EXHIBIT 4.5
LOAN AGREEMENT
THIS LOAN AGREEMENT (as amended, modified, supplemented, renewed or
restated from time to time, the "AGREEMENT") is made this 30th day of October,
2002, by and between THE ANDERSONS, INC., an Ohio corporation ("BORROWER"), the
financial institutions listed on the signature pages hereof and each other
financial institution that may hereafter become a party hereto in accordance
with the provisions hereof (collectively the "LENDERS" and individually a
"LENDER") and U.S. BANK NATIONAL ASSOCIATION, a national banking association
("U.S. BANK"), in its capacity as Agent for the Lenders and for the Issuer (in
such capacity, the "AGENT").
RECITAL
Borrower has requested that the Agent and the Lenders make loans,
advances, extensions of credit and/or other financial accommodations to or for
the benefit of Borrower, and the Agent and the Lenders are willing to do so on
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in this Agreement, and of any loans or extensions of credit
or other financial accommodations at any time made to or for the benefit of
Borrower by the Agent and the Lenders, Borrower, the Agent and the Lenders agree
as follows:
1 DEFINITIONS.
1.1 GENERAL DEFINITIONS. When used herein, the following capitalized terms
shall have the meanings indicated, whether used in the singular or the plural:
"ACCOUNTS" shall mean all present and future rights of Borrower and its
consolidated subsidiaries to payment for Inventory or other Goods sold or leased
or for services rendered, which rights are not evidenced by Instruments or
Chattel Paper, regardless of whether such rights have been earned by performance
and any other "accounts" (as defined in the Code).
"ACCOUNT DEBTOR" shall mean any Person that is obligated on or under an
Account.
"AFFILIATE" shall mean any Person other than Borrower and its consolidated
subsidiaries: (a) that directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common control with,
Borrower or its consolidated subsidiaries; (b) that directly or beneficially
owns or holds twenty five percent (25%) or more of any class of the voting
equity interest of Borrower or its consolidated subsidiaries; (c) twenty five
percent (25%) or more of the voting equity interest of which is owned directly
or beneficially or held by Borrower or its consolidated subsidiaries; or (d)
that is a director, officer, agent or employee of Borrower or its consolidated
subsidiaries.
"AGENT" has the meaning set forth in the introduction and shall include
any successor to the Agent that has been appointed in accordance with Section
9.11.
"AGENT'S LETTER" shall mean the letter agreement between Borrower and the
Agent of substantially even date with this Agreement.
"APPLICABLE MARGIN" shall mean with respect to Swing Line Advances, Line
of Credit A Advances or Line of Credit B Advances which are Daily Reset LIBOR
Rate Loans, Base Rate Loans or LIBOR Rate Loans, Commitment Fees for the Line of
Credit A Loan Commitments (referred to below under "Line A"), Commitment Fees
for the Line of Credit B Loan Commitments (referred to below under "Line B"),
Standby LC Fees and Commercial LC Fees, the rates per annum set forth below for
the then applicable Financial Performance Level:
Swing Line Advances, Line of Credit A Advances and Commitment Fees Line A:
The initial Financial Performance Level shall be Level 3. The Agent will
review Borrower's financial performance as of each fiscal quarter end, beginning
with fiscal quarter end December 31, 2002, after its receipt of Borrower's
financial statements and Compliance Certificate as of the end of such fiscal
quarter, and will confirm Borrower's determination as to whether Borrower's
Financial Performance Level based on such fiscal quarter is Xxxxx 0, Xxxxx 0,
Xxxxx 0, Xxxxx 4 or Level 5. As so confirmed by the Agent, Borrower's Financial
Performance Level will determine the Applicable Margin effective for Swing Line
Advances, Line of Credit A Advances, the Commitment Fees for the Line of Credit
A Loan Commitments, Commitment Fees for the Line of Credit B Loan Commitments
(Line B), Standby LC Fees and Commercial LC Fees for the three month period
beginning on the first Business Day of the third month following the end of such
fiscal quarter if the Agent receives such quarter end financial statements prior
to the last five (5) Business Days of the second month following the end of such
fiscal quarter. If the Agent receives such quarter end financial statements
during or after the last five (5) Business Days of the second month following
the end of such fiscal quarter (but prior to the end of the third month
following the end of such fiscal quarter), any reduction in the Applicable
Margin will be delayed until the tenth day of the month following the month in
which the Agent receives such quarter end financial statements, but any increase
in the Applicable Margin will be effective as of the first Business Day of the
third month following the end of such fiscal quarter. If the Agent does not
receive such quarter end statements prior to the end of the third month
following the end of such fiscal quarter, Borrower's Financial Performance Level
shall be deemed to be Xxxxx 0 beginning with the tenth day of the fourth month
following the end of such fiscal quarter and shall remain at Level 1 until the
15th Business Day after such financial statements are received by the Agent and
a determination by the Agent that a different Financial Level shall apply during
the remainder of the three month period.
"AVAILABLE AMOUNT A" shall mean, at any time, an amount equal to the
lesser of (a) (i) the Line of Credit A Loan Commitments minus (ii) the aggregate
principal amount of the Line of Credit A Loan Liabilities, and (b) the Borrowing
Base Limit.
"AVAILABLE AMOUNT B" shall mean, at any time, an amount equal to the
lesser of (a) (i)
the Line of Credit B Loan Commitments minus (ii) the sum of (A) the aggregate
principal amount of the Line of Credit B Loan Liabilities, and (B) the aggregate
amount of the LC Obligations, and (b) the Borrowing Base Limit.
"BASE RATE" shall mean the greater of (a) the Prime Rate or (b) the
Federal Funds Rate plus one half of one percent (.5%).
"BASE RATE LOAN" shall mean any Loan that bears interest at the Base Rate
plus the Applicable Margin.
"BORROWING BASE" shall mean an amount determined and computed as set forth
in Exhibit 1A.
"BORROWING BASE CERTIFICATE" shall mean a certificate substantially in the
form of Exhibit 1B, signed as indicated thereon, setting forth the amount of
Borrower's Borrowing Base.
"BORROWING BASE LIMIT" shall mean, at any time, an amount equal to (a) the
Borrowing Base minus (b) the sum of (i) the aggregate principal amount of the
Line of Credit A Loan Liabilities, (ii) the aggregate principal amount of the
Line of Credit B Loan Liabilities, and (iii) the aggregate amount of the LC
Obligations.
"BUSINESS DAY" shall mean any day of the year on which commercial banks in
New York, New York are not required or authorized to close.
"CAPITALIZATION" shall mean, as of any particular date, (a) Borrower's
Tangible Net Worth, (b) plus Total Adjusted Funded Debt.
"CHANGE OF CONTROL" shall mean, (a) as to Borrower, (i) the voting stock
of Borrower shall cease to be publicly traded, or (ii) more than 50% of the
voting stock of Borrower is owned or controlled, directly or indirectly by one
Person or an affiliated group of Persons, and (b) as to any consolidated
subsidiary of Borrower, existing as such on the date of this Agreement, the
voting stock or voting or controlling equity interest of such consolidated
subsidiary shall cease to be wholly owned by Borrower, except as the result of a
merger or asset consolidation with another consolidated subsidiary of Borrower.
"CLOSING DATE" shall mean the date of this Agreement.
"COMMERCIAL LETTER OF CREDIT" shall mean any commercial letter of credit
issued for the account of Borrower under this Agreement.
"COMMITMENT" shall mean, as to any Lender, such Lender's Line of Credit A
Loan Commitment and Line of Credit B Loan Commitment, the Agent's commitment to
make Swing Line Advances under the Line of Credit A and the Agent's commitment
to cause the issuance of Letters under the Line of Credit B, and "COMMITMENTS"
shall mean collectively, such Commitments for all the Lenders and the Agent.
"CURRENT RATIO NET OF HEDGED INVENTORY" shall mean, for any date of
determination, the ratio of Borrower's: (a) (i) consolidated current assets,
(ii) minus the book value of Hedged Inventory, (iii) minus the net liquidation
value of related Margin Accounts; divided by (b) (i) consolidated current
liabilities, (ii) minus the book value of Hedged Inventory, (iii) minus the net
liquidation value of related Margin Accounts.
"DAILY RESET LIBOR RATE" shall mean, the one-month LIBOR rate quoted by
the Agent from Telerate Page 3750 or any successor thereto, which shall be that
one-month LIBOR rate in effect and reset each Business Day.
"DAILY RESET LIBOR RATE LOAN" shall mean any Loan that bears interest at
the Daily Reset LIBOR Rate plus the Applicable Margin.
"DEBT TO CAPITALIZATION RATIO" shall mean, as of any particular date, (a)
Total Adjusted Funded Debt, divided by (b) Capitalization.
"DEFAULT" shall mean the occurrence or existence of: (a) an event which,
through the passage of time or the service of notice or both, would (assuming no
action is taken by Borrower or any other Person to cure the same) mature into a
Matured Default; or (b) an event which requires neither the passage of time nor
the service of notice to mature into a Matured Default.
"DIRECT PAY LETTER OF CREDIT" shall mean any direct pay letter of credit
issued for the account of Borrower under this Agreement.
"DOLLARS" and "$" shall mean lawful currency of the United States of
America.
"EXISTING LETTERS OF CREDIT" shall mean: (i) the direct pay letter of
credit issued by U.S. Bank to The Bank of New York Trust Company of Florida,
N.A., as Trustee, for the account of Borrower, dated November 23, 1999, in the
original face amount of $4,796,507, and (ii) the direct pay letter of credit
issued by Xxxxxx Trust and Savings Bank to X.X. Xxxxxx Trust Company, National
Association, for the account of Borrower, dated March 6, 2002, in the original
face amount of $3,256,700.
"FARM PRODUCTS" shall mean all personal property owned by Borrower and its
consolidated subsidiaries used or for use in farming or livestock operations,
including without limitation, seed and harvested or un-harvested crops of all
types and descriptions, whether annual or perennial and including trees, vines
and the crops growing thereon, native grass, grain, feed, feed additives, feed
ingredients, feed supplements, fertilizer, hay, silage, supplies (including
without limitation, chemicals, veterinary supplies and related Goods), livestock
of all types and descriptions (including without limitation, the offspring of
such livestock and livestock in gestation) and any other "farm products" (as
defined in the Code).
"FEDERAL FUNDS RATE" shall mean, for any day, the rate of interest per
annum (rounded upward, if necessary, to the nearest whole multiple of 1/100th of
1%) equal to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on such day, or if no such
rate is so published on such day, on the most recent day preceding such day on
which such rate is so published.
"FINANCIAL PERFORMANCE LEVEL" shall mean the applicable level of
Borrower's financial performance determined in accordance with the table and
paragraph set forth below.
"FINANCING AGREEMENTS" shall mean all agreements, instruments and
documents, including without limitation, this Agreement and all notes, letter of
credit applications, guarantees, consents, assignments, contracts, notices and
all other written matter at any time executed by or on behalf of Borrower and
delivered to the Agent for the benefit of the Lenders in relation to this
Agreement, together with all amendments and all agreements and documents
referred to therein or contemplated thereby.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use by significant segments
of the accounting profession, which are applicable to the circumstances as of
the date of determination.
"GOVERNMENTAL AUTHORITY" shall 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 arbitration panel, any court,
any commission, any agency or any instrumentality of the foregoing.
"GOVERNMENTAL REQUIREMENT" shall mean any law, statute, code, ordinance,
order, rule, regulation, judgment, decree, injunction, franchise, permit,
certificate, license, authorization or other directive or requirement of any
federal, state, county, municipal, parish, provincial or other Governmental
Authority or any department, commission, board, court, agency or any other
instrumentality of any of them (including any of the foregoing that relate to
environmental standards or controls and occupational safety and health standards
or controls).
"HEDGED INVENTORY" shall mean Inventory consisting of grain that is hedged
against price fluctuation using traditionally recognized methods of hedging,
including, but not limited to, futures contracts, placed through a recognized
commodities broker.
"HIGHEST LAWFUL RATE" shall mean, with respect to each Lender, the maximum
non-usurious interest rate, if any, that at any time or from time to time may be
contracted for, taken, reserved, charged, or received with respect to the Notes
or on other amounts, if any, payable to such Lender pursuant to this Agreement
or any other Financing Agreement, under laws applicable to such Lender which are
presently in effect, or, to the extent allowed by law, under such applicable
laws which may hereafter be in effect and which allow a higher maximum
non-usurious interest rate than applicable laws now allow.
"IMMEDIATELY AVAILABLE FUNDS" shall mean: funds with good value on the day
and in the city in which payment is received.
"INTEREST PERIOD" shall mean: (a) with respect to LIBOR Rate Loans, the
period of time for which the LIBOR Rate shall be in effect as to any LIBOR Rate
Loan and which shall be a seven day or one, two, three or six month period of
time, commencing with the borrowing date of the LIBOR Rate Loan or the
expiration date of the immediately preceding Interest Period, as the case may
be, applicable to and ending on the effective date of any rate change or rate
continuation made as provided in Section 2.2 as Borrower may specify in the
notice of borrowing delivered pursuant to Section 2.2 or the notice of interest
conversion delivered pursuant to Section 2.2; provided however, that (b) any
Interest Period which would otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest Period shall end on
the next preceding Business Day, (c) no Interest Period shall extend beyond the
Maturity Date; and (d) there shall be no more than fifteen (15) Interest Periods
for LIBOR Rate Loans at any one time.
"INVENTORY" shall mean any and all Goods which shall at any time
constitute "inventory" (as defined in the Code) or Farm Products owned by
Borrower and its consolidated subsidiaries, wherever located (including without
limitation, Goods in transit and Goods in the possession of third parties), or
which from time to time are held for sale, lease or consumption in Borrower's
business, furnished under any contract of service or held as raw materials, work
in process, finished inventory or supplies (including without limitation,
packaging and/or shipping materials).
"IRC" shall mean the Internal Revenue Code of 1986, as amended, as at any
time in effect, together with all regulations and rulings thereof or thereunder
issued by the Internal Revenue Service.
"ISSUER" shall mean any party that issues a Letter pursuant to this
Agreement.
"LC OBLIGATIONS" shall mean, at any time, an amount equal to the aggregate
undrawn and unexpired amount of the outstanding Letters, together with the
aggregate amount of any unpaid reimbursement obligations with respect to any
Letters.
"LETTER" or "LETTERS" shall mean any Commercial Letter of Credit or
Standby Letter of Credit issued for the account of Borrower pursuant to Section
2.1.4 (which shall be deemed to include the Existing Letters of Credit) or all
of such letters of credit, respectively.
"LIABILITIES" shall mean any and all liabilities, obligations and
indebtedness of Borrower to any Lender or Issuer of any and every kind and
nature, at any time owing, arising, due or payable and howsoever evidenced,
created, incurred, acquired or owing, whether primary, secondary, direct,
contingent, fixed or otherwise (including without limitation LC Obligations,
fees, charges and obligations of performance) and arising or existing under this
Agreement or any of the other Financing Agreements.
"LIBOR RATE" shall mean, with respect to each day during each Interest
Period applicable to a LIBOR Rate Advance, the seven day or one, two, three or
six month LIBOR rate quoted by the Agent from Telerate Page 3750 or any
successor thereto (which shall be the LIBOR rate in effect two Business Days
prior to the LIBOR Rate Loan) rounded up to the nearest one sixteenth of one
percent.
"LIBOR RATE LOAN" shall mean any Loan that bears interest at the LIBOR
Rate plus the Applicable Margin.
"LINE OF CREDIT A LOAN COMMITMENT" shall mean as to any Lender, such
Lender's Pro Rata Percentage of $150,000,000, as set forth opposite such
Lender's name under the heading "Line of Credit A Loan Commitments" on Schedule
A, subject to Assignment and Acceptance in accordance with Section 10.23, and as
such amount may be reduced or terminated from time to time pursuant to Sections
2.3(c), 2.8 or 9.1; and "LINE OF CREDIT A LOAN COMMITMENTS" shall mean
collectively, the Line of Credit A Loan Commitments for all the Lenders.
"LINE OF CREDIT B LOAN COMMITMENT" shall mean as to any Lender, such
Lender's Pro Rata Percentage of $50,000,000, as set forth opposite such Lender's
name under the heading " Line of Credit B Loan Commitments" on Schedule A,
subject to Assignment and Acceptance in accordance with Section 10.23, and as
such amount may be reduced or terminated from time to time pursuant to Sections
2.3(c), 2.8 or 9.1; and "LINE OF CREDIT B LOAN COMMITMENTS" shall mean
collectively, the Line of Credit B Loan Commitments for all the Lenders.
"LINE OF CREDIT A LOAN LIABILITIES" shall mean all of the Liabilities
other than: (a) the LC Obligations; and (b) the principal and interest owing
under the Line of Credit B.
"LINE OF CREDIT B LOAN LIABILITIES" shall mean the principal and interest
owing under the Line of Credit B.
"MARGIN ACCOUNTS" shall mean, collectively, all Commodity Accounts and all
Commodity Contracts maintained by Borrower and its consolidated subsidiaries
with respect to Hedged Inventory.
"MATURED DEFAULT" shall mean the occurrence or existence of any one or
more of the following events: (a) Borrower fails to pay any principal pursuant
to any of the Financing Agreements on the day such principal becomes due or is
declared due or Borrower fails to pay any interest pursuant to any of the
Financing Agreements on or before five (5) days after such interest becomes due
or is declared due; (b) Borrower fails to pay any of the Liabilities (other than
principal and interest) on or before ten (10) days after such Liabilities become
due or are declared due; (c) a Change of Control shall occur; (d) Borrower or
any consolidated subsidiary of Borrower fails or neglects to perform, keep or
observe any of the covenants, conditions, promises or agreements contained in
this Agreement or in any of the other Financing
Agreements (other than those covenants, conditions, promises and agreements
referred to or covered in (a), (b), and (c) above), and such failure or neglect
continues for more than thirty (30) days after such failure or neglect first
occurs; (e) the Available Amount or the Borrowing Base Limit, as calculated in
accordance with the definitions thereof, result in a negative amount; (f) any
warranty or representation at any time made by or on behalf of Borrower in
connection with this Agreement or any of the other Financing Agreements is
untrue or incorrect in any material respect, or any schedule, certificate,
statement, report, financial data, notice, or writing furnished at any time by
or on behalf of Borrower to the Agent or any other Lender is untrue or incorrect
in any material respect on the date as of which the facts set forth therein are
stated or certified; (g) a judgment in excess of $5,000,000 is rendered against
Borrower or any guarantor of any of the Liabilities and such judgment remains
unsatisfied or un-discharged and in effect for sixty (60) consecutive days
without a stay of enforcement or execution, provided, however, that this clause
(g) shall not apply to any judgment for which Borrower is fully insured (through
insurance policies and/or self insurance reserves); (h) all or any material part
of the assets of Borrower or any guarantor of any of the Liabilities come within
the possession of any receiver, trustee, custodian or assignee for the benefit
of creditors; (i) a proceeding under any bankruptcy, reorganization, arrangement
of debt, insolvency, readjustment of debt or receivership law or statute is
filed against Borrower or any guarantor of any of the Liabilities and such
proceeding is not dismissed within thirty (30) days of the date of its filing,
or a proceeding under any bankruptcy, reorganization, arrangement of debt,
insolvency, readjustment of debt or receivership law or statute is filed by
Borrower or any guarantor of any of the Liabilities, or Borrower or any
guarantor of any of the Liabilities makes an assignment for the benefit of
creditors; (j) Borrower or any guarantor of any of the Liabilities voluntarily
or involuntarily dissolves or is dissolved, terminates or is terminated; (k)
Borrower or any consolidated subsidiary of Borrower is enjoined, restrained, or
in any way prevented by the order of any court or any administrative or
regulatory agency or by the termination or expiration of any permit or license,
from conducting all or any material part of its business affairs; (l) Borrower
or any guarantor of any of the Liabilities fails to make any payment due or
otherwise defaults on any other obligation for borrowed money and the effect of
such failure or default is to cause or permit the holder of such obligation or a
trustee to cause such obligation to become due prior to its date of maturity;
(m) any guarantor of any of the Liabilities asserts the invalidity of their
guaranty, purports to terminate their guaranty or purports to limit the
application thereof to then existing Liabilities; or (n) the Agent, at any time
reasonably determines that the Lenders are insecure with respect to the prompt
payment of all or any part of the Liabilities, or that such change has occurred
in the condition or affairs (financial or otherwise) of Borrower or any of
Borrower's Affiliates as, in the reasonable opinion of the Agent, materially
affects Borrower's ability to make prompt payment on the Liabilities.
"MATURITY DATE" shall mean, as applicable, the earlier of: (a) as to the
Swing Line or the Line of Credit A, October 29, 2003; (b) as to the Line of
Credit B and LC Obligations, October 30, 2005; and (c) in all cases, the earlier
date of termination in whole of the Commitments pursuant to Sections 2.3(c), 2.8
or 9.1.
"NOTE" or "NOTES" shall mean any one of the Line of Credit A Notes or the
Line of Credit B Notes or all of the Line of Credit A Notes or the Line of
Credit B Notes, respectively.
"PERSON" shall mean any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, unincorporated organization,
association, corporation, institution, entity, party or government (whether
national, federal, state, provincial, county, city, municipal or otherwise,
including without limitation, any instrumentality, division, agency, body or
department thereof).
"PRIME RATE" shall mean the prime rate announced by the Agent from time to
time, which is a base rate that the Agent from time to time establishes and
which serves as the basis upon which effective rates of interest are calculated
for those loans which make reference thereto. The Prime Rate is not necessarily
the lowest rate offered by the Agent. With respect to Base Rate Loans, each
change in the rate of interest hereunder shall become effective on the date each
Prime Rate change is announced by the Agent or with each change in the Federal
Funds Rate, as the case may be.
"PRODUCER PAYABLES" shall mean all amounts at any time payable by Borrower
and its consolidated subsidiaries for the purchase of Inventory.
"PROPERTY" shall mean those premises owned or operated by Borrower and its
consolidated subsidiaries.
"PRO RATA PERCENTAGE" shall mean with respect to any Lender, a fraction
(expressed as a percentage), the numerator of which shall be sum of the amount
of such Lender's Line of Credit A Loan Commitment and Line of Credit B Loan
Commitment, respectively, and the denominator of which shall be the aggregate
amount of all the Line of Credit A Loan Commitments and Line of Credit B Loan
Commitments of the Lenders, respectively, as adjusted from time to time in
accordance with Section 10.23.
"REQUIRED LENDERS" shall mean, at any time Lenders holding in the
aggregate at least fifty one percent (51%) of the aggregate amount of all of the
Lenders' Commitments.
"STANDBY LETTER OF CREDIT" shall mean any standby letter of credit issued
for the account of Borrower under this Agreement and shall be deemed to include
any Direct Pay Letter of Credit.
