EXHIBIT 4(i)(i)
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$155,000,000
364-DAY
REVOLVING
CREDIT AGREEMENT
DATED AS OF MAY 10, 2002
AMONG
WORTHINGTON INDUSTRIES, INC.,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
PNC BANK, NATIONAL ASSOCIATION,
AS SWINGLINE LENDER AND ADMINISTRATIVE AGENT,
AND
FIRST UNION SECURITIES, INC.
AND
PNC CAPITAL MARKETS, INC.,
AS CO-SYNDICATION AGENTS
-----------------------------
FIRST UNION SECURITIES, INC.
AND
PNC CAPITAL MARKETS, INC.,
AS CO-LEAD ARRANGERS
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364-DAY REVOLVING
CREDIT AGREEMENT
This 364-Day Revolving Credit Agreement is dated as of May 10,
2002 and is among WORTHINGTON INDUSTRIES, INC., an Ohio corporation (the
"BORROWER"), the banks and other financial institutions from time to time party
hereto (the "LENDERS"), PNC BANK, NATIONAL ASSOCIATION, Swingline Lender and
Administrative Agent.
The Borrower has requested the Lenders to provide a revolving
credit facility to the Borrower in the aggregate principal amount of
$155,000,000 for the purposes hereinafter set forth. The Lenders are willing to
make the requested credit facility available to the Borrower on the terms and
conditions set forth herein. Accordingly, in consideration of the mutual
agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 DEFINED TERMS. As used in this Agreement, the
following terms shall have the meanings set forth below:
"ABSOLUTE RATE AUCTION" means a solicitation of Competitive
Bids setting forth Competitive Bid Absolute Rates pursuant to SECTION 2.03 for
Competitive Bid Loans.
"ACTIVE RESTRICTED SUBSIDIARY" means a Restricted Subsidiary
having a net worth in excess of $1,000,000.
"ADDITIONAL SENIOR INDEBTEDNESS" means Indebtedness of the
Borrower incurred after the Closing Date which is secured on a pari passu basis
by the Collateral (as defined in the Pledge Agreement).
"ADJUSTED CONSOLIDATED OPERATING INCOME" means, for any
period, the consolidated operating income (or loss) of the Borrower and its
Consolidated Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; PROVIDED, that there shall be excluded from the
calculation of Adjusted Consolidated Operating Income (i) the income (or loss)
of any consolidated joint venture, except to the extent that any such income is
actually received by the Borrower or any such Consolidated Subsidiary in the
form of dividends or other distributions during such period and (ii) any effect
which would otherwise result from the Consolidation Plan.
"ADMINISTRATIVE AGENT" means PNC Bank, National Association,
in its capacity as administrative agent for the Lenders hereunder and under the
other Loan Documents, and its successor or successors in such capacity.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative
Agent's address and, as appropriate, account as set forth on SCHEDULE 10.02, or
such other address and account as the Administrative Agent may from time to time
notify to the Borrower and the Lenders.
"AFFILIATE" means, as to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (i)
to vote 10% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election
of directors or managing general partners or (ii) to direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"AGENT" means the Administrative Agent or the Co-Syndication
Agents and any successors and assigns in such capacity, and "AGENTS" means any
two or more of them.
"AGENT-RELATED PERSONS" means any Agent, together with its
Affiliates (including in the case of PNC Bank, National Association in its
capacity as the Administrative Agent), and the officers, directors, employees,
agents and attorneys-in-fact of such Person and its Affiliates.
"AGREEMENT" means this Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"APPLICABLE INTERBANK OFFERED RATE" for any Eurodollar Loan
for the Interest Period applicable thereto means:
(i) the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate that appears on
display page 3750 of the Telerate screen (or any successor thereto)
that displays the average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period; or
(ii) if the rate referenced in CLAUSE (i) above does not
appear on such page or service or such page or service shall cease
to be available, the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate that appears on such
other page or service that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 A.M. two Business Days prior to the first day of such Interest
Period; or
(iii) if the rates referenced in the preceding CLAUSES
(i) and (ii) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest (rounded upwards to the
next 1/100th of 1%) at which deposits in Dollars for delivery on the
first day of such Interest Period in same day funds in the
approximate amount of the Eurodollar Loan being made, continued or
converted with a term equivalent to such Interest Period would be
offered by PNC Bank, National Association or one of its Affiliates
to major banks in the offshore market for Dollars at their request
at approximately 11:00 A.M. (London time) two Business Days prior to
the first day of such Interest Period.
"APPLICABLE LENDING OFFICE" means with respect to any Lender
and for each Class and Type of Loan, the "Lending Office" of such Lender (or of
an Affiliate of such Lender) designated for such Class and Type of Loan on
SCHEDULE 10.02 or such other office of such Lender (or of an Affiliate of such
Lender) as such Lender may from time to time specify to the Administrative Agent
and the Borrower as the office by which its Loans of such Class and Type are to
be made and maintained; PROVIDED, that any Lender may from time to time by
notice to the Borrower and the Administrative Agent (x) designate separate
Eurodollar Lending Offices for loans in different currencies, in which case all
references herein to the Applicable Lending Office of such Lender shall, with
respect to its Eurodollar Loans, be deemed to refer to any or all of such
offices, as the context may require, and (y) designate separate Competitive Bid
Lending Offices for (A) its Competitive Bid LIBOR Loans, (B) its Competitive Bid
Absolute Rate Loans and (C) its Competitive Bid Loans in different currencies,
in which case all
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references herein to the Applicable Lending Office of such Lender shall, with
respect to such Loans, be deemed to refer to any or all of such offices, as the
context may require.
"APPLICABLE MARGIN" means, for purposes of calculating (i) the
applicable interest rate for any day for any Base Rate Loans or Eurodollar
Loans, (ii) the applicable rate for the Facility Fee for any day for purposes of
SECTION 2.11(a) or (iii) the applicable rate for the Utilization Fee for any day
for purposes of SECTION 2.11(b), the appropriate applicable percentage set forth
below corresponding to then current Worthington's Ratings:
===================== ====================== ========================= ===================== ============================
Applicable Applicable Percentage for
Worthington's Applicable Percentage Percentage for Base Eurodollar
Ratings (S&P/Moody's) for Facility Fees Rate Loans Loans
--------------------- ---------------------- ------------------------- --------------------- ----------------------------
.400%
Category A: A-/A3 or higher .100% 0%
--------------------- ---------------------- ------------------------- --------------------- ----------------------------
Category B: BBB+/Baa1 .125% 0% .500%
--------------------- ---------------------- ------------------------- --------------------- ----------------------------
Category C: BBB/Baa2 .150% 0% .600%
--------------------- ---------------------- ------------------------- --------------------- ----------------------------
Category D: BBB-/Baa3 .175% 0% .700%
--------------------- ---------------------- ------------------------- --------------------- ----------------------------
Category E: BB+/Ba1 or .250% 0% 1.25%
lower or unrated
===================== ====================== ========================= ===================== ============================
======================= ====================== ============================= =============================
Applicable Percentage for Applicable Percentage for
Worthington's Utilization Fee: Utilization Fee:
Ratings (S&P/Moody's) Usage > 33% of Commitments Usage > 66% of Commitments
----------------------- ---------------------- ----------------------------- -----------------------------
Category A: A-/A3 or higher .125% .250%
----------------------- ---------------------- ----------------------------- -----------------------------
Category B: BBB+/Baa1 .125% .250%
----------------------- ---------------------- ----------------------------- -----------------------------
Category C: BBB/Baa2 .125% .250%
----------------------- ---------------------- ----------------------------- -----------------------------
Category D: BBB-/Baa3 .125% .250%
----------------------- ---------------------- ----------------------------- -----------------------------
Category E: BB+/Ba1 or .125% .250%
lower or unrated
======================= ====================== ============================= =============================
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Initially, the Applicable Margins for Base Rate Loans and
Eurodollar Loans and the applicable rate for Facility Fees shall be based upon
Worthington's Ratings specified in the certificate delivered pursuant to SECTION
4.01(d)(ii) of this Agreement. Thereafter, each change in the Applicable Margins
for Base Rate Loans and Eurodollar Loans and the applicable rate for Facility
Fees shall be effective during the period commencing on the date of a public
announcement with respect to a change in Worthington's Ratings and ending on the
date immediately preceding the effective date of the next such change, if any.
In the event a rating differential of one level exists, Worthington's Ratings
shall be deemed to be the higher of the two ratings. In the event a rating
differential of more than one level exists, Worthington's Ratings shall be
deemed to be one level below the higher rating.
"APPROVED FUND" means (i) with respect to any Lender, an
entity (whether a corporation, partnership, limited liability company, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is managed by such Lender or an Affiliate of such Lender, (ii) with
respect to any Lender that is a fund that invests in bank loans and similar
extensions of credit, any other fund that invests in bank loans and similar
extensions of credit and is managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor and (iii) any special
purpose funding vehicle described in SECTION 10.06(h).
"ASSIGNMENT AND ACCEPTANCE" means an Assignment and
Acceptance, substantially in the form of EXHIBIT C hereto, under which an
interest of a Lender hereunder is transferred to an Eligible Assignee pursuant
to SECTION 10.06(b).
"ASSOCIATE" has the meaning given to it in Rule 12b-2 under
the Exchange Act.
"ATTORNEY COSTS" means all reasonable and actual fees and
disbursements of any law firm or other external counsel.
"BANKRUPTCY EVENT" means, with respect to any Person, (i) a
court or governmental agency having appropriate jurisdiction shall enter a
decree or order for relief in respect of such Person in an involuntary case
under any Debtor Relief Law now or hereafter in effect, or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
such Person or for any substantial part of its property or ordering the winding
up or liquidation of its affairs, (ii) an involuntary case under any applicable
Debtor Relief Law now or hereafter in effect is commenced against such Person
and such petition remains unstayed and in effect for a period of 60 consecutive
days, (iii) such Person shall commence a voluntary case under any applicable
Debtor Relief Law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of such Person or any substantial part
of its property or make any general assignment for the benefit of creditors or
(iv) such Person shall admit in writing its inability to pay its debts generally
as they become due or any definitive action shall be taken by such Person in
preparation for any of the aforesaid.
"BASE RATE" means, for any day, (a) a rate per annum equal to
the higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus
the Federal Funds Rate for such day (any change in the Base Rate due to a change
in the Prime Rate or the Federal Funds Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Rate) or (b)
exclusively for purposes of Swingline Loans, any other rate per annum that may
be agreed upon between the Swingline Lender and the Borrower.
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"BASE RATE LOAN" means a Committed Loan (Syndicated or
Swingline) which bears interest at the Base Rate pursuant to the applicable
Notice of Syndicated Loan, Swingline Loan Request, Notice of
Extension/Conversion or the provisions of ARTICLE III.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States of America.
"BORROWER" means Worthington Industries, Inc., an Ohio
corporation, and its successors.
"BORROWER'S 2001 FORM 10-K" means the Borrower's annual report
on Form 10-K for the fiscal year ended May 31, 2001, as filed with the
Securities and Exchange Commission pursuant to the Exchange Act.
"BORROWER'S LATEST FORM 10-Q" means the Borrower's quarterly
report on Form 10-Q for the quarter ended February 28, 2002, as filed with the
Securities and Exchange Commission pursuant to the Exchange Act.
"BORROWING" has the meaning set forth in SECTION 1.04.
"BUSINESS DAY" means any day except a Saturday, Sunday or
other day on which commercial banks are authorized or required to close, under
the laws of, or are in fact closed in, the state where the Administrative
Agent's Office is located, except that if such day relates to a borrowing of, a
payment or prepayment of principal of or interest on, or the Interest Period
for, a Eurodollar Loan, or a notice by the Borrower with respect to any such
borrowing, payment, prepayment or Interest Period, such day shall also be a day
on which commercial banks are open for international business (including
dealings in Dollar deposits) in London.
"CAPITAL LEASE" of any Person means any lease of property
(whether real, personal or mixed) by such Person as lessee which would, in
accordance with GAAP, be required to be accounted for as a capital lease on the
balance sheet of such Person.
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person,
all obligations of such Person as lessee under Capital Leases, in each case
taken at the amount thereof accounted for as liabilities in accordance with
GAAP.
"CAPITALIZATION" means Consolidated Indebtedness plus
Consolidated Net Worth.
"CASH EQUIVALENTS" means:
(i) securities issued or directly and fully guaranteed
or insured by the United States of America or any agency or
instrumentality thereof (PROVIDED, that the full faith and credit of
the United States of America is pledged in support thereof) having
maturities of not more than twelve months from the date of
acquisition;
(ii) Dollar-denominated certificates of deposit of (A)
any Lender, (B) any United States commercial bank of recognized
standing having capital and surplus in excess of $500,000,000 or (C)
any bank whose (or whose parent company's) short-term commercial
paper rating from S&P is at least A-1 or the equivalent thereof or
from Xxxxx'x is at least P-1 or the equivalent thereof (any such
bank being an "APPROVED LENDER"), in each case with maturities of
not more than 270 days from the date of acquisition;
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(iii) commercial paper and variable or fixed rate notes
issued by any Approved Lender (or by the parent company thereof) or
any variable rate notes issued by, or guaranteed by, any domestic
corporation not an Affiliate of the Borrower rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent
thereof) or better by Moody's and maturing within six months of the
date of acquisition;
(iv) repurchase agreements with a bank or trust company
(including any of the Lenders) or recognized securities dealer
having capital and surplus in excess of $500,000,000 for direct
obligations issued by or fully guaranteed by the United States of
America in which the Borrower or one or more of its Subsidiaries
shall have a perfected first priority security interest (subject to
no other Liens) and having, on the date of purchase thereof, a fair
market value of at least 100% of the amount of the repurchase
obligations; and
(v) Investments, classified in accordance with GAAP as
current assets, in money market investment programs registered under
the Investment Company Act of 1940, as amended, which are
administered by reputable financial institutions having capital of
at least $500,000,000 and the portfolios of which are limited to
Investments of the character described in the foregoing CLAUSES (i)
through (iv).
"CHANGE OF CONTROL" means, with respect to any Person, an
event or series of events by which:
(i) any "person" or "group" (within the meaning of
Section 13(d) and 14(d) of the Exchange Act) (other than Xxxx X.
XxXxxxxxx, Xxxx X. XxXxxxxxx, their Affiliates, their Associates (as
defined in Rule 12b-2 under the Exchange Act), or a group which the
foregoing are a principal participant, or any profit sharing,
employee stock ownership or other employee benefit plan of the
Borrower or any Subsidiary of the Borrower or any trustee or
fiduciary with respect to any such plan when acting in such
capacity) has become the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that a Person shall
be deemed to have "beneficial ownership" of all securities that any
such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), by way
of merger, consolidation or otherwise, of 30% or more of the Equity
Interests of such Person on a fully-diluted basis after giving
effect to the conversion and exercise of all outstanding Equity
Equivalents (whether or not such Equity Equivalents are then
currently convertible or exercisable); or
(ii) during any period of 12 consecutive months, a
majority of the members of the board of directors or other
equivalent governing body of such Person cease to be composed of
individuals (A) who were members of that board or equivalent
governing body on the first day of such period, (B) whose election
or nomination to that board or equivalent governing body was
approved by individuals referred to in CLAUSE (ii)(A) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (C) whose
election or nomination to that board or other equivalent governing
body was approved by individuals referred to in CLAUSES (ii)(A) and
(B) above constituting at the time of such election or nomination at
least a majority of that board or equivalent governing body.
"CLASS" has the meaning set forth in SECTION 1.04.
"CLOSING DATE" means the date on or after the Effective Date
when the conditions precedent in SECTION 4.01 are satisfied.
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"CODE" means the Internal Revenue Code of 1986, as amended,
and any successor statute thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time.
"COLLATERAL AGENT" means Xxxxx Fargo Bank Minnesota, National
Association, in its capacity as collateral agent under the Pledge Agreement,
together with its successors and permitted assigns.
"COMMITMENT" means (i) with respect to each Lender, its
Revolving Commitment and (ii) with respect to the Swingline Lender, the
Swingline Commitment, in each case in the respective amount set forth on
SCHEDULE 1.01A or in the applicable Assignment and Acceptance as its Commitment
of the applicable Class, as any such amount may be increased or decreased from
time to time pursuant to this Agreement.
"COMMITMENT INCREASE DATE" has the meaning set forth in
SECTION 2.10(e).
"COMMITTED LOAN" means a Syndicated Loan or a Swingline Loan.
"COMPETITIVE BID" has the meaning set forth in SECTION
2.03(d).
"COMPETITIVE BID ABSOLUTE RATE" has the meaning set forth in
Section 2.03(d)(ii)(D).
"COMPETITIVE BID ABSOLUTE RATE LOAN" means a Competitive Bid
Loan made by a Lender pursuant to an Absolute Rate Auction.
"COMPETITIVE BID LIBOR LOAN" means a Competitive Bid Loan made
by a Lender pursuant to a LIBOR Auction (including such a Loan bearing interest
at the Base Rate pursuant to ARTICLE III).
"COMPETITIVE BID LOAN" means a Competitive Bid LIBOR Loan or a
Competitive Bid Absolute Rate Loan.
"COMPETITIVE BID MARGIN" has the meaning set forth in SECTION
2.03(d)(ii)(C).
"COMPETITIVE BID NOTE" means a promissory note, substantially
in the form of Exhibit B-2 hereto, evidencing the obligation of the Borrower to
repay outstanding Competitive Bid Loans, as such note may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"COMPETITIVE BID QUOTE" has the meaning set forth in SECTION
2.03(b)(iv).
"COMPETITIVE BID REQUEST" has the meaning set forth in SECTION
2.03(b).
"CONSOLIDATED EBITDA" means for any period the sum of (i)
Consolidated Net Income for such period plus (ii) an amount which, in the
determination of Consolidated Net Income for such period, has been deducted for
(A) Consolidated Interest Expense, (B) provisions for Federal, state, local and
foreign income, value added and similar taxes, (C) depreciation, amortization
(including, without limitation, amortization of goodwill and other intangibles)
and other non-cash expense, all determined in accordance with GAAP and (D)
solely for the fiscal quarters ended May 31, 2002, August 31, 2002, November 30,
2002 and February 28, 2003, an amount not in excess of $90,000,000 in the
aggregate with respect to the expense related to the Consolidation Plan, minus
(iii) an amount which, in the determination of Consolidated Net Income for such
period, has been added for (A) interest income and (B) any non-cash income or
non-cash gains, all as determined in accordance with GAAP. If the Borrower or
any
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Subsidiary makes an acquisition or a material divestiture, in either case to the
extent permitted pursuant to this Agreement, during any period for which
Consolidated EBITDA is measured, then for purposes of determining the Leverage
Ratio, Consolidated EBITDA shall be adjusted for the period of time prior to the
date of such acquisition or divesture by adding the historical financial results
for such period of the Person or assets acquired (without taking account of cost
savings or others synergies unless approved by the Required Lenders) or deleting
that portion of the financial results of the Borrower and its Consolidated
Subsidiaries for such period attributable to the Person or assets divested, all
as reasonably determined by the Borrower and certified to the Administrative
Agent and the Lenders.
"CONSOLIDATED INDEBTEDNESS" means at any date the Indebtedness
of the Borrower and its Subsidiaries, determined on a consolidated basis as of
such date.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the
total interest expense, whether paid or accrued and whether or not capitalized
(including, without limitation, amortization of debt issuance costs and original
issue discount, non-cash interest payments, the interest component of any
deferred payment obligations, the interest component of all payments under
Capital Lease Obligations and the implied interest component of Synthetic Lease
Obligations (regardless of whether accounted for as interest expense under
GAAP), all commissions, discounts and other fees and charges owed with respect
to letters of credit, bankers' acceptances and asset securities and other
similar off balance street transactions and net costs in respect of Derivatives
Obligations constituting interest rate swaps, collars, caps or other
arrangements requiring payments contingent upon interest rates of the Borrower
and its Restricted Subsidiaries), determined on a consolidated basis for such
period.
"CONSOLIDATED NET INCOME" means, for any period, the net
income (or net loss) after taxes of the Borrower and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP; PROVIDED,
that there shall be excluded from the calculation of Consolidated Net Income (i)
the income (or loss) of any Person in which any other Person (other than the
Borrower or any of its Wholly-Owned Subsidiaries) has an ownership interest,
except to the extent that any such income is actually received by the Borrower
or such Wholly-Owned Subsidiary in the form of dividends or other distributions
during such period and (ii) the income of any Subsidiary of the Borrower to the
extent that the declaration or payment of dividends or similar distributions by
that Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary.
"CONSOLIDATED NET TANGIBLE ASSETS" means, as of any date of
determination, the sum of the amounts that would appear on a consolidated
balance sheet of the Borrower and its Subsidiaries for the total assets (less
accumulated depletion, depreciation or amortization, allowances for doubtful
receivables, other applicable reserves and other properly deductible items) of
the Borrower and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP, after giving effect to purchase accounting and after
deducting therefrom, to the extent included in total assets, in each case as
determined on a consolidated basis in accordance with GAAP (without
duplication): (i) the aggregate amount of liabilities of the Borrower and its
Subsidiaries which may properly be classified as current liabilities (including
taxes accrued as estimated); (ii) current Indebtedness and current maturities of
long-term Indebtedness; (iii) minority interests in the Borrower's subsidiaries
held by Persons other than the Borrower or a wholly-owned Subsidiary of the
Borrower; and (iv) unamortized debt discount and expenses and other unamortized
deferred charges, goodwill, patents, trademarks, service marks, trade names,
copyrights, licenses, organization or developmental expenses and other
intangible items.
"CONSOLIDATED NET WORTH" means at any time the consolidated
stockholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis in accordance with GAAP as of such time.
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"CONSOLIDATED SUBSIDIARY" means with respect to any Person at
any date any Subsidiary of such Person or other entity the accounts of which
would be consolidated with those of such Person in its consolidated financial
statements if such statements were prepared as of such date in accordance with
GAAP.
"CONSOLIDATION PLAN" means the consolidation plan and
impairment reserve announced by the Borrower in a press release dated January
24, 2002 that will result in no more than $90,000,000 in one-time charges to net
income during the fiscal quarter ended February 28, 2002.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any material security issued by such Person or of any material
agreement, instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.
"CONTROLLING PERSON" means, with respect any Person, the
beneficial owner of a percentage of the voting power of the Equity Interests of
any such Person sufficient to approve an action of any such Person which
requires a simple majority of the owners of such Equity Interest to vote to
approve any such action; PROVIDED, that any such Person is a Consolidated
Subsidiary of such Controlling Person.
"CREDIT EXPOSURE" has the meaning set forth in the definition
of "REQUIRED LENDERS" in this SECTION 1.01.
"CREDIT EXTENSION" means a Borrowing, a Competitive Bid Loan
or the purchase by a Lender of a Participation Interest.
"CREDITOR" means each Lender, each Agent and each Indemnitee
and their respective successors and assigns, and "Creditors" means any two or
more of such Creditors.
"DEBTOR RELIEF LAWS" means the Bankruptcy Reform Act of 1978,
as amended, and all other liquidation, conservatorship, bankruptcy, assignment
for the benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization or similar debtor relief laws of the United States of
America or other applicable jurisdiction from time to time affecting the rights
of creditors generally.
"DEFAULT" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"DEFAULTING LENDER" means at any time any Lender that, within
one Business Day of when due, (i) has failed to make a Loan or purchase a
Participation Interest in a Swingline Loan required pursuant to the terms of
this Agreement, (ii) other than as set forth in CLAUSE (i) above, has failed to
pay to any Agent or any Lender an amount owed by such Lender pursuant to the
terms of this Agreement or any other Loan Document or (iii) has been deemed
insolvent or has become subject to a Bankruptcy Event.
"DERIVATIVES AGREEMENT" means (i) any and all rate swap
transactions, basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity contracts,
equity or equity index swaps or options, bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot
contracts or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether or
not any such transaction is governed by or subject to any master agreement and
(ii) any and all transactions of any kind, and the related confirmations, which
are subject to the terms and
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conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement or any other master agreement.
"DERIVATIVES OBLIGATIONS" of any Person means all obligations
(including, without limitation, any amounts which accrue after the commencement
of any Bankruptcy Event with respect to such Person, whether or not allowed or
allowable as a claim under any applicable Debtor Relief Laws) of such Person in
respect of any Derivatives Agreement, excluding any amounts which such Person is
entitled to set-off against its obligations under applicable law.
"DISPOSITION" or "DISPOSE" means the sale, transfer, license
or other disposition (including any Sale/Leaseback Transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes, accounts receivable or payment intangible or
any rights or claims associated therewith.
"DOLLARS" and the sign "$" means lawful money of the United
States of America.
"EFFECTIVE DATE" means the date this Agreement becomes
effective in accordance with SECTION 10.17.
"ELIGIBLE ASSIGNEE" means (i) any Lender, (ii) any Affiliate
of a Lender, (iii) any Approved Fund and (iv) any other Person (other than a
natural Person) approved by (A) the Administrative Agent, (B) in the case of any
assignment of a Revolving Commitment, the Swingline Lender and (C) unless (x)
such Person is taking delivery of an assignment in connection with physical
settlement of a credit derivatives transaction or (y) an Event of Default has
occurred and is continuing at the time any assignment is effected pursuant to
SECTION 10.06(b), the Borrower (each such approval not to be unreasonably
withheld or delayed and any such approval required of the Borrower to be deemed
given by the Borrower if no objection from the Borrower is received by the
assigning Lender and the Administrative Agent within two Business Days after
notice of such proposed assignment has been provided by the assigning Lender to
the Borrower); PROVIDED, HOWEVER, that the Borrower and its Affiliates shall not
qualify as Eligible Assignees.
"ENVIRONMENTAL LAWS" means any current or future legal
requirement of any Governmental Authority pertaining to (i) the protection of
health, safety, and the environment, (ii) the conservation, management or use of
natural resources and wildlife, (iii) the protection or use of surface water and
groundwater or (iv) the management, manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, release, threatened
release, abatement, removal, remediation or handling of, or exposure to, any
hazardous or toxic substance or material and includes, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 USC
9601 et seq., Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984, 42 USC
6901 et seq., Federal Water Pollution Control Act, as amended by the Clean Water
Act of 1977, 33 USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401
et seq., Toxic Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous
Materials Transportation Act, 49 USC App. 1801 et seq., Occupational Safety and
Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990,
33 USC 2701 et seq., Emergency Planning and Community Right-to-Know Act of 1986,
42 USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et
seq., Safe Drinking Water Act of 1974, as amended, 42 USC 300(f) et seq., any
analogous implementing or successor law, and any amendment, rule, regulation,
order or directive issued thereunder.
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"EQUITY EQUIVALENTS" means with respect to any Person any
rights, warrants, options, convertible securities, exchangeable securities,
indebtedness or other rights, in each case exercisable for or convertible or
exchangeable into, directly or indirectly, Equity Interests of such Person or
securities exercisable for or convertible or exchangeable into Equity Interests
of such Person, whether at the time of issuance or upon the passage of time or
the occurrence of some future event.
"EQUITY INTERESTS" means all shares of capital stock,
partnership interests (whether general or limited), limited liability company
membership interests, beneficial interests in a trust and any other interest or
participation that confers on a Person the right to receive a share of profits
or losses, or distributions of assets, of an issuing Person, but excluding any
debt securities convertible into such Equity Interests.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by the rules
and regulations issued thereunder, in each case as in effect from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA EVENT" means: (i) a Reportable Event with respect to a
Pension Plan; (ii) a withdrawal by the Borrower or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001(a)(2) of ERISA); (iii) a
complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (iv) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (v) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (vi) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.
