 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 2.11, and payments of fees and expenses to Agents pursuant to
SECTIONS 2.9.2 (B) AND (C) 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.
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.
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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 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, xxx 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
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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.
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.
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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 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.
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11.5 INDEMNIFICATION. Lenders agree to indemnify Agents (to
the extent not reimbursed by Borrower), ratably according to their respective
Revolving 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 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
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Agreement Agents act solely as Agent of Lenders and do not assume or have
any obligation toward or agency relationship with or for Borrower.
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 any payment upon Borrower and need
not pursue any remedy or remedies against Borrower or any other Person before
having recourse against Borrower hereunder.
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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
000 Xxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
To Documentation Agent: PNC Bank, Ohio, National Association
Energy, Metals & Mining - 26th Floor
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
To Borrower: Worthington Industries, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Assistant Treasurer
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
With copy with Worthington Industries, Inc.
respect to notices 0000 Xxxxxxxx Xxxxx
under Section 7 only: Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
To Revolving Credit Lenders: At their addresses set forth on the
Amended and Restated Schedule 1,
attached hereto
To Designated Lenders: At their addresses set forth in the
applicable Designation Agreement
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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 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 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)
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
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, 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 and (y) Revolving Credit 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
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Revolving Credit Lender's rights and obligations under this Agreement, such
Revolving Credit Lender will cease to be a party hereto).
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, 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
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 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 2.10 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.
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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 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 2.13, change the percentage amount of
the Revolving Commitments or of 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; (ii) waive any Event of Default under SECTION 7.1
hereof; (iii) amend SECTIONS 7, 10, 12.3.1 or this SECTION 12.4; (iv) increase
any Commitment of any Lender; (v) change the rate of interest on any Note held
by any Lender; (vi) postpone any date fixed for any payment of principal of, or
interest on, any of the Notes; or (vii) 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
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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.
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
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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.
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 and on the 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.
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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 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 XXXXXXXX COUNTY, OHIO,
AND CONSENT THAT ANY
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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) 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 May 30, 1997.
WORTHINGTON INDUSTRIES, INC.
as Borrower
By: /s/ D. G. Banger
--------------------------------
Print Name: D. G. Banger
------------------------
Title: VICE PRESIDENT CFO
-----------------------------
THE BANK OF NOVA SCOTIA,
on its own behalf as Lender and as
Administrative Agent,
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
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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) 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 May 30, 1997.
WORTHINGTON INDUSTRIES, INC.
as Borrower
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
THE BANK OF NOVA SCOTIA,
on its own behalf as Lender and as
Administrative Agent,
By: /s/ F.C.H. Xxxxx
----------------------------------
Print Name: F.C.H. Xxxxx
--------------------------
Title: Senior Manager Loan Operations
-------------------------------
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PNC BANK, OHIO, NATIONAL
ASSOCIATION,
on its own behalf as Lender and as
Documentation Agent,
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Print Name: Xxxxxxx X.Xxxxx
------------------------
Title: Vice President
-----------------------------
NATIONSBANK, N.A.
AS LENDER
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
WACHOVIA BANK OF GEORGIA, N.A.
AS LENDER
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
ABN AMRO BANK N.V.
AS LENDER
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
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PNC BANK, OHIO, NATIONAL
ASSOCIATION,
on its own behalf as Lender and as
Documentation Agent,
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
NATIONSBANK, N.A.
AS LENDER
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Print Name: Xxxxxx X. Xxxxxx
------------------------
Title: Vice President
-----------------------------
WACHOVIA BANK OF GEORGIA, N.A.
AS LENDER
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
ABN AMRO BANK N.V.
AS LENDER
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
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PNC BANK, OHIO, NATIONAL
ASSOCIATION,
on its own behalf as Lender and as
Documentation Agent,
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
NATIONSBANK, N.A.
AS LENDER
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
WACHOVIA BANK OF GEORGIA, N.A.
AS LENDER
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Print Name: Xxxxxxx Xxxxx
------------------------
Title: Vice President
-----------------------------
ABN AMRO BANK N.V.
AS LENDER
By:
-------------------------------
Print Name:
-----------------------
Title:
----------------------------
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57
PNC BANK, OHIO, NATIONAL
ASSOCIATION,
on its own behalf as Lender and as
Documentation Agent,
By:
------------------------------------------------
Print Name:
----------------------------------------
Title:
---------------------------------------------
NATIONSBANK, N.A.
AS LENDER
By:
------------------------------------------------
Print Name:
----------------------------------------
Title:
---------------------------------------------
WACHOVIA BANK OF GEORGIA, N.A.
AS LENDER
By:
------------------------------------------------
Print Name:
----------------------------------------
Title:
---------------------------------------------
ABN AMRO BANK N.V.
AS LENDER
By: /s/ J. Xxxxxxx Xxxxx /s/ Xxxxxxxx X. Xxxx
------------------------------------------------
Print Name: J. Xxxxxxx Xxxxx Xxxxxxxx X. Xxxx
----------------------------------------
Title: VP GYP
---------------------------------------------
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58
BANK ONE, N.A.
AS LENDER
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
------------------------
Title: Vice President
-----------------------------
50
59
EXHIBIT A
DESIGNATION AGREEMENT
51