"TANGIBLE NET WORTH" shall mean, as of any particular date, (a) Borrower's
consolidated net worth, (b) minus the consolidated book value of Borrower's
intangible assets, (c) plus the consolidated book amount of Borrower's deferred
income.
"TOTAL ADJUSTED FUNDED DEBT" shall mean as of any particular date (a)
Borrower's consolidated long term debt, (b) plus the current maturities of
Borrower's consolidated long term debt, (c) plus, to the extent not included in
a. or b., the Liabilities, (d) minus, to the extent included in a. or b.,
non-recourse debt, (e) minus the Base Amount for Grain.
"TYPE" shall mean, with respect to any Loan, whether such Loan is a Base
Rate Loan or a LIBOR Rate Loan.
"WORKING CAPITAL" shall mean as of any particular date, (a) Borrower's
consolidated current assets, (b) minus Borrower's consolidated current
liabilities.
1.2 INDEX TO OTHER DEFINITIONS. When used herein, the following
capitalized terms shall have the meanings given in the indicated portions of
this Agreement:
TERM LOCATION
---- --------
Advance, Advances Section 2.1.5
Agreement introduction
Application Section 2.1.4
Assignee Section 10.23
Assignment and Acceptance Section 10.23
Base Amount for Grain Exhibit 1A (Borrowing Base Computation)
Beneficiary Section 2.1.4
Benefit Plans Section 6.20
Borrower introduction
Code Section 1.4
Commercial LC Fee Section 2.5(d)
Commitment Fees Section 2.5(c)
Compliance Certificate Section 7.1
Default Rate Section 2.2(c)
Eligible Accounts Section 3.1
Eligible Inventory Section 3.2
Environmental Laws Section 6.10
Equalization Transfer Section 2.1.5
ERISA Section 6.20
Excess Section 10.24
Lenders introduction
Line of Credit A Section 2.1.2
Line of Credit A Advances Section 2.1.2
Line of Credit A Notes Section 2.1.2
Line of Credit B Section 2.1.3
Line of Credit B Advances Section 2.1.3
Line of Credit B Notes Section 2.1.3
Loan Account Section 2.6
Loan, Loans Section 2.1.5
Purchasing Lender Section 2.1.5
Replacement Candidate Section 10.32
Securities Act Section 10.33
Selling Lender Section 2.1.5
Standby LC Fee Section 2.5(d)
Swing Line Section 2.1.1
Swing Line Advances Section 2.1.1
Taxes Section 10.22
UCP Section 2.1.4
1.3 ACCOUNTING TERMS. Any accounting terms used in this Agreement which
are not specifically defined in this Agreement shall have the meanings
customarily given them in accordance with GAAP, as consistently applied as of
the date of this Agreement.
1.4 OTHERS DEFINED IN COLORADO UNIFORM COMMERCIAL CODE. All other terms
contained in this Agreement (which are not specifically defined in this
Agreement) shall have the meanings set forth in the Uniform Commercial Code of
Colorado ("CODE") to the extent the same are used or defined therein,
specifically including, but not limited to the following: Chattel Paper,
Commercial Tort Claims, Commodity Accounts, Commodity Contracts, Electronic
Chattel Paper, Goods, Instruments, Investment Property, Letter of Credit Rights,
General Intangibles, Payment Intangibles, Securities Accounts and Tangible
Chattel Paper.
2 LOANS, LETTERS OF CREDIT AND FEES.
2.1 LOANS AND LETTERS OF CREDIT. Subject to all of the terms and
conditions contained in this Agreement, the Agent and the Lenders severally and
not jointly agree to make the following extensions of credit to or for the
benefit of Borrower:
2.1.1 SWING LINE. The Agent agrees to make advances ("SWING LINE
ADVANCES") to Borrower from time to time on any one or more Business Days from
and after the date of this Agreement, upon Borrower's written (including
facsimile) notice or oral notice followed by written (including facsimile)
confirmation, given by Borrower to the Agent not later than 12:00 noon (local
time in Denver) on the Business Day of any proposed Advance, through and
including the Maturity Date, in amounts up to the lesser of: (a) Twenty Million
Dollars ($20,000,000) minus the outstanding Swing Line Advances; or (b) the
Available Amount A ("SWING LINE"). The Swing Line Advances shall be evidenced by
and repayable in accordance with the terms of Borrower's Line of Credit A Note
to the Agent. The Agent, upon the written approval of the Required Lenders, may
elect to make Swing Line Advances to Borrower in excess of the dollar amount
stated above (but not in excess of the Available Amount), and any such Swing
Line Advances shall also be governed by the terms hereof.
2.1.2 LINE OF CREDIT A. Each Lender severally agrees to make advances
("LINE OF CREDIT A ADVANCES") to Borrower from time to time on any one or more
Business Days from and after the date of this Agreement (through the Agent as
set forth in Section 2.1.5 or Section 2.2(f)), upon Borrower's written
(including facsimile) notice or oral notice followed by written (including
facsimile) confirmation, given by Borrower to the Agent not later than 12:00
noon (local time in Denver) on the third Business Day prior to the date of any
proposed LIBOR Rate Loan or upon Borrower's written (including facsimile) notice
or oral notice followed by written (including facsimile) confirmation, given by
Borrower to the Agent not later than 12:00 noon (local time in Denver) on the
first Business Day prior to the date of any proposed Base Rate Loan, up to an
aggregate principal amount not exceeding each such Lender's Pro Rata Percentage
of the Available Amount A on such Business Day through the Maturity Date, in
aggregate amounts up to the Available Amount A ("LINE OF CREDIT A"). The Line of
Credit A Advances shall be evidenced by and repayable in accordance with the
terms of Borrower's promissory notes to each of the Lenders ("LINE OF CREDIT A
NOTES"), the form of which is attached as Exhibit 2A.
2.1.3 LINE OF CREDIT B. Each Lender severally agrees to make advances
("LINE OF CREDIT B ADVANCES") to Borrower from time to time on any one or more
Business Days from and after the date of this Agreement (through the Agent as
set forth in Section 2.1.5 or Section 2.2(f)), upon Borrower's written
(including facsimile) notice or oral notice followed by written (including
facsimile) confirmation, given by Borrower to the Agent not later than 12:00
noon (local time in Denver) on the third Business Day prior to the date of any
proposed LIBOR Rate Loan or upon Borrower's written (including facsimile) notice
or oral notice followed by written (including facsimile) confirmation, given by
Borrower to the Agent not later than 12:00 noon (local time in Denver) on the
first Business Day prior to the date of any proposed Base Rate Loan, up to an
aggregate principal amount not exceeding each such Lender's Pro Rata Percentage
of the Available Amount B on such Business Day through the Maturity Date, in
aggregate amounts up to the Available Amount B ("LINE OF CREDIT B"). The Line of
Credit B Advances shall be evidenced by and repayable in accordance with the
terms of Borrower's promissory notes to each of the Lenders ("LINE OF CREDIT B
NOTES"), the form of which is attached as Exhibit 2B.
2.1.4 LETTERS OF CREDIT.
(a) The Agent further agrees to issue or cause to be issued by a Lender,
Letters for Borrower's account for any purpose acceptable to the Agent in its
reasonable discretion (the Agent or such Lender thereby becoming an Issuer),
with an expiration date not later than the earlier of (a) one year after the
date of issuance, or (b) the fifth day prior to the Maturity Date, in amounts up
to the lesser of: (y) Twenty Five Million Dollars ($25,000,000) minus the then
outstanding LC Obligations; or (z) the Available Amount B, for the benefit of
one or more beneficiaries to be named by Borrower (the "BENEFICIARY", whether
one or more), in form and substance acceptable to the Beneficiary. Letters which
provide for an automatic extension of the expiration date may not automatically
extend for more than one year at each extension and shall, in the sole
discretion of the Agent, not be allowed to automatically extend to a date later
than the fifth day prior to the Maturity Date. In order to effect the issuance
of each Letter, Borrower shall deliver to the Agent a letter of credit
application (the "APPLICATION") not later than 11:00 a.m. (Denver time), five
(5) Business Days prior to the proposed date of issuance of the Letter. The
Application shall be duly executed by a responsible officer of Borrower, shall
be irrevocable and shall (i) specify the day on which such Letter is to be
issued (which shall be a Business Day), and (ii) be accompanied by a certificate
executed by a responsible officer setting forth calculations evidencing
availability for the Letter and stating that all conditions precedent to such
issuance have been satisfied. Each Letter shall (i) provide for the payment of
drafts presented for honor thereunder by the beneficiary in accordance with the
terms thereof, when such drafts are accompanied by the documents described in
the Letter, if any, and (ii) to the extent not inconsistent with the express
terms hereof or the applicable Application, be subject to the
Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 (together with any
subsequent revisions thereof approved by a Congress of the International Chamber
of Commerce and adhered to by the Issuer, the "UCP"), and shall, as to matters
not governed by the UCP, be governed by, and construed and interpreted in
accordance with, the laws of the State in which the Issuer resides.
(b) Upon the issuance date of each Letter, the Agent shall be deemed,
without further action by any party hereto, to have sold to each other Lender,
and each other Lender shall be deemed, without further action by any party
hereto, to have purchased from the Agent, a participation, to the extent of such
Lender's Pro Rata Percentage, in the Letter, the obligations thereunder and in
the reimbursement obligations of Borrower due in respect of drawings made under
the Letter. If requested by the Agent, the other Lenders will execute any other
documents reasonably requested by the Agent to evidence the purchase of such
participation.
(c) If Issuer has received documents purporting to draw under a Letter
that Issuer believes conform to the requirements of the Letter, or if Issuer has
decided that it will comply with Borrower's written or oral request of
authorization to pay a drawing on any Letter that Issuer does not believe
conforms to the requirements of the Letter, Issuer or the Agent will notify
Borrower of that fact. An amount equal to the amount of such drawing shall be
paid by Borrower on the date such drawing is made. The obligation of Borrower to
repay the Agent for any Advance made to fund such reimbursement, shall be
absolute, unconditional and irrevocable, shall continue for so long as any LC
Obligation is outstanding notwithstanding any termination of this Agreement, and
shall be paid strictly in accordance with the terms of this Agreement,
notwithstanding any of the following:
(i) Any lack of validity or enforceability of any Letter or LC
Obligation;
(ii) The existence of any claim, setoff, defense or other right which
Borrower may have or claim at any time against any beneficiary,
transferee or holder of any Letter (or any Person for whom any such
beneficiary, transferee or holder may be acting), Issuer or any
other Person, whether in connection with a Letter, this Agreement,
the transactions contemplated hereby, or any unrelated transaction;
or
(iii) Any statement or any other document presented under any Letter
proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect whatever so long as such statement or document appeared to
comply with the terms of the Letter.
(d) None of Issuer, the Lenders or any of the officers, directors or
employees of any of them shall be liable or responsible for, and the obligations
of Borrower to Issuer and the Lenders shall not be impaired by:
(i) The use that may be made of any Letter or for any acts or omissions
of any beneficiary, transferee or holder thereof in connection
therewith;
(ii) The validity, sufficiency or genuineness of documents, or of any
endorsements thereon, even if such documents or endorsements should
in fact prove to be in any or all respects invalid, insufficient,
fraudulent or forged so long as such statement or document appeared
to comply with the terms of the Letter;
(iii) The acceptance by Issuer of documents that appear on their face to
be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; or
(iv) Any other action of Issuer in making or failing to make payment
under any Letter if in good faith and in conformity with applicable
U.S. or foreign laws, regulations or customs.
(e) Notwithstanding the foregoing, Borrower shall have a claim against
Issuer and the Agent, and Issuer and/or the Agent shall be liable to Borrower,
to the extent, but only to the extent, of any direct, as opposed to
consequential, damages suffered by Borrower which Borrower proves were caused by
Issuer's or the Agent's willful misconduct or gross negligence in determining
whether documents presented under any Letter comply with the terms thereof.
(f) If any Letter is issued and outstanding on the Maturity Date, Borrower
shall deposit with the Agent, for the ratable benefit of the Lenders and the
Issuer: (i) cash collateral, or (ii) a backup letter of credit issued to the
Agent and acceptable to the Lenders, in either case, in an amount equal to the
LC Obligations relating to such Letter.
2.1.5 EQUALIZATION TRANSFERS.
(a) The Swing Line Advances, the Line of Credit A Advances and the Line of
Credit B Advances (collectively "ADVANCES" and individually, an "ADVANCE") shall
also sometimes collectively be referred to in each case as a "LOAN" and
collectively the "LOANS". It is anticipated that on each Business Day Borrower
may wish to borrow and repay Loans. To the extent possible, these Loans will be
made by under the Swing Line. To minimize the number of transfers of funds to
and from the Lenders resulting from such borrowings and repayments, the Agent
may fund daily Loans for the accounts of the Lenders and apply daily repayments
of Loans to the accounts of the Lenders, other than according to the Lenders'
Pro Rata Percentages (i.e., without receiving from the other Lenders their Pro
Rata Percentage of a Loan on the date of disbursement thereof or without paying
the other Lenders their Pro Rata Percentage of a repayment of a Loan on the date
of payment thereof), provided however, that no such Loan shall be made and no
repayment of a Loan shall be applied other than according to the Lenders' Pro
Rata Percentages, if: (i) at the time of such Loan or repayment the Agent has
actual knowledge of a Matured Default, or (ii) after giving effect to the
requested Loan or after applying the repayment, the absolute value of the amount
that would have to be reallocated to make the Loans held according to the
Lenders' Pro Rata Percentages, would exceed $20,000,000; or (iii) after giving
effect to the requested Loan, the Agent would hold at the end of any Business
Day, (A) Loans under the Line of Credit B exceeding its Line of Credit B Loan
Commitment or (B) Loans
under the Swing Line and the Line of Credit A exceeding its Line of Credit A
Loan Commitment plus $20,000,000.
(b) At any time in the discretion of the Agent and in any event as of the
end of the first Business Day of each week if the outstanding Loans are not held
according to the Lenders' Pro Rata Percentages, by reason of Swing Line Advances
by the Agent or otherwise, the Agent shall give notice to the Lenders of the
amount of funds to be transferred from the Agent to the Lenders, or from the
Lenders to the Agent, or from one Lender to another, as the case may be (each
such transfer, an "EQUALIZATION TRANSFER") required to cause the Loans to be
held by the Lenders according to their Pro Rata Percentages. On the next
Business Day following such notice the necessary Equalization Transfers shall be
made in Immediately Available Funds not later than 11:00 a.m. (local time in
Denver); provided, however, Equalization Transfers necessary to avoid the event
described in Section 2.1.5(a)(iii) shall be made on the same Business Day.
(c) Except as provided in Section 2.1.5(d), any Equalization Transfer by
the Lenders to the Agent shall be deemed to constitute Loans by such Lenders to
Borrower and repayments by Borrower of Loans held by the Agent, and any
Equalization Transfer by the Agent to the Lenders shall be deemed to constitute
Loans by the Agent to Borrower and repayments of Loans held by the Lenders.
(d) In the event that on the date on which any Equalization Transfer is
required to be made pursuant to Section 2.1.5(b), a Matured Default of the type
described in clause (i) of the definition thereof shall have occurred and be
continuing, any Equalization Transfer by the Lenders to the Agent, and any
Equalization Transfer by the Agent to the Lenders shall be deemed to constitute
a purchase by the Lenders or the Agent, as the case may be, of a direct
interest, in the amount of such Equalization Transfer, in outstanding Loans of
the Lenders to Borrower, to the end that each of the Lenders shall have an
interest therein equal to their respective Pro Rata Percentages as of the date
of occurrence of such Matured Default.
(e) At any time after any Lender (a "SELLING LENDER") has received any
Equalization Transfer that constitutes a purchase by any other Lender (a
"PURCHASING LENDER") of a direct interest in such Selling Lender's Loans
pursuant to Section 2.1.5(d), if such Selling Lender receives any payment on
account of its Loans, such Selling Lender will distribute to such Purchasing
Lender its proportionate share of such payment (appropriately adjusted in the
case of interest payments, to reflect the period of time during which such
Purchasing Lender's direct interest was outstanding and funded); provided
however, that in the event that such payment received by such Selling Lender is
required to be returned, such Purchasing Lender will return to such Selling
Lender any portion thereof previously distributed to it by such Selling Lender.
(f) Each Lender's obligation to make Equalization Transfers pursuant to
Section 2.1.5(b) shall be absolute and unconditional and shall not be affected
by any circumstance, including without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender or any other
Person may have against the Agent or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or a Matured
Default or the termination of the Commitments; (iii) any adverse change in the
condition (financial or otherwise) of Borrower or any other Person; (iv) any
breach of this Agreement by Borrower or any other Lender, including without
limitation, any other Lender's failure to make any Equalization Transfer; or (v)
any other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
2.2 PAYMENT OF PRINCIPAL AND INTEREST; DEFAULT RATE. The principal amount
outstanding under the Line of Credit A Notes and the Line of Credit B Notes
shall be due and payable on the Maturity Date. Loans under the Swing Line shall
be Daily Reset LIBOR Rate Loans. Loans under the Line of Credit A and Line of
Credit B may, at the option of Borrower, be Base Rate Loans or LIBOR Rate Loans.
Each request for LIBOR Rate Loans shall be in a minimum amount of $1,000,000 and
an integral multiple of $1,000,000 and shall be subject to the restrictions set
forth in the definition of Interest Period and the other restrictions set forth
in this Section 2.2. Borrower shall pay interest on the unpaid principal amount
of each Loan made by each Lender from the date of such Loan until such principal
amount shall be paid in full, at the times and at the rates per annum set forth
below:
(a) So long as no Matured Default has occurred or is continuing, during
such periods as such Loan is a Daily Reset LIBOR Rate Loan, a rate per annum
equal to the lesser of (i) the sum of the Daily Reset LIBOR Rate in effect from
time to time plus the Applicable Margin and (ii) the Highest Lawful Rate,
payable monthly in arrears on the first day of each month commencing November 1,
2002, and on the Maturity Date, which interest shall be paid by an Agent
initiated Advance pursuant to Section 2.1, without prior demand by the Agent.
(b) So long as no Matured Default has occurred or is continuing, during
such periods as such Loan is a Base Rate Loan, a rate per annum equal to the
lesser of (i) the sum of the Base Rate in effect from time to time plus the
Applicable Margin and (ii) the Highest Lawful Rate, payable monthly in arrears
on the first day of each month commencing November 1, 2002, and on the Maturity
Date, which interest shall be paid by an Agent initiated Advance pursuant to
Section 2.1, without prior demand by the Agent.
(c) So long as no Matured Default has occurred or is continuing, during
such periods as such Loan is a LIBOR Rate Loan, a rate per annum during each day
of each Interest Period for such Loan equal to the lesser of (i) the sum of the
LIBOR Rate for such Interest Period for such Loan plus the Applicable Margin and
(ii) the Highest Lawful Rate, payable in arrears on the last day of the Interest
Period in respect of such LIBOR Rate Loan, and, if the Interest Period with
respect to such LIBOR Rate Loan exceeds three months, the day which is three
months after the making of such LIBOR Rate Loan, which interest shall be paid by
an Agent initiated Advance pursuant to Section 2.1, without prior demand by the
Agent.
(d) After the occurrence of a Matured Default and for so long as such
Matured Default is continuing, the Agent may (upon the direction of the Required
Lenders) notify Borrower that any and all amounts due hereunder, under the Notes
or under any other Financing Agreement, whether for principal, interest (to the
extent permitted by applicable law), fees, expenses or otherwise, shall bear
interest, from the date of such notice by the Agent and for so
long as such Matured Default continues, payable on demand, at a rate per annum
(the "DEFAULT RATE") equal to the lesser of (i)(A) with respect to a Daily Reset
LIBOR Rate Loan, the sum of two percent (2.0%) per annum plus the Daily Reset
LIBOR Rate in effect from time to time plus the Applicable Margin; (B) with
respect to a Base Rate Loan, the sum of two percent (2.0%) per annum plus the
Base Rate in effect from time to time plus the Applicable Margin; or (C) with
respect to a LIBOR Rate Loan, the sum of two percent (2.0%) per annum plus the
LIBOR Rate then in effect for such LIBOR Rate Loan plus the Applicable Margin;
or (ii) the Highest Lawful Rate.
(e) All computations of interest pursuant to this Section 2.2 shall be
made by the Agent with respect to all Loans on the basis of a year of 360 days,
unless the foregoing would result in a rate exceeding the Highest Lawful Rate,
in which case such computations shall be based on a year of 365 or 366 days, as
the case may be. Interest with respect to all Loans, whether based on a year of
360, 365 or 366 days, shall be charged for the actual number of days (including
the first day but excluding the last day) occurring in the period for which such
interest is payable. Each determination by the Agent of an interest rate shall
be conclusive and binding for all purposes, absent manifest error.
(f) Borrower may on any Business Day, upon Borrower's written (including
facsimile) notice or oral notice followed by written (including facsimile)
confirmation, given by Borrower to the Agent not later than 12:00 noon (local
time in Denver) on the third Business Day prior to the date of any proposed
interest conversion or rollover, (a) convert Loans of one Type into Loans of
another Type, or (b) continue or rollover existing LIBOR Rate Loans; provided
however, (i) with respect to any conversion into or rollover of a LIBOR Rate
Loan, no Default or Matured Default shall have occurred and be continuing, and
(ii) any continuation or rollover of LIBOR Rate Loans for the same or a
different Interest Period or into Base Rate Loans, shall be made on, and only
on, the last day of an Interest Period for such LIBOR Rate Loans. Each such
notice of interest conversion shall specify therein the requested (x) date of
such conversion, (y) the Loans to be converted and whether such Loans constitute
LIBOR Rate Loans, and (z) if such interest conversion is into Loans constituting
LIBOR Rate Loans, the duration of the Interest Period for each such Loan. The
Agent shall promptly deliver a copy thereof to each Lender. Each such notice
shall be irrevocable and binding on Borrower. If Borrower shall fail to give a
notice of interest conversion with respect to any LIBOR Rate Loan as set forth
above, such Loan shall automatically convert to a Base Rate Loan on the last day
of the Interest Period with respect thereto. The provisions of this Section
2.2(f) shall also apply to initial Advances made as LIBOR Rate Loans.