"EURODOLLAR RATE" means, for each Interest Period for each
Eurodollar Loan comprising the same Group, the quotient obtained (rounded
upward, if necessary, to the next higher 1/100th of 1%) by dividing (i) the
Applicable Interbank Offered Rate for Dollars for such Interest Period by (ii)
1.00 minus the Eurodollar Reserve Percentage.
"EURODOLLAR RESERVE PERCENTAGE" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board (or any other entity succeeding to the functions
currently performed thereby) for determining the maximum reserve requirement for
a member bank of the Federal Reserve System in New York City with deposits
exceeding five billion Dollars in respect of "Eurodollar liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Eurodollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Lender to United States residents), whether or
not a Lender has any Eurodollar liabilities subject to such reserve requirement
at that time. Eurodollar Loans shall be deemed to constitute Eurodollar
liabilities and as such shall be deemed subject to reserve requirements without
benefits of credits for prorations, exceptions or offsets that may be available
from time to time to a Lender. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Eurodollar
Reserve Percentage.
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"EURODOLLAR LOAN" means a Syndicated Loan which bears interest
at a Eurodollar Rate pursuant to the applicable Notice of Syndicated Loan or
Notice of Extension/Conversion.
"EVENT OF DEFAULT" has the meaning set forth in SECTION 8.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and any successor statute thereto, together with the rules and
regulations promulgated thereunder.
"EXISTING LETTERS OF CREDIT" means the letters of credit
issued for the account of the Borrower and any Restricted Subsidiary before the
Closing Date and described by date of issuance, letter of credit number, undrawn
amount, name of beneficiary and date of expiry on SCHEDULE 7.01 hereto, without
giving effect to any extension of the term thereof.
"FACILITY FEE" has the meaning set forth in SECTION 2.11(a).
"FAILED LOAN" has the meaning set forth in SECTION 2.04(e).
"FEDERAL FUNDS RATE" means for any day the rate per annum
(rounded upward, if necessary, to the nearest 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 the Business Day
next succeeding such day; PROVIDED, that (i) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (ii) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Administrative Agent on such day on such transactions as determined by the
Administrative Agent.
"FIVE YEAR CREDIT AGREEMENT" means the $155,000,000 Five Year
Revolving Credit Agreement dated as of May 10, 2002 among the Borrower, the
banks and other financial institutions from time to time party thereto and PNC
Bank, National Association, as Administrative Agent, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"FIXED RATE LOAN" means Eurodollar Loans or Competitive Bid
Loans (excluding Competitive Bid LIBOR Loans bearing interest at the Base Rate)
or any combination of the foregoing.
"FOREIGN SUBSIDIARY" means with respect to any Person any
Subsidiary of such Person that is organized outside the United States and
conducts substantially all of its business outside the United States.
"GAAP" means at any time generally accepted accounting
principles as then in effect in the United States, applied on a basis consistent
(except for changes with which the Borrower's independent public accountants
have concurred) with the most recent audited consolidated financial statements
of the Borrower and its Consolidated Subsidiaries previously delivered to the
Lenders.
"GOVERNMENTAL AUTHORITY" means any federal, state, local,
provincial or foreign government, authority, agency, central bank,
quasi-governmental or regulatory authority, court or other body or entity, and
any arbitrator with authority to bind a party at law.
"GROUP OF LOANS" means at any time a group of Loans consisting
of (i) all Loans which are Base Rate Loans at such time or (ii) all Loans which
are Eurodollar Loans having the same Interest Period at such time; PROVIDED,
that if a Committed Loan of any particular Lender is converted to or made
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as a Base Rate Loan pursuant to ARTICLE III, such Loan shall be included in the
same Group of Loans from time to time as it would have been had it not been so
converted or made.
"GUARANTY OBLIGATION" means any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of
any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness of such other Person (whether
arising by virtue of partnership arrangements, or by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); PROVIDED, HOWEVER, that the term "Guaranty Obligation" shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "Guaranty" used as a verb has a corresponding meaning. The
amount of any Guaranty Obligation hereunder shall (subject to any limitations
set forth therein) be deemed to be an amount equal to the outstanding principal
amount (or maximum principal amount, if larger) of the Indebtedness in respect
of which such Guaranty Obligation is made.
"HOLDER OF ADDITIONAL SENIOR INDEBTEDNESS" means a holder of
the Additional Senior Indebtedness, or any Person acting in a representative
capacity for any such holder, that executes and delivers a Joinder Agreement
substantially in the form of Exhibit B to the Trust Agreement.
"INDEBTEDNESS" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed money, (ii) all
obligations of such person evidenced by bond, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the deferred purchase
price of property or services, except trade accounts payable arising in the
ordinary course of business, (iv) all obligations of such Person as lessee that
are capitalized in accordance with GAAP, (v) all Guaranty Obligations, (vi) all
contingent or non-contingent obligations of such Person to reimburse any bank or
other Person in respect of amounts paid or payable (currently or in the future,
on a contingent or non-contingent basis) under a letter of credit or similar
instrument, (vii) all obligations of such Person under conditional sale or other
title retention agreements relating to property purchased by such Person to the
extent of the value of such property (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary
course of business) and (viii) proceeds paid to such Person from asset
securitization, synthetic sale/leaseback and other similar off balance sheet
transactions.
"INDEMNIFIED LIABILITIES" has the meaning set forth in SECTION
10.05.
"INDEMNITEE" has the meaning set forth in SECTION 10.05.
"INTEREST PAYMENT DATE" means (i) as to Base Rate Loans, the
last day of each fiscal quarter of the Borrower and the Maturity Date and (ii)
as to Eurodollar Loans, the last day of each applicable Interest Period and the
Maturity Date, and, where the applicable Interest Period for a Eurodollar Loan
is greater than three months, also the date three months from the beginning of
the Interest Period and each three months thereafter.
"INTEREST PERIOD" means:
(i) with respect to each Eurodollar Loan, a period
commencing on the date of borrowing specified in the applicable
Notice of Borrowing or on the date specified in the applicable
Notice of Extension/Conversion and ending one, two, three or six
months thereafter, as the Borrower may elect in the applicable
notice; PROVIDED, that:
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(A) any Interest Period (except an Interest
Period determined pursuant to CLAUSE (i)(C) below) 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;
(B) any Interest Period which begins on the
last Business Day in a calendar month (or on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period)
shall, subject to CLAUSE (C) below, end on the last
Business Day of a calendar month;
(C) any Interest Period which would
otherwise end after the Maturity Date shall end on the
Maturity Date;
(ii) with respect to each Competitive Bid LIBOR Loan,
the period commencing on the date of borrowing specified in the
applicable Notice of Borrowing and ending one, two, three or six
months thereafter as the Borrower may elect in accordance with
SECTION 2.03, PROVIDED, that:
(A) any Interest Period (except an Interest
Period determined pursuant to CLAUSE (ii)(C) below)
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;
(B) any Interest Period which begins on the
last Business Day in a calendar month (or on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period)
shall, subject to CLAUSE (ii)(C) below, end on the last
Business Day in a calendar month; and
(C) any Interest Period which would
otherwise end after the Maturity Date shall end on such
Maturity Date; and
(iii) with respect to each Competitive Bid Absolute Rate
Loan, the period commencing on the date of borrowing specified in
the applicable Notice of Borrowing and ending such number of days
thereafter (but not less than seven) as the Borrower may elect in
accordance with SECTION 2.03; PROVIDED, that:
(A) any Interest Period (except an Interest
Period determined pursuant to CLAUSE (iii)(B) below)
which would otherwise end on a day which is not a
Business Day shall be extended to the next succeeding
Business Day; and
(B) any Interest Period which would
otherwise end after the Maturity Date shall end on such
Maturity Date.
"INVESTMENT" in any Person means (i) the acquisition (whether
for cash, property, services, assumption of Indebtedness, securities or
otherwise) of assets, shares of Capital Stock, bonds, notes, debentures, time
deposits or other securities of such other Person, (ii) any deposit with, or
advance, loan or other extension of credit to or for the benefit of such Person
(other than deposits made in connection with the purchase of equipment or
inventory in the ordinary course of business) or (iii) any other capital
contribution to or investment in such Person, including by way of Guaranty
Obligations of
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any obligation of such Person, any support for a letter of credit issued on
behalf of such Person incurred for the benefit of such Person or in the case of
any Restricted Subsidiary of the Borrower, any release, cancellation, compromise
or forgiveness in whole or in part of any Indebtedness owing by such Restricted
Subsidiary.
"LAW" means any international, foreign, Federal, state or
local statute, treaty, rule, guideline, regulation, ordinance, code, or
administrative or judicial precedent or authority, including the interpretation
or administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
"LENDER" means each bank or other lending institution listed
on SCHEDULE 1.01A, each Eligible Assignee that becomes a Lender pursuant to
SECTION 10.06(b) and their respective successors and shall include, as the
context may require, the Swingline Lender, in such capacity.
"LEVERAGE RATIO" means on any date the ratio of (i)
Consolidated Indebtedness as of such date to (ii) Consolidated EBITDA.
"LIBOR AUCTION" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins based on the Applicable Interbank Offered
Rate pursuant to SECTION 2.03.
"LIEN" means, with respect to any asset, any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge, or preference, priority or other security interest or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable Laws
of any jurisdiction), including the interest of a purchaser of accounts
receivable, chattel paper, payment intangibles or promissory notes. Solely for
the avoidance of doubt, the filing of a Uniform Commercial Code financing
statement that is a protective lease filing in respect of an operating lease
that does not constitute a security interest in the leased property or otherwise
give rise to a Lien does not constitute a Lien solely on account of being filed
in a public office.
"LOAN" means a Committed Loan or a Competitive Bid Loan, and
"LOANS" means Committed Loans or Competitive Bid Loans or both.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Pledge
Agreement and the Trust Agreement, in each case as the same may be amended,
restated, modified or supplemented from time to time.
"MATERIAL ADVERSE CHANGE" has the meaning set forth in SECTION
5.02(c).
"MATERIAL ADVERSE EFFECT" means an effect on the business,
financial condition, assets or liabilities of the Borrower and its Restricted
Subsidiaries, considered on a consolidated basis, which, when combined on a
cumulative basis with other changes in the business, financial condition, assets
and liabilities of the Borrower and its Consolidated Subsidiaries, considered on
a consolidated basis: (i) would have a material adverse effect on the ability of
the Borrower to perform its obligations under the Loan Documents or (ii) would
result in a material adverse change in the financial condition of the Borrower
and its Restricted Subsidiaries, considered on a consolidated basis.
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"MATURITY DATE" means the day that is 364 days from the
Closing Date or such later date to which the Maturity Date for any Loans or
Lender may be extended pursuant to SECTION 2.10(d) or, if any such day is not a
Business Day, the next preceding Business Day.
"MOODY'S" means Xxxxx'x Investors Service, Inc., a Delaware
corporation, and its successors or, absent any such successor, such nationally
recognized statistical rating organization as the Borrower and the
Administrative Agent may select.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the
type described in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
three calendar years, has made or been obligated to make contributions.
"NOTE" means a Revolving Note, a Competitive Bid Note or a
Swingline Note and "NOTES" means all of them, collectively.
"NOTICE OF BORROWING" means a Notice of Syndicated Loan or a
Notice of Competitive Bid Borrowing.
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning set
forth in SECTION 2.03(f).
"NOTICE OF EXTENSION/CONVERSION" has the meaning set forth in
SECTION 2.07.
"NOTICE OF SYNDICATED LOAN" has the meaning set forth in
SECTION 2.02(a).
"OBLIGATIONS" means, without duplication:
(i) all principal of and interest (including, without
limitation, any interest which accrues after the commencement of any
Bankruptcy Event, whether or not allowed or allowable as a claim
under any applicable Debtor Relief Law) on any Loan under, or any
Note issued pursuant to, this Agreement or any other Loan Document;
(ii) all fees, expenses, indemnification obligations and
other amounts of whatever nature now or hereafter payable by the
Borrower (including, without limitation, any amounts which accrue
after the commencement of any Bankruptcy Event, whether or not
allowed or allowable as a claim under any applicable Debtor Relief
Law) pursuant to this Agreement or any other Loan Document;
(iii) all expenses of the Agents as to which one or more
of the Agents have a right to reimbursement under SECTION 10.04 of
this Agreement; and
(iv) all Indemnified Liabilities and other amounts paid
by any Indemnitee as to which such Indemnitee has the right to
payment or reimbursement under SECTION 10.05 of this Agreement or
under any other similar provision of any other Loan Document;
together in each case with all renewals, modifications, consolidations or
extensions thereof.
"OPERATING LEASE" means, as applied to any Person, a lease
(including a lease which may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) by such Person as lessee which is not
a Capital Lease.
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"ORGANIZATION DOCUMENTS" means: (i) with respect to any
corporation, the certificate or articles of incorporation and the bylaws; (ii)
with respect to any limited liability company, the articles of formation and
operating agreement; and (iii) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture or other
applicable agreement of formation and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation with the
secretary of state or other department in the state of its formation, in each
case as amended from time to time.
"OTHER TAXES" has the meaning set forth in SECTION 3.01(b).
"PARTICIPATION INTEREST" means a Credit Extension by a Lender
by way of a purchase of a participation interest in Swingline Loans as provided
in SECTION 2.01(b)(vi) or in any Loans as provided in SECTION 2.13.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any entity succeeding
to any or all of its functions under ERISA.
"PENSION PLAN" means an "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan,
that is subject to Title IV of ERISA and is sponsored or maintained by the
Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate
contributes or has an obligation to contribute, in which in the case of a
multiple employer plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding five plan years.
"PERMIT" means any license, permit, franchise, right or
privilege, certificate of authority or order, or any waiver of the foregoing,
issued or issuable by any Governmental Authority.
"PERMITTED LIENS" means:
(i) Liens securing the payment of taxes and special
assessments, either not yet due or the validity of which is being
contested by the Person being charged in good faith by appropriate
proceedings, and as to which it has set aside on its books adequate
reserves to the extent required by GAAP;
(ii) deposits under workers' compensation, unemployment
insurance and social security laws, or to secure the performance of
bids, tenders, contracts (other than for the repayment of borrowed
money) or leases, or to secure statutory obligations or surety or
appeal bonds, or to secure indemnity, performance or other similar
bonds in the ordinary course of business;
(iii) Liens imposed by law, such as carriers',
warehousemen's or mechanics' liens and liens of landlords or
mortgagees of landlords arising by operation of law on fixtures
located on leased premises, incurred by it in good faith in the
ordinary course of business;
(iv) Liens incurred in connection with the lease or
acquisition of fixed or capital assets limited to the specific
assets acquired with such lease or financing or Capital Lease
Obligation (subject to the acquisition of such assets and incurrence
of such debt being otherwise permitted by the terms of this
Agreement);
(v) Liens existing on the date of this Agreement
securing Indebtedness outstanding on the date of this Agreement in
aggregate principal amount not exceeding $27,400,000;
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(vi) any Lien existing on any asset of any corporation
at the time such corporation becomes a Subsidiary of the Borrower
and not created in contemplation of such event;
(vii) any Lien on any asset of any corporation existing
at the time such corporation is merged or consolidated with or into
Borrower or a Subsidiary and not created in contemplation of such
event;
(viii) any Lien existing on any asset prior to the
acquisition thereof by Borrower or a Subsidiary and not created in
contemplation of such event;
(ix) any Lien arising out of the refinancing, extension,
renewal or refunding of any Indebtedness secured by any Lien
permitted by any of the foregoing CLAUSES (iv), (v), (vi), (vii) OR
(viii) of this definition, provided that such Indebtedness is not
increased and is not secured by any additional assets;
(x) Liens incidental to the conduct of the business of
the Borrower or its Subsidiaries or the ownership of their
respective assets which (i) do not secure Indebtedness or Derivative
Obligations, (ii) do not secure any obligation, or related series of
obligations, in an amount exceeding $20,000,000 and (iii) do not in
the aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of the business
of the Borrower or its Subsidiaries;
(xi) Liens on cash and Cash Equivalents securing
Derivative Obligations, provided that the aggregate amount of Cash
Equivalents subject to such Liens may at no time exceed $20,000,000;
(xii) any attachment Lien being contested in good faith
and by proceedings promptly initiated and diligently conducted,
unless the attachment giving rise thereto will not, within sixty
days after the entry thereof, have been discharged or fully bonded
or will not have been discharged within sixty days after the
termination of any such bond;
(xiii) any judgment Lien, unless the judgment it secures
will not, within sixty days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or will not
have been discharged within sixty days after the expiration of any
such stay;
(xiv) easements, rights-of-way, zoning restrictions and
other restrictions, charges or encumbrances not materially
interfering with the ordinary conduct of the business;
(xv) any Lien on property of a Subsidiary securing
Indebtedness of such Subsidiary owing to Borrower or a Restricted
Subsidiary;
(xvi) Liens to banks arising from the issuance of
letters of credit issued by such banks ("issuing banks") on the
following: (a) any and all shipping documents, warehouse receipts,
policies or certificates of insurance and other document
accompanying or relative to drafts drawn under any credit, and any
draft drawn thereunder (whether or not such documents, goods or
other property be released to or upon the order of the Borrower or
any Subsidiary under a security agreement or trust or bailee receipt
or otherwise), and the proceeds of each and all of the foregoing;
(b) the balance of every deposit account, now or at any time
hereafter existing, of the Borrower or any Subsidiary with the
issuing banks, and any other claims of the Borrower or any
Subsidiary against the issuing banks; and all property claims and
demands and all rights and
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interests therein of the Borrower or any Subsidiary and all
evidences thereof and all proceeds thereof which have been or at any
time will be delivered to or otherwise come into the issuing bank's
possession, custody or control, or into the possession, custody or
control of any bailee for the issuing bank or of any of its agents
or correspondents for the account of the issuing bank, for any
purpose, whether or not the express purpose of being used by the
issuing bank as collateral security or for the safekeeping or for
any other or different purpose, the issuing bank being deemed to
have possession or control of all of such property actually in
transit to or from or set apart for the issuing bank, any bailee for
the issuing bank or any of its correspondents for others acting in
its behalf, it being understood that the receipt at any time by the
issuing bank, or any of its bailees, agents or correspondents, or
other security, of whatever nature, including cash, will not be
deemed a waiver of any of the issuing bank's rights or power
hereunder; (c) all property shipped under or pursuant to or in
connection with any credit or drafts drawn thereunder or in any way
related thereto, and all proceeds thereof; (d) all additions to and
substitutions for any of the property enumerated above in this
subsection;
(xvii) any Lien on accounts of the Borrower or any
Subsidiary (which accounts arise in the ordinary course of business)
in connection with the sale or purported sale of accounts to an
Unrestricted Subsidiary or a bankruptcy-remote entity that purchases
receivables in the ordinary course of its business; and
(xviii) Liens in the Pledged Notes granted to the
Collateral Agent pursuant to the Pledge Agreement.
"PERSON" means an individual, a corporation, a partnership, an
association, a limited liability company, a trust or an unincorporated
association or any other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"PLEDGE AGREEMENT" means the Pledge Agreement, substantially
in the form of EXHIBIT D hereto, dated as of the Closing Date, among the
Borrower, the Collateral Agent, the Administrative Agent, the Public Debt
Trustee and any Holder of Additional Senior Indebtedness, as the same may be
amended, modified or supplemented from time to time.
"PLEDGED NOTE ISSUERS" means, collectively, the Restricted
Subsidiaries of the Borrower which are issuers of the Pledged Notes pledged
pursuant to the Pledge Agreement from time to time; PROVIDED, that no Pledged
Note Issuer shall be a Foreign Subsidiary.
"PLEDGED NOTES" means the promissory notes, in form and
substance reasonably satisfactory to the Administrative Agent, pledged by the
Borrower pursuant to the Pledge Agreement.
"PRIME RATE" means for any day the rate of interest publicly
announced by PNC Bank, National Association (or such other principal office of
the Administrative Agent as communicated in writing to the Borrower and the
Lenders) from time to time as its Prime Rate for Dollars loaned in the United
States. It is a rate set by PNC Bank, National Association based upon a variety
of factors, including PNC Bank, National Association's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above or below such announced
rate. Any change in the interest rate resulting from a change in the Prime Rate
shall take effect at the opening of business on the day specified in the public
announcement of such change.
"PUBLIC DEBT INDENTURE" has the meaning set forth in the Trust
Agreement.
"PUBLIC DEBT TRUSTEE" has the meaning set forth in the Trust
Agreement.
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"REAL PROPERTY" means, with respect to any Person, all of the
right, title and interest of such Person in and to land, improvements and
fixtures, including leaseholds.
"REFINANCED AGREEMENT" has the meaning set forth in SECTION
4.01(f).
"REFUNDED SWINGLINE LOAN" has the meaning set forth in SECTION
2.01(b)(iii).
"REGISTER" has the meaning set forth in SECTION 10.06(d).
"REGULATION D, O, T, U OR X" means Regulation D, O, T, U or X,
respectively, of the Board as amended, or any successor regulation, in each case
together with all interpretations of staff opinions issued in connection
therewith.
"REMAINING LENDER" has the meaning set forth in SECTION
2.10(d)(i).
"REPLACEMENT DATE" has the meaning set forth in SECTION
2.10(c).
"REPLACEMENT LENDER" has the meaning set forth in SECTION
2.10(c).
"REPORTABLE EVENT" means any of the events set forth in
Section 4043(c) of ERISA, other than events for which the 30-day notice period
has been waived.
"REQUIRED LENDERS" means Revolving Lenders whose aggregate
Credit Exposure (as hereinafter defined) constitutes more than 50% of the Credit
Exposure of all Revolving Lenders at such time. For purposes of the preceding
sentence, the term "CREDIT EXPOSURE" as applied to each Lender shall mean (i) at
any time prior to the termination of the Commitments, the Revolving Commitment
Percentage of such Lender multiplied by the Revolving Committed Amount, and (ii)
at any time after the termination of the Commitments, the sum of (A) the
principal amount of the outstanding Revolving Loans of such Lender plus (B) the
principal amount such Lender's Participation Interests in all Swingline Loans.
For purposes of the foregoing, (i) the interest of any Lender holding a Loan in
which any other Lender has a Participation Interest pursuant to SECTION 10.06(e)
shall be calculated net of all such Participation Interests of other Lenders and
(ii) the Participation Interest of any Lender pursuant to SECTION 10.06(e) in a
Loan held by any other Lender shall be counted as if such Lender holding a
Participation Interest under SECTION 10.06(e) held directly a proportionate part
of the related Loan.
"RESPONSIBLE OFFICER" means the chief executive officer,
president, chief financial officer, treasurer or assistant treasurer of the
Borrower. Any document delivered hereunder that is signed by a Responsible
Officer of the Borrower shall be conclusively presumed to have been authorized
by all necessary corporate, partnership and/or other action on the part of the
Borrower and such Responsible Officer shall be conclusively presumed to have
acted on behalf of the Borrower.
"RESTRICTED PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any class of Equity Interests or
Equity Equivalents of the Borrower or any Subsidiary, now or hereafter
outstanding, (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any class of
Equity Interests or Equity Equivalents of the Borrower or any Subsidiary, now or
hereafter outstanding or (iii) any payment made to retire, or to obtain the
surrender of, any Equity Interests or Equity Equivalents of or now or hereafter
outstanding.
"RESTRICTED SUBSIDIARY" means with respect to any Person at
any date any Subsidiary of such Person or other entity the accounts of which
would be consolidated with those of such Person in its consolidated financial
statements if such statements were prepared as of such date in accordance with
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GAAP, excluding, with respect to the Borrower at any date, all Unrestricted
Subsidiaries designated as such pursuant to SECTION 7.07.
"REVOLVING BORROWING" means a Syndicated Loan comprised of
Revolving Loans and identified as such in the Notice of Borrowing with respect
thereto.
"REVOLVING COMMITMENT" means, with respect to any Lender, the
commitment of such Lender, in an aggregate principal amount at any time
outstanding of up to such Lender's Revolving Commitment Percentage of the
Revolving Committed Amount, (i) to make Revolving Loans in accordance with the
provisions of SECTION 2.01(a) and (ii) to purchase Participation Interests in
Swingline Loans in accordance with the provisions of SECTION 2.01(b).
"REVOLVING COMMITTED AMOUNT" means $155,000,000 or such
greater or lesser amount to which the Revolving Committed Amount may be adjusted
pursuant to SECTION 2.10.
"REVOLVING COMMITMENT PERCENTAGE" means, for each Lender, the
percentage identified as its Revolving Commitment Percentage on SCHEDULE 1.01A
hereto, as such percentage may be modified in connection with any assignment
made in accordance with the provisions of SECTION 10.06(b).
"REVOLVING LENDER" means each Lender identified in the
SCHEDULE 1.01A as having a Revolving Commitment and each Eligible Assignee which
acquires a Revolving Commitment or Revolving Loan pursuant to SECTION 10.06(b)
and their respective successors.
"REVOLVING LOAN" means a Committed Loan made under SECTION
2.01(a).
"REVOLVING NOTE" means a promissory note, substantially in the
form of EXHIBIT B-1 hereto, evidencing the obligation of the Borrower to repay
outstanding Revolving Loans, as such Note may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"REVOLVING OUTSTANDINGS" means at any date the aggregate
outstanding principal amount of all Revolving Loans and Swingline Loans.
"SALE/LEASEBACK TRANSACTION" means any direct or indirect
arrangement with any Person or to which any such Person is a party providing for
the leasing to the Borrower or any of its Subsidiaries of any property, whether
owned by the Borrower or any of its Subsidiaries as of the Closing Date or later
acquired, which has been or is to be sold or transferred by the Borrower or any
of its Subsidiaries to such Person or to any other Person from whom funds have
been, or are to be, advanced by such Person on the security of such property.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., a New York corporation, and its successor or, absent any such
successor, such nationally recognized statistical rating organization as the
Borrower and the Administrative Agent may select.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and any successor statute thereto, together with the rules and regulations
promulgated thereunder.
"SUBSIDIARY" means with respect to any Person any corporation,
partnership, limited liability company, association or other business entity of
which (i) if a corporation, more than 50% of the total voting power of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a partnership,
limited liability company, association or business entity other than a
corporation, more than
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50% of the partnership or other similar ownership interests thereof is at the
time owned or controlled, directly or indirectly, by that Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have more than 50% ownership interest in a
partnership, limited liability company, association or other business entity if
such Person or Persons shall be allocated more than 50% of partnership,
association or other business entity gains or losses or shall be or control the
managing director, manager or a general partner of such partnership, association
or other business entity. Notwithstanding the foregoing, any Person that is not
included as a "Consolidated Subsidiary" under GAAP shall not be a Subsidiary
hereunder.
"SWINGLINE COMMITMENT" means the agreement of the Swingline
Lender to make Loans pursuant to SECTION 2.01(b).
"SWINGLINE COMMITTED AMOUNT" means the lesser of (i)
$20,000,000 or (ii) an amount which, when added to the aggregate principal
amount of all other Loans then outstanding under this Agreement, does not exceed
$155,000,000 or such greater or lesser amount as the Revolving Committed Amount
may be adjusted pursuant to SECTION 2.10(e).
"SWINGLINE LENDER" means PNC Bank, National Association, in
its capacity as the Swingline Lender under SECTION 2.01(b), and its successor or
successors in such capacity.
"SWINGLINE LOAN" means a Base Rate Loan made by the Swingline
Lender in Dollars pursuant to SECTION 2.01(b), and "SWINGLINE LOANS" means any
two or more of such Base Rate Loans.
"SWINGLINE LOAN REQUEST" has the meaning set forth in SECTION
2.02(b).