2.3 PREPAYMENTS; TERMINATION OF THE COMMITMENTS.
(a) Borrower may at any time prepay the outstanding principal amount of
any Loan, in either case in whole or in part, in accordance with this Section
2.3. With respect to any prepayment, Borrower shall give prior written notice of
any such prepayment to the Agent, which notice shall state the proposed date of
such prepayment (which shall be a Business Day), the Loans to be prepaid and the
aggregate amount of the prepayment, and which notice shall be delivered to the
Agent not later than 12:00 noon (local time in Denver): (a) with respect to any
Loan which is a Base Rate Loan, on the date of the proposed prepayment, and (b)
with respect to
any Loan which is a LIBOR Rate Loan, three (3) Business Days prior to the date
of the proposed prepayment. All prepayments of Base Rate Loans shall be without
premium. All prepayments of LIBOR Rate Loans shall be made together with accrued
and unpaid interest (if any) to the date of such prepayment on the principal
amount prepaid without premium thereon, provided however, that losses, costs or
expenses incurred by any Lender as described in Section 2.3(b) shall be payable
with respect to each such prepayment. All notices of prepayment shall be
irrevocable and the payment amount specified in each such notice shall be due
and payable on the prepayment date described in such notice, together with, in
the case of LIBOR Rate Loans, accrued and unpaid interest (if any) on the
principal amount prepaid and any amounts due under Section 2.3(b). Borrower
shall have no optional right to prepay the principal amount of any LIBOR Rate
Loan other than as provided in this Section 2.3.
(b) Borrower will indemnify each Lender against, and reimburse each Lender
on demand for, any loss, cost or expense incurred or sustained by such Lender
(including without limitation, any loss or expense incurred by reason of the
liquidation or redeployment of deposits or other funds acquired by such Lender
to fund or maintain any LIBOR Rate Loan and/or loss of net yield) as a result of
(a) any payment, conversion, rollover, or prepayment of all or a portion of any
LIBOR Rate Loan on a day other than the last day of an Interest Period for such
LIBOR Rate Loan, (b) any payment, conversion, rollover or prepayment (whether
required hereunder or otherwise) of such Lender's Loan made after the delivery
of a notice of borrowing delivered pursuant to Section 2.2 (whether oral or
written) but before the proposed date for such LIBOR Rate Loan if such payment
or prepayment prevents the proposed borrowing from becoming fully effective, (c)
after receipt by the Agent of a notice of borrowing delivered pursuant to
Section 2.2, the failure of any Loan to be made or effected by such Lender due
to any condition precedent to a borrowing not being satisfied or due to any
other action or inaction of Borrower or (d) any rescission of a notice of
borrowing delivered pursuant to Section 2.2 or a notice of interest conversion
delivered pursuant to Section 2.2. Any Lender demanding payment under this
Section 2.3 shall deliver to Borrower and the Agent a statement reasonably
setting forth the amount and manner of determining such loss, cost or expense,
which statement shall be conclusive and binding for all purposes, absent
manifest error. Compensation owing to a Lender as a result of any such loss,
cost or expense resulting from a payment, prepayment, conversion or rollover of
a LIBOR Rate Loan shall include without limitation, an amount equal to the sum
of (i) the amount of the net yield that, but for such event, such Lender would
have earned for the remainder of the applicable Interest Period plus (ii) any
expense incurred by such Lender. Notwithstanding any provision herein to the
contrary, each Lender shall be entitled to fund and maintain its funding of all
of any part of the LIBOR Rate Loans in any manner it elects; it being
understood, however, that all determinations hereunder shall be made as if the
Lender had actually funded and maintained each LIBOR Rate Loan during the
Interest Period for such Loan through the purchase of deposits having a term
corresponding to such Interest Period and bearing an interest rate equal to the
LIBOR Rate for such Interest Period (whether or not the Lender shall have
granted any participations in such Loans).
(c) Borrower shall have the right, upon at least five Business Days'
written notice to the Lenders, to terminate the Line of Credit A Loan
Commitments, (i) in whole (subject to the last sentence of this Section 2.3(c))
or (ii) in part, in a minimum amount of $5,000,000 and an
integral multiple of $1,000,000, but not to an amount less than $80,000,000.
Provided, however, that any such termination shall be accompanied, (i) in the
case of a termination in whole, by payment of the Line of Credit A Loan
Liabilities in full, or (ii) in the case of a partial termination, payment of
the Line of Credit A Loan Liabilities to the extent necessary to cause the
Available Amount A to be not less than zero. Any partial reduction of the Line
of Credit A Loan Commitments pursuant to this Section 2.3(c) shall result in a
reduction pro-rata of the Line of Credit A Loan Commitments of each of the
Lenders. Borrower shall have the right, upon at least five Business Days'
written notice to the Lenders, to terminate the Line of Credit B Loan
Commitments, (i) in whole, or (ii) in part, in a minimum amount of $5,000,000
and an integral multiple of $1,000,000, but not to an amount less than
$20,000,000. Provided, however, that any such termination shall be accompanied,
(i) in the case of a termination in whole, by payment of the Line of Credit B
Loan Liabilities in full and the return or cash coverage of any Letter then
outstanding, or (ii) in the case of a partial termination, payment of the Line
of Credit B Loan Liabilities to the extent necessary to cause the Available
Amount B to be not less than zero. Any partial reduction of the Line of Credit B
Loan Commitments pursuant to this Section 2.3(c) shall result in a reduction
pro-rata of the Line of Credit B Loan Commitments of each of the Lenders. In the
event Borrower elects to terminate the Line of Credit A Loan Commitments in
whole as set forth in this Section 2.3(c), then Borrower shall also terminate
the Line of Credit B Loan Commitments in whole as set forth in this Section
2.3(c).
2.4 PURPOSE. The purpose of the Line of Credit A and the Line of Credit B
is to provide funds for the general working capital purposes of Borrower and its
consolidated subsidiaries.
2.5 LOAN AND LETTER OF CREDIT FEES.
(a) AGENT'S FEE. Borrower agrees to pay to the Agent, in respect of its
administrative duties hereunder: a one time arranger fee on the Closing Date; an
annual agent's fee on the Closing Date and on each anniversary date to the
Maturity Date; and one time fronting fees from time to time in respect of the
initial issuance of Letters, all in amounts as set forth in the Agent's Letter.
Each of the Agent's fees shall be fully earned on the date they become payable
and if not paid timely by Borrower, at the option of the Agent, shall be paid by
Advances pursuant to Section 2.1, without prior demand by the Agent. No Persons
other than the Agent shall have any interest in any such Agent's fees.
(b) INITIAL COMMITMENT FEES. Borrower agrees to pay to the Agent for
distribution to the Lenders, including the Agent the one time initial commitment
fees in amounts as set forth in the Agent's Letter. Each of these fees shall be
fully earned and if not paid timely by Borrower, at the option of the Agent,
shall be paid by Advances pursuant to Section 2.1, without prior demand by the
Agent.
(c) QUARTERLY COMMITMENT FEES. Borrower agrees to pay to the Agent for
distribution to the Lenders (based on their respective Pro Rata Percentages)
quarterly commitment fees ("COMMITMENT FEES") from the Closing Date to the
Maturity Date, calculated using the then applicable rates per annum set forth in
the definition of Applicable Margin, and
applied to the daily average of the Line of Credit A Loan Commitments and the
Line of Credit B Loan Commitments, respectively. The quarterly Commitment Fees
shall be due and payable in arrears with respect to the prior quarter on the
first day of each January, April, July and October hereafter through the
Maturity Date. Pro-rated Commitment Fees shall be due and payable on the first
day of the quarter following the Closing Date and on the Maturity Date. The
quarterly Commitment Fees shall be fully earned as they accrue and if not paid
timely by Borrower, at the option of the Agent, shall be paid by Advances
pursuant to Section 2.1, without prior demand by the Agent.
(d) LETTER OF CREDIT FEES. Borrower agrees to pay to the Agent, for
distribution to the Lenders (based on their respective Pro Rata Percentages), a
quarterly fees ("COMMERCIAL LC FEES" and "STANDBY LC FEES", respectively),
payable in arrears with respect to the prior quarter on the first day of each
January, April, July and October, in respect of each Letter issued hereunder,
calculated using the then applicable rates per annum set forth in the definition
of Applicable Margin, and applied to daily average face amounts of all Letters
outstanding during such quarter, respectively. Borrower shall also pay to the
Agent for the account of the Issuer issuing any Letter, the normal and customary
processing fees charged by such Issuer in connection with the issuance of or
drawings under each such Letter. Commercial LC Fees, Standby LC Fees and related
processing fees shall be fully earned as they accrue and if not paid timely by
Borrower, at the option of the Agent, shall be paid by Advances pursuant to
Section 2.1, without prior demand by the Agent.
(e) CALCULATION OF FEES. The fees payable under this Section 2.5 which are
based on an annual percentage rate shall be calculated by the Agent on the basis
of a 360-day year, for the actual days (including the first day but excluding
the last day) occurring in the period for which such fee is payable. Each
determination by the Agent of fees payable under this Section 2.5 shall be
conclusive and binding for all purposes, absent manifest error.
(f) FEES NOT INTEREST. The fees described in this Agreement 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, detention, or forbearance of money, and the obligation
of Borrower to pay each fee described herein shall be in addition to, and not in
lieu of, the obligation of Borrower to pay interest, other fees described in
this Agreement, and expenses otherwise described in this Agreement. Fees shall
be payable when due in Dollars and in Immediately Available Funds. All fees
shall be non-refundable.
2.6 BORROWER'S LOAN ACCOUNT. The Agent shall maintain a loan account
("LOAN ACCOUNT") on its books in which shall be recorded: (a) all Line of Credit
A Advances made by the Agent to Borrower pursuant to this Agreement; (b) all
Line of Credit B Advances made by the Agent to Borrower pursuant to this
Agreement; (c) all receipts and disbursements from and to the other Lenders; (d)
all payments made by Borrower; and (e) all other appropriate debits and credits
as provided in this Agreement, including without limitation, all receipts of
fees, charges, expenses and interest. All entries in Borrower's Loan Account
shall be made in accordance with the Agent's customary accounting practices as
in effect from time to time. Borrower promises to pay the amount reflected as
owing by and under its Loan Account and all other obligations
hereunder as such amounts become due or are declared due pursuant to the terms
of this Agreement.
2.7 STATEMENTS. All Advances to Borrower, and all other debits and credits
provided for in this Agreement, shall be evidenced by entries made by the Agent
in its internal data control systems showing the date, amount and reason for
each such debit or credit. Until such time as the Agent shall have rendered to
Borrower and the Lenders written statements of account, the balance in
Borrower's Loan Account, as set forth on the Agent's most recent printout, shall
be rebuttable presumptive evidence of the amounts due and owing the Lenders by
Borrower and, as the case may be, by the Lenders to each other. On or about the
last day of each calendar month, the Agent shall mail to Borrower a statement
setting forth the balance of Borrower's Loan Account, including without
limitation, principal, interest, expenses and fees. Each such statement shall be
subject to subsequent adjustment by the Agent but shall, absent manifest errors
or omissions, be presumed correct and binding upon Borrower and shall constitute
an account stated unless, within sixty (60) days after receipt of any statement
from the Agent, Borrower or a Lender shall deliver to the Agent written
objection specifying the error or errors, if any, contained in such statement.
2.8 TERMINATION OF AGREEMENT. Subject to and in accordance with Section
9.1, the Agent shall have the right, without notice to Borrower, to terminate
the Commitments immediately upon a Matured Default. In addition, the Commitments
shall be deemed immediately terminated and all of the Liabilities shall be
immediately due and payable, without notice to Borrower, on the Maturity Date.
In the event the Commitments are terminated, the remainder of this Agreement
shall remain in full force and effect until the payment in full of the
Liabilities and the termination of any Letters. Notwithstanding the foregoing,
in the event that a proceeding under any bankruptcy, reorganization, arrangement
of debt, insolvency, readjustment of debt or receivership law or statute is
filed by or against Borrower or any guarantor of the Liabilities, or Borrower or
any guarantor of the Liabilities makes an assignment for the benefit of
creditors, the Commitments shall be deemed to be terminated immediately, and all
the Liabilities shall be due and payable, without presentment, demand, protest
or further notice (including without limitation, notice of intent to accelerate
and notice of acceleration) of any kind, all of which are expressly waived by
Borrower, provided, however, that in the event a proceeding against Borrower or
any guarantor of the Liabilities is dismissed within sixty (60) days of the date
of its filing then the Commitments shall be deemed to be reinstated as of the
date the order of dismissal becomes final and the Agent is given notice thereof,
and provided, however, the automatic reimbursement of the Issuer by the Lenders
as provided for in this Agreement shall continue with respect to any
post-petition drawings under any Letters. This Agreement shall terminate when
the Commitments have terminated, any Letters issued hereunder have terminated
and the Liabilities have been indefeasibly paid in full.
3 BORROWING BASE.
3.1 ELIGIBLE ACCOUNTS. The Agent shall have the right, in the exercise of
the Agent's reasonable discretion, to determine whether Accounts are eligible
for inclusion in the Borrowing Base at any particular time (such eligible
accounts being referred to as "ELIGIBLE ACCOUNTS").
Without limiting the Agent's right to determine that Accounts do not constitute
Eligible Accounts, the following Accounts shall not be Eligible Accounts: (a)
all Accounts which are at that time unpaid for a period exceeding sixty (60)
days after the original due date of the original invoice related thereto.
3.2 ELIGIBLE INVENTORY. The Agent shall have the right, in the exercise of
the Agent's reasonable discretion, to determine whether Inventory is eligible
for inclusion in the Borrowing Base at any particular time (such eligible
inventory being referred to as "ELIGIBLE INVENTORY"). Without limiting the
Agent's right to determine that Inventory does not constitute Eligible
Inventory, the following Inventory shall not be Eligible Inventory: (a)
Inventory reasonably determined by the Agent to be out-of-condition or otherwise
unmerchantable; or (b) Inventory for which a prepayment has been received.
4 CONDITIONS TO ADVANCES.
Notwithstanding any other provisions to the contrary contained in this
Agreement, the making of Advances or the issuance of Letters provided for in
this Agreement shall be conditioned upon the following:
4.1 APPROVAL OF THE AGENT'S COUNSEL. Legal matters, if any, relating to
any Advance shall have been reviewed by and shall be satisfactory to counsel for
the Agent.
4.2 COMPLIANCE. All representations and warranties contained in this
Agreement shall be true on and as of the date of the making of each Advance as
if such representations and warranties had been made on and as of such date, and
no Default or Matured Default shall have occurred and be continuing or shall
exist.
4.3 DOCUMENTATION. Prior to the initial Advance, Borrower shall have
executed and/or delivered to the Agent all of the documents listed on the List
of Closing Documents attached as Exhibit 4A and Borrower's Borrowing Base
Certificate setting forth the Borrowing Base as of the date of Borrower's
request for the initial Advance or issuance of a Letter, in form and substance
acceptable to the Agent.
5 GUARANTIES.
5.1 GUARANTIES. Borrower agrees to obtain, for the ratable benefit of the
Lenders, the guaranty or guaranties of the following consolidated subsidiaries
of Borrower: The Andersons Agriservices, Inc., The Andersons Lawn Fertilizer
Division, Inc., The Andersons Agricultural Group, L.P. and The Andersons
Technologies, Inc., the form of which is attached as Exhibit 5A.
5.2 ADDITIONAL GUARANTIES. After the date of this Agreement, Borrower
agrees to obtain, for the ratable benefit of the Lenders, the guaranty or
guaranties of any consolidated subsidiary of Borrower that the Agent reasonably
determines is a material subsidiary with regard to its assets or revenues from
operations, the form of which is attached as Exhibit 5A.
6 WARRANTIES.
Borrower represents and warrants to the Lenders that:
6.1 LITIGATION AND PROCEEDINGS. Except as set forth on Part 1 of Exhibit
6A and except for judgments and pending or threatened litigation, contested
claims and governmental proceedings which are not, in the aggregate, material to
Borrower's financial condition, results of operations or business, no judgments
are outstanding against Borrower and its consolidated subsidiaries, nor is there
pending or threatened any litigation, contested claim, or governmental
proceeding by, against or with respect to Borrower and its consolidated
subsidiaries.
6.2 OTHER AGREEMENTS. Except as set forth on part 2 of Exhibit 6A,
Borrower and its consolidated subsidiaries are not in default under any
contract, lease or commitment to which Borrower or its consolidated subsidiaries
are a party or by which Borrower and its consolidated subsidiaries are bound,
except those which are not, in the aggregate, material to Borrower's financial
condition, results of operations or business. Borrower knows of no dispute,
except as set forth on part 2 of Exhibit 6A, relating to any contract, lease, or
commitment of Borrower and its consolidated subsidiaries, except those which are
not, in the aggregate, material to Borrower's financial condition, results of
operations or business.
6.3 LICENSES, PATENTS, COPYRIGHTS, TRADEMARKS AND TRADE NAMES. There is no
action, proceeding, claim or complaint pending or threatened to be brought
against Borrower or its consolidated subsidiaries by any Person which might
jeopardize any of Borrower's or its consolidated subsidiaries interest in any
licenses, patents, copyrights, trademarks, trade names or applications except
those which are not, in the aggregate, material to Borrower's financial
condition, results of operations or business.
6.4 ENCUMBRANCES. Except as permitted under Section 8.1 and except as set
forth on part 3 of Exhibit 6A, all of the property of Borrower and its
consolidated subsidiaries is free and clear of all security interests, liens,
claims and encumbrances. No Goods held by Borrower and its consolidated
subsidiaries on consignment or under sale or return contracts have been
represented to be Inventory and no amounts receivable by Borrower and its
consolidated subsidiaries in respect of the sale of such Goods (except markups
or commissions which have been fully earned by Borrower and its consolidated
subsidiaries) have been represented to be Accounts. All Producer Payables which
are owing to suppliers of any of the Inventory have been paid when due, other
than those being contested in good faith by Borrower and its consolidated
subsidiaries, and no Person to whom such Producer Payables are owed has demanded
turnover of any Inventory or proceeds thereof. Borrower and its consolidated
subsidiaries has adequate procedures in place to insure that Inventory purchased
by Borrower and its consolidated subsidiaries is free of security interests in
accordance with the Federal Food Security Act.
6.5 LOCATION OF ASSETS; CHIEF EXECUTIVE OFFICE. The chief executive office
of Borrower is located at 000 Xxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000. As of the
execution of this Agreement, the books and records of Borrower are located at
the chief executive office of
Borrower. If Borrower shall intend to make any change in any of such locations,
Borrower shall notify the Agent at least 30 days prior to such change.
6.6 TAX LIABILITIES. Borrower and its consolidated subsidiaries have filed
all federal, state and local tax reports and returns required by any law or
regulation to be filed by Borrower and its consolidated subsidiaries and they
have either duly paid all taxes, duties and charges indicated to be due on the
basis of such returns and reports or has made adequate provision for the payment
thereof, and the assessment of any material amount of additional taxes in excess
of those paid and reported is not reasonably expected. The reserves for taxes
reflected on Borrower's consolidated balance sheet are adequate in amount for
the payment of all liabilities for all taxes (whether or not disputed) of
Borrower and its consolidated subsidiaries accrued through the date of such
balance sheet. There are no material unresolved questions or claims concerning
any tax liability of Borrower and its consolidated subsidiaries, except as
described on part 4 of Exhibit 6A.
6.7 INDEBTEDNESS. Except as contemplated by this Agreement, as disclosed
on part 5 of Exhibit 6A and as disclosed on the financial statements identified
in Section 6.13, Borrower has no other indebtedness, contingent obligations or
liabilities, outstanding bonds, letters of credit or acceptances to any other
Person or loan commitments from any other Person, other than accounts payable
incurred in the ordinary course of business.
6.8 AFFILIATES. Borrower and its consolidated subsidiaries have no
Affiliates, other than their directors, officers, agents and employees and those
Persons disclosed on part 6 of Exhibit 6A as updated from time to time by
Borrower, and the legal relationship of Borrower and its consolidated
subsidiaries to each such Affiliate is accurately and completely described
thereon.
6.9 ENVIRONMENTAL MATTERS. Except as disclosed on part 7 of Exhibit 6A,
(a) Borrower and its consolidated subsidiaries have not received any notice to
the effect, or have any knowledge, that the Property or its operations are not
in compliance with any of the requirements of applicable federal, state and
local environmental, health and safety statutes and regulations ("ENVIRONMENTAL
LAWS") or are the subject of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release of any toxic or
hazardous waste or substance into the environment, which noncompliance or
remedial action could have a material adverse effect on the business,
operations, Property, assets or conditions (financial or otherwise) of Borrower
and its consolidated subsidiaries; (b) there have been no releases of hazardous
materials at, on or under the Property that, singly or in the aggregate could
have a material adverse effect on the business, operations, Property, assets or
conditions (financial or otherwise) of Borrower and its consolidated
subsidiaries; (c) there are no underground storage tanks, active or abandoned,
including without limitation petroleum storage tanks, on or under the Property
that, singly or in the aggregate could have a material adverse effect on the
business, operations, Property, assets or conditions (financial or otherwise) of
Borrower and its consolidated subsidiaries; (d) Borrower and its consolidated
subsidiaries have not directly transported or directly arranged for the
transportation of any hazardous material to any location which is listed or
proposed for listing on the National Priorities List pursuant to CERCLA or on
any similar
state list or which is the subject of federal, state or local enforcement
actions or other investigations which may lead to material claims against
Borrower and its consolidated subsidiaries for any remedial work, damage to
natural resources or personal injury, including without limitation, claims under
CERCLA; and (e) no conditions exist at, on or under the Property which, with the
giving of notice, would rise to any material liability under any Environmental
Laws.
6.10 EXISTENCE. Borrower is a corporation duly organized and in good
standing under the laws of the State of Ohio and Borrower and its consolidated
subsidiaries are duly qualified to do business and are in good standing in all
states where such qualification is necessary, except for those jurisdictions in
which the failure so to qualify would not, in the aggregate, have a material
adverse effect on Borrower's financial condition, results of operations or
business.
6.11 AUTHORITY. The execution and delivery by Borrower of this Agreement
and all of the other Financing Agreements and the performance of Borrower's
obligations hereunder and thereunder: (a) are within Borrower's powers; (b) are
duly authorized by Borrower's board of directors; (c) are not in contravention
of the terms of Borrower's articles or certificate of incorporation or code of
regulations; (d) are not in contravention of any law or laws, or of the terms of
any indenture, agreement or undertaking to which Borrower is a party or by which
Borrower or any of Borrower's property is bound; (e) do not require any consent,
registration or approval of any Governmental Authority or of any other Person,
except such consents or approvals as have been obtained; (f) do not contravene
any contractual restriction or Governmental Requirement binding upon Borrower;
and (g) will not, except as contemplated or permitted by this Agreement, result
in the imposition of any lien, charge, security interest or encumbrance upon any
property of Borrower under any existing indenture, mortgage, deed of trust, loan
or credit agreement or other material agreement or instrument to which Borrower
is a party or by which Borrower or any of Borrower's property may be bound or
affected. Borrower shall deliver to the Agent, upon the Agent's request
therefor, a written opinion of counsel as to the matters described in the
foregoing clauses (a) through (g).
6.12 BINDING EFFECT. This Agreement and all of the other Financing
Agreements set forth the legal, valid and binding obligations of Borrower and
the guarantors of the Liabilities, respectively, and are enforceable against
Borrower and the guarantors of the Liabilities, respectively, in accordance with
their respective terms.
6.13 CORRECTNESS OF FINANCIAL STATEMENTS. The consolidated financial
statements delivered from time to time by Borrower to the Lenders present fairly
the financial condition of Borrower and its consolidated subsidiaries, and have
been prepared in accordance with GAAP consistently applied. Since the date of
the most recent financial statements delivered to the Lenders, there has been no
materially adverse change in the condition or operation of Borrower and its
consolidated subsidiaries.
6.14 EMPLOYEE CONTROVERSIES. Except as set forth on Part 1 of Exhibit 6A,
there are no controversies pending or threatened between Borrower and its
consolidated subsidiaries or any of their employees, other than employee
grievances arising in the ordinary course of
business or which are not, in the aggregate, material to Borrower's financial
condition, results of operations or business.
6.15 COMPLIANCE WITH LAWS AND REGULATIONS. Borrower and its consolidated
subsidiaries are in compliance with all Governmental Requirements relating to
the business operations and the assets of Borrower and its consolidated
subsidiaries, except for Governmental Requirements, the violation of which would
not have a material adverse effect on Borrower's financial condition, results of
operations or business.
6.16 ACCOUNT WARRANTIES. Except as disclosed to the Agent from time to
time in writing, all Accounts which are at any time included in the Borrowing
Base or which are reflected on Borrower's financial statements delivered to the
Agent pursuant to Section 7.1 are genuine, in all respects what they purport to
be, have not been reduced to any judgment, are evidenced by not more than one
executed original agreement, contract or document, and represent undisputed,
bona fide transactions completed in accordance with the terms and conditions of
any related document; the Accounts have not been pledged, sold or assigned to
any Person; and except as disclosed to the Agent from time to time in writing,
Borrower has no knowledge of any fact or circumstance which would impair the
validity or collectibility of any of the Accounts that in the aggregate are
material in amount.
6.17 INVENTORY WARRANTIES. Except as promptly disclosed to the Agent from
time to time in writing, all Inventory included in the Borrowing Base shall be
of good and merchantable quality, free from any defects which might affect the
market value of such Inventory.
6.18 SOLVENCY. Borrower and its consolidated subsidiaries are solvent,
able to pay their debts generally as such debts mature, and have capital
sufficient to carry on their business and all businesses in which they are about
to engage. The saleable value of the total consolidated assets of Borrower and
its consolidated subsidiaries at a fair valuation, and at a present fair
saleable value, is greater than the amount of total consolidated obligations of
Borrower and its consolidated subsidiaries to all Persons (taking into account,
as applicable, rights of contribution, subrogation and indemnity with regard to
obligations shared with others). Borrower and its consolidated subsidiaries will
not be rendered insolvent by the execution or delivery of this Agreement or of
any of the other Financing Agreements or by the transactions contemplated
hereunder or thereunder.
6.19 PENSION REFORM ACT. No events, including without limitation, any
"reportable event" or "prohibited transactions," as those terms are defined in
the Employee Retirement Income Security Act of 1974 as the same may be amended
from time to time ("ERISA"), have occurred in connection with any type of plan,
arrangement, association or fund covered by ERISA in which any personnel of
Borrower or an Affiliate which is under common control with Borrower (within the
meaning of applicable provisions of the IRC) participate ("BENEFIT PLANS"). The
Benefit Plans are otherwise in compliance with all applicable provisions of
ERISA and the IRC and meet the minimum funding standards of ERISA and the IRC.
6.20 MARGIN SECURITY. Borrower does not own any margin security and none
of the loans advanced hereunder shall be used for the purpose of purchasing or
carrying any margin securities or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase any margin securities or
for any other purpose not permitted by Regulations T, U or X of the Board of
Governors of the Federal Reserve System.
6.21 INVESTMENT COMPANY ACT NOT APPLICABLE. Borrower is not an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
6.22 PUBLIC UTILITY HOLDING COMPANY ACT NOT APPLICABLE. Borrower is not a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company":, or an affiliate of a "subsidiary company"
of a "holding company", or a "public utility", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
6.23 FULL DISCLOSURE. All factual information taken as a whole in the
materials furnished by or on behalf of Borrower to the Agent or any Lender for
purposes of or in connection with the transactions contemplated under this
Agreement and the other Financing Agreements, does not contain any untrue
statement of a material fact or omit to state any material fact necessary to
keep the statements contained therein from being misleading as of the date of
this Agreement, and thereafter as supplemented by information provided to the
Agent or the Lenders in writing pursuant to this Agreement. The financial
projections and other financial information furnished to the Agent and the
Lenders by Borrower and to be delivered under this Agreement, were prepared in
good faith on the basis of information and assumptions that Borrower believed to
be reasonable as of the date of such information.
6.24 INTELLECTUAL PROPERTY. Borrower and its consolidated subsidiaries own
or possess (or will be licensed or otherwise have the full right to use) all
intellectual property that is necessary for the operation of their business,
without any known conflict with the rights of others. No product of Borrower and
its consolidated subsidiaries infringes upon any intellectual property owned by
any other Person and no claim or litigation is pending or (to the knowledge of
Borrower) threatened against or affecting such Person, contesting its right to
sell or to use any product or material, in any case which could have a material
adverse effect on the business, operations, Property, assets or conditions
(financial or otherwise) of Borrower and its consolidated subsidiaries.
6.25 SURVIVAL OF WARRANTIES. All representations and warranties contained
in this Agreement or any of the other Financing Agreements shall survive the
execution and delivery of this Agreement and shall be true from the date of this
Agreement until the Liabilities shall be paid in full and the Lenders shall
cease to be committed to make Loans or issue Letters under this Agreement.
7 AFFIRMATIVE COVENANTS.
Borrower covenants and agrees that so long as any Liabilities remain
outstanding, and (even if there shall be no Liabilities outstanding) so long as
the Lenders remain committed to make Loans or issue Letters under this
Agreement:
7.1 FINANCIAL AND OTHER INFORMATION. Except as otherwise expressly
provided for in this Agreement, Borrower shall keep proper books of record and
account in which full and true entries will be made of all dealings and
transactions of or in relation to the business and affairs of Borrower and its
consolidated subsidiaries, in accordance with GAAP consistently applied, and
Borrower shall cause to be furnished to the Agent (with copies to the other
Lenders, from time to time and in a form acceptable to the Agent, such
information as the Agent may reasonably request, including without limitation,
the following:
(a) as soon as practicable and in any event within ninety (90) days after
the end of each fiscal year of Borrower, audited consolidated and consolidating
statements of income, retained earnings and cash flow of Borrower and its
consolidated subsidiaries for each year, and a consolidated and consolidating
balance sheet of Borrower and its consolidated subsidiaries for such year,
setting forth in each case, in comparative form, corresponding figures as of the
end of the preceding fiscal year, all in reasonable detail and satisfactory in
scope to the Agent and certified to Borrower by such independent public
accountants as are selected by Borrower and satisfactory to the Agent, whose
opinion shall be in scope and substance satisfactory to the Agent; and (ii)
copies of all SEC 10(K) filings of Borrower;
(b) as soon as practicable and in any event within forty five (45) days
after the end of each quarterly accounting period in each fiscal year of
Borrower: (i) consolidated and consolidating statements of income and retained
earnings of Borrower and its consolidated subsidiaries for such quarterly period
and for the period from the beginning of the then current fiscal year to the end
of such quarterly period, and a consolidated and consolidating balance sheet of
Borrower and its consolidated subsidiaries as of the end of such quarterly
period, setting forth in each case, in comparative form, figures for the
corresponding periods in the preceding fiscal year, all in reasonable detail and
certified as accurate by the chief financial officer of Borrower, subject to
changes resulting from normal year end adjustments, (ii) copies of all SEC 10(Q)
filings of Borrower, (iii) a compliance certificate of the chief financial
officer of Borrower in substantially the form attached as Exhibit 7A
("COMPLIANCE CERTIFICATE");
(c) as soon as practicable and in any event within twenty five (25) days
after the end of each monthly accounting period in each fiscal year of Borrower,
a Borrowing Base Certificate computed as of the last day of such month, signed
by the assistant treasurer or chief financial officer of Borrower; and
(d) upon request and within 10 Business Days thereafter (i) an aged trial
balance of all Accounts indicating which Accounts are thirty (30), sixty (60)
and ninety (90) days past the original invoice date of the original invoice
related thereto and listing the names of all Account Debtors, (ii) a listing of
accounts payable of Borrower and its consolidated subsidiaries indicating which
accounts payable are more than thirty (30) days past due.
7.2 CONDUCT OF BUSINESS. Borrower and its consolidated subsidiaries shall:
(a) maintain their existence and maintain in full force and effect all licenses,
bonds, franchises, leases, patents, contracts and other rights necessary to the
conduct of their business; (b) continue in, and limit their operations to, the
same general line of business as that presently conducted by them; (c) comply
with all Governmental Requirements, except for such Governmental Requirements
the violation of which would not, in the aggregate, have a material adverse
effect on Borrower's financial condition, results of operations or business; (d)
keep and conduct their business separate and apart from the business of
Affiliates; and (e) otherwise do all things necessary to make the
Representations and Warranties set forth in Section 6 of this Agreement true and
correct at all times.
7.3 INSURANCE. Borrower and its consolidated subsidiaries shall maintain,
at their expense, such liability and property insurance (including as applicable
commercial general liability insurance, products liability insurance and
xxxxxxx'x compensation insurance) as is ordinarily maintained by other companies
in similar businesses.
7.4 FINANCIAL COVENANTS AND RATIOS. Borrower shall maintain at all times:
(a) a Tangible Net Worth of not less than $65,000,000; (b) a Current Ratio Net
of Hedged Inventory of not less than 1.25 to 1; (c) a Debt to Capitalization
Ratio of not more than 70%; (d) Working Capital of not less than $45,000,000;
and (e) a ratio of long term debt minus the non-recourse portion of long term
debt to Tangible Net Worth of not more than 1.25 to 1.
7.5 BENEFIT PLANS. Borrower and its consolidated subsidiaries shall: (a)
keep in full force and effect any and all Benefit Plans which are presently in
existence or may, from time to time, come into existence under ERISA, unless
such Benefit Plans can be terminated without material liability to Borrower and
its consolidated subsidiaries in connection with such termination (as
distinguished from any continuing funding obligation); (b) make contributions to
all Benefit Plans in a timely manner and in an amount sufficient to comply with
the requirements of ERISA; (c) comply with all requirements of ERISA which
relate to such Benefit Plans; and (d) notify the Agent immediately upon receipt
by Borrower and its consolidated subsidiaries of any notice of the institution
of any proceeding or other action relating to any Benefit Plans that would
reasonably be expected to have a material adverse effect on Borrower or its
financial condition.
7.6 NOTICE OF SUIT, ADVERSE CHANGE IN BUSINESS OR DEFAULT. Borrower shall,
as soon as possible, and in any event within five (5) Business Days after
Borrower learns of the following, give written notice to the Agent of: (a) any
proceeding being instituted or threatened to be instituted by or against
Borrower or its consolidated subsidiaries in any federal, state, local or
foreign court or before any commission or other regulatory body (federal, state,
local or foreign) for which claimed damages exceed $5,000,000; (b) any material
adverse change in the business, assets or condition, financial or otherwise, of
Borrower and its consolidated subsidiaries; and (c) the occurrence of any
Default.
7.7 USE OF PROCEEDS. Borrower and its consolidated subsidiaries shall use
Advances only for the purposes stated in Section 2.4 and for no other purpose.
7.8 BOOKS AND RECORDS. Borrower and its consolidated subsidiaries shall
maintain proper books of record and account in accordance with GAAP consistently
applied in which true, full and correct entries will be made of all their
respective dealings and business affairs. If any changes in accounting
principles are hereafter required or permitted by GAAP and are adopted by
Borrower and its consolidated subsidiaries with the concurrence of its
independent certified public accountants and such changes in GAAP result in a
change in the method of calculation or the interpretation of any of the
financial covenants, standards or terms found in Section 7.4 or any other
provision of this Agreement, Borrower and the Required Lenders agree to amend
any such affected terms and provisions so as to reflect such changes in GAAP
with the result that the criteria for evaluating Borrower's financial condition
shall be the same after such changes in GAAP as if such changes in GAAP had not
been made.
8 NEGATIVE COVENANTS.
Borrower covenants and agrees that so long as any Liabilities remain
outstanding, and (even if there shall be no Liabilities outstanding) so long as
the Lenders remain committed to make Loans or issue Letters under this Agreement
(unless the Agent, with the written approval of the Required Lenders, shall give
the Agent's prior written consent):
8.1 ENCUMBRANCES. Except for those liens, security interests and
encumbrances presently in existence and reflected in Borrower's financial
statements referred to in Section 6.13 and disclosed in Exhibit 6A under Section
6.4, Borrower and its consolidated subsidiaries shall not create, incur, assume
or suffer to exist any security interest, mortgage, pledge, lien, capitalized
lease, levy, assessment, attachment, seizure, writ, distress warrant, or other
encumbrance of any nature whatsoever on or with regard to any of their assets
other than: (a) liens securing the payment of taxes, either not yet due or the
validity of which is being contested in good faith by appropriate proceedings,
and as to which Borrower shall, if appropriate under GAAP, have set aside on
Borrower's books and records adequate reserves; (b) liens securing deposits
under workmen's compensation, unemployment insurance, social security and other
similar laws, or securing the performance of bids, tenders, contracts (other
than for the repayment of borrowed money) or leases, or securing indemnity,
performance or other similar bonds for the performance of bids, tenders,
contracts (other than for the repayment of borrowed money) or leases, or
securing statutory obligations or surety or appeal bonds, or securing indemnity,
performance or other similar bonds in the ordinary course of Borrower's
business, which are not past due; (c) liens securing the interests of the broker
with respect to any Margin Account; and (d) any other liens, security interests
and encumbrances on property of Borrower and its consolidated subsidiaries other
than Inventory, Accounts, General Intangibles (including contract rights) or the
direct proceeds thereof.
8.2 CONSOLIDATIONS, MERGERS OR ACQUISITIONS. Borrower and its consolidated
subsidiaries shall not enter into or execute any agreement to recapitalize or
consolidate with, merge with, or otherwise acquire the assets or properties of
any other Person other than Borrower and its consolidated subsidiaries, other
than the acquisition of Inventory in the ordinary
course of business, in excess of $18,000,000 in the aggregate of exchange or
transfer value in any fiscal year of Borrower.
8.3 INDEBTEDNESS. Borrower and its consolidated subsidiaries shall not
incur, create, assume, become or be liable in any manner with respect to, or
permit to exist, any obligations or indebtedness, direct or indirect fixed or
contingent, to finance working capital, except: (a) the Liabilities; or (b)
letter of credit obligations to Persons other than a Lender in an amount not to
exceed $500,000; and (c) trade obligations, Producer Payables and normal
accruals in the ordinary course of their business not yet due and payable, or
with respect to which they are contesting in good faith the amount or validity
thereof by appropriate proceedings, and then only to the extent that they have
set aside on their books adequate reserves therefor, if appropriate under GAAP.
8.4 GUARANTEES AND OTHER CONTINGENT OBLIGATIONS. Except as permitted under
Section 8.3, Borrower and its consolidated subsidiaries shall not guarantee,
endorse or otherwise in any way become or be responsible for obligations of any
other Person, whether by agreement to purchase the indebtedness of such Person
or through the purchase of Goods, supplies or services, or maintenance of
working capital or other balance sheet covenants or conditions, or by way of
stock purchase, capital contribution, advance or loan for the purpose of paying
or discharging any indebtedness or obligation of such Person or otherwise,
except: (a) for endorsements of negotiable Instruments for collection in the
ordinary course of business; and (b) that they may indemnify their officers,
directors and managers to the extent permitted under the laws of the State in
which they are organized and may indemnify (in the customary manner)
underwriters and any selling shareholders in connection with any public offering
of Borrower's securities.
8.5 DISPOSITION OF PROPERTY. Except for the disposition of property in the
ordinary course of business, Borrower and its consolidated subsidiaries shall
not sell, lease, transfer or otherwise dispose of any of their properties,
assets or rights in excess of the aggregate amount of $5,000,000 in book value
in each fiscal year of Borrower.
8.6 DISTRIBUTIONS IN RESPECT OF EQUITY. Borrower and its consolidated
subsidiaries shall not directly or indirectly redeem any of Borrower's shares of
capital stock or declare any dividends in any year on any class of Borrower's
capital stock in excess of the aggregate of fifty percent (50%) of a rolling
average of positive pretax income with respect to the current and prior fiscal
year of Borrower.
8.7 LOANS TO AFFILIATES. Except for advances for travel and expenses to
their officers, directors, managers, general partners or employees in the
ordinary course of their business, Borrower and its consolidated subsidiaries
shall not make deposits, investments, advances or loans in or to any Affiliates
that have not executed and delivered a Guaranty as described in Section 5, in
excess of $15,000,000 in the aggregate in each fiscal year of Borrower. All
transactions with Affiliates shall be bona fide arms length transactions that
are no less favorable to Borrower and its consolidated subsidiaries than would
be a similar transaction with a non-affiliated third person.
8.8 DEPOSITS, INVESTMENTS, ADVANCES OR LOANS. Borrower and its
consolidated subsidiaries shall not make or permit to exist deposits,
investments, advances or loans (other than deposits, investments, advances or
loans existing on the date of the execution of this Agreement and disclosed to
the Agent in writing on or prior to such date) in or to Affiliates or any other
Person, except: (a) investments in short term direct obligations of the United
States Government (b) investment grade corporate and state and local government
securities; (c) certificates of deposit or demand deposit accounts issued by or
maintained with a bank satisfactory to the Agent in the Agent's reasonable
determination; (d) deposits, investments, advances or loans to officers,
directors, employees, or Affiliates as and when permitted by Section 8.7; (e)
secured loans in the ordinary course of business; and (f) unsecured loans and/or
investments that are in the same line or lines of business as presently engaged
in by Borrower and its consolidated subsidiaries not to exceed $15,000,000 in
the aggregate in each fiscal year of Borrower.
9 DEFAULT AND RIGHTS AND REMEDIES; THE AGENT.
9.1 LIABILITIES. Upon a Matured Default, the Agent may with the consent of
the Required Lenders, and shall at the request of the Required Lenders, by
notice to Borrower and the Lenders, (i) declare the Commitments to be
terminated, whereupon such obligations and the Commitments of each Lender shall
terminate, and (ii) declare all of the Liabilities to be due and payable,
whereupon the Liabilities shall become and be due and payable, without
presentment, demand, protest or further notice (including without limitation,
notice of intent to accelerate and notice of acceleration) of any kind, all of
which are expressly waived by Borrower. Anything herein to the contrary
notwithstanding, it is understood that no Lender shall have the right to
individually enforce any Financing Agreement which is entered into with or for
the Agent, such enforcement residing with the Agent as contemplated by the
following Section 9.2 of this Agreement and by the applicable provisions of the
other Financing Agreements.
9.2 RIGHTS AND REMEDIES. Upon the occurrence and during the continuance of
any Matured Default, the Agent may with the consent of the Required Lenders
(subject to the provisions of the other Financing Agreements), and shall at the
direction of the Required Lenders, proceed to protect and enforce the rights of
the Lenders as set forth in this Section 9.2. The Agent may proceed by suit in
equity, by action at law or both, whether for the specific performance of any
covenant or agreement contained in this Agreement or in any other Financing
Agreement or in aid of the exercise of any power granted in this Agreement or
any other Financing Agreement, (i) to enforce the payment of the Liabilities, or
(ii) to foreclose upon any liens, claims, security interests and/or encumbrances
granted pursuant to this Agreement and other Financing Agreements in the manner
set forth therein; it being intended that no remedy conferred herein or in any
of the other Financing Agreements is to be exclusive of any other remedy, and
each and every remedy contained herein or in any other Financing Agreement shall
be cumulative and shall be in addition to every other remedy given hereunder and
under the other Financing Agreements, or at any time existing at law or in
equity or by statute or otherwise. Agent shall have, in addition to any other
rights and remedies contained in this Agreement or in any of the other Financing
Agreements, all of the rights and remedies of a secured party under the Code or
other applicable laws.
9.3 WAIVER OF DEMAND. Borrower expressly waives demand, presentment,
protest, and notice of nonpayment, notice of intent to accelerate and notice of
acceleration. Borrower also waives the benefit of all valuation, appraisal and
exemption laws.
9.4 WAIVER OF NOTICE. Upon the occurrence and during the continuance of
any Matured Default, Borrower waives, to the fullest extent permitted by
applicable law, all rights to notice and hearing of any kind prior to the
exercise by the Agent of the Agent's rights.
9.5 AUTHORIZATION AND ACTION. Each Lender appoints the Agent as its Agent
under, and irrevocably authorizes the Agent (subject to Section 9.11) to take
such action on its behalf and to exercise such powers under any Financing
Agreement as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto. Without limitation of the
foregoing, each Lender expressly authorizes the Agent to execute, deliver, and
perform its obligations under each of the Financing Agreements to which the
Agent is a party, and to exercise all rights, powers, and remedies that the
Agent may have thereunder. As to any matters not expressly provided for by this
Agreement, the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act, or to refrain from acting (and shall
be fully protected in so acting or refraining from acting), upon the
instructions of the Required Lenders, and such instructions shall be binding
upon all the Lenders and all holders of any Note; provided however, that the
Agent shall not be required to take any action which exposes the Agent to
personal liability or which is contrary to this Agreement or applicable law. The
Agent agrees to give to each Lender prompt notice of each notice given to it by
Borrower pursuant to the terms of any Financing Agreement.
9.6 AGENT'S RELIANCE, ETC. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to any Lender for any action taken
or omitted to be taken by it or them under or in connection with any Financing
Agreement, except for its or their own gross negligence or willful misconduct.