"SWINGLINE NOTE" means a promissory note, substantially in the
form of EXHIBIT B-3 hereto, evidencing the obligation of the Borrower to repay
outstanding Swingline Loans, as such Note may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"SWINGLINE TERMINATION DATE" means the earlier of (i) May 9,
2007 (or, if such day is not a Business Day, the next preceding Business Day) or
such earlier date upon which the Revolving Commitments shall have been
terminated in their entirety in accordance with this Agreement and (ii) the date
on which the Swingline Commitment is terminated in its entirety in accordance
with the Agreement.
"SYNDICATED LOAN" means a Committed Loan made by a Lender
pursuant to SECTION 2.01(a); PROVIDED, that if any such Loan or Loans (or
portions thereof) are combined or subdivided pursuant to a Notice of
Extension/Conversion, the term "SYNDICATED Loan" shall refer to the combined
principal amount resulting from such combination or to each of the separate
principal amounts resulting from such subdivision, as the case may be.
"SYNTHETIC LEASE OBLIGATION" means the monetary obligation of
a Person under (i) a so-called synthetic, off-balance sheet or tax retention
lease or (ii) an agreement for the use or possession of property creating
obligations that do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such person (without regard to accounting treatment).
"TAXES" has the meaning set forth in SECTION 3.01.
"TRUST AGREEMENT" means Trust Agreement, substantially in the
form of EXHIBIT E hereto, dated as of the Closing Date, among the Borrower, the
Trustee, the Administrative Agent, the Public Debt Trustee and any Holder of
Additional Senior Indebtedness, as the same may be amended, modified or
supplemented from time to time.
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"TRUSTEE" means Xxxxx Fargo Bank Minnesota, National
Association, in its capacity as trustee under the Trust Agreement, together with
its successors and permitted assigns.
"TYPE" has the meaning set forth in SECTION 1.04.
"UNITED STATES" means the United States of America, including
the states and the District of Columbia, but excluding its territories and
possessions.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary which would
otherwise be a Consolidated Subsidiary, but which has been designated as an
Unrestricted Subsidiary by the Borrower pursuant to the provisions of SECTION
7.07.
"WORTHINGTON'S RATINGS" means the ratings from Xxxxx'x and S&P
with respect to the senior, unsecured, long-term indebtedness for borrowed money
of the Borrower that is not guaranteed by any other Person.
"WHOLLY-OWNED SUBSIDIARY" means, with respect to any Person at
any date, any Subsidiary of such Person all of the shares of capital stock or
other ownership interests of which (except directors' qualifying shares) are at
the time directly or indirectly owned by such Person.
SECTION 1.02 COMPUTATION OF TIME PERIODS AND OTHER
DEFINITIONAL PROVISIONS. For purposes of computation of periods of time
hereunder, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding". All references to time herein shall be
references to Eastern Standard time or Eastern Daylight time, as the case may
be, unless specified otherwise. References in this Agreement to Articles,
Sections, Schedules, Appendices or Exhibits shall be to Articles, Sections,
Schedules, Appendices or Exhibits of or to this Agreement unless otherwise
specifically provided. The definitions in SECTION 1.01 shall apply equally to
both the singular and plural forms of the terms defined.
SECTION 1.03 ACCOUNTING TERMS AND DETERMINATIONS. Except as
otherwise expressly provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and reports as to
financial matters required to be delivered to the Lenders hereunder shall be
prepared, in accordance with GAAP applied on a consistent basis. All financial
statements delivered to the Lenders hereunder shall be accompanied by a
statement from the Borrower that GAAP has not changed since the most recent
financial statements delivered by the Borrower to the Lenders or, if GAAP has
changed, describing such changes in detail and explaining how such changes
affect the financial statements. All calculations made for the purposes of
determining compliance with this Agreement shall (except as otherwise expressly
provided herein) be made by application of GAAP applied on a basis consistent
with the most recent annual or quarterly financial statements delivered pursuant
to SECTION 6.01 (or, prior to the delivery of the first financial statements
pursuant to SECTION 6.01, consistent with the financial statements described in
SECTION 5.02(a)). Any change in GAAP that effects the calculation of financial
covenants will result in an adjustment in the affected covenant so that it is no
more or less restrictive than on the Closing Date.
SECTION 1.04 CLASSES AND TYPES OF BORROWINGS. The term
"BORROWING" denotes the aggregation of Loans of one or more Lenders to be made
to the Borrower pursuant to ARTICLE II on the same date, all of which Loans are
of the same Class and Type (subject to ARTICLE III) and, except in the case of
Base Rate Loans, have the same initial Interest Period. Loans hereunder are
distinguished by "Class" and "Type". The "CLASS" of a Loan (or of a Commitment
to make such a Loan or of a Borrowing comprised of such Loans) refers to whether
such Loan is a Committed Loan (Syndicated or Swingline) or a Competitive Bid
Loan. The "TYPE" of a Loan refers (i) in the case of Committed Loans, to whether
such Loan is a Base Rate Loan or a Eurodollar Loan and (ii) in the case of
Competitive Bid Loan, to
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whether such Loan is a Competitive Bid Absolute Rate Loan or a Competitive Bid
LIBOR Loan. Identification of a Loan (or a Borrowing) by both Class and Type
(e.g., a "Committed Eurodollar Loan") indicates that such Loan is a Loan of both
such Class and such Type (e.g., both a Committed Loan and a Eurodollar Loan) or
that such Borrowing is comprised of such Loans. In addition, Borrowings are
classified by reference to the provisions of ARTICLE II under which
participation therein is determined (i.e., a "Committed Loan" is a Syndicated
Loan under SECTION 2.01(a) in which all Lenders participate in proportion to
their Commitments or a Swingline Borrowing under SECTION 2.01(b) funded by the
Swingline Lender, while a "Competitive Bid Borrowing" is a Borrowing under
SECTION 2.03 in which the Lender participants are determined on the basis of
their respective bids in accordance therewith).
ARTICLE II
THE CREDIT FACILITIES
SECTION 2.01 COMMITMENTS TO LEND.
(a) SYNDICATED LOANS. Each Revolving Lender severally agrees,
on the terms and conditions set forth in this Agreement, to make Revolving Loans
to the Borrower pursuant to this SUBSECTION 2.01(a) from time to time prior to
the Maturity Date in amounts such that the aggregate of its Revolving
Outstandings shall not exceed (after giving effect to all Revolving Loans and
Competitive Bid Loans repaid and all Refunded Swingline Loans paid, concurrently
with the making of any Revolving Loans) its Revolving Commitment; PROVIDED, that
immediately after giving effect to each such Revolving Loan, the aggregate of
the Revolving Outstandings plus the aggregate principal amount of Competitive
Bid Loans shall not exceed the aggregate amount of the Revolving Commitments.
Each Revolving Borrowing (other than a Borrowing to be used to repay Refunded
Swingline Loans which shall be in an aggregate amount equal to such Refunded
Swingline Loans) shall be in an aggregate principal amount of $5,000,000 or any
larger multiple of $1,000,000 (except that any such Borrowing may be in the
aggregate amount of the unused Revolving Commitments) and shall be made from the
several Revolving Lenders ratably in proportion to their respective Revolving
Commitments. Within the foregoing limits, the Borrower may borrow under this
SUBSECTION 2.01(a), repay, or, to the extent permitted by SECTION 2.09, prepay,
Revolving Loans and reborrow under this SUBSECTION 2.01(a).
(b) SWINGLINE LOANS.
(i) The Swingline Lender agrees, on the terms and
subject to the conditions set forth herein, to make a portion of the
Revolving Commitments available to the Borrower from time to time
prior to the Swingline Termination Date by making Swingline Loans to
the Borrower in Dollars (each such loan, a "SWINGLINE LOAN" and
collectively, the "SWINGLINE LOANS"); PROVIDED, that (i) the
aggregate principal amount of the Swingline Loans outstanding at any
one time shall not exceed the Swingline Committed Amount, (ii) with
regard to each Lender individually (other than the Swingline Lender
in its capacity as such), the principal amount of such Lender's
outstanding Revolving Loans plus its Participation Interests in
outstanding Swingline Loans shall not at any time exceed such
Lender's Revolving Commitment Percentage of the Revolving Committed
Amount, (iii) with regard to the Revolving Lenders collectively, the
aggregate of the Revolving Outstandings shall not exceed the
Revolving Committed Amount, (iv) the Swingline Committed Amount
shall not exceed the aggregate of the Revolving Commitments then in
effect and (v) no Swingline Loans (as defined in the Five Year
Credit Agreement) are outstanding under the Five Year Credit
Agreement. Swingline Loans may be repaid and reborrowed in
accordance with the provisions hereof prior to the Swingline
Termination Date. Swingline Loans may be made notwithstanding the
fact that such Swingline Loans, when aggregated with the Swingline
Lender's other Revolving Outstandings, exceeds its Revolving
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Commitment. The proceeds of a Swingline Borrowing may not be used,
in whole or in part, to refund any prior Swingline Borrowing.
(ii) The principal amount of all Swingline Loans shall
be due and payable on the earliest of (A) the maturity date agreed
to by the Swingline Lender and the Borrower with respect to such
Swingline Loan (which maturity date shall not be a date more than 10
Business Days from the date of advance thereof), (B) the Swingline
Termination Date, (C) the occurrence of a Bankruptcy Event with
respect to the Borrower or (D) the acceleration of any Loan or the
termination of the Revolving Commitments pursuant to SECTION 8.02.
(iii) With respect to any Swingline Loans that have not
been voluntarily prepaid by the Borrower or paid by the Borrower
when due under CLAUSE (ii) above, the Swingline Lender (by request
to the Administrative Agent) or Administrative Agent at any time
may, and shall at any time Swingline Loans have been outstanding for
more than 10 Business Days, on one Business Day's notice, require
each Revolving Lender, including the Swingline Lender, and each such
Lender hereby agrees, subject to the provisions of this SECTION
2.01(b), to make a Revolving Loan (which shall be initially funded
as a Base Rate Loan) in an amount equal to such Lender's Revolving
Commitment Percentage of the amount of the Swingline Loans
("REFUNDED SWINGLINE Loans") outstanding on the date notice is
given.
(iv) In the case of Revolving Loans made by Lenders
other than the Swingline Lender under CLAUSE (iii) above, each such
Revolving Lender shall make the amount of its Revolving Loan
available to the Administrative Agent, in Dollars in same day funds,
at the Administrative Agent's Office, not later than 1:00 P.M. on
the Business Day next succeeding the date such notice is given. The
proceeds of such Revolving Loans shall be immediately delivered to
the Swingline Lender (and not to the Borrower) and applied to repay
the Refunded Swingline Loans. On the day such Revolving Loans are
made, the Swingline Lender's Revolving Commitment Percentage of the
Refunded Swingline Loans shall be deemed to be paid with the
proceeds of a Revolving Loan made by the Swingline Lender and such
portion of the Swingline Loans deemed to be so paid shall no longer
be outstanding as Swingline Loans and shall instead be outstanding
as Revolving Loans. The Borrower authorizes the Administrative Agent
and the Swingline Lender to charge the Borrower's account with the
Administrative Agent (up to the amount available in such account) in
order to pay immediately to the Swingline Lender the amount of such
Refunded Swingline Loans to the extent amounts received from the
Revolving Lenders, including amounts deemed to be received from the
Swingline Lender, are not sufficient to repay in full such Refunded
Swingline Loans. If any portion of any such amount paid (or deemed
to be paid) to the Swingline Lender should be recovered by or on
behalf of any Borrower from the Swingline Lender in bankruptcy, by
assignment for the benefit of creditors or otherwise, the loss of
the amount so recovered shall be ratably shared among all Revolving
Lenders in the manner contemplated by SECTION 2.13.
(v) A copy of each notice given by the Swingline Lender
pursuant to this SECTION 2.01(b) shall be promptly delivered by the
Swingline Lender to the Administrative Agent and the Borrower. Upon
the making of a Revolving Loan by a Revolving Lender pursuant to
this SECTION 2.01(b), the amount so funded shall no longer be owed
in respect of its Participation Interest in the related Refunded
Swingline Loans.
(vi) If as a result of any Bankruptcy Event, Revolving
Loans are not made pursuant to this SECTION 2.01(b) sufficient to
repay any amounts owed to the Swingline Lender as a result of a
nonpayment of outstanding Swingline
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Loans, each Revolving Lender agrees to purchase, and shall be deemed
to have purchased, a participation in such outstanding Swingline
Loans in an amount equal to its Revolving Commitment Percentage of
the unpaid amount together with accrued interest thereon. Upon one
Business Day's notice from the Swingline Lender, each Revolving
Lender shall deliver to the Swingline Lender an amount in Dollars
equal to its respective Participation Interest in such Swingline
Loans in same day funds at the office of the Swingline Lender
specified on SCHEDULE 10.02. In order to evidence such Participation
Interest each Revolving Lender agrees to enter into a participation
agreement at the request of the Swingline Lender in form and
substance reasonably satisfactory to all parties. In the event any
Revolving Lender fails to make available to the Swingline Lender the
amount of such Revolving Lender's Participation Interest as provided
in this SECTION 2.01(b)(vi), the Swingline Lender shall be entitled
to recover such amount on demand from such Revolving Lender together
with interest at the customary rate set by the Swingline Lender for
correction of errors among banks in New York City for one Business
Day and thereafter at the Base Rate plus the then Applicable Margin
for Base Rate Loans.
(vii) Each Revolving Lender's obligation to make
Revolving Loans pursuant to CLAUSE (iv) above and to purchase
Participation Interests in outstanding Swingline Loans pursuant to
CLAUSE (vi) above 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 Revolving Lender or any other Person may have against the
Swingline Lender or the Borrower, (ii) the occurrence or continuance
of a Default or an Event of Default or the termination or reduction
in the amount of the Revolving Commitments after any such Swingline
Loans were made, (iii) any adverse change in the condition
(financial or otherwise) of the Borrower or any other Person, (iv)
any breach of this Agreement or any other Loan Document by the
Borrower or any other Lender, (v) whether any condition specified in
ARTICLE IV is then satisfied or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
forgoing; PROVIDED, that no Revolving Lender shall be obligated
following the occurrence and during the continuance of any Default
or Event of Default to make any payment to the Swingline Lender
under this SUBSECTION (b) with respect to a Swingline Loan made by
the Swingline Lender at a time when it had actual knowledge that a
Default or Event of Default had occurred and was continuing. If such
Lender does not pay such amount forthwith upon the Swingline
Lender's demand therefor, and until such time as such Lender makes
the required payment, the Swingline Lender shall be deemed to
continue to have outstanding Swingline Loans in the amount of such
unpaid Participation Interest for all purposes of the Loan Documents
other than those provisions requiring the other Lenders to purchase
a participation therein. Further, such Lender shall be deemed to
have assigned any and all payments made of principal and interest on
its Loans, and any other amounts due to it hereunder to the
Swingline Lender to fund Swingline Loans in the amount of the
Participation Interest in Swingline Loans that such Lender failed to
purchase pursuant to this SECTION 2.01(b)(vii) until such amount has
been purchased (as a result of such assignment or otherwise).
SECTION 2.02 NOTICE OF COMMITTED LOAN.
(a) SYNDICATED LOANS. The Borrower shall give the
Administrative Agent notice of each Syndicated Loan substantially in the form of
Exhibit A-1 hereto (a "NOTICE OF SYNDICATED LOAN") not later than 11:00 A.M. on
(i) the date of each Syndicated Base Rate Borrowing and (ii) the third Business
Day before each Syndicated Eurodollar Borrowing. Each such notice shall be
irrevocable and shall specify:
(A) the date of such Borrowing, which shall
be a Business Day;
(B) the aggregate amount of such Borrowing;
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(C) whether the Loans comprising such
Borrowing are to bear interest initially at the Base
Rate or the Eurodollar Rate; and
(D) in the case of a Eurodollar Borrowing,
the duration of the initial Interest Period applicable
thereto, subject to the provisions of the definition of
Interest Period and to SECTION 2.06(a).
(b) SWINGLINE BORROWINGS. The Borrower shall request a
Swingline Loan by written notice (or telephone notice promptly confirmed in
writing) substantially in the form of EXHIBIT A-5 hereto (a "SWINGLINE LOAN
REQUEST") to the Swingline Lender and the Administrative Agent not later than
2:00 P.M. on the Business Day of the requested Swingline Loan. Each such notice
shall be irrevocable and shall specify (i) that a Swingline Loan is requested,
(ii) the date of the requested Swingline Loan (which shall be a Business Day)
and (iii) the principal amount of the Swingline Loan requested. Each Swingline
Loan shall be made in Dollars as a Base Rate Loan and, subject to SECTION
2.01(b)(ii), shall have such maturity date as agreed to by the Swingline Lender
and the Borrower upon receipt by the Swingline Lender of the Swingline Loan
Request from the Borrower.
SECTION 2.03 COMPETITIVE BID BORROWINGS.
(a) COMPETITIVE BID OPTION. In addition to Committed Loans
pursuant to SECTION 2.01, the Borrower may, so long as Worthington's Ratings are
at least BBB/Baa2 from Xxxxx'x and S&P, respectively, and as set forth in this
SECTION 2.03, request the Lenders to make offers to make Competitive Bid Loans
to the Borrower from time to time prior to the Maturity Date. The Lenders may,
but shall have no obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the manner set forth in
this SECTION 2.03. After giving effect to any borrowing of Competitive Bid
Loans, (i) the aggregate Revolving Outstandings plus the aggregate principal
amount of all Competitive Bid Loans shall not exceed the aggregate amount of the
Revolving Commitments and (ii) there shall not be more than five different
Interest Periods in effect with respect to Competitive Bid Loans at any time.
(b) COMPETITIVE BID REQUEST. When the Borrower wishes to
request offers to make Competitive Bid Loans under this SECTION 2.03, it shall
transmit to the Administrative Agent by telephone call followed promptly by
facsimile transmission (a "COMPETITIVE BID REQUEST") substantially in the form
of EXHIBIT A-2 hereto so as to be received by the Administrative Agent at the
Administrative Agent's Office not later than 12:00 Noon on (x) the fourth
Business Day before the date of Borrowing proposed therein, in the case of a
LIBOR Auction or (y) the Business Day next preceding the date of Borrowing
proposed therein, in the case of an Absolute Rate Auction, or, in any such case,
such other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Lenders not later than the date
of the Competitive Bid Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective. Each such Competitive Bid
Request shall specify:
(i) the proposed date of Borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Borrowing, which shall
be $5,000,000 in aggregate principal amount (or any larger multiple
of $1,000,000);
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period; and
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(iv) whether the Competitive Bid Borrowing quote
requested (each, a "COMPETITIVE BID QUOTE") are to set forth a
Competitive Bid Margin or a Competitive Bid Absolute Rate.
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period in a single Competitive Bid Request. No more than two
Competitive Bid Requests shall be given within five Business Days (or such other
number of days as the Borrower and the Administrative Agent may agree) of any
other Competitive Bid Request.
(c) DELIVERY OF COMPETITIVE BIDS REQUESTS. The Administrative
Agent shall promptly notify each Revolving Lender of each Competitive Bid
Request received by it from the Borrower and the contents of such Competitive
Bid Requests, which notice shall constitute an invitation by the Borrower to
each Revolving Lender to submit Competitive Bids offering to make the
Competitive Bid Loans to which such Competitive Bid Request relates in
accordance with this SECTION 2.03.
(d) SUBMISSION AND CONTENTS OF COMPETITIVE BIDS. (i) Each
Lender may submit a competitive bid (a "COMPETITIVE BID") containing an offer or
offers to make Competitive Bid Loans in response to any invitation for
Competitive Bids. Each Competitive Bid must comply with the requirements of this
SUBSECTION 2.03(d) and must be submitted to the Administrative Agent by telex or
facsimile at the Administrative Agent's office not later than (x) 10:00 A.M. on
the third Business Day before the proposed date of Borrowing, in the case of a
LIBOR Auction or (y) 10:00 A.M. on the proposed date of Borrowing, in the case
of an Absolute Rate Auction, or, in any such case, such other time or date as
the Borrower and the Administrative Agent shall have mutually agreed and shall
have notified to the Lenders not later than the date of the Competitive Bid
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective; PROVIDED, that Competitive Bids submitted by the
Administrative Agent (or any affiliate of the Administrative Agent) in the
capacity of a Lender may be submitted, and may only be submitted, if the
Administrative Agent or such affiliate notifies the Borrower of the terms of the
offer or offers contained therein not later than 30 minutes before the deadline
for the other Lenders. Subject to ARTICLES III and IV, any Competitive Bid so
made shall not be revocable except with the written consent of the
Administrative Agent given on the instructions of the Borrower.
(ii) Each Competitive Bid shall be substantially in the
form of EXHIBIT A-3 hereto and shall in any case specify:
(A) the proposed date of Borrowing;
(B) the principal amount of the Competitive
Bid Loan for which each such offer is being made, which
principal amount (w) may be greater than or less than
the Commitment of the quoting Lender, (x) must be in the
principal amount of $5,000,000 (or any larger multiple
of $1,000,000), (y) may not exceed the principal amount
of Competitive Bid Loans for which offers were requested
and (z) may be subject to an aggregate limitation as to
the principal amount of Competitive Bid Loans for which
offers being made by such quoting Lender may be
accepted;
(C) in the case of a LIBOR Auction, the
margin above or below the Applicable Interbank Offered
Rate (the "COMPETITIVE BID Margin") offered for each
such Competitive Bid Loan, expressed as a percentage
(specified to the nearest 1/1,00th of 1%) to be added to
or subtracted from such base rate;
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(D) in the case of an Absolute Rate Auction,
the rate of interest per annum (specified to the nearest
1/100th of 1%) (the "COMPETITIVE BID ABSOLUTE RATE")
offered for each such Competitive Bid Loan; and
(E) the identity of the quoting Lender.
A Competitive Bid may set forth up to three separate offers by the quoting
Lender with respect to each Interest Period specified in the related Invitation
for Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with
EXHIBIT A-3 hereto or does not specify all of the
information required by SUBSECTION 2.03(d)(ii) above;
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in addition
to those set forth in the applicable Invitation for
Competitive Bids; or
(D) arrives after the time set forth in
SUBSECTION 2.03(d)(i).
(e) NOTICE TO THE BORROWER. The Administrative Agent shall
promptly notify the Borrower, but using its best efforts in no event later than
11:00 A.M. of the terms of (i) any Competitive Bid submitted by a Lender that is
in accordance with SUBSECTION 2.03(d) and (ii) any Competitive Bid that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid submitted
by such Lender with respect to the same Competitive Bid Request. Any such
subsequent Competitive Bid shall be disregarded by the Administrative Agent
unless such subsequent Competitive Bid is submitted solely to correct a manifest
error in such former Competitive Bid. The Administrative Agent's notice to the
Borrower shall specify (A) the aggregate principal amount of Competitive Bid
Loans for which offers have been received for each Interest Period specified in
the related Competitive Bid Request, (B) the respective principal amounts and
Competitive Bid Margins or Competitive Bid Absolute Rates, as the case may be,
so offered and (C) if applicable, limitations on the aggregate principal amount
of Competitive Bid Loans for which offers in any single Competitive Bid may be
accepted.
(f) ACCEPTANCE AND NOTICE BY THE BORROWER. The Borrower shall
notify the Administrative Agent of its acceptance or non-acceptance of the
offers notified to it pursuant to SUBSECTION 2.03(e) at the Administrative
Agent's Office not later than 11:00 A.M. on (x) the third Business Day before
the proposed date of Borrowing, in the case of a LIBOR Auction in Dollars or (y)
the proposed date of Borrowing, in the case of an Absolute Rate Auction, or, in
any such case, such other time or date as the Borrower and the Administrative
Agent shall have mutually agreed and shall have notified to the Lenders not
later than the date of the Competitive Bid Request for the first LIBOR Auction
or Absolute Rate Auction for which such change is to be effective. In the case
of acceptance, such notice (a "NOTICE OF COMPETITIVE BID BORROWING") shall
specify the aggregate principal amount of offers for each Interest Period that
are accepted. The Borrower may accept any Competitive Bid in whole or in part;
PROVIDED, that:
(i) the aggregate principal amount of each Competitive
Bid Borrowing may not exceed the applicable amount set forth in the
related Competitive Bid Request;
(ii) the aggregate principal amount of each Competitive
Bid Borrowing must be in the amount of $5,000,000 (or any larger
multiple of $1,000,000);
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(iii) acceptance of offers may only be made on the basis
of ascending Competitive Bid Margins or Competitive Bid Absolute
Rates, as the case may be; and
(iv) the Borrower may not accept any offer that is
described in SUBSECTION 2.03(d)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(g) ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made by
two or more Lenders with the same Competitive Bid Margins or Competitive Bid
Absolute Rates, as the case may be, for a greater aggregate principal amount
than the amount in respect of which such offers are accepted for the related
Interest Period, the principal amount of Competitive Bid Loans in respect of
which such offers are accepted shall be allocated by the Administrative Agent
among such Lenders as nearly as possible (in multiples of $1,000,000) in
proportion to the aggregate principal amounts of such offers. Determinations by
the Administrative Agent of the amounts of Competitive Bid Loans shall be
conclusive in the absence of manifest error. After each Absolute Rate Auction
and LIBOR Auction pursuant to this SECTION 2.03, the Administrative Agent shall
notify each Lender that submitted a Competitive Bid in such auction of the range
of bids submitted (without the bidder's name) and accepted for each Competitive
Bid Loan and the aggregate principal amount of each Competitive Bid Borrowing
resulting from such auction.
SECTION 2.04 NOTICE TO LENDERS; FUNDING OF LOANS.
(a) NOTICE TO LENDERS. Upon receipt of a Notice of Borrowing,
the Administrative Agent shall promptly notify each Lender of such Lender's
ratable share (if any) of the Borrowing referred to therein, and such Notice of
Borrowing shall not thereafter be revocable by the Borrower.
(b) FUNDING OF LOANS.
(i) On the date of each Borrowing, each Lender
participating therein shall make available its share of such
Borrowing not later than 2:00 P.M., in Federal or other funds
immediately available, to the Administrative Agent at the
Administrative Agent's Office. Unless the Administrative Agent
determines that any applicable condition specified in Article IV has
not been satisfied, the Administrative Agent will make the funds so
received from the Lenders available to the Borrower in the
Borrower's account established at the Administrative Agent's Office;
PROVIDED, HOWEVER, that if on the date of any Syndicated Loan there
are outstanding Swingline Loans, then the funds so received shall be
applied, FIRST, to the repayment of such Swingline Loans and SECOND,
to the Borrower as provided above.
(ii) Not later than 3:00 P.M. on the date of each
Swingline Borrowing, the Swingline Lender shall, unless the
Administrative Agent shall have notified the Swingline Lender that
any applicable condition specified in ARTICLE IV has not been
satisfied, make available the amount of such Swingline Borrowing, in
Federal or other immediately available funds, to the Borrower in the
Borrower's account established at the Swingline Lender's address
referred to in SCHEDULE 10.02.
(c) FUNDING BY THE ADMINISTRATIVE AGENT IN ANTICIPATION OF
AMOUNTS DUE FROM THE LENDERS. Unless the Administrative Agent shall have
received notice from a Lender prior to the date of any Borrowing (except in the
case of a Base Rate Borrowing, in which case prior to the time of such
Borrowing) that such Lender will not make available to the Administrative Agent
such Lender's share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available to the Administrative Agent on the
date of such Borrowing in accordance with SECTION 2.04(b) above, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such share
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available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) a rate per annum equal to the higher
of the Federal Funds Rate (if such Borrowing is in Dollars) or the rate then
applicable to such Loan in accordance with SECTION 2.06, in the case of the
Borrower, and (ii) the Federal Funds Rate, in the case of such Lender. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Loan included in such Borrowing
for purposes of this Agreement.
(d) OBLIGATIONS OF LENDERS SEVERAL. The failure of any Lender
to make a Loan required to be made by it as part of any Borrowing hereunder
shall not relieve any other Lender of its obligation, if any, hereunder to make
any Loan on the date of such Borrowing, but no Lender shall be responsible for
the failure of any other Lender to make the Loan to be made by such other Lender
on such date of Borrowing.
(e) FAILED LOANS. If any Lender shall fail to make any Loan (a
"FAILED LOAN") which such Lender is otherwise obligated hereunder to make to the
Borrower on the date of Borrowing thereof, and the Administrative Agent shall
not have received notice from the Borrower or such Lender that any condition
precedent to the making of the Failed Loan has not been satisfied, then, until
such Lender shall have made or be deemed to have made (pursuant to the last
sentence of this SUBSECTION (e)) the Failed Loan in full or the Administrative
Agent shall have received notice from the Borrower or such Lender that any
condition precedent to the making of the Failed Loan was not satisfied at the
time the Failed Loan was to have been made, whenever the Administrative Agent
shall receive any amount from the Borrower for the account of such Lender, (i)
the amount so received (up to the amount of such Failed Loan) will, upon receipt
by the Administrative Agent, be deemed to have been paid to the Lender in
satisfaction of the obligation for which paid, without actual disbursement of
such amount to the Lender, (ii) the Lender will be deemed to have made the same
amount available to the Administrative Agent for disbursement as a Loan to the
Borrower (up to the amount of such Failed Loan) and (iii) the Administrative
Agent will disburse such amount (up to the amount of the Failed Loan) to the
Borrower or, if the Administrative Agent has previously made such amount
available to the Borrower on behalf of such Lender pursuant to the provisions
hereof, reimburse itself (up to the amount of the amount made available to the
Borrower); PROVIDED, HOWEVER, that the Administrative Agent shall have no
obligation to disburse any such amount to the Borrower or otherwise apply it or
deem it applied as provided herein unless the Administrative Agent shall have
determined in its sole discretion that to so disburse such amount will not
violate any law, rule, regulation or requirement applicable to the
Administrative Agent. Upon any such disbursement by the Administrative Agent,
such Lender shall be deemed to have made a Base Rate Loan of the same Class as
the Failed Loan to the Borrower in satisfaction, to the extent thereof, of such
Lender's obligation to make the Failed Loan.
SECTION 2.05 EVIDENCE OF LOANS.
(a) LENDER ACCOUNTS. Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness owed
by the Borrower to such Lender resulting from each Loan made by such Lender from
time to time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Agreement.
(b) ADMINISTRATIVE AGENT RECORDS. The Administrative Agent
shall maintain accounts in which it will record (i) the amount of each Loan made
hereunder, the Class and Type of each Loan made and the Interest Period, if any,
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Agent hereunder from the Borrower
and each Lender's share thereof.
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(c) EVIDENCE OF DEBT. The entries made in the accounts
maintained pursuant to SUBSECTIONS (a) and (b) of this SECTION 2.05 shall be
prima facie evidence of the existence and amounts of the obligations therein
recorded; PROVIDED, HOWEVER, that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
(d) NOTES. Notwithstanding any other provision of this
Agreement, if any Lender shall request and receive a Note or Notes as provided
in SECTION 10.06 or otherwise, then the Loans of such Lender shall be evidenced
by Notes of the applicable Class, in each case, substantially in the form of
EXHIBIT B-1 or B-2, as applicable, and payable to the order of such Lender for
the account of its Applicable Lending Office in an amount equal to the aggregate
unpaid principal amount of such Lender's Revolving Loans or Competitive Bid
Loans, as applicable. If requested by the Swingline Lender, the Swingline Loans
shall be evidenced by a single Swingline Note, substantially in the form of
EXHIBIT B-3, and payable to the order of the Swingline Lender in an amount equal
to the aggregate unpaid principal amount of the Swingline Loans.
(e) NOTES FOR LOANS OF DIFFERENT TYPES. Each Lender may, by
notice to the Borrower and the Administrative Agent, request that its Loans of a
particular Type be evidenced by separate Notes in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such Note shall be in
substantially the form of EXHIBIT B-1 or B-2 hereto with appropriate
modifications to reflect the fact that it evidences solely Loans of the relevant
Type. Each reference in this Agreement to such Lender's "Note" of a particular
Class shall be deemed to refer to and include any or all of such Notes, as the
context may require.
(f) NOTE ENDORSEMENTS. Each Lender having one or more Notes
shall record the date, amount, Class and Type of each Loan made by it and the
date and amount of each payment of principal made by the Borrower with respect
thereto, and may, if such Lender so elects in connection with any transfer or
enforcement of any Note, endorse on the reverse side or on the schedule, if any,
forming a part thereof appropriate notations to evidence the foregoing
information with respect to each outstanding Loan evidenced thereby; PROVIDED,
that the failure of any Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under any such Note.
Each Lender is hereby irrevocably authorized by the Borrower so to endorse each
of its Notes and to attach to and make a part of each of its Notes a
continuation of any such schedule as and when required.
SECTION 2.06 INTEREST.
(a) RATE OPTIONS APPLICABLE TO LOANS. Each Committed Loan
shall be comprised of Base Rate Loans or (except in the case of Swingline Loans
which shall be made and maintained as Base Rate Loans) Eurodollar Loans, as the
Borrower may request pursuant to SECTION 2.02 or 2.03, as applicable. Borrowings
of more than one Type may be outstanding at the same time; PROVIDED, HOWEVER,
that the Borrower may not request any Borrowing that, if made, would result in
an aggregate of more than five separate Groups of Eurodollar Loans being
outstanding hereunder at any one time. For this purpose, Loans having different
Interest Periods, regardless of whether commencing on the same date, shall be
considered separate Groups.
(b) BASE RATE LOANS. Each Loan of a Class which is made as, or
converted into, a Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made as, or
converted into, a Base Rate Loan until it becomes due or is converted into a
Loan of any other Type or repaid in full, at a rate per annum equal to the
Applicable Margin for Base Rate Loans of such Class for such day plus the Base
Rate for such day. Such interest shall be payable quarterly in arrears on each
Interest Payment Date and, with respect to the principal amount of any Base
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Rate Loan converted to a Eurodollar Loan, on the date such Base Rate Loan is so
converted. Any overdue principal of or interest on any Base Rate Loan of any
Class shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the rate otherwise applicable to Base Rate
Loans of the same Class for such day.
(c) EURODOLLAR LOANS. Each Eurodollar Loan shall bear interest
on the outstanding principal amount thereof, for each day during the Interest
Period applicable thereto, at a rate per annum equal to the sum of the
Applicable Margin for Eurodollar Loans for such day plus the Eurodollar Rate;
PROVIDED, that if any Eurodollar Loan or any portion thereof shall, as a result
of the definition of Interest Period, have an Interest Period of less than one
month, such portion shall bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period. Such interest shall be payable
for each Interest Period on each Interest Payment Date. Any overdue principal
amount of or interest on any Eurodollar Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the higher of (i)
the sum of 2% plus the Applicable Margin for Eurodollar Loans for such day plus
the Eurodollar Rate applicable to such Loan at the date such payment was due and
(ii) the sum of 2% plus the Applicable Margin for Eurodollar Loans for such day
plus the quotient obtained (rounded upward, if necessary, to the nearest 1/100th
of 1%) by dividing (x) the Applicable Interbank Offered Rate for one day (or if
such amount due remains unpaid more than three Business Days, then for such
other period of time not longer than six months as the Administrative Agent may
select) deposits in Dollars in an amount approximately equal to such overdue
payment by (y) 1.00 minus the Eurodollar Reserve Percentage (or, if the
circumstances described in SECTION 3.02 shall exist, at a rate per annum equal
to the sum of 2% plus the rate applicable to Revolving Base Rate Loans for such
day).
(d) COMPETITIVE BID LOANS. Subject to ARTICLE III, the unpaid
principal amount of each Competitive Bid LIBOR Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Eurodollar Rate for such
Interest Period (determined in accordance with SECTION 2.06(C) as if the related
Competitive Bid LIBOR Borrowing were a Eurodollar Borrowing) plus (or minus) the
Competitive Bid Margin quoted by the Lender making such Loan. The unpaid
principal amount of each Competitive Bid Absolute Rate Loan shall bear interest
on the outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the Competitive Bid Absolute Rate quoted
by the Lender making such Loan. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any overdue
principal of or interest on any Competitive Bid Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the sum
of 2% plus the Base Rate for such day.
(e) DETERMINATION AND NOTICE OF INTEREST RATES. The
Administrative Agent shall determine each interest rate applicable to the Loans
hereunder. The Administrative Agent shall give prompt notice to the Borrower and
the participating Lenders of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error. Any
notice with respect to Eurodollar Loans shall, without the necessity of the
Administrative Agent so stating in such notice, be subject to adjustments in the
Applicable Margin applicable to such Loans after the beginning of the Interest
Period applicable thereto. When during an Interest Period any event occurs that
causes an adjustment in the Applicable Margin applicable to Loans to which such
Interest Period is applicable, the Administrative Agent shall give prompt notice
to the Borrower and the Lenders of such event and the adjusted rate of interest
so determined for such Loans, and its determination thereof shall be conclusive
in the absence of manifest error.
(f) DEFAULT INTEREST. Upon the occurrence and during the
continuance of an Event of Default, and regardless of whether or not any
judgment has been entered thereon, the principal amount of and, to the extent
permitted by law, interest on the Loans and any other amounts owing herein or
under
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the other Loan Documents shall bear interest, payable on demand, at a per annum
rate equal to (i) in the case of principal of any Loan, the rate otherwise
applicable to such Loan during such period pursuant to this SECTION 2.06 plus
2.00% (without duplication of any amount owing in respect of Base Rate Loans
under the third sentence of SECTION 2.06(b), in respect of Eurodollar Loans
under the third sentence of SECTION 2.06(c) or in respect of any Competitive Bid
Loan under the fourth sentence of SECTION 2.06(d)), (ii) in the case of interest
on any Loan the Base Rate plus the Applicable Margin for Loans of such Class on
such day plus 2.00% and (iii) in the case of any other amount, the Base Rate
plus the Applicable Margin for Revolving Base Rate Loans plus 2.00%.
SECTION 2.07 EXTENSION AND CONVERSION.
(a) CONTINUATION CONVERSION OPTIONS. The Loans included in
each Syndicated Loan shall bear interest initially at the type of rate specified
by the Borrower in the applicable Notice of Syndicated Loan. Thereafter, the
Borrower shall have the option, on any Business Day, to elect to change or
continue the type of interest rate borne by each Group of Syndicated Loans
(subject in each case to the provisions of ARTICLE III and SUBSECTION 2.06(d)),
as follows:
(i) if such Loans are Base Rate Loans, the Borrower may
elect to convert such Loans to Eurodollar Loans as of any Business
Day; and
(ii) if such Loans are Eurodollar Loans, the Borrower
may elect to convert such Loans to Base Rate Loans or elect to
continue such Loans as Eurodollar Loans for an additional Interest
Period, subject to SECTION 3.05 in the case of any such conversion
or continuation effective on any day other than the last day of the
then current Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice, substantially in the
form of EXHIBIT A-4 hereto (a "NOTICE OF EXTENSION/CONVERSION") to the
Administrative Agent not later than 12:00 Noon on the third Business Day before
the conversion or continuation selected in such notice is to be effective. A
Notice of Extension/Conversion may, if it so specifies, apply to only a portion
of the aggregate principal amount of the relevant Group of Loans, PROVIDED, that
(i) such portion is allocated ratably among the Loans comprising such Group and
(ii) the portion to which such Notice applies, and the remaining portion to
which it does not apply, are each $5,000,000 or any larger multiple of
$1,000,000.
(b) CONTENTS OF NOTICE OF EXTENSION/CONVERSION. Each Notice of
Extension/ Conversion shall specify:
(i) the Group of Loans (or portion thereof) to which
such notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply with
the applicable clause of SUBSECTION 2.07(a) above;
(iii) if the Loans comprising such Group are to be
converted, the new type of Loans and, if the Loans being converted
are to be Eurodollar Loans, the duration of the next succeeding
Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Eurodollar
Loans for an additional Interest Period, the duration of such
additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of the term "Interest Period".
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(c) NOTIFICATION TO LENDERS. Upon receipt of a Notice of
Extension/Conversion from the Borrower pursuant to SUBSECTION 2.07(a) above, the
Administrative Agent shall promptly notify each Lender of the contents thereof
and such notice shall not thereafter be revocable by the Borrower. If no Notice
of Extension/Conversion is timely received prior to the end of an Interest
Period for any Group of Eurodollar Loans, the Borrower shall be deemed to have
elected that such Group be converted to Base Rate Loans as of the last day of
such Interest Period.
(d) LIMITATION ON CONVERSION/CONTINUATION OPTIONS. The
Borrower shall not be entitled to elect to convert any Syndicated Loans to, or
continue any Syndicated Loans for an additional Interest Period as, Eurodollar
Loans if (i) the aggregate principal amount of any Group of Eurodollar Loans
created or continued as a result of such election would be less than $5,000,000
or (ii) a Default shall have occurred and be continuing when the Borrower
delivers notice of such election to the Administrative Agent.
(e) CERTAIN MANDATORY CONVERSIONS AND PREPAYMENTS OF
EURODOLLAR LOANS. On the date in which the aggregate unpaid principal amount of
Eurodollar Loans comprising any Group of Loans shall be reduced, by payment or
prepayment or otherwise, to less than $5,000,000, such Loans shall, on the last
day of the then current Interest Period therefor, automatically be converted
into Base Rate Syndicated Loans. Upon the occurrence and during the continuance
of any Event of Default, (i) each Eurodollar Loan shall automatically, on the
last day of the then current Interest Period therefor, be converted into a
Syndicated Base Rate Loan and (ii) the obligation of the Lenders to make, or to
continue or convert Syndicated Loans into, Eurodollar Loans shall be suspended.
(f) ACCRUED INTEREST. Accrued interest on a Loan (or portion
thereof) being extended or converted shall be paid by the Borrower (i) with
respect to any Base Rate Loan being converted to a Eurodollar Loan, on the last
day of the first fiscal quarter of the Borrower ending on or after the date of
conversion and (ii) otherwise, on the date of extension or conversion.
SECTION 2.08 SCHEDULED TERMINATION OF COMMITMENTS; MANDATORY
PREPAYMENTS. The Commitments shall terminate on the Maturity Date, and any Loans
then outstanding (together with accrued interest thereon) shall be due and
payable on the Maturity Date. If on any date the aggregate of all Revolving
Outstandings plus the aggregate principal amount of Competitive Bid Loans
exceeds the aggregate amount of the Revolving Commitments, the Borrower shall,
within five Business Days, prepay outstanding Loans (as selected by the Borrower
and notified to the Revolving Lenders through the Administrative Agent not less
than three Business Days prior to the date of such payment) to the extent
necessary to eliminate any such excess.
SECTION 2.09 OPTIONAL PREPAYMENTS.
(a) Subject in the case of any Fixed Rate Loan to SECTION
3.05, the Borrower may (i) with notice by 12:00 Noon on the date of such
prepayment, prepay any Group of Base Rate Loans, any Swingline Borrowing or any
Competitive Bid Borrowing bearing interest at the Base Rate pursuant to SECTION
3.02, in each case in whole at any time, or from time to time in part in an
aggregate principal amount of $5,000,000 or any larger multiple of $1,000,000,
or (ii) upon at least three Business Days' notice to the Administrative Agent,
prepay any Group of Eurodollar Loans in whole at any time, or from time to time
in part in an aggregate principal amount of $5,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such optional prepayment shall
be applied to prepay ratably the Loans of the several Lenders included in such
Group or Borrowing.
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(b) Except as provided in SUBSECTION 2.09(a) above, the
Borrower may not prepay all or any portion of the principal amount of any
Competitive Bid Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Administrative Agent shall promptly notify each Lender of the
contents thereof and of such Lender's ratable share (if any) of such prepayment
and such notice shall not thereafter be revocable by the Borrower.
SECTION 2.10 ADJUSTMENT OF COMMITMENTS.
(a) OPTIONAL TERMINATION OR REDUCTION OF REVOLVING COMMITTED
AMOUNT. The Borrower may from time to time terminate in full or permanently
reduce the Revolving Committed Amount upon five Business Days' prior written or
telecopied notice to the Administrative Agent; PROVIDED, HOWEVER, that (i) no
such termination or reduction shall be made which would cause the Revolving
Outstandings plus the aggregate principal amount of Competitive Bid Loans (after
giving effect to any concurrent repayment of Revolving Loans, Competitive Bid
Loans or Swingline Loans) to exceed the Revolving Committed Amount as so
reduced, and (ii) any such partial reduction shall be in a minimum aggregate
amount of $5,000,000 or any integral multiple of $1,000,000 in excess thereof
(or, if less, the full remaining amount of the then applicable Revolving
Committed Amount). The Administrative Agent shall promptly notify each affected
Lender of the receipt by the Administrative Agent of any notice from the
Borrower pursuant to this SECTION 2.10(a). Any partial reduction of the
Revolving Committed Amount pursuant to this SECTION 2.10(a) shall be applied to
the Revolving Commitments of the Lenders pro-rata based upon their respective
Revolving Commitment Percentages. The Borrower shall pay to the Administrative
Agent for the account of the Lenders in accordance with the terms of SECTION
2.11, on the date of each termination or reduction of the Revolving Committed
Amount, any fees accrued through the date of such termination or reduction on
the amount of the Revolving Committed Amount so terminated or reduced.
(b) AUTOMATIC TERMINATION AT MATURITY. The Revolving
Commitments of the Lenders shall terminate automatically on the Maturity Date.
The Swingline Commitment of the Swingline Lender shall terminate automatically
on the Swingline Termination Date.
(c) OPTIONAL REPLACEMENT OF LENDERS, NON-PRO-RATA TERMINATION
OF COMMITMENTS. If (i) any Lender has demanded compensation or indemnification
pursuant to SECTION 3.01 or SECTION 3.04, (ii) the obligation of any Lender to
make Eurodollar Loans has been suspended pursuant to SECTION 3.02, (iii) any
Lender is a Defaulting Lender or (iv) any Lender has failed to consent to a
proposed amendment, waiver, discharge or termination which pursuant to the terms
of SECTION 10.01 or any other provision of any Loan Document requires the
consent of all of the Lenders and with respect to which the Required Lenders
shall have granted their consent, the Borrower shall have the right, if no
Default or Event of Default then exists, to (i) remove such Lender by
terminating such Lender's Commitment in full or (ii) replace such Lender by
causing such Lender to assign its Commitment (without payment of any assignment
fee) to one or more existing Lenders or Eligible Assignees (each a "REPLACEMENT
LENDER") pursuant to SECTION 10.06; PROVIDED, HOWEVER, that if the Borrower
elects to exercise such right with respect to any Lender pursuant to CLAUSE (i)
or (ii) above, it shall be obligated to remove or replace, as the case may be,
all Lenders that have made similar requests for compensation pursuant to SECTION
3.01 or 3.04 or whose obligation to make Eurodollar Loans has been similarly
suspended. The replacement of a Lender pursuant to this SECTION 2.10(c) shall be
effective on the tenth Business Day (the "REPLACEMENT DATE") following the date
of notice of such replacement to the Lenders through the Administrative Agent,
subject to the satisfaction of the following conditions:
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(i) each Replacement Lender, and each Lender subject to
replacement, shall have satisfied the conditions to an Assignment
and Acceptance set forth in SECTION 10.06(b) and, in connection
therewith, the Replacement Lender(s) shall pay to each Lender
subject to replacement an amount equal in the aggregate to the sum
of (y) the principal amount of, and all accrued but unpaid interest
on, its outstanding Loans and (z) all accrued but unpaid fees owing
to it pursuant to SECTION 2.11; and
(ii) the Borrower shall have paid to the Administrative
Agent for the account of each replaced Lender an amount equal to all
obligations owing to such replaced Lenders by the Borrower pursuant
to this Agreement and the other Loan Documents (other than those
obligations of the Borrower referred to in CLAUSE (I) above).
In the case of the removal of a Lender pursuant to this
SECTION 2.10(c), upon (i) payment by the Borrower to the Administrative Agent
for the account of the Lender subject to such removal of an amount equal to the
sum of (A) the aggregate principal amount of all Loans held by such Lender and
(B) all accrued interest, fees and other amounts owing to such Lender hereunder,
including, without limitation, all amounts payable by the Borrower to such
Lender under ARTICLE III or SECTIONS 10.04 and 10.05, and (ii) provision by the
Borrower to the Swingline Lender of appropriate assurances and indemnities
(which may include letters of credit) as each may reasonably require with
respect to any continuing obligation of such removed Lender to purchase
Participation Interests in any Swingline Loans then outstanding, such Lender
shall cease to constitute a Lender hereunder; PROVIDED, that the provisions of
this Agreement (including, without limitation, the provisions of ARTICLE III and
SECTIONS 10.04 and 10.05) shall continue to govern the rights and obligations of
a removed Lender with respect to any Loans made or any other actions taken by
such removed Lender while it was a Lender.
(d) OPTIONAL EXTENSIONS OF COMMITMENTS.
(i) If the Borrower shall request, by notice to the
Administrative Agent not less than 30 days prior to the Maturity
Date then in effect, that the availability period for Revolving
Loans be extended until the first anniversary of such Maturity Date,
then the Administrative Agent shall promptly notify each Revolving
Lender of such request, and each Revolving Lender shall notify the
Borrower and the Administrative Agent not more than 15 Business Days
after the date on which the Administrative Agent shall have received
the Borrower's request (which date shall be set forth in the notice
of such request given by the Administrative Agent) of its election
so to extend (in such case, each a "REMAINING LENDER") or not extend
the availability period for Revolving Loans; PROVIDED, that any
Revolving Lender that is a national banking association shall not be
required to notify the Borrower and the Administrative Agent of its
election to so extend earlier than 30 days prior to the Maturity
Date then in effect. Any Lender which shall not timely notify the
Administrative Agent of such election shall be deemed to have
elected not to extend such availability period.
(ii) If one or more Lenders shall timely notify the
Administrative Agent pursuant to CLAUSE (d)(i) of this SECTION 2.10
of its election not to extend the availability period for Revolving
Loans or shall be deemed to have elected not to extend the
availability period for Revolving Loans by virtue of having not
timely notified the Administrative Agent of its election to extend
such availability period, then the Administrative Agent shall so
advise the Borrower and the Remaining Lenders, and the Remaining
Lenders or any of them shall have the right (but not the
obligation), upon notice to the Administrative Agent not later than
10 Business Days immediately preceding the applicable Maturity Date,
to increase their respective Revolving Commitments by an amount
equal in the aggregate to the Revolving Commitments of the Lenders
who have, or have been deemed to have, elected not to extend the
availability period for
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Revolving Loans. Each Lender electing to increase its Revolving
Commitment hereunder shall specify in its notice to the
Administrative Agent the amount by which it is willing to increase
its Revolving Commitment. Each increase in the Revolving Commitment
of a Lender hereunder shall be evidenced by a written instrument
executed by such Lender, the Administrative Agent and the Borrower
and shall take effect on the Maturity Date in effect for the Lenders
who have, or have been deemed to have, elected not to extend the
availability period for Revolving Loans.
(iii) If the aggregate Revolving Commitments of the
Lenders prior to any adjustments under this SECTION 2.10 shall
exceed the aggregate Revolving Commitments of the Remaining Lenders
that have agreed to increase their Revolving Commitments pursuant to
SUBSECTION (d)(ii) of this SECTION 2.10, the Borrower may, with the
approval of the Administrative Agent, such approval not to be
unreasonably withheld, designate one or more Eligible Assignees
willing to extend Revolving Commitments until the first anniversary
of the Maturity Date in effect for the Lenders who have, or have
been deemed to have, elected not to extend the availability period
for Revolving Loans in an aggregate amount not greater than such
excess. Any such Eligible Assignee shall, on or prior to the
Maturity Date in effect for the Lenders who have, or have been
deemed to have, elected not to extend the availability period for
Revolving Loans, execute and deliver to the Borrower, the
Administrative Agent and each Remaining Lender an instrument,
satisfactory to the Borrower and the Administrative Agent, setting
forth the amount of its Revolving Commitment and containing its
agreement to become, and to perform all the obligations of, a Lender
hereunder. The Revolving Commitment of such Eligible Assignee shall
become effective, and such Eligible Assignee shall become a Lender
hereunder, on the Maturity Date then in effect for the Lenders who
have, or have been deemed to have, elected not to extend the
availability period for Revolving Loans.
(iv) The Borrower shall deliver to each Eligible
Assignee and each Lender who has increased its Revolving Commitment
pursuant to SECTION 2.10(d)(ii), on the Maturity Date in effect for
the Lenders who have, or have been deemed to have, elected not to
extend the availability period for Revolving Loans, a Revolving Note
evidencing the Borrower's obligation to pay Revolving Loans made by
such Eligible Assignee or such Lender pursuant to this Agreement.
(v) If some or all of the Lenders shall have elected to
extend the availability period for Revolving Loans as provided in
this SECTION 2.10(d), then (A) the availability period with respect
to the Revolving Commitments of such Lenders and any which becomes a
Lender hereunder shall continue until the first anniversary of the
Maturity Date in effect prior to such election and, as to such
Lenders, the term "Maturity Date", as used herein, shall mean such
first anniversary; (B) the Revolving Commitments of the Lenders who
have, or have been deemed to have, elected not to extend the
availability period for Revolving Loans shall continue in effect
until the Maturity Date in effect prior to such extension and shall
then terminate, and, as to such Lenders, the term "Maturity Date",
as used herein, shall continue to mean such Maturity Date and the
Borrower shall repay all such Revolving Loans on such date; and (C)
on the Maturity Date in effect prior to such extension, each Lender
who has, or has been deemed to have, elected not to extend the
availability period for Revolving Loans shall cease to be a Lender
hereunder upon payment in full of all Revolving Loans, accrued
interest, fees, costs and expenses due to such Lender hereunder;
PROVIDED, that the provisions of this Agreement (including, without
limitation, the provisions of ARTICLE III and SECTIONS 10.04 and
10.05) shall continue to govern the rights and obligations of such
Lender with respect to any Loans made or any other actions taken by
such Lender while it was a Lender.
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(vi) If some or all of the Lenders shall have elected to
extend the availability period for Revolving Loans as provided in
this SECTION 2.10(d), the availability period for Swingline Loans
shall, automatically without action on the part of the Borrower,
continue until the date to which the Maturity Date has been
extended, and the term "Swingline Termination Date", as used herein,
shall mean such date. The foregoing notwithstanding (i) in the event
that the Swingline Lender is also a Lender who has not extended its
Revolving Commitment hereunder, the Borrower's right to so extend
the Swingline Termination Date shall be subject to the appointment
of a successor Swingline Lender hereunder; and (ii) to the extent
the Swingline Lender's Revolving Commitment has been reduced in
connection with any such extension or there has been the appointment
of a successor Swingline Lender whose Revolving Commitment is less
than the Swingline Commitment existing immediately preceding such
appointment, then the Swingline Termination Date may only be
extended with respect to such lesser amount.
(e) OPTIONAL INCREASE OF REVOLVING COMMITMENTS.