Without limiting the generality of the foregoing, the Agent: (a) may treat the
original or any successor holder of any Note as the holder thereof until it
receives notice from the Lender which is the payee of such Note concerning the
assignment of such Note; (b) may employ and consult with legal counsel
(including counsel for Borrower), independent public accountants, and other
experts selected by it and shall not be liable to any Lender for any action
taken, or omitted to be taken, in good faith by it or them in accordance with
the advice of such counsel, accountants, or experts received in such
consultations and shall not be liable for any negligence or misconduct of any
such counsel, accountants or other experts; (c) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any
opinions, certifications, statements, warranties or representations made in or
in connection with any Financing Agreement; (d) shall not have any duty to any
Lender to ascertain or to inquire as to the performance or observance of any of
the terms, covenants, or conditions of any Financing Agreement or any other
instrument or document furnished pursuant thereto or to satisfy itself that all
conditions to and requirements for any Loan have been met or that Borrower is
entitled to any Loan or to inspect the property (including the books and
records) of Borrower; (e) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Financing Agreement or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of this Agreement by acting upon any notice, consent, certificate, or
other instrument or writing (which may be by telegram, cable, telex, or
otherwise) believed by it to be genuine and signed or sent by the proper party
or parties.
9.7 NOTICES OF DEFAULTS. Except as provided in this Section 9.7, the Agent
shall not be deemed to have knowledge of the occurrence of a Default or a
Matured Default unless the Agent has received written notice from a Lender or
Borrower specifying such Default or Matured Default and stating that such notice
is a "Notice of Default". Notwithstanding the foregoing, the Agent shall be
deemed to have knowledge of the occurrence of a Default or a Matured Default:
(a) consisting of the non-payment of principal or interest, on or before the
fifth day after the due date of such principal or interest, (b) on the date the
Agent has received a Compliance Certificate of Borrower as required by Section
7.1, which Compliance Certificate discloses (without review of any financial
statements attached thereto) the existence of any Default or Matured Default,
and (c) ten (10) Business Days after the date the Agent has received a
Compliance Certificate of Borrower as required by Section 7.1, which Compliance
Certificate (after review of any financial statements attached thereto) would
disclose the existence of any Default or Matured Default. In the event that the
Agent obtains such knowledge of the occurrence of a Default or a Matured
Default, the Agent shall within three (3) Business Days thereafter, give prompt
notice thereof to the Lenders. The Agent shall (subject to Sections 9.1 and 9.2)
take such action with respect to such Default or Matured Default as may be
directed by the Required Lenders; provided that, unless and until the Agent
shall have received the directions referred to in Sections 9.1 and 9.2, the
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Matured Default as it shall
deem advisable and in the best interest of the Lenders.
9.8 THE AGENT AS A LENDER, AFFILIATES. With respect to its Commitment, any
Loan made by it, and the Note issued to it, the Agent shall have the same rights
and powers under this Agreement as any other Lender and may exercise the same as
though it were not the Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include the Agent in its individual capacity. The
Agent and its Affiliates may accept deposits from, lend money to, act as trustee
under indentures of, and generally engage in any kind of business with,
Borrower, any of its respective Affiliates and any Person who may do business
with or own securities of Borrower or any such Affiliate, all as if the Agent
were not the Agent and without any duty to account therefor to the Lenders.
9.9 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender agrees that it
has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of Borrower and its decision to enter into the transactions
contemplated by the Financing Agreements and that it will, independently and
without reliance upon the Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decisions in taking or not taking action under any Financing
Agreement. The Agent shall not be required to keep itself informed as to the
performance or observance by Borrower or any other Person of any Financing
Agreement or to
inspect the properties or books of Borrower. Except for notices, reports, and
other documents and information expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of Borrower (or any of
their Affiliates) which may come into the possession of the Agent or any of its
Affiliates. Notwithstanding the foregoing, the Agent will, upon the request of
any Lender, provide to such Lender, at such Lender's expense, copies of any and
all written information provided to the Agent by Borrower.
9.10 INDEMNIFICATION. Notwithstanding anything to the contrary herein
contained, the Agent shall be fully justified in failing or refusing to take any
action unless it shall first be indemnified to its satisfaction by the Lenders
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, and disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against the
Agent in any way relating to or arising out of its taking or continuing to take
any action. Each Lender agrees to indemnify the Agent (to the extent not
reimbursed by Borrower), on a pro-rata basis according to such Lender's
Commitments, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out of any
Financing Agreement or any action taken or omitted by the Agent under any
Financing Agreement; provided that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, or disbursements resulting from the gross negligence or
willful misconduct of the Agent; and provided further, that it is the intention
of each Lender to indemnify the Agent against the consequences of the Agent's
own negligence, whether such negligence be sole, joint, concurrent, active or
passive. Without limiting the foregoing, each Lender agrees to reimburse the
Agent promptly upon demand for its pro-rata share, according to such Lender's
Commitments of any out-of-pocket expenses (including attorneys' fees) incurred
by the Agent in connection with the preparation, administration, or enforcement
of, or legal advice in respect of rights or responsibilities under, any
Financing Agreement, to the extent that the Agent is not reimbursed for such
expenses by Borrower.
9.11 SUCCESSOR AGENT. The Agent may resign at any time as Agent under the
Financing Agreements by giving written notice thereof to the Lenders and
Borrower and may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Agent with, provided that no Default has
occurred and is continuing hereunder, the prior written consent of Borrower,
such consent not to be unreasonably withheld. If no successor Agent shall have
been so appointed by the Required Lenders or shall have accepted such
appointment within sixty (60) days after the retiring Agent's giving of notice
of resignation or the Required Lenders' removal of the Agent, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent with, provided
that no Default has occurred and is continuing hereunder, the prior written
consent of Borrower, such consent not to be unreasonably withheld, which shall
be a commercial bank or other financial institution 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 shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement.
After the retiring Agent's resignation or removal as Agent, the provisions of
Section 9.10 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
9.12 VERIFICATION OF BORROWING NOTICES. The natural Person signing this
Agreement on behalf of Borrower (or any one of them, if more than one), or any
natural Person designated by them (or any one of them) shall be presumed to have
the authority to request Advances or request the issuance of Letters under this
Agreement. The Agent shall have no duty to verify the authenticity of the
signature appearing on any notice of borrowing or request for the issuance of a
Letter, and with respect to any oral request for an Advance or request for the
issuance of a Letter, the Agent shall have no duty to verify the identity of any
Person representing himself as one of the natural Persons authorized to make
such request on behalf of Borrower. Neither the Agent nor any Lender shall incur
any liability to Borrower in acting upon any telephonic notice referred to above
which the Agent or such Lender believes in good faith to have been given by a
duly authorized Person authorized to borrow on behalf of Borrower or for
otherwise acting in good faith.
10 MISCELLANEOUS.
10.1 TIMING OF PAYMENTS. For purposes of determining the outstanding
balance of the Liabilities, including without limitation, the computations of
interest which may from time to time be owing to the Agent or the Lenders, the
receipt by the Agent of any check or any other item of payment, shall not be
treated as a payment on account of the Liabilities until such check or other
item of payment is actually received by the Agent and is paid to the Agent in
cash or a cash equivalent.
10.2 ATTORNEYS' FEES AND COSTS. If at any time the Agent employs counsel
in connection with any matters contemplated by or arising out of this Agreement,
whether: (a) to commence, defend, or intervene in any litigation or to file a
petition, complaint, answer, motion or other pleading; (b) to take any other
action in or with respect to any suit or proceeding (bankruptcy or otherwise);
(c) to consult with officers of the Agent to advise the Agent or to draft
documents for the Agent in connection with any of the foregoing or in connection
with any release of the Agent's claims or any proposed extension, amendment or
refinancing of the Liabilities; or (d) to enforce any rights of the Agent to
collect any of the Liabilities; then in any of such events, all of the
reasonable attorneys' fees arising from such services, and any related expenses,
costs and charges, including without limitation, all fees of all paralegals,
legal assistants and other staff employed by such attorneys whether outside the
Agent or in the Agent's legal department, together, if not paid promptly by
Borrower, with interest at the highest interest rate then payable by Borrower
under this Agreement or any other Financing Agreement, shall constitute
additional Liabilities, payable on demand. In addition, if a Matured Default has
occurred and is continuing, and thereafter any Lender employs counsel in
connection with, arising out of, or any way related to, protecting, exercising
or enforcing this Agreement or the
other Financing Agreements or (x) to commence, defend or intervene in any
litigation or to file a petition, complaint, answer, motion or other pleading;
(y) to take any other action in or with respect to any suit or proceeding
(bankruptcy or otherwise); or (z) to enforce any rights of such Lender to
collect any of the Liabilities; then in any of such events, all of the
reasonable attorneys' fees arising from such services, and any expenses, costs
and charges relating thereto, including without limitation, all fees of all
paralegals, legal assistants and other staff employed by such attorneys whether
outside the Lender or in the Lender's legal department, together, if not paid
promptly by Borrower, with interest at the highest interest rate then payable by
Borrower under this Agreement or any other Financing Agreement, shall constitute
additional Liabilities, payable on demand. This Section 10.2 shall survive the
termination of this Agreement.
10.3 EXPENDITURES BY THE AGENT. In the event that Borrower shall fail to
pay costs or expenses which Borrower is, under any of the terms hereof or of any
of the other Financing Agreements, required to pay, the Agent may, in the
Agent's sole discretion and without obligation to do so, make expenditures for
any or all of such purposes, and the amount so expended, together, if not paid
promptly by Borrower, with interest at the highest interest rate then payable by
Borrower under this Agreement or any other Financing Agreement, shall constitute
additional Liabilities, payable on demand.
10.4 THE AGENT'S COSTS AND EXPENSES AS ADDITIONAL LIABILITIES. Borrower
shall reimburse the Agent for all expenses and fees paid or incurred in
connection with the documentation, negotiation and closing of the Loans and
other financial accommodations described in this Agreement (including without
limitation, filing fees, recording fees, document or recording taxes, search
fees, appraisal fees and expenses, and the fees and expenses of the Agent's
attorneys, paralegals, and legal assistants, whether outside the Agent or in the
Agent's legal department, and whether such expenses and fees are incurred prior
to or after the Closing Date). Borrower further agrees to reimburse the Agent
for all expenses and fees paid or incurred in connection with the documentation
of any renewal or extension of the Loans, any additional financial
accommodations, or any other amendments to this Agreement. All costs and
expenses incurred by the Agent with respect to such negotiation and
documentation, together, if not paid promptly by Borrower, with interest at the
highest interest rate then payable by Borrower under this Agreement or any other
Financing Agreement, shall constitute additional Liabilities, payable on demand.
10.5 CLAIMS AND TAXES. Borrower agrees to indemnify and hold the Agent and
the Lenders harmless from and against any and all claims, demands, liabilities,
losses, damages, penalties, costs, and expenses (including without limitation,
reasonable attorneys' fees) relating to or in any way arising out of the
possession, use, operation or control of any assets of Borrower and its
consolidated subsidiaries, or arising out of or related to this Agreement or the
other Financing Agreements, which agreement to indemnify and hold the Agent and
the Lenders harmless shall survive the termination of this Agreement. Borrower
and its consolidated subsidiaries shall pay or cause to be paid all taxes and
other governmental charges assessed against Borrower and its consolidated
subsidiaries, or payable by Borrower and its consolidated subsidiaries, at such
times and in such manner as to prevent any penalty from accruing or any lien or
charge from attaching to their property, provided, however, that they shall have
the right
to contest in good faith, by an appropriate proceeding promptly initiated and
diligently conducted, the validity, amount or imposition of any such tax, and
upon such good faith contest to delay or refuse payment thereof, if: (a)
Borrower establishes adequate reserves to cover such contested taxes; and (b)
such contest does not have a material adverse effect on the financial condition
of Borrower or the ability of Borrower to pay any of the Liabilities.
10.6 CUSTODY AND PRESERVATION OF COLLATERAL. The Agent shall be deemed to
have exercised reasonable care in the custody and preservation of any collateral
in the Agent's possession if the Agent takes such action for that purpose as
Borrower shall request in writing, but failure by the Agent to comply with any
such request shall not of itself be deemed a failure to exercise reasonable
care, and no failure by the Agent or any Lender to preserve or protect any right
with respect to such collateral against prior parties, or to do any act with
respect to the preservation of such collateral not so requested by Borrower,
shall of itself be deemed a failure to exercise reasonable care in the custody
or preservation of such collateral.
10.7 INSPECTION. The Agent (by and through its officers and employees), or
any Person designated by the Agent in writing (including officers and employees
of the other Lenders), shall have the right from time to time, to call at
Borrower's place or places of business during reasonable business hours, and,
without hindrance or delay, to: (a) inspect, audit, check and make copies of and
extracts from Borrower's books, records, journals, orders, receipts and any
correspondence and other data relating to the business of Borrower and its
consolidated subsidiaries or to any transactions between the parties to this
Agreement; (b) make such verification as the Agent may consider reasonable under
the circumstances; and (c) review operating procedures, review maintenance of
property and discuss the affairs, finances and business of Borrower and its
consolidated subsidiaries with Borrower's officers, employees or directors.
10.8 EXAMINATION OF BANKING RECORDS. Borrower consents to the examination
by the Agent (by and through its officers and employees), or any Person
designated by the Agent in writing (including officers and employees of the
other Lenders), whether or not there shall have occurred a Default or a Matured
Default, of any and all of banking records of Borrower and its consolidated
subsidiaries, wherever they may be found, and directs any Person which may be in
control or possession of such records (including without limitation, any bank,
other financial institution, accountant or lawyer) to provide such records to
the Agent and the Agent's officers, employees and agents, upon their request.
Such examination may be conducted by the Agent with or without notice to
Borrower at the option of the Agent, any such notice being waived by Borrower.
10.9 GOVERNMENTAL REPORTS. Borrower will furnish to the Agent, upon the
reasonable request of the Agent, copies of the reports of examinations or
inspections of Borrower and its consolidated subsidiaries by all Governmental
Authorities, and if Borrower fails to furnish such copies to the Agent, Borrower
authorizes all such Government Authorities to furnish to the Agent copies of
their reports of examinations or inspections of Borrower and its consolidated
subsidiaries.
10.10 RELIANCE BY THE AGENT, THE ISSUER AND THE LENDERS. All covenants,
agreements, representations and warranties made herein by Borrower shall,
notwithstanding any investigation by the Agent or any of the Lenders, be deemed
to be material to and to have been relied upon by the Agent, the Issuer and the
Lenders.
10.11 PARTIES. Whenever in this Agreement there is reference made to any
of the parties, such reference shall be deemed to include, wherever applicable,
a reference to the respective successors and assigns of Borrower, the Agent, the
Lenders and the Issuer. Borrower shall not assign any of it rights or delegate
any of its duties under this Agreement or any of the other Financing Agreements
without the prior written consent of the Lenders.
10.12 APPLICABLE LAW; SEVERABILITY. This Agreement shall be construed in
all respects in accordance with, and governed by, the laws and decisions of the
State of Colorado and the laws, regulations and decisions of the United States
applicable to national banks. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provisions or the remaining provisions of this Agreement.
10.13 SUBMISSION TO JURISDICTION; WAIVER OF BOND AND TRIAL BY JURY. WITH
RESPECT TO ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, CLAIMS, DEMANDS, DEBTS,
DAMAGES, COSTS AND EXPENSES, WHATSOEVER, WHETHER BASED ON STATUTE, COMMON LAW,
PRINCIPLES OF EQUITY OR OTHERWISE, ARISING OUT OF ANY MATTER, THING OR EVENT
WHICH IS DIRECTLY OR INDIRECTLY RELATED TO THIS AGREEMENT, BORROWER CONSENTS TO
THE JURISDICTION OF ANY LOCAL, STATE, OR FEDERAL COURT LOCATED WITHIN THE CITY
AND COUNTY OF DENVER, COLORADO AND WAIVES ANY OBJECTION WHICH BORROWER MAY HAVE
BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING
IN ANY SUCH COURT AND WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON
BORROWER, AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY MAIL OR
MESSENGER DIRECTED TO BORROWER AT THE ADDRESS SET FORTH IN SECTION 10.19.
SERVICE, SO MADE, SHALL BE DEEMED TO BE COMPLETE UPON THE EARLIER OF ACTUAL
RECEIPT OR THREE (3) DAYS AFTER THE SAME SHALL HAVE BEEN POSTED. AT THE OPTION
OF THE AGENT, BORROWER WAIVES, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY,
AND WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR
THIS WAIVER, BE REQUIRED OF THE AGENT.
10.14 APPLICATION OF PAYMENTS; WAIVER. Payments made by Borrower under
this Agreement shall generally be applied first to any costs or fees owing by
Borrower to the Agent or any Lender, shall be applied second to any interest
payments owing hereunder which are due and unpaid, shall be applied third to any
outstanding principal owing hereunder, and shall be applied fourth to interest
accrued but not yet due. Notwithstanding any contrary provision
contained in this Agreement or in any of the other Financing Agreements,
Borrower irrevocably waives the right to direct the application of any and all
payments at any time received by the Agent from Borrower, and Borrower
irrevocably agrees that the Agent shall have the continuing exclusive right to
apply and reapply any and all payments received at any time against the
Liabilities, in such manner as the Agent may deem advisable, notwithstanding any
entry by the Agent upon any of the Agent's books and records. Provided, however,
this Section 10.14 shall not apply to any transactions unrelated to this
Agreement in which the Agent or its affiliates may have accepted deposits from,
lent money to, acted as trustee under indentures of, or generally engaged in
business with Borrower, any Affiliates or any Person who may do business with or
own securities of Borrower or any such Affiliate.
10.15 MARSHALING; PAYMENTS SET ASIDE. The Agent and the Lenders shall be
under no obligation to marshal any assets in favor of Borrower or against or in
payment of any or all of the Liabilities. To the extent that Borrower makes a
payment or payments to the Agent or any Lender exercises a right of setoff, and
such payment or payments or the proceeds of such setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
10.16 SECTION TITLES. The section titles contained in this Agreement shall
be without substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties.
10.17 CONTINUING EFFECT. This Agreement and all of the other Financing
Agreements shall continue in full force and effect so long as any Liabilities
shall be owed to the Agent and/or any of the Lenders and (even if there shall be
no Liabilities outstanding) so long as the Agent and/or any of the Lenders
remains committed to make Loans or issue Letters under this Agreement.
10.18 NO WAIVER. The Agent's or the Required Lenders' failure, at any time
or times hereafter, to require strict performance by Borrower of any provision
of this Agreement or the other Financing Agreements shall not waive, affect or
diminish any right of the Agent or the Required Lenders thereafter to demand
strict compliance and performance therewith. Any suspension or waiver by the
Agent or the Required Lenders of any Default or Matured Default under this
Agreement or any of the other Financing Agreements, shall not suspend, waive or
affect any other Default or Matured Default under this Agreement or any of the
other Financing Agreements, whether the same is prior or subsequent thereto and
whether of the same or of a different kind or character. None of the
undertakings, agreements, warranties, covenants and representations of Borrower
contained in this Agreement or any of the other Financing Agreements and no
Default or Matured Default under this Agreement or any of the other Financing
Agreements, shall be deemed to have been suspended or waived by the Agent or the
Required Lenders unless such suspension or waiver is in writing signed by an
officer of the
Agent or each of the Required Lenders (as applicable) and is directed to
Borrower specifying such suspension or waiver.
10.19 NOTICES. Except as otherwise expressly provided herein, any notice
required or desired to be served, given or delivered pursuant to this Agreement
shall be in writing, and shall be sent by manual delivery, facsimile
transmission, overnight courier or United States mail (postage prepaid)
addressed to the party to be notified as follows:
(a) If to the Agent at:
U.S. Bank National Association
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
with a copy to:
Xxxxxxxx Xxxx Killin Brittan & Ray, LLC
000 Xx. Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
(b) If to Borrower at:
The Andersons, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxx, V.P. of Finance / Treasurer
with a copy to:
The Andersons, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Counsel / Xxxxxxxxx Xxxx
or, as to each party, addressed to such other address as shall be designated by
such party in a written notice to the other parties. All such notices shall be
deemed given on the date of delivery if manually delivered, on the date of
sending if sent by facsimile transmission, on the first business day after the
date of sending if sent by overnight courier, or three (3) days after the date
of mailing if mailed.
10.20 REGULATORY CHANGES. In the event any Governmental Authority (i)
subjects the Lenders or any of them or any of their respective lending offices
to any new or additional charge, fee, withholding, duty or tax of any kind with
respect to any Loans, Letters, LC Obligations or
other Liabilities hereunder, (ii) changes the method or basis of taxation of
such Loans, Letters, LC Obligations or other Liabilities, except for changes in
the rate of tax on the overall net income of such Lender or its lending office
imposed by the jurisdiction in which such Lender's principal executive office or
lending office is located, or (iii) changes the reserve or deposit requirements
applicable to such Loans, Letters, LC Obligations or other Liabilities
(including, without limitation, the imposition, modification or deemed
application of any reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board of Governors of
the Federal Reserve System, but excluding with respect to any LIBOR Rate Loans
any such requirement included in an applicable LIBOR Rate) against assets of,
deposits with or for the account of any Lender, or its lending office, and
including without limitation, the issuance of a request or directive regarding
capital adequacy (whether or not having the force of law) that has the effect of
reducing the rate of return on such Lender's capital as a consequence of its
obligations under this Agreement to a level below that which such Lender could
have achieved but for such adoption, change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy)), then in
any such event, Borrower shall pay to such Lender such additional amounts as
will compensate such Lender for such costs or lost income resulting thereby as
reasonably determined by such Lender.
10.21 LIBOR RATE LOANS. Without limiting the generality of Section 10.20,
anything in this Agreement to the contrary notwithstanding, if any Lender shall
notify the Agent that: (i) the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or that any central
bank or other Governmental Authority asserts that it is unlawful to fund or
maintain LIBOR Rate Loans (whether or not such assertion carries the force of
law), (ii) deposits in U.S. Dollars (in the applicable amounts) are not being
offered to it in the interbank eurodollar market for any requested Interest
Period, (iii) by reason of circumstances affecting the interbank eurodollar
market adequate and reasonable means do not exist for ascertaining the
applicable LIBOR Rate; (iv) that the applicable LIBOR Rate will not adequately
and fairly reflect the cost to such Lender of funding their LIBOR Rate Loans for
such Interest Period or (v) that the making or funding of LIBOR Rate Loans is
impracticable for such Lender, the obligation of such Lender to make, rollover
or to convert Loans into LIBOR Rate Loans shall be suspended until such Lender
shall notify the Agent and the Borrower that the circumstances causing such
suspension no longer exist, and the existing LIBOR Rate Loans of such Lender
shall automatically convert, on and as of the date of such notification, into
Base Rate Loans; provided that each Lender represents and warrants to Borrower
that as of the later of (i) the Closing Date or (ii) the date on which it shall
have executed an Assignment and Acceptance pursuant to Section 10.23, it has no
actual knowledge that any of the circumstances set forth above exist.