(i) The Borrower shall have the right at any time prior
to August 31, 2002 to increase the Revolving Committed Amount
hereunder by an amount not to exceed $50,000,000 by causing one or
more Eligible Assignees to become a Revolving Lender under this
Agreement or by causing one or more existing Lenders to increase the
amount of such Lender's Revolving Commitment; provided that the
Revolving Commitment of each Eligible Assignee and any increase in
the amount of the Revolving Commitment of each existing Lender shall
be in an amount equal to $5,000,000 or any larger multiple of
$1,000,000 and provided, further, that no Lender shall at any time
be required to agree to a request of the Borrower to increase its
Revolving Commitment or other obligations hereunder.
(ii) Any increase in the aggregate Revolving Committed
Amount pursuant to subsection (e)(i) shall be effective only upon
the execution and delivery by each Eligible Assignee or existing
Lender, as the case may be, to the Borrower and the Administrative
Agent at least five Business Days before any such increase is to
become effective of an instrument satisfactory to the Borrower and
the Administrative Agent:
(A) in the case of an Eligible Assignee,
setting forth the amount of its Revolving Commitment and
the date upon which it is to become effective (the
"Commitment Increase Date") and containing its agreement
to become, and to perform all the obligations of, a
Lender hereunder; and
(B) in the case of an existing Lender,
setting forth the amount by which its Revolving
Commitment hereunder is to be increased and the
Commitment Increase Date applicable thereto.
(iii) Any increase in the Revolving Committed Amount
pursuant to subsection (e)(i) shall not be effective unless:
(A) no Default or Event of Default shall
have occurred and be continuing on the Commitment
Increase Date;
(B) each of the representations and
warranties of the Borrower contained in this Agreement
and the other Loan Documents shall be true and correct
on and as of the Commitment Increase Date;
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(C) immediately after giving effect to such
increase, the aggregate Revolving Committed Amount shall
not exceed $205,000,000; and
(D) each Lender (including each Eligible
Assignee which becomes a Lender pursuant to this Section
2.10(e)) shall have received a certificate of the
secretary or assistant secretary of the Borrower as to
the taking of any corporate action necessary in
connection with such increase.
(iv) From and after the Commitment Increase Date, the
term "Lenders", as used herein, shall include all Eligible Assignees
which become Lenders pursuant to this SECTION 2.10(e).
SECTION 2.11 FEES.
(a) FACILITY FEE. The Borrower shall pay to the Administrative
Agent for the account of each Revolving Lender a fee (the "FACILITY FEE") on
such Lender's Revolving Commitment Percentage of the daily Revolving Committed
Amount, computed at a per annum rate for each day at a rate equal to the
Applicable Margin then in effect. The Facility Fee shall commence to accrue on
the Closing Date and shall be due and payable in arrears on last Business Day of
each March, June, September and December (and any date that the Revolving
Committed Amount is reduced as provided in SECTION 2.09(a) or (b) and the
Maturity Date) for the calendar quarter or portion thereof ending on each such
date, beginning with the first of such dates to occur after the Closing Date.
(b) UTILIZATION FEE. The Borrower shall pay to the
Administrative Agent for the account of each Revolving Lender a fee (the
"UTILIZATION FEE") on such Lender's Revolving Commitment Percentage of the
actual daily aggregate Revolving Outstandings with respect to each day on which
the principal amount of all Loans then outstanding exceeds 33% or 66%, as the
case may be, of the aggregate Revolving Commitments (each such day a
"UTILIZATION FEE DAY"). Such fee shall be computed with respect to each
Utilization Fee Day at a rate equal to the Applicable Margin then in effect, and
shall accrue with respect to each Utilization Fee Day occurring on and after the
Closing Date to the later to occur of (i) the Maturity Date and (ii) the date on
which all Loans and interest thereon are paid in full and the commitments
hereunder are terminated and, to the extent accrued during such period, shall be
due and payable, quarterly in arrears, on the last Business Day of each March,
June, September and December, beginning on the first of such dates to occur
after the Closing Date.
(c) AGENCY FEES. The Borrower shall pay an agency fee to the
Administrative Agent's own account, in amounts and at times specified in the
letter agreement dated May 8, 2002 among the Borrower and the Administrative
Agent. Such fees shall be fully earned when paid and shall not be refundable for
any reason whatsoever.
SECTION 2.12 PRO-RATA TREATMENT. Except to the extent
otherwise provided herein, each Syndicated Loan, each payment or prepayment of
principal of or interest on any Syndicated Loan, each payment of fees (other
than the fees retained by the Agents for their own account), each reduction of
the Revolving Committed Amount and each conversion or continuation of any
Syndicated Loan, shall be allocated pro-rata among the relevant Lenders in
accordance with the respective Revolving Commitment Percentages, of such Lenders
(or, if the Commitments of such Lenders have expired or been terminated, in
accordance with the respective principal amounts of the outstanding Loans of the
applicable Class and Participation Interests of such Lenders); PROVIDED, that in
the event any amount paid to any Lender pursuant to this SUBSECTION (a) is
rescinded or must otherwise be returned by the Administrative Agent, each Lender
shall, upon the request of the Administrative Agent, repay to the Administrative
Agent the amount so paid to such Lender, with interest for the period commencing
on the date such payment is
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returned by the Administrative Agent until the date the Administrative Agent
receives such repayment at a rate per annum equal to, during the period to but
excluding the date two Business Days after such request, the Federal Funds Rate,
and thereafter, the Base Rate plus two percent (2%) per annum.
SECTION 2.13 SHARING OF PAYMENTS. The Lenders agree among
themselves that, except to the extent otherwise provided herein, if any Lender
shall obtain payment in respect of any Loan or any other obligation owing to
such Lender under this Agreement through the exercise of a right of setoff,
banker's lien or counterclaim, or pursuant to a secured claim under Section 506
of the Bankruptcy Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, in excess
of its pro-rata share of such payment as provided for in this Agreement, such
Lender shall promptly pay in cash or purchase from the other Lenders a
participation in such Loans and other obligations in such amounts, and make such
other adjustments from time to time, as shall be equitable to the end that all
Lenders share such payment in accordance with their respective ratable shares as
provided for in this Agreement; PROVIDED, that nothing in this SECTION 2.13
shall impair the right of any Lender to exercise any right of set-off or
counterclaim it may have for payment of indebtedness of the Borrower other than
its indebtedness hereunder. The Lenders further agree among themselves that if
payment to a Lender obtained by such Lender through the exercise of a right of
setoff, banker's lien, counterclaim or other event as aforesaid shall be
rescinded or must otherwise be restored, each Lender which shall have shared the
benefit of such payment shall, by payment in cash or a repurchase of a
participation theretofore sold, return its share of that benefit (together with
its share of any accrued interest payable with respect thereto) to each Lender
whose payment shall have been rescinded or otherwise restored. The Borrower
agrees that any Lender so purchasing such a participation may, to the fullest
extent permitted by law, exercise all rights of payment, including setoff,
banker's lien or counterclaim, with respect to such participation as fully as if
such Lender were a holder of such Loan, LC Obligation or other obligation in the
amount of such participation. Except as otherwise expressly provided in this
Agreement, if any Lender or the Administrative Agent shall fail to remit to the
Administrative Agent or any other Lender an amount payable by such Lender or the
Administrative Agent to the Administrative Agent or such other Lender pursuant
to this Agreement on the date when such amount is due, such payments shall be
made together with interest thereon if paid within two Business Days of the date
when such amount is due at a per annum rate equal to the Federal Funds Rate and
thereafter at a per annum rate equal to the Base Rate until the date such amount
is paid to the Administrative Agent or such other Lender. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this SECTION 2.13 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
SECTION 2.13 to share in the benefits of any recovery on such secured claim.
SECTION 2.14 PAYMENTS; COMPUTATIONS.
(a) PAYMENTS BY THE BORROWER. Each payment of principal of and
interest on Loans and fees hereunder (other than fees payable directly to the
Agents) shall be paid not later than 2:00 P.M. on the date when due, in funds
immediately available to the Administrative Agent at the Administrative Agent's
Office. Each such payment shall be made irrespective of any set-off,
counterclaim or defense to payment which might in the absence of this provision
be asserted by the Borrower or any Affiliate against any Agent or any Lender.
Except as otherwise provided herein, payments received after 2:00 P.M. shall be
deemed to have been received on the next Business Day. The Borrower shall, at
the time it makes any payments under this Agreement, specify to the
Administrative Agent the Loan, fees or other amounts payable by the Borrower
hereunder to which such payment is to be applied (and if it fails so to specify
or if such application would be inconsistent with the terms hereof, the
Administrative Agent shall, subject to SECTION 2.12, distribute such payment to
the Lenders in such manner as the Administrative Agent may deem appropriate).
The Administrative Agent will distribute such payments in like funds to the
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applicable Lenders on the date of receipt thereof, if such payment is received
prior to 2:00 P.M.; otherwise the Administrative Agent will distribute such
payment to the applicable Lenders on the next succeeding Business Day. Whenever
any payment hereunder shall be due on a day which is not a Business Day, the
date for payment thereof shall be extended to the next succeeding Business Day
unless (in the case of Eurodollar Loans) such Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Business Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable for such
extended time. The Borrower hereby authorizes and directs the Administrative
Agent to debit any account maintained by the Borrower with the Administrative
Agent to pay when due any amounts required to be paid from time to time under
this Agreement.
(b) DISTRIBUTIONS BY THE ADMINISTRATIVE AGENT. Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Lenders hereunder that the Borrower will
not make such payment in full, the Administrative Agent may assume that the
Borrower has made such payment in full to the Administrative Agent on such date,
and the Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent that the Borrower shall not have so made
such payment, each Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Administrative Agent, at the Federal
Funds Rate.
(c) COMPUTATIONS. Except for Base Rate Loans, in which case
interest shall be computed on the basis of a 365 or 366 day year as the case may
be (unless the Base Rate is determined by reference to the Federal Funds Rate),
all computations of interest and fees hereunder shall be made on the basis of
the actual number of days elapsed over a year of 360 days. Interest shall accrue
from and include the date of borrowing (or continuation or conversion) but
excluding the date of payment.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
SECTION 3.01 TAXES.
(a) PAYMENTS NET OF CERTAIN TAXES. Any and all payments by the
Borrower to or for the account of any Lender or any Agent hereunder or under any
other Loan Document shall be made free and clear of and without deduction for
any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding, in
the case of each Lender (or its Applicable Lending Office) and each Agent, taxes
imposed on its income, and franchise taxes imposed on it, by: (i) the
jurisdiction under the laws of which such Lender (or its Applicable Lending
Office) or such Agent (as the case may be) is incorporated or organized or any
political subdivision thereof, (ii) the jurisdiction in which its principal
executive office is located or (iii) reason of any connection between it and the
jurisdiction imposing such tax other than a connection arising from its having
executed, delivered or performed its obligations under, or received payment
under or enforced, this Agreement (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "TAXES"). If the Borrower or the Administrative Agent shall be
required by law to deduct or withhold any Taxes from or in respect of any sum
payable under this Agreement or any other Loan Document to any Lender or any
other Agent, (i) the sum payable shall be increased as necessary so that after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this SECTION 3.01) such
Lender or such Agent receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and withholdings, (iii) the Borrower shall pay the full
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amount deducted or withheld to the relevant taxation Governmental Authority or
other authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Administrative Agent, at the office of the Administrative Agent
specified in SCHEDULE 10.02, the original or a certified copy of a receipt
evidencing payment thereof.
(b) OTHER TAXES. In addition, the Borrower agrees to pay any
and all present or future stamp or documentary, excise or property taxes or
similar levies (including mortgage recording taxes) which arise from any payment
made under this Agreement or any other Loan Document or from the execution or
delivery of, or otherwise with respect to, this Agreement or any other Loan
Document (hereinafter referred to as "OTHER TAXES").
(c) ADDITIONAL TAXES. If the Borrower fails to pay Taxes or
Other Taxes in accordance with the provisions of SECTIONS 3.01(a) or (b), the
Borrower agrees to indemnify each Lender and each Agent for the full amount of
Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by
any jurisdiction on amounts payable under this SECTION 3.01) paid by such Lender
or such Agent (as the case may be) and any liability (including penalties,
interest and expenses) arising from such failure or with respect thereto.
(d) TAX FORMS AND CERTIFICATES. Each Lender (or its Applicable
Lending Office) organized under the laws of a jurisdiction outside the United
States (a "NON-U.S. LENDER"), on or prior to the date of its execution and
delivery of this Agreement in the case of each Lender listed on the signature
pages hereof and on or prior to the date on which it becomes a Lender in the
case of each other Lender, and from time to time thereafter as required by law,
shall provide the Borrower and the Administrative Agent with (i) Internal
Revenue Service Form W-8 BEN or W-8 ECI, as appropriate, or any successor form
prescribed by the Internal Revenue Service, certifying that such Lender is
entitled to benefits under an income tax treaty to which the United States is a
party which reduces or eliminates the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States, (ii) Internal Revenue Service Form W-8 or W-9, as appropriate, or any
successor form prescribed by the Internal Revenue Service and (iii) any other
form or certificate required by any taxing authority (including any certificate
required by Sections 871(h) and 881(c) of the Internal Revenue Code), certifying
that such Lender is entitled to an exemption from tax on payments pursuant to
this Agreement or any of the other Loan Documents.
(e) FAILURE TO PROVIDE TAX FORMS AND CERTIFICATES. For any
period with respect to which a Lender (or its Applicable Lending Office) has
failed to provide the Borrower and the Administrative Agent with the appropriate
form pursuant to SECTION 3.01(d) (unless such failure is due to a change in
treaty, law or regulation occurring subsequent to the date on which a form
originally was required to be provided), such Lender shall not be entitled to
indemnification under SECTION 3.01(a) or 3.01(b) with respect to Taxes imposed
by the United States; PROVIDED, HOWEVER, that should a Lender, which is
otherwise exempt from withholding tax, become subject to Taxes because of its
failure to deliver a form required to be delivered hereunder, the Borrower shall
take such steps as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(f) OBLIGATIONS IN RESPECT OF NON-U.S. LENDERS. The Borrower
shall not be required to indemnify any Non-U.S. Lender or to pay any additional
amounts to any Non-U.S. Lender, in respect of United States Federal withholding
tax pursuant to SUBSECTIONS (a) or (b) above to the extent that the obligation
to withhold amounts with respect to United States Federal withholding tax
existed on the date such Non-U.S. Lender became a party to this Agreement (or,
in the case of a participant, on the date such participant acquired its
participation interest) or, with respect to payments to a new Applicable Lending
Office, the date such Non-U.S. Lender designated such new Applicable Lending
Office with respect to a
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Loan; PROVIDED, HOWEVER, that this SUBSECTION (f) shall not apply (i) to any
participant or new Applicable Lending Office that becomes a participant or new
Applicable Lending Office as a result of an assignment, participation, transfer
or designation made at the request of the Borrower and (ii) to the extent the
indemnity payment or additional amounts any participant, or any Lender acting
through a new Applicable Lending Office, would be entitled to receive (without
regard to this SUBSECTION (f)) do not exceed the indemnity payment or additional
amounts that the Person making the assignment, participation or transfer to such
participant, or Lender (or participant) making the designation of such new
Applicable Lending Office, would have been entitled to receive in the absence of
such assignment, participation, transfer or designation.
(g) MITIGATION. If the Borrower is required to pay additional
amounts to or for the account of any Lender (or its Applicable Lending Office)
pursuant to this SECTION 3.01, then such Lender will agree to use reasonable
efforts to change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may thereafter accrue if
such change, in the judgment of such Lender, is not otherwise disadvantageous to
such Lender.
(h) TAX RECEIPTS. Within thirty days after the date of any
payment of Taxes, the Borrower shall furnish to the Agent the original or a
certified copy of a receipt evidencing such payment (to the extent one is so
provided).
SECTION 3.02 ILLEGALITY. If, on or after the date of this
Agreement, the adoption of any applicable Law, or any change in any applicable
Law, or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of Law) of any such authority, central bank or comparable agency shall
make it unlawful or impossible for any Lender (or its Applicable Lending Office)
to make, maintain or fund any of its Eurodollar Loans and such Lender shall so
notify the Administrative Agent, the Administrative Agent shall forthwith give
notice thereof to the other Lenders and the Borrower, whereupon until such
Lender notifies the Borrower and the Administrative Agent that the circumstances
giving rise to such suspension no longer exist, the obligation of such Lender to
make Eurodollar Loans, or to convert outstanding Loans into Eurodollar Loans,
shall be suspended. Before giving any notice to the Administrative Agent
pursuant to this SECTION 3.02, such Lender shall designate a different
Applicable Lending Office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. If such notice is given, each Eurodollar Loan of
such Lender then outstanding shall be converted to a Base Rate Loan either (i)
on the last day of the then current Interest Period applicable to such
Eurodollar Loan if such Lender may lawfully continue to maintain and fund such
Loan to such day or (ii) immediately if such Lender shall determine that it may
not lawfully continue to maintain and fund such Loan to such day.
SECTION 3.03 BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR. If on or prior to the first day of any Interest Period for any
Eurodollar Loan or Competitive Bid LIBOR Loan:
(i) the Administrative Agent determines (which
determination shall be conclusive) that by reason of circumstances
affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the applicable Eurodollar Rate for such
Interest Period; or
(ii) in the case of Eurodollar Loans, Lenders having 50%
or more of the aggregate amount of the Commitments advise the
Administrative Agent that the Applicable Interbank Offered Rate as
determined by the Administrative Agent will not adequately and
fairly reflect the cost to such Lenders of funding their Eurodollar
Loans for such Interest Period;
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the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Lenders, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Lenders to make Eurodollar Loans, or to continue or convert
outstanding Loans as or into Eurodollar Loans, shall be suspended and (ii) each
outstanding Eurodollar Loan shall be converted into a Base Rate Loan on the last
day of the then current Interest Period applicable thereto. Unless the Borrower
notifies the Administrative Agent at least two Business Days before the date of
any Fixed Rate Borrowing for which a Notice of Borrowing has previously been
given that it elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Syndicated Loan, such Borrowing shall instead be made as a Base
Rate Borrowing in the same aggregate principal amount as the requested Borrowing
and (ii) if such affected Borrowing is a Competitive Bid LIBOR Borrowing, the
Competitive Bid LIBOR Loans comprising such Borrowing shall be made in the same
aggregate principal amount as the requested Borrowing and shall bear interest
for each day from and including the first day to but excluding the last day of
the Interest Period applicable thereto at the rate applicable to Revolving Base
Rate Loans for such day.
SECTION 3.04 INCREASED COSTS AND REDUCED RETURN. (a) If on or
after (x) the date hereof, in the case of any Committed Loan or any obligation
to make Committed Loans or (y) the date of any related Competitive Bid, the
adoption of or any change in any applicable Law or in the interpretation or
application thereof applicable to any Lender (or its Applicable Lending Office),
or compliance by any Lender (or its Applicable Lending Office) with any request
or directive (whether or not having the force of Law) from any central bank or
other Governmental Authority:
(i) shall subject such Lender (or its Applicable Lending
Office) to any tax of any kind whatsoever with respect to any
Eurodollar Loans made by it or any of its Notes or its obligation to
make Eurodollar Loans, or change the basis of taxation of payments
to such Lender (or its Applicable Lending Office) in respect thereof
(except for (A) Taxes and Other Taxes covered by SECTION 3.01
(including Taxes imposed solely by reason of any failure of such
Lender to comply with its obligations under SECTION 3.01(d)) and (B)
changes in taxes measured by or imposed upon the overall net income,
or franchise tax (imposed in lieu of such net income tax), of such
Lender or its Applicable Lending Office, branch or any affiliate
thereof));
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender (or its
Applicable Lending Office) which is not otherwise included in the
determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) any other condition (excluding any tax of any kind
whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, converting into, continuing or
maintaining any Fixed Rate Loans or to reduce any amount receivable hereunder in
respect thereof, then, in any such case, upon notice to the Borrower from such
Lender, through the Administrative Agent, in accordance herewith, the Borrower
shall be obligated to promptly pay such Lender, upon its demand, any additional
amounts necessary to compensate such Lender on an after-tax basis (after taking
into account applicable deductions and credits in respect of the amount
indemnified) for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption or
the becoming effective of, or any change in, or any change by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
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applicable Law, regarding capital adequacy, or compliance by such Lender, or its
parent corporation, with any request or directive regarding capital adequacy
(whether or not having the force of Law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's (or parent corporation's) capital or assets as a consequence of
its commitments or obligations hereunder to a level below that which such
Lender, or its parent corporation, could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's (or
parent corporation's) policies with respect to capital adequacy), then, upon
notice from such Lender to the Borrower, the Borrower shall be obligated to pay
to such Lender such additional amount or amounts as will compensate such Lender
on an after-tax basis (after taking into account applicable deductions and
credits in respect of the amount indemnified) for such reduction. Each
determination by any such Lender of amounts owing under this SECTION 3.04 shall,
absent manifest error, be conclusive and binding on the parties hereto;
PROVIDED, that the Borrower shall not be required to compensate any Lender
pursuant to SUBSECTION (a) above or this SUBSECTION (b) for any additional costs
or reductions suffered more than 180 days prior to the date such Lender notifies
the Borrower of the circumstances giving rise to such additional costs or
reductions and of such Lender's intentions to claim compensation therefor, and
PROVIDED FURTHER that, if the change in Law or in the interpretation or
administration thereof giving rise to such additional costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.
(c) A certificate of each Lender setting forth such amount or
amounts as shall be necessary to compensate such Lender or its holding company
as specified in SUBSECTION (a) or (b) above, as the case may be, shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay each Lender the amount shown as due on any such certificate
delivered by it within 10 Business Days after receipt of the same.
(d) Promptly after any Lender becomes aware of any
circumstance that will, in its sole judgment, result in a request for increased
compensation pursuant to this SECTION 3.04, such Lender shall notify the
Borrower thereof. Failure on the part of any Lender so to notify the Borrower or
to demand compensation for any increased costs or reduction in amounts received
or receivable or reduction in return on capital with respect to any period shall
not constitute a waiver of such Lender's right to demand compensation with
respect to such period or any other period. The protection of this SECTION 3.04
shall be available to each Lender regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, guideline or other
change or condition which shall have occurred or been imposed.
SECTION 3.05 FUNDING LOSSES. The Borrower shall indemnify each
Lender against any loss or reasonable expense (including any loss of anticipated
profits) which such Lender may sustain or incur as a consequence of (i) any
failure by the Borrower to fulfill on the date of any Borrowing hereunder the
applicable conditions set forth in ARTICLE IV, so long as any such failure is
not solely due to the failure of the Agent or any Lender to comply with its
obligations hereunder in all material respects, (ii) any failure by the Borrower
to borrow or to refinance, convert or continue any Loan hereunder after
irrevocable notice of such Borrowing, refinancing, conversion or continuation
has been given pursuant to SECTION 2.02 or 2.07, so long as any such failure is
not solely due to the failure of the Agent or any Lender to comply with its
obligations hereunder in all material respects, (iii) any payment, prepayment or
conversion of a Fixed Rate Loan, whether voluntary or involuntary, pursuant to
any other provision of this Agreement or otherwise made on a date other than the
last day of the Interest Period applicable thereto, so long as any such payment,
prepayment or conversion is not solely due to the failure of the Agent or any
Lender to comply with its obligations hereunder in all material respects, (iv)
any default in payment or prepayment of the principal amount of any Loan or any
part thereof or interest accrued thereon, as and when due and payable (at the
due date thereof, by irrevocable notice of prepayment or otherwise), or (v) the
occurrence of any Event of Default, including, in each such case, any loss or
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reasonable expense sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to effect or
maintain such Loan or any part thereof as a Fixed Rate Loan. Such loss or
reasonable expense shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (i) its cost of obtaining the funds for
the Loan being paid, prepaid, converted or not borrowed (based on the applicable
Eurodollar Rate), for the period from the date of such payment, prepayment,
conversion or failure to borrow, convert or continue to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan which would have commenced on the date of such
failure to borrow, convert or continue) over (ii) the amount of interest (as
reasonably determined by such Lender) that would be realized by such Lender in
reemploying the funds so paid, prepaid, converted or not borrowed, converted or
continued for such period or Interest Period, as the case may be. A certificate
of any Lender setting forth any amount or amounts which such Lender is entitled
to receive pursuant to this SECTION 3.05 shall be delivered to the Borrower and
shall be conclusive absent manifest error.
SECTION 3.06 BASE RATE LOANS SUBSTITUTED FOR AFFECTED FIXED
RATE LOANS. If (i) the obligation of any Lender to make, or to continue or
convert outstanding Loans as or to, Eurodollar Loans has been suspended pursuant
to SECTION 3.02 or (ii) any Lender has demanded compensation under SECTION 3.01
or 3.04 with respect to its Eurodollar Loans, and in any such case the Borrower
shall, by at least five Business Days' prior notice to such Lender through the
Administrative Agent, have elected that the provisions of this SECTION 3.06
shall apply to such Lender, then, unless and until such Lender notifies the
Borrower that the circumstances giving rise to such suspension or demand for
compensation no longer exist, all Loans which would otherwise be made by such
Lender as (or continued as or converted to) Eurodollar Loans shall instead be
Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Eurodollar Loans of the other Lenders). If
such Lender notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist, the principal amount of
each such Base Rate Loan shall be converted into a Eurodollar Loan on the first
day of the next succeeding Interest Period applicable to the related Eurodollar
Loans of the other Lenders.
ARTICLE IV
CONDITIONS
SECTION 4.01 CONDITIONS TO CLOSING. The obligation of each
Lender to make a Loan on the Closing Date is subject to the satisfaction of the
following conditions:
(a) EXECUTED LOAN DOCUMENTS. Receipt by the Administrative
Agent of duly executed copies of: (i) this Agreement; (ii) the Notes, if any,
(iii) the Pledge Agreement and (iv) the Trust Agreement, each of which shall be
in full force and effect.
(b) LEGAL MATTERS. All legal matters incident to this
Agreement and the borrowings hereunder shall be satisfactory to the
Administrative Agent and to Mayer, Brown, Xxxx & Maw, counsel for the
Administrative Agent.
(c) ORGANIZATION DOCUMENTS. The Administrative Agent shall
have received: (i) a copy of the Organization Documents of the Borrower,
certified as of a recent date by the Secretary of State of its respective state
of organization, and a certificate as to the good standing of the Borrower, from
such Secretary of State, as of a recent date; (ii) a certificate of the
Secretary or Assistant Secretary of the Borrower dated the Closing Date and
certifying (A) that the Organization Documents of the Borrower have not been
amended since the date of the last amendment thereto shown on the certificate of
good standing furnished pursuant to CLAUSE (i) above; (B) that attached thereto
is a true and complete copy of the code of regulations of the Borrower as in
effect on the Closing Date and at all times since a date prior
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to the date of the resolutions described in CLAUSE (C) below, (C) that attached
thereto is a true and complete copy of resolutions duly adopted by the board of
directors of the Borrower authorizing the execution, delivery and performance of
the Loan Documents and the borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and effect; and
(D) as to the incumbency and specimen signature of each officer executing any
Loan Document or any other document delivered in connection herewith on behalf
of the Borrower; (iii) a certificate of another officer of the Borrower as to
the incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to CLAUSE (ii) above; and (iv) such other
documents as the Administrative Agent or Mayer, Brown, Xxxx & Maw, counsel for
the Administrative Agent, may reasonably request.
(d) OFFICER'S CERTIFICATE. The Agent shall have received a
certificate, dated the Closing Date and signed by a Responsible Officer of the
Borrower, (i) confirming compliance with the conditions precedent set forth in
PARAGRAPHS (b) and (c) of SECTION 4.02 and (ii) certifying the current
Worthington's Ratings.
(e) OPINIONS OF COUNSEL. On the Closing Date, the
Administrative Agent shall have received a favorable written opinion of Vorys,
Xxxxx, Xxxxxxx and Xxxxx LLP, special counsel to the Borrower or, as appropriate
or customary, of in-house counsel of the Borrower, addressed to the
Administrative Agent and each Lender, dated the Closing Date, substantially in
the form of EXHIBIT F hereto and covering such additional matters incident to
the transactions contemplated hereby as the Administrative Agent or the Required
Lenders may reasonably request.
(f) REPAYMENT OF REFINANCED AGREEMENT. The Administrative
Agent shall be satisfied that no later than as of the Closing Date, the
commitments under the Second Amended and Restated Loan Agreement dated as of
October 14, 1998, as amended through the Closing Date, among the Borrower, the
Lenders party thereto and The Bank of Nova Scotia and PNC Bank, National
Association, as Agents for the Lenders (the "REFINANCED AGREEMENT"), shall be
terminated, all loans outstanding under the Refinanced Agreement shall be repaid
in full, together with accrued interest thereon (including, without limitation,
any prepayment premium), and all other amounts owing pursuant to the Refinanced
Agreement shall be repaid in full.
(g) FINANCIAL STATEMENTS. The Administrative Agent and each
Lender shall have received and be satisfied with the (i) the audited
consolidated financial statements of each of the Borrower for the fiscal year
ending May 31, 2001, audited by Ernst & Young, or other nationally recognized
independent public accountants, and containing an opinion of such firm that such
financial statements present fairly, in all material respects, the financial
position and results of operations of the Borrower and its Consolidated
Subsidiaries and are prepared in conformity with GAAP, and (ii) unaudited,
consolidated, interim financial statements of the Borrower and its Consolidated
Subsidiaries for the fiscal quarter ending February 28, 2002.
(h) CONSENTS. All necessary governmental (domestic or
foreign), regulatory and third party approvals, if any, in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
have been obtained and remain in full force and effect, in each case without any
action being taken by any competent authority which could restrain or prevent
such transaction or impose, in the reasonable judgment of the Administrative
Agent, materially adverse conditions upon the consummation of such transactions.
(i) PAYMENT OF FEES. All costs, fees and expenses due to the
Administrative Agent and the Lenders on or before the Closing Date shall have
been paid.
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(j) COUNSEL FEES. The Administrative Agent shall have received
full payment from the Borrower of the reasonable and actual fees and expenses of
Mayer, Brown, Xxxx & Maw described in SECTION 10.04 which are billed through the
Closing Date.
(k) DELIVERY OF PLEDGED NOTES. All of the Pledged Notes, which
Pledged Notes shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in blank,
with signatures appropriately guaranteed, if necessary, all in form and
substance satisfactory to the Collateral Agent, shall have been delivered to the
Collateral Agent.
All corporate and legal proceedings and instruments and
agreements relating to the transactions contemplated by this Agreement or in any
other document delivered in connection herewith or therewith shall be
satisfactory in form and substance to the Administrative Agent and its counsel,
and the Administrative Agent shall have received all information and copies of
all documents and papers, including records of corporate proceedings,
governmental approvals, good standing certificates and bring-down telegrams, if
any, which the Administrative Agent reasonably may have requested in connection
therewith, such documents and papers where appropriate to be certified by proper
corporate or Governmental Authorities. The documents referred to in this SECTION
4.01 shall be delivered to the Administrative Agent no later than the Closing
Date. The certificates and opinions referred to in this Section shall be dated
the Closing Date.
Promptly upon the satisfaction of each of the conditions
contained in this SECTION 4.01, the Administrative Agent shall notify the
Borrower and the Lenders of the Closing Date, and such notice shall be
conclusive and binding on all parties hereto. If the Closing does not occur
before 5:00 P.M. on June 30, 2002, the Commitments shall terminate at the close
of business on such date and all unpaid facility fees accrued to such date shall
be due and payable on such date.
SECTION 4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The
obligation of any Lender to make a Loan on the occasion of any Borrowing is
subject to the satisfaction of the following conditions:
(a) NOTICE. The Borrower shall have delivered (i) in the case
of any Revolving Loan, to the Administrative Agent, an appropriate Notice of
Borrowing, duly executed and completed, by the time specified in SECTION 2.02 or
2.03, and (ii) in the case of any Swingline Loan, to the Swingline Lender, a
Swingline Loan Request, duly executed and completed, by the time specified in
SECTION 2.02.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Borrower in any Loan Document are true and correct in all
material respects at and as if made as of such date except to the extent they
expressly relate to an earlier date.
(c) NO DEFAULT. No Default or Event of Default shall exist or
be continuing either prior to or after giving effect thereto.
(d) AVAILABILITY. Immediately after giving effect to the
making of a Loan (and the application of the proceeds thereof), (i) the
Revolving Outstandings plus the aggregate principal amount of Competitive Bid
Loans shall not exceed the Revolving Committed Amount, (ii) the sum of Swingline
Loans outstanding shall not exceed the Swingline Committed Amount and (iii) the
principal amount of all Competitive Bid Loans shall not exceed the Revolving
Committed Amount.
The delivery of each Notice of Borrowing, Swingline Loan
Request and each notice requesting an extension of the availability period for
Revolving Loans pursuant to SECTION 2.10(d) shall constitute a representation
and warranty by the Borrower of the correctness of the matters specified in
SUBSECTIONS (b) and (c) above.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agents and the
Lenders that:
SECTION 5.01 ORGANIZATION. The Borrower and each of its Active
Restricted Subsidiaries is a corporation duly organized and in good standing
under the laws of the state of its incorporation, is duly qualified in all
jurisdictions where required by the conduct of its business or ownership of its
assets, except where the failure to so qualify would not have a Material Adverse
Effect, and has the power and authority to own and operate its assets and to
conduct its business as is now done.
SECTION 5.02 FINANCIAL CONDITION.
(a) AUDITED FINANCIAL STATEMENTS. The consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of May 31, 2001 and
the related consolidated statements of income and cash flows for the fiscal year
then ended, reported on by Ernst & Young and set forth in the Borrower's 2001
Form 10-K, a copy of which has been delivered to each of the Lenders, fairly
present, in conformity with GAAP, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such fiscal year.
(b) INTERIM FINANCIAL STATEMENTS. The unaudited consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of February
28, 2002 and the related unaudited consolidated statements of income and cash
flows for the six months then ended, set forth in the Borrower's Latest Form
10-Q, a copy of which has been delivered to each of the Lenders, fairly present,
in conformity with GAAP applied on a basis consistent with the financial
statements referred to in SUBSECTION (a) of this SECTION 5.02, the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such
six-month period (subject to normal year-end audit adjustments).
(c) MATERIAL ADVERSE CHANGE. Since May 31, 2001, except as
reflected in the interim financial statements through February 28, 2002, there
has been no change in the business, assets, financial condition or operations of
the Borrower and its Consolidated Subsidiaries, considered as a whole, but
excluding the impact of the Consolidation Plan, that would materially and
adversely affect the Borrower's ability to perform any of its respective
obligations under this Agreement or the other Loan Documents (a "MATERIAL
ADVERSE CHANGE"), and no event or development has occurred which could
reasonably be expected to result in a Material Adverse Effect.
(d) POST-CLOSING FINANCIAL STATEMENTS. The financial
statements delivered to the Lenders pursuant to SECTION 6.01(a)(i), (a)(iii),
(b) and (c), if any, (i) have been prepared in accordance with GAAP (except as
may otherwise be permitted under SECTION 6.01(a), (b) and (c)) and (ii) present
fairly (on the basis disclosed in the footnotes to such financial statements, if
any) the consolidated financial condition, results of operations and cash flows
of the Borrower and its Consolidated Subsidiaries as of the respective dates
thereof and for the respective periods covered thereby.
SECTION 5.03 LITIGATION, ETC. As of the date hereof, there are
no actions, suits, proceedings or governmental investigations pending, or, to
its knowledge, threatened against the Borrower or any of its Subsidiaries which,
in the reasonable judgment of the Borrower, would result in a Material Adverse
Effect.
SECTION 5.04 TAXES. United States Federal income tax returns
of the Borrower and its Consolidated Subsidiaries have been examined and closed
through the fiscal year ended May 31, 1990
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and for the fiscal years ended May 31, 1996 through May 31, 1998. Such returns
for the fiscal years ended May 31, 1991 through May 31, 1995 are currently on
appeal with the IRS. The Borrower and its Restricted Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Restricted Subsidiary. The charges, accruals and reserves on the books of the
Borrower and its Restricted Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate.
SECTION 5.05 AUTHORITY. The Borrower has full power and
authority to enter into the transactions provided for in this Agreement. The
documents to be executed by it in connection with this Agreement, when executed
and delivered by it will constitute the legal, valid and binding obligations of
it enforceable in accordance with their respective terms except as such
enforceability may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws in effect from time to time affecting the
rights of creditors generally and except as such enforceability may be subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
SECTION 5.06 OTHER DEFAULTS. There does not now exist any
material default or violation by the Borrower or any Restricted Subsidiary of or
under any of the terms, conditions or obligations of: (i) its Articles or
Certificate of Incorporation and Regulations or Bylaws, as applicable, (ii) any
indenture, mortgage, deed of trust, franchise, permit, contract, agreement, or
other instrument to which it is a party or by which it is bound or (iii) any
law, regulation, ruling, order, injunction, decree, condition or other
requirement applicable to or imposed upon it by any law or by any governmental
authority, court or agency; and the transactions contemplated by this Agreement
and the other Loan Documents will not result in any such default or violation.
As used herein, a material default or violation will mean one which would result
in a Material Adverse Effect.
SECTION 5.07 LICENSES, ETC. The Borrower and each of its
Restricted Subsidiaries has obtained any and all licenses, permits, franchises,
or other governmental authorizations necessary for the ownership of its
properties and the conduct of its business, except where failure to obtain any
such item would not cause a Material Adverse Effect.
SECTION 5.08 ERISA. The Borrower and each of its Subsidiaries
is in compliance with the applicable provisions of ERISA, the applicable
provisions of the Code and other related Federal and state laws and the
regulations and published interpretations thereunder, to the extent necessary to
avoid a Material Adverse Effect.
SECTION 5.09 ENVIRONMENTAL MATTERS. The Borrower and its
Subsidiaries are in material compliance with Environmental Laws and neither the
Borrower nor any of its Subsidiaries are subject to any liability or obligation
under any Environmental Laws which would have a Material Adverse Effect.
SECTION 5.10 OWNERSHIP OF PROPERTY; LIENS. The Borrower and
each Restricted Subsidiary has good record and marketable title in fee simple
to, or valid leasehold interests in, all real property necessary or used in the
ordinary conduct of its business, except for such defects in title as would not,
individually or in the aggregate, have a Material Adverse Effect. As of the
Effective Date, the property of the Borrower and its Restricted Subsidiaries is
subject to no Liens, other than Liens permitted by SECTION 7.02.
SECTION 5.11 INSURANCE. The properties of the Borrower and its
Restricted Subsidiaries are insured with responsible insurance companies against
loss or damage from hazards and the Borrower
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and its Restricted Subsidiaries maintain public liability insurance, all in
amounts reasonably consistent with the Borrower's current practices.
SECTION 5.12 SUBSIDIARIES. SCHEDULE 5.12 sets forth a complete
and accurate list as of the Closing Date of all Restricted Subsidiaries of the
Borrower. SCHEDULE 5.12 sets forth as of the Closing Date the jurisdiction of
formation of each such Restricted Subsidiary, the number of authorized shares of
each class of Equity Interests of each such Restricted Subsidiary, the number of
outstanding shares of each class of Equity Interests, the number and percentage
of outstanding shares of each class of Equity Interests of each such Restricted
Subsidiary owned (directly or indirectly) by any Person and the number and
effect, if exercised, of all Equity Equivalents with respect to Capital Stock of
each such Restricted Subsidiary.
SECTION 5.13 MARGIN REGULATION; INVESTMENT COMPANY ACT; PUBLIC
UTILITY HOLDING COMPANY ACT. (a) None of the Borrower and its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying "margin stock" within
the meaning of Regulation U. No part of the proceeds of the Loans will be used,
directly, or indirectly, for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation U. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in Regulation U. No indebtedness being
reduced or retired out of the proceeds of the Loans was or will be incurred for
the purpose of purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of Regulation T.
"Margin stock" within the meaning of Regulation U does not constitute more than
25% of the value of the consolidated assets of the Borrower and its Consolidated
Subsidiaries. None of the transactions contemplated by this Agreement (including
the direct or indirect use of the proceeds of the Loans) will violate or result
in a violation of the Securities Act, as amended, the Exchange Act or
regulations issued pursuant thereto, or Regulation T, U or X.
(b) None of the Borrower and its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act or the Investment Company Act of 1940, each as amended. In addition,
none of the Borrower and its Subsidiaries is (i) an "investment company"
registered or required to be registered under the Investment Company Act of
1940, as amended, (ii) controlled by such a company, or (iii) a "holding
company", a "subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1934, as amended.
(c) No director, executive officer or principal holder of any
Equity Interest of the Borrower or any of its Subsidiaries is a director,
executive officer or principal shareholder of any Lender. For the purposes
hereof, the terms "director", "executive officer" and "principal shareholder"
(when used with reference to any Lender) have the respective meanings assigned
thereto in Regulation O.
SECTION 5.14 DISCLOSURE. No statement, information, report,
representation, or warranty made by the Borrower in any Loan Document or
furnished to the Administrative Agent or any Lender by or on behalf of the
Borrower in connection with any Loan Document contains any untrue statement of a
material fact or omits any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
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ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower agrees that so long as any Lender has any
Commitment hereunder, any Obligation or other amount payable hereunder or under
any Note or other Loan Document remains unpaid:
SECTION 6.01 INFORMATION. The Borrower will furnish, or cause
to be furnished, to the Administrative Agent and each of the Lenders:
(a) CERTAIN SEC FILINGS AND SHAREHOLDER REPORTS. As soon as
available, and in any event within 14 days of the filing or distribution
thereof, (i) copies of all periodic reports on Forms 10-K and 10-Q, (ii) copies
of all current reports on Form 8-K, and (iii) its annual reports to its
shareholders (in all cases as filed with the Securities and Exchange
Commission).
(b) ANNUAL FINANCIAL STATEMENTS. If the Borrower is not
required to file 10-K filings with the Securities and Exchange Commission or
does not file the same within 90 days after the end of each fiscal year, as soon
as available, and in any event within 90 days after the end of each fiscal year
of the Borrower, a consolidated balance sheet and income statement of the
Borrower and its Consolidated Subsidiaries, as of the end of such fiscal year,
and the related consolidated statements of operations and retained earnings and
cash flows for such fiscal year, setting forth in comparative form consolidated
figures for the preceding fiscal year, all such financial statements to be in
reasonable form and detail and audited by independent certified public
accountants of recognized national standing reasonably acceptable to the
Administrative Agent and accompanied by an opinion of such accountants (which
shall not be subject to any qualifications or exceptions as to the scope of the
audit nor to any qualifications or exceptions not reasonably acceptable to the
Required Lenders) to the effect that such consolidated financial statements have
been prepared in accordance with GAAP and present fairly in accordance with GAAP
the consolidated financial position and consolidated results of operations and
cash flows of the Borrower and its Consolidated Subsidiaries in accordance with
GAAP consistently applied (except for changes with which such accountants
concur).
(c) QUARTERLY FINANCIAL STATEMENTS. If the Borrower is not
required to file 10-Q filings with the Securities and Exchange Commission or
does not file the same within 45 days after the end of each fiscal year, as soon
as available, and in any event within 45 days after the end of each of the first
three fiscal quarters in each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of
such fiscal quarter, together with related consolidated statements of operations
and retained earnings and cash flows for such fiscal quarter and the then
elapsed portion of such fiscal year, setting forth in comparative form
consolidated figures for the corresponding periods of the preceding fiscal year,
all such financial statements to be in form and detail and reasonably acceptable
to the Administrative Agent, and accompanied by a certificate of the chief
financial officer of the Borrower to the effect that such quarterly financial
statements have been prepared in accordance with GAAP and present fairly in
accordance with GAAP in all material respects the consolidated financial
position and consolidated results of operations and cash flows of the Borrower
and its Consolidated Subsidiaries in accordance with GAAP consistently applied,
subject to changes resulting from normal year-end audit adjustments and the
absence of footnotes required by GAAP.
(d) OFFICER'S CERTIFICATE. At the time of delivery of the
financial statements provided for in SECTIONS 6.01(a), 6.01(b) and 6.01(c)
above, a certificate of the chief financial officer of the Borrower (i)
demonstrating compliance with the financial covenants contained in SECTION 7.14
by calculation thereof as of the end of the fiscal period covered by such
financial statements, (ii) stating that no Default or Event of Default exists,
or if any Default or Event of Default does exist, specifying the
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nature and extent thereof and what action the Borrower proposes to take with
respect thereto, (iii) stating whether, since the date of the most recent
financial statements delivered hereunder, there has been any material change in
the GAAP applied in the preparation of the financial statements of the Borrower
and its Consolidated Subsidiaries, and, if so, describing such change.
(e) REPORTS. Promptly after the same are available, copies of
each annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Borrower, and copies of all
annual, regular, periodic and special reports and registration statements which
the Borrower may file or be required to file with the Securities and Exchange
Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, and
not otherwise required to be delivered to the Administrative Agent pursuant
hereto.
(f) NOTICES. Prompt notice of: (i) the occurrence of any
Default or Event of Default; (ii) breach or non-performance of, or any default
under, a material Contractual Obligation of the Borrower or any Subsidiary;
(iii) any dispute, litigation, investigation, proceeding or suspension between
the Borrower or any Subsidiary and any Governmental Authority; (iv) the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Law; (v) the occurrence of any ERISA Event; (vi) any material
change in accounting policies or financial reporting practice by the Borrower or
any Restricted Subsidiary; and (vii) of any public announcement by Xxxxx'x or
S&P of any change or possible change in Worthington's Ratings; PROVIDED, that in
the case of the events set forth in SUB CLAUSES (ii) through (v), of this CLAUSE
(f), any such event has had, or the Borrower reasonably expects such event will
have, a Material Adverse Effect. Each notice pursuant to this Section 6.01(g)
shall (i) be accompanied by a statement of a Responsible Officer of the Borrower
setting forth details of the occurrence referred to therein and stating what
action the Borrower has taken and proposes to take with respect thereto and (ii)
describe with particularity any and all provisions of this Agreement or other
Loan Document that have been breached.
(g) OTHER INFORMATION. With reasonable promptness upon request
therefor, such other information regarding the business, properties or financial
condition of the Borrower or any Restricted Subsidiary as the Administrative
Agent or the Required Lenders may reasonably request.
SECTION 6.02 BOOKS AND RECORDS. The Borrower will, and will
cause each of its Restricted Subsidiaries to, maintain proper books of account
and other records and enter therein complete and accurate entries and records of
all of its transactions and give representatives of the Agents, at the Lenders'
expense, reasonable access thereto at all reasonable times, including permission
to examine, copy and make abstracts from any of such books and records and such
other information as it may from time to time reasonably request. In addition,
it will be available to the Agents, or cause its officers to be available from
time to time upon reasonable notice to discuss the status of the Loans, its
business and any statements, records or documents furnished or made available to
the Agents in connection with this Agreement.
SECTION 6.03 PAYMENT OF OBLIGATIONS. The Borrower will, and
will cause each of its Restricted Subsidiaries to, pay and discharge as the same
shall become due and payable, all its obligations and liabilities the
non-payment of which could reasonably be expected to have a Material Adverse
Effect, including: (i) material taxes, assessments, charges, levies and other
similar material liabilities imposed upon it, its income, profits, property or
business, except those which currently are being contested in good faith by
appropriate proceedings and for which it has set aside reserves or made other
adequate provision with respect thereto; and (ii) all lawful claims which, if
unpaid, would by law become a Lien upon its property which is not a Permitted
Lien.
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SECTION 6.04 COMPLIANCE WITH LAWS. The Borrower will, and will
cause each of its Restricted Subsidiaries to, comply in all material respects
with all laws and regulations applicable to each of them and to the operation of
their respective businesses, including without limitation those relating to
environmental and health matters, and do all things necessary to maintain, renew
and keep in full force and effect all rights, permits, licenses, certificates,
satisfactory clearances and franchises necessary to enable them to continue
their respective businesses, to the extent its failure to comply with or do any
of the foregoing could result in a Material Adverse Effect.
SECTION 6.05 ENVIRONMENTAL VIOLATIONS. The Borrower will
promptly notify the Administrative Agent of any violation by it or any of its
Subsidiaries of any Environmental Law; to the extent such violation would, in
the reasonable judgment of the Borrower, have a Material Adverse Effect.
SECTION 6.06 ERISA COMPLIANCE. To the extent necessary to
prevent a Material Adverse Effect, the Borrower will, and will cause each of its
Subsidiaries to, comply in all material respects with the applicable provisions
of ERISA, the applicable provisions of the Code or other related Federal and
state laws.
SECTION 6.07 MAINTENANCE OF PROPERTIES. The Borrower will, and
will cause each of its Restricted Subsidiaries to, (i) maintain, preserve and
protect all of its material properties and equipment necessary in the operation
of its business in good working order and condition, ordinary wear and tear
excepted; and (ii) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.08 MAINTENANCE OF INSURANCE. The Borrower will, and
will cause each of its Restricted Subsidiaries to, maintain insurance with
responsible insurance companies against loss or damage from hazards and the
Borrower and its Restricted Subsidiaries will maintain public liability
insurance, all in amounts reasonably consistent with the Borrower's current
practice.
SECTION 6.09 USE OF PROCEEDS. The Borrower will use the
proceeds of the Credit Extensions for working capital and other general
corporate purposes, including, without limitation, capital expenditures, not in
contravention of any Law or of any Loan Document.
SECTION 6.10 PLEDGED NOTES. If the Borrower pledges any new
Pledged Note after the Closing Date, the Borrower will cause the initial
principal amount of such Pledged Note to be established in good faith in an
amount not to exceed the then-existing net asset value of the Pledged Note
Issuer of such Pledged Note. Upon the occurrence of any transaction between
Restricted Subsidiaries involving the transfer or disposition of non working
capital-related assets in excess of the amount of $25,000,000, the Borrower will
cause the principal amounts of the Pledged Notes issued by such Restricted
Subsidiaries to be adjusted, in the Borrower's good faith determination, to
reflect such transaction.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower agrees that so long as any Lender has any
Commitment hereunder, any Obligation or other amount payable hereunder or under
any Note or other Loan Document remains unpaid:
SECTION 7.01 LIMITATION ON INDEBTEDNESS OF RESTRICTED
SUBSIDIARIES. The Borrower will not cause or permit any Restricted Subsidiary
to, directly or indirectly, incur, create, assume or permit to exist any
Indebtedness except:
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(i) Indebtedness of a Person existing at the time such
Person becomes a Subsidiary of the Borrower (including any
Indebtedness of a Person existing at the time such Person is merged
with or into or consolidated with a Subsidiary of the Borrower, or
at the time of a sale, lease or other disposition of all or
substantially all of the properties of a Person to a Subsidiary of
the Borrower); PROVIDED, that such Indebtedness was not incurred in
connection with, or in anticipation of, such event;
(ii) Indebtedness owing to the Borrower, any Restricted
Subsidiary or Worthington Receivables Corporation (or any
replacement or substitute thereof);
(iii) Indebtedness existing as of the Closing Date
evidenced by Existing Letters of Credit and other letters of credit
issued from time to time after the Closing Date for the benefit of
the Borrower or any Restricted Subsidiary; PROVIDED, that the sum of
(A) the maximum amount which is, or at any time thereafter may
become, available to be drawn under such Existing Letters of Credit
or other letters of credit then outstanding and (B) the aggregate
amount of all payments or disbursements not yet reimbursed by the
Borrower or any Restricted Subsidiary to the applicable letter of
credit issuer in respect of drawings under such Existing Letters of
Credit or other letters of credit, shall not exceed $20,000,000 in
the aggregate at any time; and
(iv) other Indebtedness of the Restricted Subsidiaries
of the Borrower in an aggregate principal amount at any time
outstanding not in excess of 10% of Consolidated Net Tangible
Assets.
SECTION 7.02 RESTRICTION ON LIENS. The Borrower will not, and
will cause its Restricted Subsidiaries to not, incur, create, assume, become or
be liable in any way, or suffer to exist any mortgage, pledge, lien, charge, or
other encumbrance of any nature whatsoever on any of its assets, now or
hereafter owned, other than Permitted Liens.
SECTION 7.03 INVESTMENTS. The Borrower will not, and will not
cause or permit any of its Restricted Subsidiaries to, make or acquire, any
Investment in any Person, except the following (such Investments described below
being herein referred to as "PERMITTED INVESTMENTS"):
(i) Investments other than those permitted by
SUBSECTIONS (i) through (xii) existing on the date hereof and listed
on SCHEDULE 7.03;
(ii) Investments held by the Borrower or such Restricted
Subsidiary in the form of Cash Equivalents;
(iii) advances to officers, directors and employees of
the Borrower and Subsidiaries for travel, entertainment, relocation
and analogous ordinary business purposes;
(iv) Investments of the Borrower in any Restricted
Subsidiary or of any Restricted Subsidiary in the Borrower or
another Restricted Subsidiary;
(v) Investments consisting of extensions of credit in
the nature of accounts receivable or notes receivable arising from
the sale or lease of goods or services in the ordinary course of
business, and Investments received in satisfaction or partial
satisfaction thereof from financially troubled account debtors to
the extent reasonably necessary in order to prevent or limit loss;
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(vi) Guaranty Obligations permitted by SECTION 7.01;
(vii) Investments permitted by SECTION 7.04;
(viii) Investments consisting of capital expenditures or
inventory for use by or in the business of the Borrower or a
Restricted Subsidiary;
(ix) Investments (including Investments made in
connection with the acquisition of assets) in any Person of which
the Borrower or any Restricted Subsidiary is, or becomes as a result
of such Investment, the Controlling Person; PROVIDED, that as at the
end of the immediately preceding fiscal quarter prior to and after
giving effect to any such Investment, the Borrower is in pro forma
compliance with the financial covenants set forth in SECTION 7.14;
(x) Investments (including Investments made in
connection with the acquisition of assets) in any Person of which
the Borrower or any Restricted Subsidiary is not the Controlling
Person; PROVIDED, that as at the end of the immediately preceding
fiscal quarter prior to and after giving effect to any such
Investment, the Borrower is in pro forma compliance with the
financial covenants set forth in SECTION 7.14; PROVIDED FURTHER,
that the initial amount (determined at the time made) of such
Investments which are made after the Closing Date shall not exceed
$100,000,000 in the aggregate;
(xi) Investments in the nature of seller financing or
other consideration received in a Disposition permitted under
SECTION 7.05;
(xii) additional Investments not exceeding $25,000,000
in the aggregate in any fiscal year of the Borrower.