10.22 TAXES. Without limiting the generality of Section 10.20:
(a) Except as otherwise provided in Section 10.22(d), any and all payments
by Borrower hereunder or under the Notes shall be made free and clear of and
without deduction for any and all present or future taxes, deductions, charges
or withholdings, and all liabilities with respect thereto, including without
limitation, such taxes, deductions, charges, withholdings or liabilities
whatsoever imposed, assessed, levied or collected by any taxing authority and
all (other than to the extent due to the gross negligence or willful misconduct
of any Lender)
interest, penalties, expenses or similar liabilities with respect thereto
("TAXES"), excluding, however, from the definition of Taxes, in the case of each
Lender and the Agent, taxes imposed on its income (including penalties and
interest payable in respect thereof), and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or the Agent (as the case may
be) is organized or any political subdivision thereof. If Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender or the Agent (other than payments for
which taxes are withheld pursuant to the last sentence of Section 10.22(d)), (i)
the sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 10.22) such Lender or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made and (ii) Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law, less
any credits due to Borrower.
(b) In addition, Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Notes or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes (hereinafter included within the definition of "TAXES").
(c) Borrower will indemnify each Lender and the Agent for the full amount
of Taxes (including without limitation, any Taxes imposed by any jurisdiction on
amounts payable under this Section 10.22) paid by such Lender or the Agent (as
the case may be) and any liability arising therefrom or with respect thereto,
whether or not such Taxes were correctly or legally asserted. This
indemnification shall be made within five (5) days from the date such Lender or
the Agent (as the case may be) makes written demand therefor; provided however,
to the extent that any Lender is reimbursed for any Taxes that were incorrectly
or illegally asserted with respect to Borrower, such Lender shall promptly
return to Borrower the amount of such reimbursement net of any costs of recovery
incurred by such Lender and/or the Agent, together with any interest that may
have been paid by the taxing jurisdiction with respect thereto, to the extent
Borrower has actually paid such Lender with respect thereto.
(d) Prior to the date of any Lender becoming a Lender hereunder, and from
time to time thereafter if requested by Borrower or the Agent each Lender
organized outside the United States shall provide the Agent and Borrower with
the forms prescribed by the Internal Revenue Service of the United States
(including, without limitation, Form W-8 BEN, Form W-8 ECI, or Form W-8 IMY)
certifying such Lender's exemption from United States withholding taxes with
respect to all payments to be made to such Lender hereunder and under the Notes.
Unless Borrower and the Agent have received forms or other documents
satisfactory to them indicating that payments hereunder or under any Note are
not subject to United States withholding tax or are subject to such tax at a
rate reduced by an applicable tax treaty, Borrower or the Agent shall withhold
taxes from such payments for the account and benefit of Borrower at the
applicable statutory rate in the case of payments to or for any Lender organized
under the laws of a jurisdiction outside the United States; provided however,
that all such withholding for such Lender shall cease upon delivery by such
Lender of the applicable forms to Borrower and Agent.
(e) Promptly after the date on which payment of any Taxes are due pursuant
to applicable law, Borrower will, at the request of the Agent or any Lender,
furnish to the Agent or such Lender evidence in form and substance satisfactory
to the Agent or such Lender, that Borrower has met its obligations under this
Section 10.22.
(f) Without prejudice to the survival of any other agreement of Borrower,
the agreement and obligations of Borrower contained in this Section 10.22 shall
survive the payment in full of the Liabilities.
10.23 ASSIGNMENTS AND PARTICIPATION.
(a) After the Closing Date (and, provided that no Default has occurred and
is continuing, subject to the prior written consent of Borrower, such consent
not to be unreasonably withheld) each Lender may assign to any Person (the
"ASSIGNEE") all or a portion of its rights and obligations under this Agreement
(including without limitation, all or a portion of its Commitments and the Notes
held by it); provided however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all of the assigning Lender's rights
and obligations under this Agreement, (ii) the total amount of the Commitment or
Commitments (based on the original Commitment or Commitments without giving
effect to any repayments or prepayments) so assigned to an Assignee or to an
Assignee and its Affiliates taken as a whole shall equal or exceed $5,000,000,
(iii) the remaining Commitment or Commitments (based on the original Commitment
or Commitments without giving effect to any repayments or prepayments) held by
the assigning Lender after giving effect to any such assignment shall equal or
exceed $5,000,000, (iv) the assignment will not cause Borrower to incur any
additional liability or expense and (v) the parties to each such assignment
shall execute and deliver to the Agent for its acceptance an Assignment and
Acceptance in substantially the form attached as Schedule B ("ASSIGNMENT AND
ACCEPTANCE"), together with any Note or Notes subject to such assignment and a
processing and recordation fee of $5,000. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be the date on which such
Assignment and Acceptance is accepted by the Agent, (vi) the Assignee thereunder
shall 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 Lender under the Financing Agreements and (vii) the
Lender assignor thereunder shall be deemed to have relinquished its rights and
to be released from its obligations under the Financing Agreements, to the
extent (and only to the extent) that its rights and obligations hereunder have
been assigned by it pursuant to such Assignment and Acceptance (and, in the case
of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under the Financing Agreements, such
Lender shall cease to be a party thereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the Assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Financing Agreements or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Financing Agreements or
any other instrument or document furnished pursuant thereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of Borrower or the performance or observance
by Borrower of any of its obligations under the Financing Agreements or any
other instrument or document furnished pursuant hereto; (iii) such Assignee
confirms that it has received a copy of the Financing Agreements, together with
copies of the financial statements referred to in Section 7.16 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
Assignee will, independently and without reliance upon the Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such Assignee appoints and
authorizes the Agent to take such action as the Agent on its behalf and to
exercise such powers under the Financing Agreements as are delegated to the
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; and (vi) such Assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Financing Agreements are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in Section 10.19 a
copy of each Assignment and Acceptance delivered to and accepted by it.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender, together with any Note or Notes subject to such assignment,
the Agent shall, if such Assignment and Acceptance has been completed, (i)
accept such Assignment and Acceptance and (ii) give prompt notice thereof to
Borrower. Within five (5) Business Days after its receipt of such notice,
Borrower, at its own expense, shall execute and deliver to the Agent in exchange
for the surrendered Note or Notes, a new Note or new Notes to the order of such
Assignee in an amount equal to the Commitment or Commitments assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment or Commitments, a portion of which has been assigned, a
new Note or New Notes to the order of the assigning Lender in an amount equal to
the Commitment or Commitments retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit 2A. Upon receipt by the Agent of such new Note or Notes conforming to
the requirements set forth in the preceding sentences, the Agent shall return to
Borrower such surrendered Note or Notes, marked to show that such surrendered
Note or Notes has (have) been replaced, renewed and extended by such new Note or
Notes.
(e) Each Lender may sell participation to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including without limitation, all or a portion of its Commitments and
the Note held by it); provided however, that (i) such Lender's obligations under
this Agreement (including without limitation, its Commitments to
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the sale of the participation will not cause Borrower to
incur any additional liability, and (v) Borrower, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement,
provided that no participant shall be entitled to recover under the
above-described provisions an amount in excess of the proportionate share which
such participant holds of the original aggregate principal amount hereunder to
which the assigning Lender would otherwise be entitled.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 10.23, 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;
provided that, prior to any such disclosure, the assignee or participant or
proposed assignee or participant shall agree in writing to preserve the
confidentiality of any confidential information relating to Borrower received by
it from such Lender.
(g) Any Lender may assign and pledge all or any of the instruments held by
it as collateral security; provided that any payment made by Borrower for the
benefit of such assigning and/or pledging Lender in accordance with the terms of
the Financing Agreements shall satisfy Borrower's obligations under the
Financing Agreements in respect thereof to the extent of such payment. No such
assignment and/or pledge shall release the assigning and/or pledging Lender from
its obligations hereunder.
10.24 MAXIMUM INTEREST. No agreements, conditions, provisions or
stipulations contained in this Agreement or in any of the other Financing
Agreements, or any Default or Matured Default, or any exercise by the Agent of
the right to accelerate the payment of the maturity of principal and interest,
or to exercise any option whatsoever, contained in this Agreement or any of the
other Financing Agreements, or the arising of any contingency whatsoever, shall
entitle the Agent to collect, in any event, interest exceeding the maximum
authorized by law, and in no event shall Borrower be obligated to pay interest
exceeding such rate, and all agreements, conditions or stipulations, if any,
which may in any event or contingency whatsoever operate to bind, obligate or
compel Borrower to pay a rate of interest exceeding the maximum allowed by law,
shall be without binding force or effect, at law or in equity, to the extent
only of the excess of interest over such maximum interest allowed by law. In the
event any interest is charged in excess of the maximum allowed by law
("EXCESS"), Borrower acknowledges and stipulates that any such charge shall be
the result of an accidental and bona fide error, and such Excess shall be,
first, if a Matured Default has occurred and is continuing, applied to reduce
the principal of any Liabilities due, and, second, returned to Borrower, it
being the intention of the parties not to enter at any time into a usurious or
otherwise illegal relationship. Borrower and the Agent both recognize that, with
fluctuations of index rates and applicable margins, such an unintentional result
could inadvertently occur. By the execution of this Agreement, Borrower
covenants that: (a) the credit or return of any Excess shall constitute the
acceptance by Borrower of such Excess; and (b) Borrower shall not seek or pursue
any other
remedy, legal or equitable, against the Agent based, in whole or in part, upon
the charging or receiving of any interest in excess of the maximum authorized by
law. For the purpose of determining whether or not any Excess has been
contracted for, charged or received by the Agent, all interest at any time
contracted for, charged or received by the Agent in connection with the
Liabilities shall be amortized, prorated, allocated and spread in equal parts
during the entire term of this Agreement. Notwithstanding the foregoing, if for
any period of time interest on any of Borrower's obligations is calculated at
the Highest Lawful Rate rather than the rate otherwise applicable under this
Agreement, and thereafter such applicable rate becomes less than the Highest
Lawful Rate, the rate of interest payable on the Borrower's obligations shall
remain at the Highest Lawful Rate until the Lenders have received the amount of
interest which such Lenders would have received during such period on the
Borrower's obligations had the rate of interest not been limited to the Highest
Lawful Rate during such period.
10.25 ADDITIONAL ADVANCES. All fees, charges, expenses, costs,
expenditures, obligations, liabilities, losses, penalties and damages incurred
or suffered by the Agent and for which Borrower is bound to indemnify or
reimburse the Agent under this Agreement (other than those which may be paid
without demand therefor, by the Agent initiated Advances pursuant to Section
2.1) may, at the option of the Agent, be paid by Agent-initiated Advances
pursuant to Section 2.1 if such amounts remain unpaid for a period of ten (10)
days after the Agent has made demand therefor.
10.26 LOAN AGREEMENT CONTROLS. If there are any conflicts or
inconsistencies among this Agreement and any of the other Financing Agreements,
the provisions of this Agreement shall prevail and control.
10.27 OBLIGATIONS SEVERAL. The obligations of each Lender under each
Financing Agreement to which it is a party are several, and no Lender shall be
responsible for any obligation or Commitment of any other Lender under any
Financing Agreement to which it is a party. Nothing contained in any Financing
Agreement to which it is a party, and no action taken by any Lender pursuant
thereto, shall be deemed to constitute the Lenders to be a partnership, an
association, a joint venture, or any other kind of entity.
10.28 PRO RATA TREATMENT. All Loans under, and all payments and other
amounts received in connection with, this Agreement (including, without
limitation, amounts received as a result of the exercise by any Lender of any
right of set-off), shall be effectively shared by the Lenders ratably in
accordance with the respective Pro Rata Percentages of the Lenders. If any
Lender shall obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) on account of the principal of,
or interest on, or fees in respect of, any Note held by it (other than pursuant
to Section 2.3(b), 2.5(a), 10.20, 10.21 or 10.22 or the normal and customary
processing fees charged by an Issuer in connection with the issuance of or
drawings under a Letter) in excess of its Pro Rata Percentage of payments on
account of similar Notes obtained by all the Lenders, such Lender shall purchase
from the other Lenders such participation in the Notes or Loans made by them as
shall 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 shall be rescinded and such Lender shall 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 (a) the amount of such Lender's required repayment to (b) 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.
Disproportionate payments of interest shall be shared by the purchase of
separate participation in unpaid interest obligations, disproportionate payments
of fees shall be shared by the purchase of separate participation in unpaid fee
obligations, and disproportionate payments of principal shall be shared by the
purchase of separate participation in unpaid principal obligations. Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 10.28 may, to the fullest extent permitted by law,
exercise all 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. Notwithstanding the foregoing, a
Lender may receive and retain an amount in excess of its Pro Rata Percentage to
the extent, but only to the extent, that such excess results from such Lender's
Highest Lawful Rate exceeding another Lender's Highest Lawful Rate.
10.29 CONFIDENTIALITY. Each of the Agent and the Lenders agrees that it
will use its best efforts to keep confidential, in accordance with its customary
procedures for handling confidential information and in accordance with safe and
sound banking practices, any proprietary information of Borrower in writing by
Borrower, as being proprietary and confidential; provided that the Agent or any
Lender may disclose any such information (a) to enable it to comply with any
Governmental Requirement applicable to it, (b) in connection with the defense of
any litigation or other proceeding brought against it arising out of the
transactions contemplated by this Agreement and the other Financing Agreements,
(c) in connection with the supervision and enforcement of the rights and
remedies of the Agent and Lenders under any Financing Agreement and (d) as set
forth in Section 10.23.
10.30 INDEPENDENCE OF COVENANTS. All covenants under this Agreement and
the other Financing Agreements shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or be otherwise within the
limitations of, another covenant shall not avoid the occurrence of a Default or
a Matured Default if such action is taken or condition exists.
10.31 AMENDMENTS AND WAIVERS. Any term, covenant, agreement or condition
of this Agreement or the other Financing Agreements may be amended only by a
written amendment executed by Borrower, the Required Lenders and, if the rights
or duties of the Agent are affected thereby, the Agent, or compliance therewith
only may be waived (either generally or in a particular instance and either
retroactively or prospectively), if Borrower shall have obtained the consent in
writing of the Required Lenders and, if the rights or duties of the Agent are
affected thereby, the Agent, provided however, that without the consent in
writing of the holders of all outstanding Notes and LC Obligations, or of all
Lenders if no Notes or Letters are outstanding, no such amendment or waiver
shall (a) change the amount or postpone the date of payment of any scheduled
payment or required payment of principal of the Notes or LC Obligations or
reduce the rate or extend the time of payment of interest on the Notes, or
reduce the amount of
principal thereof, or modify any of the provisions of the Notes with respect to
the payment or prepayment thereof, (b) give to any Note any preference over any
other Notes, (c) amend the definition of Required Lenders, (d) alter, modify or
amend the provisions of this Section 10.31, (e) reduce the fees required under
Section 2.5, (f) alter, modify or amend the provisions of Sections 9.1 or 9.2 of
this Agreement, (g) alter, modify or amend any Lender's right hereunder to
consent to any action, make any request or give any notice, or (h) release any
guarantor of any of the Liabilities. Without the consent in writing of the
affected Lender, no such amendment or waiver shall increase the amount of or the
Pro Rata Percentage of any Commitment of such Lender or extend the term of any
Commitment of such Lender. Any such amendment or waiver shall apply equally to
all Lenders and all the holders of the Notes and/or LC Obligations and shall be
binding upon them, upon each future holder of any Note or LC Obligation and upon
Borrower, whether or not such Note or Letter shall have been marked to indicate
such amendment or waiver. No such amendment or waiver shall extend to or affect
any obligation not expressly amended or waived.
10.32 REPLACEMENT OF A LENDER. If a Lender (other than the Agent as a
Lender) becomes a Replacement Candidate (as defined below), Borrower shall have
the right to require such Lender to assign to another lender or other
institution selected by Borrower and reasonably satisfactory to the Agent (which
may be one or more of the Lenders) the Commitments and the Notes held by such
Lender pursuant to the terms of an appropriately completed Assignment and
Acceptance in accordance with Section 10.23; provided, that neither the Agent
nor any Lender shall have any obligation to Borrower to find any such lender or
other institution and in order for Borrower to replace a Lender, Borrower must
require such replacement within three (3) months of the date the Lender became a
Replacement Candidate. Each Lender (other than the Agent as a Lender) agrees to
its replacement at the option of Borrower pursuant to this Section 10.32;
provided, that the assignee selected by Borrower shall purchase such Lender's
interest in the Loans owed to such Lender for cash in an aggregate amount equal
to the aggregate unpaid principal thereof, all unpaid interest accrued thereon,
all unpaid fees accrued for the account of such Lender and all other amounts
then owing to such Lender hereunder or under any other Financing Agreement. A
Lender will become a "REPLACEMENT CANDIDATE" if (i) it has made a demand under
Sections 10.20, 10.21 or 10.22, (ii) it has defaulted on any obligation under
this Agreement or (iii) it has become insolvent and its assets become subject to
a receiver, liquidator, trustee, custodian, or other officer having similar
powers. The rights of Borrower under this Section 10.32 shall be in addition to
any other rights or remedies Borrower may have at law or in equity as a result
of the events described in the definition of "Replacement Candidate".
10.33 REPRESENTATIONS BY THE LENDERS. Each Lender represents that it is
the present intention of such Lender, as of the date of its acquisition of the
Notes, to acquire the Notes for its account or for the account of its
Affiliates, and not with a view to the distribution or sale thereof that would
be in violation of any applicable laws, and, subject to any applicable laws, the
disposition of such Lender's property shall at all times be within its control.
The Notes have not been registered under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), and may not be transferred, sold or otherwise disposed
of except (a) in a registered offering under the Securities Act; (b) pursuant to
an exemption from the registration provisions of the Securities Act; or (c) if
the Securities Act shall not apply to the Notes or the transactions contemplated
by
the Financing Agreements. Nothing in this Section 10.33 shall affect the
characterization of the Loans and the transactions contemplated hereunder as
commercial lending transactions.
10.34 COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement, any other
Financing Agreement and any subsequent amendment to any of them may be executed
in several counterparts, each of which shall be construed together as one
original. Facsimile signatures on this Agreement, any other Financing Agreement
and any subsequent amendment to any of them shall be considered as original
signatures.
10.35 SET-OFF. In the event that a Matured Default has occurred and is
continuing, Borrower gives and confirms to each Lender a right of set-off of all
moneys, securities and other property of Borrower (whether special, general or
limited) and the proceeds thereof, at any time delivered to remain with or in
transit in any manner to such Lender, its correspondent or its agents from or
for Borrower, whether for safekeeping, custody, pledge, transmission, collection
or otherwise or coming into possession of such Lender in any way, and also, any
balance of any deposit accounts and credits of Borrower with, and any and all
claims of security for the payment of the Liabilities owed by Borrower to such
Lender, contracted with or acquired by the Lender, whether such liabilities and
obligations be joint, several, absolute, contingent, secured, unsecured, matured
or unmatured, and Borrower authorizes such Lender at any time or times, without
prior notice, to apply such money, securities, other property, proceeds,
balances, credits of claims, or any part of the foregoing, to such liabilities
in such amounts as it may select, whether such Liabilities be contingent,
unmatured or otherwise, and whether any collateral security therefor is deemed
adequate or not. The rights described herein shall be in addition to any
collateral security described in any separate agreement executed by Borrower.
10.36 BINDING EFFECT. This Agreement and all of the other Financing
Agreements set forth the legal, valid and binding obligations of Borrower, the
Agent and the Lenders and are enforceable against Borrower in accordance with
their respective terms. Should more than one Person be a Borrower under this
Agreement or any Note, the obligations of each such Person shall be joint and
several. The Lenders may settle, release, compromise, collect or otherwise
liquidate the obligations of any Borrower, any guarantor of such obligations,
and any security or collateral for such obligations or for any such guaranty, in
any manner, without affecting or impairing the obligations of any Borrower.
10.37 FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND THE OTHER FINANCING
AGREEMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first above written.
THE ANDERSONS, INC.
BY /s/ Xxxx X. Xxxxx
-----------------
ITS VICE PRESIDENT, FINANCE & TREASURER
U.S. BANK NATIONAL ASSOCIATION
BY /s/ Xxxx X. Xxxxxxx
-------------------
ITS SENIOR VICE PRESIDENT
COBANK, ACB
BY /s/ S. Xxxxxxx Xxxx
-------------------
ITS VICE PRESIDENT
XXXXXX TRUST AND SAVINGS BANK
BY /s/ Xxxxxx X. Xxxxxxx
---------------------
ITS VICE PRESIDENT
FIFTH THIRD BANK
BY /s/ Xxxxxxx X. Xxxxxx
---------------------
ITS EXECUTIVE VICE PRESIDENT
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK
INTERNATIONAL", NEW YORK
BRANCH
BY /s/ Xxxx Xxxxxxxx
-----------------
ITS EXECUTIVE DIRECTOR
BY /s/ Xxxxx Xxxxxxx
-----------------
ITS EXECUTIVE DIRECTOR
ABN AMRO BANK N.V.
BY /s/ Xxxxxx Noique
-----------------
ITS GROUP VICE PRESIDENT
BY /s/ Xxxx X. Xxxxxxx
-------------------
ITS VICE PRESIDENT
LOAN AGREEMENT
BETWEEN
U. S. BANK NATIONAL ASSOCIATION
LEAD ARRANGER AND AGENT
COBANK, ACB
DOCUMENTATION AGENT
XXXXXX TRUST AND SAVINGS BANK
SYNDICATION AGENT
AND
THE ANDERSONS, INC.
DATED AS OF OCTOBER 30, 2002
FIRST AMENDMENT TO LOAN AGREEMENT
This First Amendment to Loan Agreement ("AMENDMENT") is made as of
December 17, 2002, by and among THE ANDERSONS, INC., an Ohio corporation (the
"BORROWER"), the financial institutions signatory hereto (being at least the
"REQUIRED LENDERS" as of the date of this Amendment) and U.S. BANK NATIONAL
ASSOCIATION, a national banking association ("U.S. BANK"), in its capacity as
Agent for the Lenders (in such capacity, the "AGENT") and as one of the Lenders.
RECITAL
The Borrower and the Lenders desire to amend certain provisions of the
Loan Agreement made as of the 30th day of October, 2002, (as amended, modified,
supplemented, renewed or restated from time to time, the "AGREEMENT").
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in this Amendment, and of any loans or extensions of credit
or other financial accommodations heretofore, now or hereafter made to or for
the benefit of Borrower, the parties agree as follows:
1. Section 7.1 of the Agreement, Financial and Other Information, shall be
amended by striking the words "and consolidating" in each place that they
appear.
2. This Amendment shall be an integral part of the Agreement, and all of
the terms set forth therein are hereby incorporated in this Amendment by
reference, and all terms of this Amendment are hereby incorporated into said
Agreement as if made an original part thereof. All of the terms and conditions
of the Agreement, which are not modified in this Amendment, shall remain in full
force and effect. To the extent the terms of this Amendment conflict with the
terms of the Agreement, the terms of this Amendment shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first herein above written.