SECTION 7.04 MERGER. The Borrower will not, and will cause its
Restricted Subsidiaries to not, merge or consolidate with or into any other
Person except: (i) any Restricted Subsidiary or any other Person may merge or
consolidate with the Borrower; PROVIDED, that (a) the Borrower is the surviving
entity of such merger or consolidation and (b) such surviving entity has the
majority of its property and assets within the continental limits of the United
States of America; or (ii) the Borrower may merge or consolidate with any
Restricted Subsidiary; PROVIDED, that (a) such Restricted Subsidiary is the
surviving entity of such merger or consolidation, (b) such surviving entity is
organized and existing under the laws of a state of the United States, (c) such
surviving entity has the majority of its property and assets within the
continental limits of the United States of America and (d) such surviving entity
assumes in writing all of the obligations and liabilities of the Borrower under
the Loan Documents; or (iii) any Restricted Subsidiary may merge or consolidate
with any other Person; PROVIDED, that the surviving entity of such merger or
consolidation is a Restricted Subsidiary after such merger or consolidation; or
(iv) any merger may be consummated in furtherance of a Disposition permitted
under SECTION 7.05; or (v) any Foreign Subsidiary may merge or consolidated into
any Foreign Subsidiary; PROVIDED, that with respect to any merger or
consolidation described in SUBSECTIONS (i) through (v) above, immediately prior
to and after giving effect to any such transaction, no condition or event exists
which constitutes a Default or an Event of Default shall have occurred and be
continuing.
SECTION 7.05 DISPOSITIONS. The Borrower will not, and will not
cause or permit any of its Restricted Subsidiaries to, make any Disposition or
enter into any agreement to make any Disposition of all or substantially all of
the assets of the Borrower and its Subsidiaries on a consolidated basis.
SECTION 7.06 ERISA. The Borrower will not, nor will it cause
or permit any Subsidiary to, at any time engage in a transaction which could be
subject to Section 4069 or 4212(c) of ERISA, or
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permit any Plan to (i) engage in any non-exempt "prohibited transaction" (as
defined in Section 4975 of the Code); (ii) fail to comply with ERISA or any
other related applicable Laws; or (iii) incur any material "accumulated funding
deficiency" (as defined in Section 302 of ERISA), which, with respect to each
event listed above, could be reasonably expected to have a Material Adverse
Effect.
SECTION 7.07 DESIGNATION OF RESTRICTED AND UNRESTRICTED
SUBSIDIARIES. (a) SCHEDULE 7.07 sets forth a complete and accurate list of the
Borrower's Unrestricted Subsidiaries as of the Closing Date. From and after the
Closing Date, the Borrower shall not designate any Restricted Subsidiary as an
Unrestricted Subsidiary unless: (i) immediately prior to and after giving effect
to such change in designation no Default or an Event of Default would exist and
(ii) the designation of the Subsidiary as an Unrestricted Subsidiary would not
have a Material Adverse Effect; PROVIDED, however, that Borrower may not
designate any Restricted Subsidiaries as Unrestricted Subsidiaries if the
aggregate operating income of the Restricted Subsidiaries so designated at that
time would account for more than 30% of the consolidated operating income of the
Borrower and its Consolidated Subsidiaries for the most recently completed four
fiscal quarters. Thereafter for purposes of such calculation: (x) operating
income of Unrestricted Subsidiaries will be excluded from the consolidated
operating income of the Borrower and its Consolidated Subsidiaries and (y)
fiscal quarters used previously will be excluded.
(b) From and after the Closing Date, the Borrower shall not
designate any Unrestricted Subsidiary which otherwise meets the definition of a
Restricted Subsidiary, as a Restricted Subsidiary, unless if, and only if,
immediately after giving effect to such change in designation: (i) any and all
outstanding Indebtedness of such Subsidiary could then have been incurred in
compliance with SECTION 7.01 and (ii) immediately prior to and after giving
effect to such change in designation no Default or an Event of Default would
exist; PROVIDED, however, that if Borrower has designated a Subsidiary which was
previously treated as a Restricted Subsidiary as an Unrestricted Subsidiary
during the term of this Agreement, Borrower may not again designate such
Subsidiary as a Restricted Subsidiary without the consent of the Required
Lenders.
(c) Any change in designation pursuant to this SECTION 7.07
will be made by the Borrower giving written notice to the Administrative Agent
not less than thirty nor more than sixty days prior to the date for such change
in designation, in each case specifying such date and the name of the Subsidiary
whose designation is to be so changed, which notice will be accompanied by an
officer's certificate certifying that the conditions required for such change in
designation will not be violated. The Administrative Agent will promptly provide
a copy of such designation request to the Lenders. Notwithstanding the
foregoing, if due to an acquisition or other event, in either case to the extent
permitted by this Agreement, which would cause a Person which was not previously
a Consolidated Subsidiary to become a Consolidated Subsidiary, Borrower may
immediately elect to have such Person not become a Consolidated Subsidiary, but
instead to be designated as an Unrestricted Subsidiary, without regard to the
notice period set forth above.
SECTION 7.08 CHANGE IN NATURE OF BUSINESS. The Borrower will
not, and will cause each of its Restricted Subsidiaries not to, make any change
in its business which would cause the type of business primarily conducted by
the Borrower and its Restricted Subsidiaries, considered on a consolidated
basis, to be materially different from the type of business primarily being
conducted on the Effective Date.
SECTION 7.09 TRANSACTIONS WITH AFFILIATES. The Borrower will
not, nor will it cause or permit any of its Restricted Subsidiaries to, enter
into any material transaction, including, without limitation, any purchase,
sale, lease or exchange of property or the rendering of any service with any
Affiliate of the Borrower (other than a Restricted Subsidiary), other than
arm's-length transactions with Affiliates that are otherwise permitted
hereunder.
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SECTION 7.10 BURDENSOME AGREEMENTS. The Borrower will not, nor
will it cause or permit any of its Restricted Subsidiaries to, enter into any
Contractual Obligation that limits the ability of any Restricted Subsidiary to
make Restricted Payments to the Borrower or to otherwise transfer property to
the Borrower.
SECTION 7.11 IMPAIRMENT OF COLLATERAL. The Borrower will not,
nor will it permit any Pledged Note Issuer to, (i) take or omit to take any
action which action or omission might or would impair the security interests in
favor of the Collateral Agent with respect to the Pledged Notes or (ii) grant to
any Person (other than the Collateral Agent or the Trustee for the benefit of
the Secured Parties (as defined in the Pledge Agreement) pursuant to the Pledge
Agreement or the Trust Agreement, as the case may be) any interest whatsoever in
the Pledged Notes.
SECTION 7.12 USE OF PROCEEDS. The Borrower will not, nor will
it cause or permit any of its Restricted Subsidiaries to, use the proceeds of
any Credit Extension, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry margin stock (within the
meaning of Regulation U of the Board) or to extend credit to others for the
purpose of purchasing or carrying margin stock or to refund indebtedness
originally incurred for such purpose.
SECTION 7.13 GOVERNANCE DOCUMENTS. The Borrower will not amend
or change its Articles of Incorporation or code of regulations in any manner
which is materially adverse to the Lenders.
SECTION 7.14 FINANCIAL COVENANTS.
(a) LEVERAGE RATIO. The Leverage Ratio for any period of four
consecutive fiscal quarters of the Borrower, in each case taken as a single
accounting period, ending on a date set forth below will not be greater than the
ratio set forth opposite such date:
==================================================== ==================
FISCAL QUARTER ENDED RATIO
---------------------------------------------------- ------------------
February 28, 2002 through February 28, 2003 3.75 to 1.0
---------------------------------------------------- ------------------
May 31, 2003 through August 31, 2003 3.50 to 1.0
---------------------------------------------------- ------------------
November 30, 2003 through February 28, 2005 3.25 to 1.0
---------------------------------------------------- ------------------
May 31, 2005 and Thereafter 3.00 to 1.0
==================================================== ==================
(b) CONSOLIDATED INDEBTEDNESS TO CAPITALIZATION. The ratio of
the Borrower's Consolidated Indebtedness to the Borrower's Capitalization,
calculated as of the end of each fiscal quarter of the Borrower, will not be
greater than 55%.
(c) MAINTENANCE COVENANTS WITH RESPECT TO PLEDGED NOTES. (i)
The aggregate principal amount of the Pledged Notes shall not be less than an
amount equal to 115% of the sum of (A) the Revolving Committed Amount PLUS (B)
with respect to the Five Year Credit Agreement, the Revolving Committed Amount
(as defined in the Five Year Credit Agreement) thereunder PLUS (C) the aggregate
principal amount of Indebtedness outstanding under the Public Debt Indenture
from time to time PLUS (D) the aggregate principal amount of the Additional
Senior Indebtedness outstanding from time to time. (ii) As at the last day of
any fiscal quarter of the Borrower, the Adjusted Consolidated Operating Income
attributable to the Pledged Note Issuers for the four consecutive fiscal
quarters ending on or most recently ended prior to such date shall not be less
than an amount equal to 70% of the Adjusted Consolidated Operating Income for
such period.
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ARTICLE VIII
DEFAULTS
SECTION 8.01 EVENTS OF DEFAULT. An Event of Default shall
exist upon the occurrence of any of the following specified events or conditions
(each an "EVENT OF DEFAULT"):
(a) PAYMENT. The Borrower shall fail to pay: (i) as and when
due (whether by scheduled maturity, mandatory prepayment, acceleration or
otherwise) any amount of principal of any Loan, any amount of interest on any
Competitive Bid Loan; (ii) within 5 days of when due (whether by scheduled
maturity, mandatory prepayment, acceleration or otherwise) any interest on any
Committed Loan, any commitment facility, utilization or other fee due hereunder;
or (iii) within 5 days after the same become due, any other amount payable
hereunder or under any other Loan Document.
(b) REPRESENTATION AND WARRANTIES. Any representation,
warranty or statement made or deemed to be made by the Borrower herein, in any
of the other Loan Documents or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue in any
material respect on the date as of which it was made or deemed to have been
made.
(c) COVENANTS. The Borrower shall default in the due
performance or observance by it of any other term, covenant or agreement
contained in this Agreement and such default shall continue unremedied for a
period of at least 30 days after the earlier of an executive officer of the
Borrower becoming aware of such default or notice thereof given by the
Administrative Agent.
(d) BANKRUPTCY, ETC. WITH RESPECT TO THE BORROWER AND ACTIVE
RESTRICTED SUBSIDIARIES. A Bankruptcy Event shall occur with respect to the
Borrower or any of its Active Restricted Subsidiaries.
(e) BANKRUPTCY, ETC. WITH RESPECT TO UNRESTRICTED
SUBSIDIARIES. A Bankruptcy Event shall occur with respect to any of the
Borrower's Unrestricted Subsidiaries and such event would reasonably be expected
to have a Material Adverse Effect.
(f) CROSS-DEFAULT. A default by the Borrower or any of its
Subsidiaries with respect to any evidence of Indebtedness in excess of
$5,000,000 by it for borrowed money (other than to the Lenders pursuant to this
Agreement), if the effect of such default is to accelerate the maturity of such
Indebtedness or to permit the holder thereof to cause such Indebtedness to
become due prior to the stated maturity thereof, or if any Indebtedness of it in
excess of $5,000,000 for borrowed money (other than to the Lenders pursuant to
this Agreement) is not paid when due and payable, whether at the due date
thereof or a date fixed for prepayment or otherwise (after the expiration of any
applicable grace period).
(g) JUDGMENTS. Unless adequately insured or bonded, the entry
of a final judgment for the payment of money involving more than $10,000,000
against the Borrower or any of its Subsidiaries and the failure by the Borrower
or any of its Subsidiaries: (i) to discharge the same, or cause it to be
discharged, within thirty days from the date of the order, decree or process
under which or pursuant to which such judgment was entered or (ii) to secure a
stay of execution pending appeal of such judgment; or the entry of one or more
final non-monetary judgments or orders against the Borrower or any of its
Subsidiaries which, singly or in the aggregate, does or could reasonably be
expected to cause a Material Adverse Effect.
(h) OWNERSHIP. There shall occur a Change of Control of the
Borrower.
(i) PLEDGE AGREEMENT; TRUST AGREEMENT. At any time prior to
the release of the Pledge Agreement or the Trust Agreement, either (i) the
Pledge Agreement or the Trust Agreement shall
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fail to be in full force and effect or to give the Collateral Agent or the
Trustee, as the case may be, the rights, powers and privileges purported to be
created thereby or the Borrower, or any Person acting on behalf of the Borrower,
shall so state in writing, (ii) any security interest purported to be created by
Pledge Agreement shall cease to be, or shall be asserted by the Borrower or the
applicable Pledged Note Issuer not to be, a valid, perfected, first-priority
security interest in the securities, assets or properties covered thereby, (iii)
any Notice of Acceleration (as defined in the Trust Agreement) is delivered
pursuant to the terms of the Trust Agreement, (iv) any default occurs in the due
observance or performance by the Borrower of any covenant, condition or
agreement contained in the Pledge Agreement or the Trust Agreement, and such
default is not cured within any applicable cure or grace period, if any, or (v)
any representation or warranty made by the Borrower in the Pledge Agreement or
the Trust Agreement or any representation, warranty, statement or information
contained in any certificate or financial statement furnished pursuant to the
Pledge Agreement or the Trust Agreement, shall prove to have been false or
misleading in any material respect when so made, deemed made or furnished.
SECTION 8.02 ACCELERATION; REMEDIES. Upon the occurrence of an
Event of Default, and at any time thereafter unless and until such Event of
Default has been waived in writing by the Required Lenders (or all Lenders as
may be required pursuant to SECTION 10.01), the Administrative Agent shall, upon
the request and direction of the Required Lenders, by written notice to the
Borrower, take any of the following actions without prejudice to the rights of
the Agents or any Lender to enforce its claims against the Borrower except as
otherwise specifically provided for herein:
(a) TERMINATION OF COMMITMENTS. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) ACCELERATION OF LOANS. Declare the unpaid principal of and
any accrued interest in respect of all Loans and any and all other indebtedness
or obligations of any and every kind owing by the Borrower to any of the Lenders
hereunder to be due whereupon the same shall be immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
(c) ENFORCEMENT OF RIGHTS. Enforce any and all rights and
interests created and existing under the Loan Documents, including, without
limitation, delivery of a Notice of Acceleration (as defined in the Trust
Agreement), and all rights of set-off, or applicable Law.
Notwithstanding the foregoing, if an Event of Default
specified in SECTION 8.01(d) OR (e) shall occur, then the Commitments shall
automatically terminate and all Loans, all accrued interest in respect thereof
and all accrued and unpaid fees and other indebtedness or obligations owing to
the Lenders hereunder and under the other Loan Documents shall immediately
become due and payable without the giving of any notice or other action by the
Administrative Agent or the Lenders, which notice or other action is expressly
waived by the Borrower.
Notwithstanding the fact that enforcement powers reside
primarily with the Administrative Agent, each Lender has, to the extent
permitted by law, a separate right of payment and shall be considered a separate
"creditor" holding a separate "claim" within the meaning of Section 101(5) of
any Debtor Relief Law or any other insolvency statute.
In case any one or more of the covenants and/or agreements set
forth in this Agreement or any other Loan Document shall have been breached by
the Borrower, then the Administrative Agent may proceed to protect and enforce
the Lenders' rights either by suit in equity and/or by action at law, including
an action for damages as a result of any such breach and/or an action for
specific performance of any such covenant or agreement contained in this
Agreement or such other Loan Document. Without
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limitation of the foregoing, the Borrower agrees that failure to comply with any
of the covenants contained herein will cause irreparable harm and that specific
performance shall be available in the event of any breach thereof.
ARTICLE IX
AGENCY PROVISIONS
SECTION 9.01 APPOINTMENT; AUTHORIZATION.
(a) APPOINTMENT. Each Lender hereby designates and appoints
PNC Bank, National Association as Administrative Agent and First Union
Securities, Inc. and PNC Capital Markets, Inc. as Co-Syndication Agents of such
Lender to act as specified herein and in the other Loan Documents, and each such
Lender hereby authorizes the Agents, as the agents for such Lender, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated by the terms hereof and of the other Loan Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere herein and in the other Loan Documents, the
Agents shall not have any duties or responsibilities, except those expressly set
forth herein and therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any of the other Loan
Documents, or shall otherwise exist against the Agents. In performing its
functions and duties under this Agreement and the other Loan Documents, each
Agent shall act solely as an agent of the Lenders and does not assume and shall
not be deemed to have assumed any obligation or relationship of agency or trust
with or for the Borrower. Without limiting the generality of the foregoing two
sentences, the use of the term "agent" herein and in the other Loan Documents
with reference to any Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any applicable
law. Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties. The provisions of this ARTICLE IX (other than
SECTION 9.09) are solely for the benefit of the Agents and the Lenders and the
Borrower shall not have any rights as a third party beneficiary of the
provisions hereof (other than SECTION 9.09).
(b) CERTAIN OTHER AGENTS. First Union Securities, Inc. and PNC
Capital Markets, Inc., in their capacity as Co-Syndication Agents, shall have no
duties or obligations whatsoever under this Agreement or any of the other Loan
Documents.
SECTION 9.02 DELEGATION OF DUTIES. An Agent may execute any of
its duties hereunder or under the other Loan Documents by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
An Agent shall not be responsible for the negligence or misconduct of any agents
or attorneys-in-fact selected by it in the absence of gross negligence or
willful misconduct.
SECTION 9.03 EXCULPATORY PROVISIONS. No Agent-Related Person
shall be (i) liable for any action lawfully taken or omitted to be taken by any
of them under or in connection herewith or in connection with any of the other
Loan Documents or the transactions contemplated hereby or thereby (except for
its own gross negligence or willful misconduct in connection with its duties
expressly set forth herein) or (ii) responsible in any manner to any of the
Lenders or participants for any recitals, statements, representations or
warranties made by the Borrower contained herein or in any of the other Loan
Documents or in any certificate, report, document, financial statement or other
written or oral statement referred to or provided for in, or received by an
Agent under or in connection herewith or in connection with the other Loan
Documents, or enforceability or sufficiency therefor of any of the other Loan
Documents, or for any failure of the Borrower to perform its obligations
hereunder or thereunder or be
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required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained herein or
therein or as to the use of the proceeds of the Loans or of the existence or
possible existence of any Default or Event of Default or to inspect the
properties, books or records of the Borrower.
SECTION 9.04 RELIANCE ON COMMUNICATIONS. The Agents shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex, teletype or e-mail message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower, independent accountants and other experts selected by the Agents). The
Agents may deem and treat each Lender as the owner of its interests hereunder
for all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative Agent in accordance with
SECTION 10.06(b). The Agents shall be fully justified in failing or refusing to
take any action under this Agreement or under any of the other Loan Documents
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Agents shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder or under any of the other Loan Documents in accordance with a request
of the Required Lenders (or to the extent specifically provided in SECTION
10.01, all the Lenders) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns). Where this Agreement expressly permits or prohibits an
action unless the Required Lenders otherwise determine, any Agent shall, and in
all other instances an Agent may, but shall not be required to, initiate any
solicitation for the consent or vote of the Lenders.
SECTION 9.05 NOTICE OF DEFAULT. An Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder, unless such Agent has received written notice from a Lender or the
Borrower referring to the Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default". If the Administrative
Agent receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders; PROVIDED, HOWEVER, that unless and until the
Administrative Agent has received any such direction, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default or it shall deem
advisable or in the best interest of the Lenders, except to the extent that this
Agreement expressly requires that such action be taken, or not taken, only with
the consent or upon the authorization of the Required Lenders, or all of the
Lenders, as the case may be.
SECTION 9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY
ADMINISTRATIVE AGENT. Each Lender expressly acknowledges that no Agent-Related
Person has made any representations or warranties to it and that no act by any
Agent hereinafter taken, including any consent to and acceptance of any
assignment or review of the affairs of the Borrower or any Affiliate thereof,
shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender as to any matter, including whether any
Agent-Related Person has disclosed material information in its possession. Each
Lender represents to the Agents that it has, independently and without reliance
upon any Agent-Related Person or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, assets, operations, property, financial and
other condition, prospects and creditworthiness of the Borrower, and all
requirements of Law pertaining to the transaction contemplated by the Loan
Documents, and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
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without reliance upon any Agent-Related Person 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 analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigation as it deems necessary to inform itself as to the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Agents shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial or other
conditions, prospects or creditworthiness of the Borrower or its Affiliates
which may come into the possession of any Agent-Related Person.
SECTION 9.07 INDEMNIFICATION. Whether or not the transactions
contemplated hereby are consummated, the Lenders agree to indemnify each
Agent-Related Person (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Commitments (or if the Commitments have expired or been terminated,
in accordance with the respective principal amounts of outstanding Loans and
Participation Interests of the Lenders), from and against any and all
Indemnified Liabilities which may at any time (including, without limitation, at
any time following payment in full of the Obligations) be imposed on, incurred
by or asserted against an Agent in its capacity as such in any way relating to
or arising out of this Agreement or the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by an Agent under
or in connection with any of the foregoing; PROVIDED, that no Lender shall be
liable for the payment to any Agent-Related Person of any portion of such
Indemnified Liabilities resulting from such Person's gross negligence or willful
misconduct; PROVIDED, HOWEVER, that no action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this SECTION 9.07. If any
indemnity furnished to an Agent for any purpose shall, in the opinion of such
Agent, be insufficient or become impaired, such Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished. Without limitation of the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs) incurred
by the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that the Administrative Agent is not reimbursed for such expenses by or on
behalf of the Borrower. The agreements in this SECTION 9.07 shall survive the
payment of the Obligations and all other obligations and amounts payable
hereunder and under the other Loan Documents.
SECTION 9.08 AGENTS IN THEIR INDIVIDUAL CAPACITY. Each Agent
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire Equity Interests in, and generally engage in
any kind of banking, trust, financial advisory, underwriting and other business
with the Borrower as though such Agent were not an Agent hereunder or under
another Loan Document. The Lenders acknowledge that, pursuant to any such
activities, an Agent or its Affiliates may receive information regarding the
Borrower or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrower or such Affiliate) and
acknowledge that no Agent shall be under any obligation to provide such
information to them. With respect to the Loans made and all obligations owing to
it, an Agent shall have the same rights and powers under this Agreement as any
Lender and may exercise the same as though it was not an Agent, and the terms
"Lender" and "Lenders" shall include each Agent in its individual capacity.
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SECTION 9.09 SUCCESSOR AGENTS. Any Agent may, at any time,
resign upon 30 days' written notice to the Lenders. If an Agent resigns under a
Loan Document, the Required Lenders shall appoint from among the Lenders a
successor Agent, which successor Agent shall be subject to the consent of the
Borrower at all times other than during the existence of an Event of Default
(which consent of the Borrower shall not be unreasonably withheld or delayed).
If no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment prior to the effective date of the
resignation of the resigning Agent, then the resigning Agent shall have the
right, after consulting with the Lenders and the Borrower, to appoint a
successor Agents; PROVIDED, that such successor is a Lender hereunder or a
commercial bank organized under the laws of the United States of America or of
any State thereof and has a combined capital and surplus of at least
$500,000,000. If no successor Agent is appointed prior to the effective date of
the resignation of the resigning Agent, the Administrative Agent may appoint,
after consulting with the Lenders and the Borrower, a successor Agent from among
the Lenders. Upon the acceptance of any appointment as an Agent hereunder by a
successor, 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 as an
Agent, as appropriate, under this Agreement and the other Loan Documents and the
provisions of this SECTION 9.09 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Agent under this Agreement.
If no successor Administrative Agent has accepted appointment as Administrative
Agent within sixty days after the retiring Administrative Agent's giving notice
of resignation, the retiring Administrative Agent's resignation shall
nevertheless become effective and the Lenders shall perform all duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor Administrative Agent as provided for above.
SECTION 9.10 CERTAIN OTHER AGENTS. None of the Lenders
identified on the facing page or signature pages of this Agreement as a
"syndication agent", "documentation agent", "co-agent", "book runner" or "lead
manager" shall have any right, power, obligation, liability, responsibility or
duty under the Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders or any such Person so
identified shall have or be deemed to have any fiduciary relationship to any
Lender or the Borrower. Each Lender acknowledges that it has not relied, and
will not rely, on any of the Lenders or other Persons so identified in deciding
to enter into this Agreement or in taking or not taking action hereunder.
SECTION 9.11 AGENTS' FEES; ARRANGER FEE. The Borrower shall
pay to the Administrative Agent for its own account fees in the amounts and at
the times previously agreed upon between the Borrower and the Administrative
Agent with respect to this Agreement, the other Loan Documents and the
transactions contemplated hereby and thereby.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 AMENDMENTS, WAIVERS AND CONSENTS. Neither this
Agreement nor any other Loan Document nor any of the terms hereof or thereof may
be amended, changed, waived, discharged or terminated except, in the case of
this Agreement, pursuant to an agreement or agreements in writing entered into
by the Borrower, the Administrative Agent, and the Required Lenders or, in the
case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by the Borrower and the Agents party thereto, as
applicable; PROVIDED, that the foregoing shall not restrict the ability of the
Required Lenders to waive any Event of Default prior to the time the
Administrative Agent shall have declared, or the Required Lenders shall have
requested the Administrative Agent to declare, the Loans immediately due and
payable pursuant to ARTICLE VIII; PROVIDED, HOWEVER, that:
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(i) no such amendment, change, waiver, discharge or
termination shall, without the consent of each Lender affected
thereby:
(A) extend the final maturity of any Loan
PROVIDED, that this CLAUSE (A) shall not restrict the
ability of the Required Lenders to waive any Event of
Default (other than an Event of Default the waiver of
which would effectively result in any such extension or
waiver), prior to the time the Administrative Agent
shall have declared, or the Required Lenders shall have
requested the Administrative Agent to declare, the Loans
immediately due and payable pursuant to ARTICLE VIII;
(B) reduce the rate, or extend the time of
payment, of interest or change the manner of computation
of any financial covenant used in determining the
Applicable Margin that could result in the reduction of
the rate of interest on any Loan (other than as a result
of waiving the applicability of any post-default
increase in interest rates) thereon or fees hereunder;
(C) except to the extent set forth in
SECTION 2.10(e) hereof, increase the Commitment of a
Lender over the amount thereof in effect (it being
understood and agreed that a waiver of any Default or
Event of Default or a mandatory reduction in the
Commitments shall not constitute a change in the terms
of any Commitment of any Lender);
(D) release the Borrower from its
Obligations under the Loan Documents;
(E) amend, modify or waive any provision of
this SECTION 10.01 or reduce any percentage specified
in, or otherwise modify, the definition of Required
Lenders; or
(F) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under
(or in respect of) the Loan Documents to which it is a
party, except as permitted thereby;
(ii) no provision of ARTICLE IX may be amended without
the consent of the Administrative Agent and no provision of SECTION
2.02(d) may be amended without the consent of the Swingline Lender.
Notwithstanding the fact that the consent of all the Lenders
is required in certain circumstances as set forth above, (i) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersede the unanimous consent
provisions set forth herein and (ii) the Required Lenders may consent to allow
the Borrower to use cash collateral in the context of a bankruptcy or insolvency
proceeding.
SECTION 10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE
COPIES.
(a) GENERAL. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission) and mailed, faxed or delivered, to the
address, facsimile number or (subject to SUBSECTION (c) below) electronic mail
address specified for notices on SCHEDULE 10.02; or, in the case of the
Borrower, the Administrative Agent, the Swingline Lender, to such other address
as shall be designated by such party in a notice to the
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other parties, and in the case of any other party, to such other address as
shall be designated by such party in a notice to the Borrower, the
Administrative Agent and the Swingline Lender. All such notices and other
communications shall be deemed to be given or made upon the earlier to occur of
(i) actual receipt by the intended recipient and (ii) (A) if delivered by hand
or by courier, when signed for by the intended recipient; (B) if delivered by
mail, four Business Days after deposit in the mails, postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone;
and (D) if delivered by electronic mail (which form of delivery is subject to
the provisions of SUBSECTION (c) below), when delivered; PROVIDED, HOWEVER, that
notices and other communications to the Administrative Agent and the Swingline
Lender pursuant to ARTICLE II shall not be effective until actually received by
such Person. Any notice or other communication permitted to be given, made or
confirmed by telephone hereunder shall be given, made or confirmed by means of a
telephone call to the intended recipient at the number specified on SCHEDULE
10.02, it being understood and agreed that a voicemail message shall in no event
be effective as a notice, communication or confirmation hereunder.