THE ANDERSONS, INC.
BY /s/ Xxxx X. Xxxxx
-----------------
ITS VICE PRESIDENT, FINANCE & TREASURER
U.S. BANK NATIONAL ASSOCIATION
BY /s/ Xxxx X. Xxxxxxx
-------------------
ITS SENIOR VICE PRESIDENT
COBANK, ACB
BY /s/ S. Xxxxxxx Xxxx
-------------------
ITS VICE PRESIDENT
XXXXXX TRUST AND SAVINGS BANK
BY /s/ Xxxxxx X. Xxxxxxx
---------------------
ITS VICE PRESIDENT
FIFTH THIRD BANK
BY /s/ Xxxxxxx X. Xxxxxx
----------------------
ITS EXECUTIVE VICE PRESIDENT
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL", NEW
YORK BRANCH
BY /s/ Xxxx Xxxxxxxx
-----------------
ITS EXECUTIVE DIRECTOR
BY /s/ Xxxxx Xxxxxxx
-----------------
ITS EXECUTIVE DIRECTOR
ABN AMRO BANK N. V.
BY /s/ Xxxxxx Noique
-----------------
ITS GROUP VICE PRESIDENT
BY /s/ Xxxx X. Xxxxxxx
-------------------
ITS VICE PRESIDENT
(SIGNATURE PAGE / FIRST AMENDMENT TO LOAN AGREEMENT)
SECOND AMENDMENT TO LOAN AGREEMENT
This Second Amendment to Loan Agreement ("AMENDMENT") is made as of
October 10, 2003, by and among THE ANDERSONS, INC., an Ohio corporation (the
"BORROWER"), the financial institutions signatory hereto (being all of the
Lenders as of the date of this Amendment) and U.S. BANK NATIONAL ASSOCIATION, a
national banking association ("U.S. BANK"), in its capacity as Agent for the
Lenders (in such capacity, the "AGENT") and as one of the Lenders.
RECITAL
This Amendment is made with respect to the Loan Agreement made as of the
30th day of October, 2002, (as amended, modified, supplemented, renewed or
restated from time to time, the "AGREEMENT"). Capitalized terms that are not
defined in this Amendment shall have the meanings assigned to them in the
Agreement. The Borrower and the Lenders desire to extend the term of the
Commitments and to otherwise amend certain provisions of the Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in this Amendment, and of any loans or extensions of credit
or other financial accommodations heretofore, now or hereafter made to or for
the benefit of Borrower, the parties agree as follows:
1. Section 1.1 of the Agreement, GENERAL DEFINITIONS, is hereby amended by
amending the following definitions to read as follows:
"MATURITY DATE" shall mean, as applicable, the earlier of: (a) as to
the Swing Line or the Line of Credit A, September 30, 2004; (b) as to the
Line of Credit B and LC Obligations, September 30, 2006; and (c) in all
cases, the earlier date of termination in whole of the Commitments
pursuant to Sections 2.3(c), 2.8 or 9.1.
2. Section 10.19 of the Agreement, Notices, shall be amended to by adding
the following two sentences to the end of such section, to read as follows:
Notwithstanding the foregoing, Borrowing Base Certificates referred
to in Section 7.1(c), may be furnished to the Agent and the Lenders by
E-Mail to such E-Mail address or addresses as shall be designated by the
Agent and the Lenders in a written notice to the Borrower. All such E-Mail
deliveries shall be deemed given on the date of delivery."
3. This Amendment shall be an integral part of the Agreement, and all of
the terms set forth therein are hereby incorporated in this Amendment by
reference, and all terms of this Amendment are hereby incorporated into said
Agreement as if made an original part thereof. All of the terms and conditions
of the Agreement, which are not modified in this Amendment, shall remain in full
force and effect. To the extent the terms of this Amendment conflict with the
terms of the Agreement, the terms of this Amendment shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first herein above written.
THE ANDERSONS, INC.
BY /s/ Xxxx X. Xxxxx
-----------------
ITS VICE PRESIDENT, FINANCE & TREASURER
U.S. BANK NATIONAL ASSOCIATION
BY /s/ Xxxx X. Xxxxxxx
--------------------
ITS SENIOR VICE PRESIDENT
COBANK, ACB
BY /s/ S. Xxxxxx Xxxx
------------------
ITS VICE PRESIDENT
XXXXXX TRUST AND SAVINGS BANK
BY /s/ Xxxxxx X. Xxxxxxx
---------------------
ITS VICE PRESIDENT
FIFTH THIRD BANK
BY /s/ Xxxxxxx X. Xxxxxx
------------------------
ITS EXECUTIVE VICE PRESIDENT
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL", NEW
YORK BRANCH
BY /s/ Xxxx Xxxxxxxx
-----------------
ITS EXECUTIVE DIRECTOR
BY /s/ Xxxxx Xxxxxxx
-----------------
ITS EXECUTIVE DIRECTOR
ABN AMRO BANK N.V.
BY /s/ Xxxxxx Noique
--------------------
ITS GROUP VICE PRESIDENT
BY /s/ Xxxx X. Xxxxxxx
--------------------
ITS VICE PRESIDENT
(SIGNATURE PAGE TO SECOND AMENDMENT TO LOAN AGREEMENT - THE ANDERSONS, INC.)
THIRD AMENDMENT TO LOAN AGREEMENT
This Third Amendment to Loan Agreement ("AMENDMENT") is made as of January
30, 2004, by and among THE ANDERSONS, INC., an Ohio corporation (the
"BORROWER"), and the financial institutions signatory hereto (being at least the
Required Lenders as of the date of this Amendment).
RECITAL
This Amendment is made with respect to the Loan Agreement made as of the
30th day of October, 2002, (as amended, modified, supplemented, renewed or
restated from time to time, the "AGREEMENT"). Capitalized terms that are not
defined in this Amendment shall have the meanings assigned to them in the
Agreement. The Borrower desires to form a new special purpose subsidiary,
together with direct and indirect wholly owned subsidiaries thereof, to finance
and purchase approximately 6,730 rail cars and locomotives (collectively the
"TOP CAT TRANSACTION"). In that regard, Borrower requires that the Lenders waive
certain other terms of the Agreement and to otherwise amend certain other terms
of the Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in this Amendment, and of any loans or extensions of credit
or other financial accommodations heretofore, now or hereafter made to or for
the benefit of Borrower, the parties agree as follows:
1. Section 1.1 of the Agreement, GENERAL DEFINITIONS, is hereby
amended by adding and amending the following definitions to read as follows:
"BORROWER AND ITS CONSOLIDATED SUBSIDIARIES" shall mean Borrower and
its consolidated subsidiaries except Top Cat Subsidiaries, except as that
term is used in Section 6.13 of the Agreement, Correctness of Financial
Statements, Section 6.18 of the Agreement, Solvency, Subsections (a) and
(b) of Section 7.1 of the Agreement, Financial and Other Information, and
Section 7.8 of the Agreement, Books and Records, in which cases "Borrower
and its consolidated subsidiaries" shall mean Borrower and its
consolidated subsidiaries including Top Cat Subsidiaries.
"BORROWER OR ANY CONSOLIDATED SUBSIDIARY OF BORROWER" shall mean
Borrower or any consolidated subsidiary of Borrower except a Top Cat
Subsidiary.
"CHANGE OF CONTROL" shall mean, (a) as to Borrower, (i) the voting
stock of Borrower shall cease to be publicly traded, or (ii) more than 50%
of the voting stock of Borrower is owned or controlled, directly or
indirectly by one Person or an affiliated group of Persons, and (b) as to
any consolidated subsidiary of Borrower, existing as such on the date of
this Agreement, the voting stock or voting or controlling equity interest
of such consolidated subsidiary shall cease to
be wholly owned by Borrower, except as the result of a merger or asset
consolidation with another consolidated subsidiary of Borrower except Top
Cat Subsidiaries.
"FINANCIAL PERFORMANCE LEVEL" shall mean the applicable level of
Borrower's financial performance determined in accordance with the table
and paragraph set forth below, provided, however, notwithstanding the
definition thereof, Debt to Capitalization Ratio shall be determined as if
the Top Cat Subsidiaries were not consolidated subsidiaries of Borrower.
Financial
Performance
Level Debt to Capitalization Ratio
----------- ----------------------------
Level 1 Greater than 65%
Level 2 Less than or equal to 65% but greater than 60%
Level 3 Less than or equal to 60% but greater than 55%
Level 4 Less than or equal to 55% but greater than 50%
Level 5 Less than or equal to 50%
"TOP CAT SUBSIDIARIES" shall mean, collectively, TOP CAT Holding,
Co., a Delaware corporation, a wholly owned subsidiary of Borrower, and
Cap Acquire, LLC, Cap Acquire Canada, ULC, Cap Acquire Mexico S. de X.X.
de C.V., NARCAT LLC, CARCAT, ULC, and NARCAT Mexico S. de X.X. de C.V.,
the direct and indirect wholly owned subsidiaries of TOP CAT Holding, Co.
(each a "TOP CAT SUBSIDIARY").
"TOP CAT INVESTMENT" shall mean an initial cash investment by the
Borrower, up to the amount of $7,200,000, in one or more Top Cat
Subsidiaries.
2. Section 5.1 of the Agreement, Guaranties, shall be amended to read
as follows:
5.1 GUARANTIES. Borrower agrees to obtain, for the ratable benefit
of the Lenders, the guaranty or guaranties of the following consolidated
subsidiaries of Borrower: The Andersons Agriservices, Inc., The Andersons
Lawn Fertilizer Division, Inc., The Andersons Agricultural Group, L.P.,
The Andersons Technologies, Inc., and TAI Holdings, Inc., the form of
which is attached as Exhibit 5A.
3. Notwithstanding the terms of Section 5.2 of the Agreement,
Additional Guaranties, Borrower shall not be required to obtain guaranties of
any of the Top Cat Subsidiaries.
2
4. Section 7.4 of the Agreement, Financial Covenants and Ratios, shall
be amended to read as follows:
7.4 FINANCIAL COVENANTS AND RATIOS. Borrower shall maintain at all
times: (a) a Tangible Net Worth of not less than $65,000,000; (b) a
Current Ratio Net of Hedged Inventory of not less than 1.25 to 1; (c) a
Debt to Capitalization Ratio of not more than 70%; (d) Working Capital of
not less than $45,000,000; and (e) a ratio of long term debt minus the
non-recourse portion of long term debt to Tangible Net Worth of not more
than 1.25 to 1. Notwithstanding the definitions of the terms used in this
Section 7.4, the amounts referred to therein shall be determined as if the
Top Cat Subsidiaries were not consolidated subsidiaries of Borrower, and
the Borrower shall deliver to the Lenders with each Compliance Certificate
consolidating statements and such other schedules to support the
calculations demonstrating compliance (or non-compliance, as the case may
be) with the Financial Covenants and Ratios set forth in this Section 7.4,
as they were presented prior to the formation of the Top Cat Subsidiaries.
5. Section 8.7 of the Agreement, Loans to Affiliates, shall be amended
to read as follows:
8.7 LOANS TO AFFILIATES. Except for advances for travel and expenses
to their officers, directors, managers, general partners or employees in
the ordinary course of their business, Borrower and its consolidated
subsidiaries shall not make deposits, investments, advances or loans in or
to any Affiliates that have not executed and delivered a Guaranty as
described in Section 5, in excess of $15,000,000 in the aggregate in each
fiscal year of Borrower. All transactions with Affiliates shall be bona
fide arms length transactions that are no less favorable to Borrower and
its consolidated subsidiaries than would be a similar transaction with a
non-affiliated third person. Notwithstanding the forgoing, Borrower shall
be allowed to make the Top Cat Investment, which shall count against the
$15,000,000 amount referred to in the first sentence of this Section 8.7.
Other than the Top Cat Investment, Borrower and its consolidated
subsidiaries shall not make deposits, investments, advances or loans to
any Top Cat Subsidiaries.
6. This Amendment shall be an integral part of the Agreement, and all
of the terms set forth therein are hereby incorporated in this Amendment by
reference, and all terms of this Amendment are hereby incorporated into said
Agreement as if made an original part thereof. All of the terms and conditions
of the Agreement, which are not modified in this Amendment, shall remain in full
force and effect. To the extent the terms of this Amendment conflict with the
terms of the Agreement, the terms of this Amendment shall control.
7. This Agreement shall become effective upon the execution and
delivery to the Agent of: (a) this Third Amendment; and (b) the Guaranty of TAI
Holdings, Inc. Borrower
3
covenants and agrees to deliver to the Agent, on or before the 10th day after
the Top Cat Transaction, an opinion of Borrower's counsel, in form and substance
acceptable to the Agent, stating that counsel is of the opinion that (i) the
formation, capitalization and financing of the Top Cat Subsidiaries did not
result in a Default under the Agreement, as amended by this Third Amendment
(specifically stating that the necessary waivers, consents and/or agreements of
the other persons lending money to the Borrower and its consolidated
subsidiaries have been obtained), and (ii) that the Borrower and its
consolidated subsidiaries do not have and shall not have any liability with
respect to the debts and obligations of the Top Cat Subsidiaries.
8. Upon this Amendment becoming effective, Borrower shall pay an
Amendment Fee of Five Thousand Dollars ($5,000) to each Lender.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first herein above written.
THE ANDERSONS, INC.
BY /s/ Xxxx Xxxxx
------------------------------------
ITS Vice President, Finance & Treasurer
-----------------------------------
U.S. BANK NATIONAL ASSOCIATION
BY /s/ Xxxxxx Xxxxx
------------------------------------
ITS Vice President
-----------------------------------
COBANK, ACB
BY /s/ S. Xxxxxxx Xxxx
------------------------------------
ITS Vice President
-----------------------------------
XXXXXX TRUST AND SAVINGS BANK
BY /s/ Xxxxxx X. Xxxxxxx
------------------------------------
ITS Executive Vice President
-----------------------------------
FIFTH THIRD BANK
BY /s/ Xxxxxxx X. xxxxxx
------------------------------------
ITS Executive Vice President
-----------------------------------
4
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK
INTERNATIONAL", NEW YORK
BRANCH
BY: /s/ Xxxx Xxxxxxxx
-----------------------------------
ITS: Executive Director
----------------------------------
BY: /s/ Xxxxx Xxxxxxx
-----------------------------------
ITS: Executive Director
----------------------------------
ABN AMRO BANK N.V.
BY /s/ Xxxxxx Noique
-----------------------------------
ITS Group Vice President
----------------------------------
BY /s/ Xxxxx X. Xxxxxx
-----------------------------------
ITS Vice President
----------------------------------
5
FOURTH AMENDMENT TO LOAN AGREEMENT
This Fourth Amendment to Loan Agreement ("AMENDMENT") is made as of March
31, 2004, by and among THE ANDERSONS, INC., an Ohio corporation (the
"BORROWER"), and the financial institutions signatory hereto (being at least the
Required Lenders as of the date of this Amendment).
RECITAL
This Amendment is made with respect to the Loan Agreement made as of the
30th day of October, 2002, (as amended, modified, supplemented, renewed or
restated from time to time, the "AGREEMENT"). Capitalized terms that are not
defined in this Amendment shall have the meanings assigned to them in the
Agreement. The Borrower desires to obtain a temporary $20,000,000 line of credit
from U.S. Bank that will act as a temporary overline to the Line of Credit A and
the Line of Credit B provided by the Lenders under the Agreement. In that
regard, Borrower requires that the Lenders waive certain other terms of the
Agreement and to otherwise amend certain other terms of the Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in this Amendment, and of any loans or extensions of credit
or other financial accommodations heretofore, now or hereafter made to or for
the benefit of Borrower, the parties agree as follows:
1. Section 1.1 of the Agreement, GENERAL DEFINITIONS, is hereby amended by
adding and amending the following definitions to read as follows:
"BORROWING BASE LIMIT" shall mean, at any time, an amount equal to
(a) the Borrowing Base minus (b) the sum of (i) the aggregate principal
amount of the Line of Credit A Loan Liabilities, (ii) the aggregate
principal amount of the Line of Credit B Loan Liabilities, (iii) the
aggregate amount of the LC Obligations; and (iv) the aggregate amount
outstanding under the U.S. Bank Line.
"TOTAL ADJUSTED FUNDED DEBT" shall mean as of any particular date
(a) Borrower's consolidated long term debt, (b) plus the current
maturities of Borrower's consolidated long term debt, (c) plus, to the
extent not included in a. or b., the Liabilities, (d) minus, to the extent
included in a. or b., non-recourse debt, (e) minus the Base Amount for
Grain; (f) plus, to the extent not included in a. or b., the aggregate
amount outstanding under the U.S. Bank Line.
"U.S. BANK LINE" shall mean a $20,000,000 line of credit extended by
U.S. Bank and available to the Borrower and its consolidated subsidiaries
through June 30, 2004, upon substantially the same terms as set forth in
the Agreement, to be drawn only when the Line of Credit A Loan Commitments
and the Line of Credit B Loan Commitments are fully extended, and to be
repaid prior to the repayment of any portion of the Line of Credit A and
the Line of Credit B.
2. Section 8.3 of the Agreement, Indebtedness, shall be amended to read as
follows:
8.3 INDEBTEDNESS. Borrower and its consolidated subsidiaries shall
not incur, create, assume, become or be liable in any manner with respect
to, or permit to exist, any obligations or indebtedness, direct or
indirect fixed or contingent, to finance working capital, except: (a) the
Liabilities; or (b) letter of credit obligations to Persons other than a
Lender in an amount not to exceed $500,000; (c) trade obligations,
Producer Payables and normal accruals in the ordinary course of their
business not yet due and payable, or with respect to which they are
contesting in good faith the amount or validity thereof by appropriate
proceedings, and then only to the extent that they have set aside on their
books adequate reserves therefor, if appropriate under GAAP; and (d)
obligations under and with respect to the U.S. Bank Line.
3. This Amendment shall be an integral part of the Agreement, and all of
the terms set forth therein are hereby incorporated in this Amendment by
reference, and all terms of this Amendment are hereby incorporated into said
Agreement as if made an original part thereof. All of the terms and conditions
of the Agreement, which are not modified in this Amendment, shall remain in full
force and effect. To the extent the terms of this Amendment conflict with the
terms of the Agreement, the terms of this Amendment shall control.
4. This Agreement shall become effective upon the execution and delivery
to the Agent of this Fourth Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first herein above written.
THE ANDERSONS, INC.
BY /s/ Xxxx X. Xxxxx
-----------------
ITS VICE PRESIDENT, FINANCE & TREASURE
U.S. BANK NATIONAL ASSOCIATION
BY /s/ Xxxx X. Xxxxxxx
-------------------
ITS SENIOR VICE PRESIDENT
COBANK, ACB
BY /s/ S. Xxxxxxx Xxxx
-------------------
ITS VICE PRESIDENT
XXXXXX TRUST AND SAVINGS BANK
BY /s/ Xxxxxx X. Xxxxxxx
---------------------
ITS VICE PRESIDENT
FIFTH THIRD BANK
BY /s/ Xxxxxxx X. Xxxxxx
---------------------
ITS EXECUTIVE VICE PRESIDENT
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL", NEW
YORK BRANCH
BY /s/ Xxxx Xxxxxxxx
-----------------
ITS EXECUTIVE DIRECTOR
BY /s/ Xxxxx Xxxxxxx
-----------------
ITS EXECUTIVE DIRECTOR
ABN AMRO BANK N.V.
BY /s/ Xxxxxx Noique
-----------------
ITS GROUP VICE PRESIDENT
BY /s/ Xxxx X. Xxxxxxx
-------------------
ITS VICE PRESIDENT
{SIGNATURE PAGE TO FOURTH AMENDMENT TO LOAN AGREEMENT - THE ANDERSONS, INC.}
FIFTH AMENDMENT TO LOAN AGREEMENT
This Fifth Amendment to Loan Agreement ("AMENDMENT") is made as of April
[Insert Date], 2004, by and among THE ANDERSONS, INC., an Ohio corporation (the
"BORROWER"), and the financial institutions signatory hereto (being all of the
Lenders as of the date of this Amendment).
RECITAL
This Amendment is made with respect to the Loan Agreement made as of the
30th day of October, 2002, (as amended, modified, supplemented, renewed or
restated from time to time, the "AGREEMENT"). Capitalized terms that are not
defined in this Amendment shall have the meanings assigned to them in the
Agreement. The Borrower desires to obtain a temporary increase in the Line of
Credit A of $40,000,000 (i.e. from $150,000,000 to $190,000,000) that will be
used in part to take out the $20,000,000 U.S. Bank Line that was previously
approved by the Required Lenders. In that regard, Borrower requires that the
Lenders amend certain terms of the Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in this Amendment, and of any loans or extensions of credit
or other financial accommodations heretofore, now or hereafter made to or for
the benefit of Borrower, the parties agree as follows:
1. Section 1.1 of the Agreement, GENERAL DEFINITIONS, is hereby amended by
adding and amending the following definitions to read as follows:
"LINE OF CREDIT A LOAN COMMITMENT" shall mean as to any Lender, such
Lender's Pro Rata Percentage of $190,000,000 through JULY 31, 2004 and
$150,000,000 thereafter, as set forth opposite such Lender's name under
the heading "Line of Credit A Loan Commitments" on Schedule A-2, subject
to Assignment and Acceptance in accordance with Section 10.23, and as such
amount may be reduced or terminated from time to time pursuant to Sections
2.3(c), 2.8 or 9.1; and "LINE OF CREDIT A LOAN COMMITMENTS" shall mean
collectively, the Line of Credit A Loan Commitments for all the Lenders.
"LINE OF CREDIT B LOAN COMMITMENT" shall mean as to any Lender, such
Lender's Pro Rata Percentage of $50,000,000, as set forth opposite such
Lender's name under the heading " Line of Credit B Loan Commitments" on
Schedule A-2, subject to Assignment and Acceptance in accordance with
Section 10.23, and as such amount may be reduced or terminated from time
to time pursuant to Sections 2.3(c), 2.8 or 9.1; and "LINE OF CREDIT B
LOAN COMMITMENTS" shall mean collectively, the Line of Credit B Loan
Commitments for all the Lenders.