(b) EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to requirements of Law, have
the same force and effect as manually-signed originals and shall be binding on
the Borrower, the Agents and the Lenders. The Administrative Agent may also
require that any such documents and signatures be confirmed by a manually-signed
original thereof; PROVIDED, HOWEVER, that the failure to request or deliver the
same shall not limit the effectiveness of any facsimile document or signature.
(c) LIMITED USE OF ELECTRONIC MAIL. Electronic mail and
internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) RELIANCE BY ADMINISTRATIVE AGENT AND LENDERS. The
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify each Agent-Related Person and each Lender
from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of the Borrower,
except for such losses resulting from the Administrative Agent's or Lender's
gross negligence or willful misconduct. All telephonic notices to and other
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
SECTION 10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure or
delay on the part of an Agent or any Lender in exercising any right, power or
privilege hereunder or under any other Loan Document and no course of dealing
between the Agents or any Lender and the Borrower shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Loan Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies provided herein are cumulative
and not exclusive of any rights or remedies which the Agents or any Lender would
otherwise have. No notice to or demand on the Borrower in any case shall entitle
the Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agents or the Lenders
to any other or further action in any circumstances without notice or demand.
SECTION 10.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Borrower
agrees (i) to pay or reimburse the Administrative Agent for all costs and
expenses incurred in connection with the
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preparation, negotiation and execution of this Agreement and the other Loan
Documents and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all Attorney Costs,
and (ii) to pay or reimburse the Administrative Agent and each Lender for all
costs and expenses incurred in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement or
the other Loan Documents (including all such costs and expenses incurred during
any "workout" or restructuring in respect of the Obligations and during any
legal proceeding, including any proceeding under any Debtor Relief Law),
including all Attorney Costs. The foregoing costs and expenses shall include all
search, filing, recording, title insurance and appraisal charges and fees and
taxes related thereto, and other reasonable and actual out-of-pocket expenses
incurred by the Administrative Agent and the reasonable and actual cost of
independent public accountants and other outside experts retained by the
Administrative Agent or any Lender. The agreements in this SECTION 10.04 shall
survive the termination of the Commitments and repayment of all the other
Obligations.
SECTION 10.05 INDEMNIFICATION. Whether or not the transactions
contemplated hereby are consummated, the Borrower agrees to indemnify, save and
hold harmless each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the "INDEMNITEES") from and against: (i) any and
all claims, demands, actions or causes of action that are asserted against any
Indemnitee by any Person (other than the Administrative Agent or any Lender)
relating directly or indirectly to a claim, demand, action or cause of action
that such Person asserts or may assert against the Borrower, any Affiliate of
the Borrower or any of their respective officers or directors; (ii) any and all
claims, demands, actions or causes of action that may at any time (including at
any time following repayment of the Obligations and the resignation or removal
of any Agent or the replacement of any Lender) be asserted or imposed against
any Indemnitee, arising out of or relating to, the Loan Documents, any
predecessor loan documents, the Commitments, the use of or contemplated use of
the proceeds of any Credit Extension, or the relationship of the Borrower, any
Agent and the Lenders under this Agreement or any other Loan Document; (iii) any
administrative or investigative proceeding by any Governmental Authority arising
out of or related to a claim, demand, action or cause of action described in
CLAUSE (i) or (ii) above; and (iv) any and all liabilities (including
liabilities under indemnities), losses, costs or expenses (including Attorney
Costs) that any Indemnitee suffers or incurs as a result of the assertion of any
foregoing claim, demand, action, cause of action or proceeding, or as a result
of the preparation of any defense in connection with any foregoing claim,
demand, action, cause of action or proceeding, in all cases, and whether or not
an Indemnitee is a party to such claim, demand, action, cause of action, or
Proceeding (all the foregoing, collectively; the "INDEMNIFIED LIABILITIES");
PROVIDED, that no Indemnitee shall be entitled to indemnification for any claim
caused by its own gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
SECTION 10.05 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnitee or any other Person or any
Indemnitee is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. The Borrower agrees not to assert any claim
against any Agent, any Lender, any other Creditor, any of their Affiliates or
any of their respective directors, officers, employees, attorneys, agents and
advisers, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the Loan Documents, any
of the transactions contemplated herein or therein or the actual or proposed use
of the proceeds of the Loans. Without prejudice to the survival of any other
agreement of the Borrower hereunder and under the other Loan Documents, the
agreements and obligations of the Borrower contained in this SECTION 10.05 shall
survive the repayment of the Loans and other obligations under the Loan
Documents and the termination of the Commitments hereunder.
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SECTION 10.06 SUCCESSORS AND ASSIGNS.
(a) GENERALLY. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and assigns of
the parties hereto; PROVIDED, that the Borrower may not assign or transfer any
of its interests and obligations without the prior written consent of either the
Required Lenders or the Lenders, as the terms set forth in SECTION 10.01 may
require;
(b) ASSIGNMENTS. Any Lender may assign all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Loans, its Notes, its Commitments and any Participation
Interest in Swingline Loans held by it); PROVIDED, HOWEVER, that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender, an Affiliate of an existing Lender or any Approved Fund the
aggregate amount of the Revolving Commitment of the assigning Lender
subject to such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not, without the consent of the Borrower
and the Administrative Agent, be less than $5,000,000 and an
integral multiple of $1,000,000 (or such lesser amount as shall
equal the assigning Lender's entire Revolving Commitment);
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all rights and obligations
in respect of a particular Class of Commitments under this Agreement
and the other Loan Documents;
(iv) the parties to such assignment shall execute and
deliver to the Administrative Agent its consent not to be
unreasonably withheld an Assignment and Acceptance in the form of
EXHIBIT C, together with any Note subject to such assignment and a
processing fee of $3,500, payable or agreed between the assigning
Lender and the assignee. Not later than the date any such executed
Assignment and Acceptance is delivered to the Administrative Agent,
the Administrative Agent shall provide the Borrower with notice of
any such assignment.
(c) ASSIGNMENT AND ACCEPTANCE. By executing and delivering an
Assignment and Acceptance in accordance with this SECTION 10.06, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and the
assignee warrants that it is an Eligible Assignee; (ii) except as set forth in
CLAUSE (i) above, 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 this Agreement, any of the other
Loan Documents or any other instrument or document furnished pursuant hereto or
thereto, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any of the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto or the
financial condition of the Borrower or the performance or observance by the
Borrower or any Subsidiary of any of its obligations under this Agreement, any
of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; (iii) such assignee represents and warrants that it
is legally authorized to enter into such assignment agreement; (iv) such
assignee confirms that it has received a copy of this Agreement, the other Loan
Documents, together with copies of the most recent financial statements
delivered pursuant to SECTION 6.01 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; (v) such assignee will independently and
without reliance upon the Administrative Agent, the Swingline Lender, such
assigning
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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 and the other Loan Documents;
(vi) such assignee appoints and authorizes the Administrative Agent to take such
action on its behalf and to exercise such powers under this Agreement or any
other Loan Document as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of this Agreement and the
other Loan Documents are required to be performed by it as a Lender. Upon
execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this SECTION 10.06, the assignor, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that, if required, new Notes are issued to the assignor and the assignee. If the
assignee is not a United States person under Section 7701(a)(30) of the Code, it
shall deliver to the Borrower and the Administrative Agent certification as to
exemption from deduction or withholding of Taxes in accordance with SECTION
3.01.
(d) REGISTER. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this SUBSECTION 10.06(d), to (i) maintain a register (the "REGISTER") on which
the Administrative Agent will record the Commitments from time to time of each
Lender, the Loans made by each Lender and each repayment in respect of the
principal amount of the Loans of each Lender and to (ii) retain a copy of each
Assignment and Acceptance delivered to the Administrative Agent pursuant to this
SECTION 10.06. Failure to make any such recordation, or any error in such
recordation, shall not affect the Borrower's obligation in respect of such
Loans. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders shall
treat each Person in whose name a Loan and the Note evidencing the same is
registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. With respect to
any Lender, the assignment or other transfer of the Commitments of such Lender
and the rights to the principal of, and interest on, any Loan made and any Note
issued pursuant to this Agreement shall not be effective until such assignment
or other transfer is recorded on the Register and, except to the extent provided
in this SUBSECTION 10.06(d), otherwise complies with this SECTION 10.06, and
prior to such recordation all amounts owing to the transferring Lender with
respect to such Commitments, Loans and Notes shall remain owing to the
transferring Lender. The registration of assignment or other transfer of all or
part of any Commitments, Loans and Notes for a Lender shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Acceptance and payment of the administrative fee referred to in SECTION
10.06(b)(iv). The Register shall be available at the offices where kept by the
Administrative Agent for inspection by the Borrower and any Lender at any
reasonable time upon reasonable prior notice to the Administrative Agent, and
the Administrative Agent shall provide a copy of the Register to any Lender
requesting a copy thereof, but in no event more frequently then once per
calendar quarter.
(e) PARTICIPATIONS. Each Lender may, without the consent of
the Borrower, the Swingline Lender or any Agent, sell participations to one or
more Persons in all or a portion of its rights, obligations or rights and
obligations under this Agreement (including all or a portion of its Commitment
or the Loans owing to it and any Notice and participation in Swingline Loans
held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participant shall be entitled to the benefit of the right of setoff
contained in SECTION 10.08 and the yield protection provisions contained in
SECTIONS 3.01, 3.04 and 3.05 and to the same extent that the
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Lender from which such participant acquired its participation would be entitled
to the benefits of such yield protections; PROVIDED, that the Borrower shall not
be required to reimburse any participant pursuant to SECTIONS 3.01, 3.04 or 3.05
in an amount which exceeds the amount that would have been payable thereunder to
such Lender had such Lender not sold such participation and (iv) the Borrower,
the Agents, the Swingline Lenders 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, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to the Obligations owing to
such Lender and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing the amount of principal of or the rate at which interest is payable
on such Loans or Notes, extending any scheduled principal payment date or date
fixed for the payment of interest on such Loans or Notes or extending its
Commitment).
(f) OTHER ASSIGNMENTS. Any Lender may at any time (i) assign
all or any portion of its rights under this Agreement and any Notes to a Federal
Reserve Bank, (ii) pledge or assign a security interest in all or any portion of
its interest and rights under this Agreement (including all or any portion of
its Notes, if any) to secure obligations of such Lender and (iii) grant to an
SPC referred to in SUBSECTION (h) below identified as such in writing from time
to time by such Lender to the Administrative Agent the Borrower the option to
provide to the Borrower all or any part of any Loans that such Lender would
otherwise be obligated to make to the Borrower pursuant to the Agreement;
PROVIDED, that no such assignment, option, pledge or security interest shall
release a Lender from any of its obligations hereunder or substitute any such
Federal Reserve Bank or other person to which such option, pledge or assignment
has been made for such Lender as a party hereto.
(g) INFORMATION. Any Lender may furnish any information
concerning the Borrower or any of its Subsidiaries in the possession of such
Lender from time to time to assignees and participants (including prospective
assignees and participants), subject, however, to the provisions of SECTION
10.07.
(h) OTHER FUNDING VEHICLES. Notwithstanding anything to the
contrary contained herein, any Lender, (a "GRANTING LENDER") may grant to a
special purpose funding vehicle (an "SPC") the option to fund all or any part of
any Loan that such Granting Lender would otherwise be obligated to fund pursuant
to this Agreement; PROVIDED, that (i) nothing herein shall constitute a
commitment by any SPC to fund any Loan, (ii) if an SPC elects not to exercise
such option or otherwise fails to fund all or any part of such Loan, the
Granting Lender shall be obligated to fund such Loan pursuant to the terms
hereof, (iii) no SPC shall have any voting rights pursuant to SECTION 10.01 and
(iv) with respect to notices, payments and other matters hereunder, the
Borrower, the Administrative Agent and the Lenders shall not be obligated to
deal with an SPC, but may limit their communications and other dealings relevant
to such SPC to the applicable Granting Lender. The funding of a Loan by an SPC
hereunder shall utilize the Revolving Commitment of the Granting Lender to the
same extent that, and as if, such Loan were funded by such Granting Lender. Each
party hereto hereby agrees that no SPC shall be liable for any indemnity or
payment under this Agreement for which a Lender would otherwise be liable for so
long as, and to the extent, the Granting Lender provides such indemnity or makes
such payment. Notwithstanding anything to the contrary contained in this
Agreement, any SPC may disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or guarantee to such SPC. This SUBSECTION
(h) may not be amended without the prior written consent of each Granting
Lender, all or any part of whose Loan is being funded by an SPC at the time of
such amendment.
SECTION 10.07 CONFIDENTIALITY. Each of the Administrative
Agent and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (i) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made
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will be informed of the confidential nature of such Information and instructed
to keep such Information confidential); (ii) to the extent requested by any
regulatory authority; (iii) to the extent required by applicable Laws or
regulations or by any subpoena or similar legal process; (iv) to any other party
to this Agreement; (v) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (vi) subject to an agreement containing provisions
substantially the same as those of this SECTION 10.07, to (A) any Eligible
Assignee of or participant in, or any prospective Eligible Assignee of or
participant in, any of its rights or obligations under this Agreement or (B) any
direct or indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of the Borrower;
(vii) with the consent of the Borrower; (viii) to the extent such information
(A) becomes publicly available other than as a result of a breach of this
SECTION 10.07 or (B) becomes available to an Agent or any Lender on a
nonconfidential basis from a source other than the Borrower; or (ix) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its Affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates.
For the purposes of this SECTION 10.07, "Information" means all information
received from the Borrower relating to the Borrower or its business, other than
any such information that is available to the Administrative Agent or any Lender
on a nonconfidential basis prior to disclosure by the Borrower; PROVIDED, that
in the case of information received from the Borrower after the date hereof,
such information is clearly identified in writing at the time of delivery as
confidential.
SECTION 10.08 SET-OFF. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
an Event of Default, each Lender (and each of its Affiliates) is authorized at
any time and from time to time, without presentment, demand, protest or other
notice of any kind (all of such rights being hereby expressly waived), to
set-off and to appropriate and apply any and all deposits (general or specific)
and any other indebtedness at any time held or owing by such Lender (including,
without limitation, branches, agencies or Affiliates of such Lender wherever
located) to or for the credit or the account of the Borrower against obligations
and liabilities of the Borrower to the Lenders hereunder, under the Notes, under
the other Loan Documents or otherwise, irrespective of whether the
Administrative Agent or the Lenders shall have made any demand hereunder and
although such obligations, liabilities or claims, or any of them, may be
contingent or unmatured, and any such set-off shall be deemed to have been made
immediately upon the occurrence of an Event of Default even though such charge
is made or entered on the books of such Lender subsequent thereto. The Borrower
hereby agrees that to the extent permitted by Law any Person purchasing a
participation in the Loans and Commitments hereunder pursuant to SECTION
2.01(b), 2.13 or 10.06(e) may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender hereunder and
any such set-off shall reduce the amount owed by the Borrower to the Lender (but
without duplication).
SECTION 10.09 INTEREST RATE LIMITATION. Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the "MAXIMUM RATE"). If the
Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.
In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (i) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (ii) exclude
voluntary prepayments and the effects thereof, and (iii) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations.
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SECTION 10.10 COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which when so executed and delivered shall
be an original, but all of which shall constitute one and the same instrument.
It shall not be necessary in making proof of this Agreement to produce or
account for more than one such counterpart. Delivery of an executed counterpart
by facsimile shall be effective as an original executed counterpart and shall be
deemed a representation that the original executed counterpart will be
delivered.
SECTION 10.11 INTEGRATION. This Agreement, together with the
other Loan Documents, comprises the complete and integrated agreement of the
parties on the subject matter hereof and thereof and supersedes all prior
agreements, written or oral, on such subject matter. In the event of any
conflict between the provisions of this Agreement and those of any other Loan
Document, the provisions of this Agreement shall control; PROVIDED, that the
inclusion of supplemental rights or remedies in favor of the Administrative
Agent or the Lenders in any other Loan Document shall not be deemed a conflict
with this Agreement. Each Loan Document was drafted with the joint participation
of the respective parties thereto and shall be construed neither against nor in
favor of any party, put rather in accordance with the fair meaning thereof.
SECTION 10.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or Event of Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
shall remain unpaid or unsatisfied.
SECTION 10.13 SEVERABILITY. Any provision of this Agreement
and the other Loan Documents to which the Borrower is a party that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.14 HEADINGS. The headings and captions of the
sections and subsections hereof are provided for convenience only and shall not
in any way affect the meaning or construction of any provision of this
Agreement.
SECTION 10.15 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS
EXPRESSLY SET FORTH IN SUCH OTHER LOAN DOCUMENTS) AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES;
PROVIDED, THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW. Any legal action or proceeding with respect to this
Agreement or any other Loan Document may be brought in the courts of the State
of New York in New York County, or of the United States for the Southern
District of New York or the Western District of North Carolina, and, by
execution and delivery of this Agreement, the Borrower hereby irrevocably
accepts for itself and in respect of its property, generally and unconditional,
the nonexclusive jurisdiction of such courts. The Borrower irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
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hereafter have to the laying of the venue of any such proceeding brought in such
court and any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
(b) The Borrower hereby irrevocably appoints C.T. Corporation
System its authorized agent to accept and acknowledge service of any and all
process which may be served in any suit, action or proceeding of the nature
referred to in this SECTION 10.15 and consents to process being served in any
such suit, action or proceeding upon C.T. Corporation System (with a copy
thereof being mailed by overnight courier to the Borrower's address referred to
in SCHEDULE 10.02) in any manner or by the mailing of a copy thereof by
registered or certified mail, postage prepaid, return receipt requested, to the
Borrower's address referred to in SCHEDULE 10.02. The Borrower agrees that such
service (i) shall be deemed in every respect effective service of process upon
it in any such suit, action or proceeding and (ii) shall, to the fullest extent
permitted by law, be taken and held to be valid personal service upon and
personal delivery to it. Nothing in this SECTION 10.15 shall affect the right of
any Lender to serve process in any manner permitted by law or limit the right of
any Lender to bring proceedings against the Borrower in the courts of any
jurisdiction or jurisdictions.
SECTION 10.16 WAIVER OF JURY TRIAL. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.16 WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
SECTION 10.17 BINDING EFFECT. This Agreement shall become
effective at such time when it shall have been executed by the Borrower, and the
Administrative Agent, and the Administrative Agent shall have received copies
hereof (telefaxed or otherwise) which, when taken together, bear the signatures
of each Lender, and thereafter this Agreement shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent and each Lender and their
respective successors and assigns; PROVIDED, HOWEVER, that unless the conditions
set forth in SECTION 4.01 have been satisfied by the Borrower or waived by the
Lenders on or before June 30, 2002, none of the Borrower, the Administrative
Agent or the Lenders shall have any obligations under this Agreement.
SECTION 10.18 CONFLICT. To the extent that there is a conflict or inconsistency
between any provision hereof, on the one hand, and any provision of any other
Loan Document, on the other hand, this Agreement shall control.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
BORROWER: WORTHINGTON INDUSTRIES, INC.
By: /s/Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Chief Financial Officer
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/Xxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
as Swingline Lender
By: /s/Xxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/Xxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/Xxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/X. Xxxx
----------------------------------------------
Name X. Xxxx:
Title: Senior Manager
CREDIT SUISSE FIRST BOSTON CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/Xxxx X'Xxxx/ /s/ Xxxxxxxxx Droosan
----------------------------------------------
Name: Xxxx X'Xxxx Xxxxxxxxx Droosan
Title: Director Associate
FIFTH THIRD BANK (CENTRAL OHIO),
as a Lender
By: /s/ Xxxx X. Beandsloe
----------------------------------------------
Name: Xxxx X. Beandsloe
Title: Vice President
FIRSTAR BANK, NA, as a Lender
By: /s/Xxxxxx X. Friend
----------------------------------------------
Name: Xxxxxx X. Friend
Title: Vice President
CIBC, INC., as a Lender
By: /s/Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
COMERICA BANK, as a Lender
By: /s/Xxxx Xxxxxx
----------------------------------------------
Name:Xxxx Xxxxxx
Title: Account Officer
THE HUNTINGTON NATIONAL BANK,
as a Lender
By: /s/Xxxxx X. Cracoica
----------------------------------------------
Name: Xxxxx X. Cracoica
Title: Vice President
JPMORGAN CHASE BANK,
as a Lender
By: /s/Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Managing Director
NATIONAL CITY BANK, as a Lender
By: /s/Xxxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a
Lender
By: /s/Xxxxxxx Nanchman
----------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
By: /s/Xxxxx Xxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
MELLON BANK, NA, as a Lender
By: /s/Xxxx X. Xxxx
----------------------------------------------
Name: Xxxx X. Xxxx
Title: First Vice President
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...............................................................1
Section 1.01 Defined Terms.....................................................................1
Section 1.02 Computation of Time Periods and Other Definitional Provisions....................23
Section 1.03 Accounting Terms and Determinations..............................................23
Section 1.04 Classes and Types of Borrowings..................................................23
ARTICLE II THE CREDIT FACILITIES.........................................................................24
Section 2.01 Commitments to Lend..............................................................24
Section 2.02 Notice of Committed Loan.........................................................26
Section 2.03 Competitive Bid Borrowings.......................................................27
Section 2.04 Notice to Lenders; Funding of Loans..............................................30
Section 2.05 Evidence of Loans................................................................31
Section 2.06 Interest.........................................................................32
Section 2.07 Extension and Conversion.........................................................34
Section 2.08 Scheduled Termination of Commitments; Mandatory Prepayments......................35
Section 2.09 Optional Prepayments.............................................................35
Section 2.10 Adjustment of Commitments........................................................36
Section 2.11 Fees.............................................................................40
Section 2.12 Pro-Rata Treatment...............................................................40
Section 2.13 Sharing of Payments..............................................................41
Section 2.14 Payments; Computations...........................................................41
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY........................................................42
Section 3.01 Taxes............................................................................42
Section 3.02 Illegality.......................................................................44
Section 3.03 Basis for Determining Interest Rate Inadequate or Unfair.........................44
Section 3.04 Increased Costs and Reduced Return...............................................45
Section 3.05 Funding Losses...................................................................46
Section 3.06 Base Rate Loans Substituted for Affected Fixed Rate Loans........................47
ARTICLE IV CONDITIONS....................................................................................47
Section 4.01 Conditions to Closing............................................................47
Section 4.02 Conditions to All Credit Extensions..............................................49
ARTICLE V REPRESENTATIONS AND WARRANTIES................................................................50
Section 5.01 Organization.....................................................................50
Section 5.02 Financial Condition..............................................................50
Section 5.03 Litigation, Etc..................................................................50
Section 5.04 Taxes............................................................................50
Section 5.05 Authority........................................................................51
Section 5.06 Other Defaults...................................................................51
Section 5.07 Licenses, Etc....................................................................51
Section 5.08 ERISA............................................................................51
Section 5.09 Environmental Matters............................................................51
Section 5.10 Ownership of Property; Liens.....................................................51
Section 5.11 Insurance........................................................................51
Section 5.12 Subsidiaries.....................................................................52
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Section 5.13 Margin Regulation; Investment Company Act; Public Utility Holding Company Act....52
Section 5.14 Disclosure.......................................................................52
ARTICLE VI AFFIRMATIVE COVENANTS.........................................................................53
Section 6.01 Information......................................................................53
Section 6.02 Books and Records................................................................54
Section 6.03 Payment of Obligations...........................................................54
Section 6.04 Compliance with Laws.............................................................55
Section 6.05 Environmental Violations.........................................................55
Section 6.06 ERISA Compliance.................................................................55
Section 6.07 Maintenance of Properties........................................................55
Section 6.08 Maintenance of Insurance.........................................................55
Section 6.09 Use of Proceeds..................................................................55
Section 6.10 Pledged Notes....................................................................55
ARTICLE VII NEGATIVE COVENANTS............................................................................55
Section 7.01 Limitation on Indebtedness of Restricted Subsidiaries............................55
Section 7.02 Restriction on Liens.............................................................56
Section 7.03 Investments......................................................................56
Section 7.04 Merger...........................................................................57
Section 7.05 Dispositions.....................................................................57
Section 7.06 ERISA............................................................................57
Section 7.07 Designation of Restricted and Unrestricted Subsidiaries..........................58
Section 7.08 Change in Nature of Business.....................................................58
Section 7.09 Transactions with Affiliates.....................................................58
Section 7.10 Burdensome Agreements............................................................59
Section 7.11 Impairment of Collateral.........................................................59
Section 7.12 Use of Proceeds..................................................................59
Section 7.13 Governance Documents.............................................................59
Section 7.14 Financial Covenants..............................................................59
ARTICLE VIII DEFAULTS......................................................................................60
Section 8.01 Events of Default................................................................60
Section 8.02 Acceleration; Remedies...........................................................61
ARTICLE IX AGENCY PROVISIONS.............................................................................62
Section 9.01 Appointment; Authorization.......................................................62
Section 9.02 Delegation of Duties.............................................................62
Section 9.03 Exculpatory Provisions...........................................................62
Section 9.04 Reliance on Communications.......................................................63
Section 9.05 Notice of Default................................................................63
Section 9.06 Credit Decision; Disclosure of Information by Administrative Agent...............63
Section 9.07 Indemnification..................................................................64
Section 9.08 Agents in Their Individual Capacity..............................................64
Section 9.09 Successor Agents.................................................................65
Section 9.10 Certain Other Agents.............................................................65
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Section 9.11 Agents' Fees; Arranger Fee.......................................................65
ARTICLE X MISCELLANEOUS.................................................................................65
Section 10.01 Amendments, Waivers and Consents.................................................65
Section 10.02 Notices and Other Communications; Facsimile Copies...............................66
Section 10.03 No Waiver; Cumulative Remedies...................................................67
Section 10.04 Attorney Costs, Expenses and Taxes...............................................67
Section 10.05 Indemnification..................................................................68
Section 10.06 Successors and Assigns...........................................................69
Section 10.07 Confidentiality..................................................................71
Section 10.08 Set-off..........................................................................72
Section 10.09 Interest Rate Limitation.........................................................72
Section 10.10 Counterparts.....................................................................73
Section 10.11 Integration......................................................................73
Section 10.12 Survival of Representations and Warranties.......................................73
Section 10.13 Severability.....................................................................73
Section 10.14 Headings.........................................................................73
Section 10.15 Governing Law; Submission to Jurisdiction........................................73
Section 10.16 Waiver of Jury Trial.............................................................74
Section 10.17 Binding Effect...................................................................74
Section 10.18 Conflict.........................................................................74
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(continued)
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SCHEDULES:
Schedule 1.01A - Lenders and Commitments
Schedule 5.12 - Subsidiaries
Schedule 7.01 Existing Letters of Credit
Schedule 7.07 - Unrestricted Subsidiaries
Schedule 10.02 - Notices; Lending Offices
EXHIBITS:
Exhibit A-1 - Form of Notice of Syndicated Loan
Exhibit A-2 - Form of Competitive Bid Request
Exhibit A-3 - Form of Competitive Bid
Exhibit A-4 - Form of Notice of Extension/Conversion
Exhibit A-5 - Form of Swingline Loan Request
Exhibit B-1 - Form of Revolving Note
Exhibit B-2 - Form of Competitive Bid Note
Exhibit B-3 - Form of Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Pledge Agreement
Exhibit E - Form of Trust Agreement
Exhibit F - Form of Opinion of Counsel for the Borrower
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