2. Section 2.1.1 of the Agreement, SWING LINE, is hereby amended to
read as follows:
2.1.1 SWING LINE. The Agent agrees to make advances ("SWING LINE
ADVANCES") to Borrower from time to time on any one or more Business Days
from and after the date of this Agreement, upon Borrower's written
(including facsimile) notice or oral notice followed by written (including
facsimile) confirmation, given by Borrower to the Agent not later than
12:00 noon (local time in Denver) on the Business Day of any proposed
Advance, through and including the Maturity Date, in amounts up to the
lesser of: (a) $25,000,000 through July 31, 2004 and $20,000,000
thereafter, minus, in each case, the outstanding Swing Line Advances; or
(b) the Available Amount A ("SWING LINE"). The Swing Line Advances shall
be evidenced by and repayable in accordance with the terms of Borrower's
Line of Credit A Note to the Agent. The Agent, upon the written approval
of the Required Lenders, may elect to make Swing Line Advances to Borrower
in excess of the dollar amount stated above (but not in excess of the
Available Amount), and any such Swing Line Advances shall also be governed
by the terms hereof.
3. In respect of the temporary $40,000,000 increase in the Line of Credit
A Loan Commitments as provided for in this Amendment, Borrower hereby agrees to
pay the Agent the following one time commitment fees for the account of each of
the Lenders (including the Agent) payable on the date of this Amendment as
follows:
Name of Lender Fee $ Amount
-------------- ------------
U.S. Bank National Association $ 3,375
CoBank, ACB $ 3,000
Xxxxxx Trust and Savings Bank $ 3,000
Fifth Third Bank $ 2,250
Rabobank International $ 1,875
ABN AMRO Bank N.V. $ 1,500
--------
Total $ 15,000
4. This Amendment shall be an integral part of the Agreement, and all of
the terms set forth therein are hereby incorporated in this Amendment by
reference, and all terms of this Amendment are hereby incorporated into said
Agreement as if made an original part thereof. All of the terms and conditions
of the Agreement, which are not modified in this Amendment, shall remain in full
force and effect. To the extent the terms of this Amendment conflict with the
terms of the Agreement, the terms of this Amendment shall control.
5. This Amendment shall become effective upon the execution and delivery
to the Agent of (i) this Fifth Amendment, (ii) new Line of Credit A Notes
payable to each of the Lenders in the increased amounts of their respective Line
of Credit A Loan Commitments, (iii) a Secretary's Certificate as to Directors'
Resolutions, and (iv) an Opinion of Legal Counsel.
6. The first Advance under the Swing Line and/or the Line of Credit A,
after this Amendment becomes effective, shall be used to payoff the U.S. Bank
Line and the U.S. Bank
Line shall be terminated.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first herein above written.
THE ANDERSONS, INC.
BY /s/ Xxxx X. Xxxxx
-----------------
ITS VICE PRESIDENT, FINANCE & TREASURER
U.S. BANK NATIONAL ASSOCIATION
BY /s/ Xxxx. X. Xxxxxxx
--------------------
ITS SENIOR VICE PRESIDENT
COBANK, ACB
BY /s/ S. Xxxxxxx Xxxx
-------------------
ITS VICE PRESIDENT
XXXXXX TRUST AND SAVINGS BANK
BY /s/ Xxxxxx X. Xxxxxxx
---------------------
ITS VICE PRESIDENT
FIFTH THIRD BANK
BY /s/ Xxxxxxx X. Xxxxxx
----------------------
ITS EXECUTIVE VICE PRESIDENT
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL", NEW
YORK BRANCH
BY /s/ Xxxx Xxxxxxxx
-----------------
ITS EXECUTIVE DIRECTOR
BY /s/ Xxxxx Xxxxxxx
-----------------
ITS EXECUTIVE DIRECTOR
ABN AMRO BANK N.V.
BY /s/ Xxxxxx Noique
-----------------
ITS GROUP VICE PRESIDENT
BY /s/ Xxxx X. Xxxxxxx
-------------------
ITS VICE PRESIDENT
{SIGNATURE PAGE TO FIFTH AMENDMENT TO LOAN AGREEMENT - THE ANDERSONS, INC.}
SIXTH AMENDMENT TO LOAN AGREEMENT
This Sixth Amendment to Loan Agreement ("AMENDMENT") is made as of
September 27, 2004, by and among THE ANDERSONS, INC., an Ohio corporation (the
"BORROWER"), the financial institutions signatory hereto (being all of the
Lenders as of the date of this Amendment) and U.S. BANK NATIONAL ASSOCIATION, a
national banking association ("U.S. BANK"), in its capacity as Agent for the
Lenders (in such capacity, the "AGENT") and as one of the Lenders.
RECITAL
This Amendment is made with respect to the Loan Agreement made as of
October 30, 2002, (as amended, modified, supplemented, renewed or restated from
time to time, the "AGREEMENT"). Capitalized terms that are not defined in this
Amendment shall have the meanings assigned to them in the Agreement. The
Borrower and the Lenders desire to extend the term of the Commitments and to
otherwise amend certain provisions of the Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in this Amendment, and of any loans or extensions of credit
or other financial accommodations heretofore, now or hereafter made to or for
the benefit of Borrower, the parties agree as follows:
1. Section 1.1 of the Agreement, GENERAL DEFINITIONS, is hereby amended by
amending the following definitions to read as follows:
"AGENT'S LETTER" shall mean the letter agreement between Borrower
and the Agent dated September 27, 2004.
"APPLICABLE MARGIN" shall mean with respect to Swing Line Advances,
Line of Credit A Advances or Line of Credit B Advances which are Daily
Reset LIBOR Rate Loans, Base Rate Loans or LIBOR Rate Loans, Commitment
Fees for the Line of Credit A Loan Commitments (referred to below under
"Line A"), Commitment Fees for the Line of Credit B Loan Commitments
(referred to below under "Line B"), Standby LC Fees and Commercial LC
Fees, the rates per annum set forth below for the then applicable
Financial Performance Level:
The initial Financial Performance Level shall be Level 5. The Agent will
review Borrower's financial performance as of each fiscal quarter end,
beginning with fiscal quarter end September 30, 2004, after its receipt of
Borrower's financial statements and Compliance Certificate as of the end
of such fiscal quarter, and will confirm Borrower's determination as to
whether Borrower's Financial Performance Level based on such fiscal
quarter is Xxxxx 0, Xxxxx 0, Xxxxx 0, Xxxxx 4 or Level 5. As so confirmed
by the Agent, Borrower's Financial Performance Level will determine the
Applicable Margin effective for Swing Line Advances, Line of Credit A
Advances, the Commitment Fees for the Line of Credit A Loan Commitments,
Commitment Fees for the Line of Credit B Loan Commitments (Line B),
Standby LC Fees and Commercial LC Fees for the three month period
beginning on the first
Business Day of the third month following the end of such fiscal quarter
if the Agent receives such quarter end financial statements prior to the
last five (5) Business Days of the second month following the end of such
fiscal quarter. If the Agent receives such quarter end financial
statements during or after the last five (5) Business Days of the second
month following the end of such fiscal quarter (but prior to the end of
the third month following the end of such fiscal quarter), any reduction
in the Applicable Margin will be delayed until the tenth day of the month
following the month in which the Agent receives such quarter end financial
statements, but any increase in the Applicable Margin will be effective as
of the first Business Day of the third month following the end of such
fiscal quarter. If the Agent does not receive such quarter end statements
prior to the end of the third month following the end of such fiscal
quarter, Borrower's Financial Performance Level shall be deemed to be
Xxxxx 0 beginning with the tenth day of the fourth month following the end
of such fiscal quarter and shall remain at Level 1 until the 15th Business
Day after such financial statements are received by the Agent and a
determination by the Agent that a different Financial Level shall apply
during the remainder of the three month period.
"BORROWING BASE" shall mean an amount determined and computed as set
forth in Exhibit 1A-2.
"BORROWING BASE CERTIFICATE" shall mean a certificate substantially
in the form of Exhibit 1B-2, signed as indicated thereon, setting forth
the amount of Borrower's Borrowing Base.
"INTEREST PERIOD" shall mean: (a) with respect to LIBOR Rate Loans,
the period of time for which the LIBOR Rate shall be in effect as to any
LIBOR Rate Loan and which shall be a seven day or one, two, three or six
month period of time, commencing with the borrowing date of the LIBOR Rate
Loan or the expiration date of the immediately preceding Interest Period,
as the case may be, applicable to and ending on the effective date of any
rate change or rate continuation made as provided in Section 2.2 as
Borrower may specify in the notice of borrowing delivered pursuant to
Section 2.2 or the notice of interest conversion delivered pursuant to
Section 2.2; provided however, that (b) any Interest Period which would
otherwise end on a day which is not a Business Day shall be extended to
the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (c) no Interest Period shall extend beyond the
Maturity Date; and (d) there shall be no more than five (5) seven day
Interest Periods and no more than twenty (20) Interest Periods (of all
types) for LIBOR Rate Loans at any one time.
"LINE OF CREDIT A LOAN COMMITMENT" shall mean as to any Lender, such
Lender's Pro Rata Percentage of $100,000,000, as set forth opposite such
Lender's name under the heading "Line of Credit A Loan Commitments" on
Schedule A-3, subject to Assignment and Acceptance in accordance with
Section 10.23, and as such amount may be reduced or terminated from time
to time pursuant to Sections 2.3(c), 2.8 or 9.1; and
"LINE OF CREDIT A LOAN COMMITMENTS" shall mean collectively, the Line of
Credit A Loan Commitments for all the Lenders.
"LINE OF CREDIT B LOAN COMMITMENT" shall mean as to any Lender, such
Lender's Pro Rata Percentage of $100,000,000, as set forth opposite such
Lender's name under the heading " Line of Credit B Loan Commitments" on
Schedule A-3, subject to Assignment and Acceptance in accordance with
Section 10.23, and as such amount may be reduced or terminated from time
to time pursuant to Sections 2.3(c), 2.8 or 9.1; and "LINE OF CREDIT B
LOAN COMMITMENTS" shall mean collectively, the Line of Credit B Loan
Commitments for all the Lenders.
"MATURITY DATE" shall mean, as applicable, the earlier of: (a) as to
the Swing Line or the Line of Credit A, September 30, 2005; (b) as to the
Line of Credit B and LC Obligations, September 30, 2007; and (c) in all
cases, the earlier date of termination in whole of the Commitments
pursuant to Sections 2.3(c), 2.8 or 9.1.
2. Section 2.1.1 of the Agreement, Swing Line, is hereby amended to read
as follows:
2.1.1 SWING LINE. The Agent agrees to make advances ("SWING LINE
ADVANCES") to Borrower from time to time on any one or more Business Days
from and after the date of this Agreement, upon Borrower's written
(including facsimile) notice or oral notice followed by written (including
facsimile) confirmation, given by Borrower to the Agent not later than
1:00 p.m. (local time in Denver) on the Business Day of any proposed
Advance, through and including the Maturity Date, in amounts up to the
lesser of: (a) $30,000,000, the outstanding Swing Line Advances; or (b)
the Available Amount A ("SWING LINE"). The Swing Line Advances shall be
evidenced by and repayable in accordance with the terms of Borrower's Line
of Credit A Note to the Agent. The Agent, upon the written approval of the
Required Lenders, may elect to make Swing Line Advances to Borrower in
excess of the dollar amount stated above (but not in excess of the
Available Amount), and any such Swing Line Advances shall also be governed
by the terms hereof.
3. Section 2.1.2 of the Agreement, Line of Credit A, is hereby amended to
read as follows:
2.1.2 LINE OF CREDIT A. Each Lender severally agrees to make
advances ("LINE OF CREDIT A ADVANCES") to Borrower from time to time on
any one or more Business Days from and after the date of this Agreement
(through the Agent as set forth in Section 2.1.5 or Section 2.2(f)), upon
Borrower's written (including facsimile) notice or oral notice followed by
written (including facsimile) confirmation, given by Borrower to the Agent
not later than 12:00 noon (local time in Denver) on the third Business Day
prior to the date of any proposed LIBOR Rate Loan or upon Borrower's
written (including facsimile) notice or oral notice followed by written
(including facsimile) confirmation, given by Borrower to the Agent not
later
than 12:00 noon (local time in Denver) on the Business Day of the date of
any proposed Base Rate Loan, up to an aggregate principal amount not
exceeding each such Lender's Pro Rata Percentage of the Available Amount A
on such Business Day through the Maturity Date, in aggregate amounts up to
the Available Amount A ("LINE OF CREDIT A"). The Line of Credit A Advances
shall be evidenced by and repayable in accordance with the terms of
Borrower's promissory notes to each of the Lenders ("LINE OF CREDIT A
NOTES"), the form of which is attached as Exhibit 2A.
4. Section 2.1.3 of the Agreement, Line of Credit B, is hereby amended to
read as follows:
2.1.3 LINE OF CREDIT B. Each Lender severally agrees to make
advances ("LINE OF CREDIT B ADVANCES") to Borrower from time to time on
any one or more Business Days from and after the date of this Agreement
(through the Agent as set forth in Section 2.1.5 or Section 2.2(f)), upon
Borrower's written (including facsimile) notice or oral notice followed by
written (including facsimile) confirmation, given by Borrower to the Agent
not later than 12:00 noon (local time in Denver) on the third Business Day
prior to the date of any proposed LIBOR Rate Loan or upon Borrower's
written (including facsimile) notice or oral notice followed by written
(including facsimile) confirmation, given by Borrower to the Agent not
later than 12:00 noon (local time in Denver) on the Business Day of the
date of any proposed Base Rate Loan, up to an aggregate principal amount
not exceeding each such Lender's Pro Rata Percentage of the Available
Amount B on such Business Day through the Maturity Date, in aggregate
amounts up to the Available Amount B ("LINE OF CREDIT B"). The Line of
Credit B Advances shall be evidenced by and repayable in accordance with
the terms of Borrower's promissory notes to each of the Lenders ("LINE OF
CREDIT B NOTES"), the form of which is attached as Exhibit 2B.
5. Subsection (b) of Section 2.1.5 of the Agreement, Equalization
Transfers, shall be amended to read as follows:
(b) At any time in the discretion of the Agent, if the outstanding
Loans are not held according to the Lenders' Pro Rata Percentages, by
reason of Swing Line Advances by the Agent or otherwise, the Agent shall
give notice to the Lenders of the amount of funds to be transferred from
the Agent to the Lenders, or from the Lenders to the Agent, or from one
Lender to another, as the case may be (each such transfer, an
"EQUALIZATION TRANSFER") required to cause the Loans to be held by the
Lenders according to their Pro Rata Percentages. On the next Business Day
following such notice the necessary Equalization Transfers shall be made
in Immediately Available Funds not later than 11:00 a.m. (local time in
Denver); provided, however, Equalization Transfers necessary to avoid the
event described in Section 2.1.5(a)(iii) shall be made on the same
Business Day.
6. Subsection (a) of Section 2.3 of the Agreement, Prepayments;
Termination of the Commitments, shall be amended to read as follows:
(a) Borrower may at any time prepay the outstanding principal amount
of any Loan, in either case in whole or in part, in accordance with this
Section 2.3. With respect to any prepayment, Borrower shall give prior
written notice of any such prepayment to the Agent, which notice shall
state the proposed date of such prepayment (which shall be a Business
Day), the Loans to be prepaid and the aggregate amount of the prepayment,
and which notice shall be delivered to the Agent not later than 12:00 noon
(local time in Denver): (a) with respect to any Loan which is a Base Rate
Loan, on the date of the proposed prepayment, and (b) with respect to any
Loan which is a LIBOR Rate Loan, two (2) Business Days prior to the date
of the proposed prepayment. All prepayments of Base Rate Loans shall be
without premium. All prepayments of LIBOR Rate Loans shall be made
together with accrued and unpaid interest (if any) to the date of such
prepayment on the principal amount prepaid without premium thereon,
provided however, that losses, costs or expenses incurred by any Lender as
described in Section 2.3(b) shall be payable with respect to each such
prepayment. All notices of prepayment shall be irrevocable and the payment
amount specified in each such notice shall be due and payable on the
prepayment date described in such notice, together with, in the case of
LIBOR Rate Loans, accrued and unpaid interest (if any) on the principal
amount prepaid and any amounts due under Section 2.3(b). Borrower shall
have no optional right to prepay the principal amount of any LIBOR Rate
Loan other than as provided in this Section 2.3.
7. Subsection (c) of Section 2.5 of the Agreement, Loan and Letter of
Credit Fees, shall be amended to read as follows:
(c) QUARTERLY NON-USE FEES. Borrower agrees to pay to the Agent for
distribution to the Lenders (based on their respective Pro Rata
Percentages) a quarterly non-use fees ("NON-USE FEES") through the
Maturity Date, calculated using the then applicable rates per annum set
forth in the definition of Applicable Margin, and applied to the daily
average Available Amount A and Available Amount B, respectively. The
quarterly Non-Use Fees shall be due and payable in arrears with respect to
the prior quarter on the first day of each January, April, July and
October hereafter through the Maturity Date. Pro-rated Non-Use Fees shall
be due and payable on the Maturity Date. The quarterly Non-Use Fees shall
be fully earned as they accrue and if not paid timely by Borrower, at the
option of the Agent, shall be paid by Advances pursuant to Section 2.1,
without prior demand by the Agent.
8. Section 7.4 of the Agreement, Financial Covenants and Ratios, shall be
amended to read as follows:
7.4 FINANCIAL COVENANTS AND RATIOS. Borrower shall maintain at all
times: (a) a Tangible Net Worth of not less than $80,000,000; (b) a
Current Ratio Net of Hedged Inventory of not less than 1.25 to 1; (c) a
Debt to Capitalization Ratio of not more than 70%; and (d) Working Capital
of not less than $55,000,000. Notwithstanding the definitions of the terms
used in this Section 7.4, the amounts referred to therein shall be
determined as if
the Top Cat Subsidiaries were not consolidated subsidiaries of Borrower,
and the Borrower shall deliver to the Lenders with each Compliance
Certificate consolidating statements and such other schedules to support
the calculations demonstrating compliance (or non-compliance, as the case
may be) with the Financial Covenants and Ratios set forth in this Section
7.4, as they were presented prior to the formation of the Top Cat
Subsidiaries.
9. Section 10.31 of the Agreement, Amendments and Waivers, shall be
amended to read as follows:
10.31 AMENDMENTS AND WAIVERS.
(a) Except as provided in the following Section 10.31(b), any term,
covenant, agreement or condition of this Agreement or the other Financing
Agreements may be amended only by a written amendment executed by
Borrower, the Required Lenders and, if the rights or duties of the Agent
are affected thereby, the Agent, or compliance therewith only may be
waived (either generally or in a particular instance and either
retroactively or prospectively), if Borrower shall have obtained the
consent in writing of the Required Lenders and, if the rights or duties of
the Agent are affected thereby, the Agent, provided however, that without
the consent in writing of the holders of all outstanding Notes and LC
Obligations, or of all Lenders if no Notes or Letters are outstanding, no
such amendment or waiver shall (a) change the amount or postpone the date
of payment of any scheduled payment or required payment of principal of
the Notes or LC Obligations or reduce the rate or extend the time of
payment of interest on the Notes, or reduce the amount of principal
thereof, or modify any of the provisions of the Notes with respect to the
payment or prepayment thereof, (b) give to any Note any preference over
any other Notes, (c) amend the definition of Required Lenders, (d) alter,
modify or amend the provisions of this Section 10.31, (e) reduce the fees
required under Section 2.5, (f) alter, modify or amend the provisions of
Sections 9.1 or 9.2 of this Agreement, (g) alter, modify or amend any
Lender's right hereunder to consent to any action, make any request or
give any notice, or (h) release any guarantor of any of the Liabilities.
Without the consent in writing of the affected Lender, no such amendment
or waiver shall increase the amount of or the Pro Rata Percentage of any
Commitment of such Lender or extend the term of any Commitment of such
Lender.
(b) Provided that no Default or Matured Default has occurred and is
continuing, the definition of Line of Credit A Loan Commitment may be
amended to increase the total amount thereof to an amount up to
$150,000,000 for a period not to extend beyond the Maturity Date of the
Line of Credit A, by a written amendment executed by Borrower, at least
one Lender and the Agent. One or more Lenders (new or existing), in the
discretion of the Borrower and the Agent, may be offered a share of any
such increase in the Line of Credit A Loan Commitment. In no event shall
such amendment increase the amount of or the Pro Rata Percentage of the
Line of Credit A Loan Commitment of a Lender, without the consent in
writing of that Lender.
(c) Any amendment or waiver shall apply equally to all Lenders and
all the holders of the Notes and/or LC Obligations and shall be binding
upon them, upon each future holder of any Note or LC Obligation and upon
Borrower, whether or not such Note or Letter shall have been marked to
indicate such amendment or waiver. No such amendment or waiver shall
extend to or affect any obligation not expressly amended or waived.
10. To reflect the change in the amount of the Line of Credit A Loan
Commitment and the change in the amount of the Line of Credit B Loan Commitment,
Borrower shall execute and deliver to the Agent, new Notes for each Lender. The
date of this Amendment notwithstanding, for the purpose of calculating Interest,
Commitment Fees, Non-Use Fees and Applicable Margins, the changes in the
definitions of Applicable Margin, Line of Credit A Loan Commitment and Line of
Credit B Loan Commitment and the change in Subsection (c) of Section 2.5 shall
be effective October 1, 2004
11. This Amendment shall be an integral part of the Agreement, and all of
the terms set forth therein are hereby incorporated in this Amendment by
reference, and all terms of this Amendment are hereby incorporated into said
Agreement as if made an original part thereof. All of the terms and conditions
of the Agreement, which are not modified in this Amendment, shall remain in full
force and effect. To the extent the terms of this Amendment conflict with the
terms of the Agreement, the terms of this Amendment shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first herein above written.
THE ANDERSONS, INC.
BY /s/ Xxxx X. Xxxxx
-----------------
ITS VICE PRESIDENT, FINANCE & TREASURER
U.S. BANK NATIONAL ASSOCIATION
BY /s/ Xxxx X. Xxxxxxx
-------------------
ITS SENIOR VICE PRESIDENT
COBANK, ACB
BY /s/ S. Xxxxxxx Xxxx
-------------------
ITS VICE PRESIDENT
XXXXXX TRUST AND SAVINGS BANK
BY /s/ Xxxxxx X. Xxxxxxx
----------------------
ITS VICE PRESIDENT
FIFTH THIRD BANK
BY /s/ Xxxxxxx X. Xxxxxx
---------------------
ITS EXECUTIVE VICE PRESIDENT
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL", NEW
YORK BRANCH
BY /s/ Xxxx Xxxxxxxx
-----------------
ITS EXECUTIVE DIRECTOR
BY /s/ Xxxxx Xxxxxxx
-----------------
ITS EXECUTIVE DIRECTOR
ABN AMRO BANK N.V.
BY /s/ Xxxxxx Noique
-----------------
ITS GROUP VICE PRESIDENT
BY /s/ Xxxx X. Xxxxxxx
-------------------
ITS VICE PRESIDENT
{SIGNATURE PAGE TO SIXTH AMENDMENT TO LOAN AGREEMENT - THE ANDERSONS, INC.}
