EXHIBIT 4(j)(i)
EXECUTION COPY
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$155,000,000
FIVE-YEAR
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 ISSUING LENDER, 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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FIVE-YEAR REVOLVING
CREDIT AGREEMENT
This Five-Year 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, as Issuing Lender,
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 (i) 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 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, and (ii) with respect to any Issuing
Lender and for each Letter of Credit, the "Lending Office" of such Issuing
Lender (or of an
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Affiliate of such Issuing Lender) designated on SCHEDULE 10.02 or such other
office of such Issuing Lender (or of an Affiliate of such Issuing Lender) as
such Lender may from time to time specify to the Administrative Agent and the
Borrower as the office by which its Letters of Credit are to be issued and
maintained.
"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 2.12(a) or (iii) the applicable rate for the Utilization Fee for any day
for purposes of SECTION 2.12(c), the appropriate applicable percentage set forth
below corresponding to then current Worthington's Ratings:
Worthington's Applicable Applicable Applicable Percentage
Ratings Percentage for Percentage for for Eurodollar
(S&P/Moody's) Facility Fees Base Rate Loans Loans
Category A: A-/A3 or higher .125% 0% .375%
Category B: BBB+/Baa1 .150% 0% .475%
Category C: BBB/Baa2 .175% 0% .575%
Category D: BBB-/Baa3 .200% 0% .675%
Category E: BB+/Ba1 or .300% 0% 1.20%
lower or unrated
Applicable Percentage Applicable Percentage
Worthington's for Utilization Fee: for Utilization Fee:
Ratings Usage > 33% of Usage > 66% of
(S&P/Moody's) Commitments 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:
(i) when used in SECTION 2.06 with respect to any action
taken by or with respect to any Issuing Lender, or to the issuance
of, drawing under, or reimbursement obligation arising in respect
of, a Letter of Credit or a notice by the Borrower with respect to
any such issuance, drawing or reimbursement obligation, the term
"Business Day" shall not include any day on which commercial banks
are authorized or required to close, under the laws of, or in fact
closed in, the jurisdiction where such Issuing Lender's Applicable
Lending Office is located; and
(ii) 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 COLLATERALIZE" means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the Issuing Lenders and
the Lenders, as collateral for the LC Obligations, cash or deposit balances
pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the Issuing Lenders (which documents are hereby
consented to by the Lenders). Derivates of such term have a corresponding
meaning.
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"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 ▇▇▇▇▇'▇ 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;
(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 ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, 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
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(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.
"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 ▇▇▇▇▇ 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, (ii) with respect to each Issuing Lender, its LC
Commitment and (iii) 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 2.11(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
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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 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.
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"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.
"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 issuance, renewal or extension of a Letter of Credit or the purchase by a
Lender of a Participation Interest.
"CREDITOR" means each Lender, each Issuing 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.
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"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 or LC Obligation 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 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 Issuing Lenders and 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.
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"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.
"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.
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"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 1/100(th) 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.
"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 2.12(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.
"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.
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"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 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.
"ICC" has the meaning set forth in SECTION 2.06(n).
"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.
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"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:
(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:
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(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 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.
"ISSUING LENDER" means (i) PNC Bank, National Association, in
its capacity as issuer of Letters of Credit under SECTION 2.06(b), and its
successor or successors in such capacity and (ii) any other Lender which the
Borrower shall have designated as an "Issuing Lender" by notice to the
Administrative Agent.
"ISSUING LENDER FEES" has the meaning set forth in SECTION
2.12(b)(iii).
"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.
"LC COMMITMENT" means the commitment of an Issuing Lender to
issue Letters of Credit in an aggregate face amount at any one time outstanding
(together with the amounts of any unreimbursed drawings thereon and all LC
Commitments of other Issuing Lenders) of up to the LC Committed Amount.
"LC COMMITTED AMOUNT" has the meaning set forth in SECTION
2.06(b).
"LC DISBURSEMENT" means a payment or disbursement made by an
Issuing Lender pursuant to a Letter of Credit.
"LC DOCUMENTS" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor and any agreements, instruments,
guarantees or other documents (whether general in application or applicable only
to such Letter of Credit) governing or providing for (i) the rights and
obligations of the parties concerned or at risk or (ii) any collateral security
for such obligations.
"LC OBLIGATIONS" means at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to be drawn
under Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus (ii) the
aggregate amount of all LC Disbursements not yet reimbursed by the Borrower as
provided in SECTION 2.06(h) to the
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applicable Issuing Lenders in respect of drawings under Letters of Credit,
including any portion of any such obligation to which a Lender has become
subrogated pursuant to SECTION 2.06(i).
"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, each Issuing Lender and/or the Swingline Lender, in each
case in such capacity.
"LETTER OF CREDIT" means any letter of credit issued hereunder
by an Issuing Lender on or after the Closing Date.
"LETTER OF CREDIT FEE" has the meaning set forth in SECTION
2.12(b)(i).
"LETTER OF CREDIT REQUEST" has the meaning set forth in
SECTION 2.06(c).
"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.
"MATURITY DATE" means May 9, 2007 or such later date to which
the Maturity Date for any Loans or Lender may be extended pursuant to SECTION
2.11(d) or, if any such day is not a Business Day, the next preceding Business
Day.
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"MOODY'S" means ▇▇▇▇▇'▇ 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 2.08.
"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 or LC Obligation
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.
"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
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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 Letters of Credit or LC
Obligations as PROVIDED in SECTION 2.06(a) or (e), in Swingline Loans as
PROVIDED in SECTION 2.01(b)(vi) or in any Loans as PROVIDED in SECTION 2.14.
"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;
(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;
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(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 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
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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.
"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.
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"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
2.11(d)(i).
"REPLACEMENT DATE" has the meaning set forth in SECTION
2.11(c).
"REPLACEMENT LENDER" has the meaning set forth in SECTION
2.11(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 LC Obligations and
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
GAAP, excluding, with respect to the Borrower at any date, all Unrestricted
Subsidiaries designated as such pursuant to SECTION 7.07.
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"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), (ii) to purchase Participation Interests in
Swingline Loans in accordance with the provisions of SECTION 2.01(b) and (iii)
to purchase Participation Interests in Letters of Credit in accordance with the
provisions of SECTION 2.06(e).
"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 2.11.
"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 plus the
aggregate outstanding amount of all LC Obligations.
"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.
"STANDBY LETTER OF CREDIT" has the meaning set forth in SECTION
2.06(b).
"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
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partnership, limited liability company, association or business entity other
than a corporation, more than 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 2.11(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.
"364-DAY CREDIT AGREEMENT" means the $155,000,000 364-Day
Revolving Credit Agreement dated as of May 10, 2002 among the Borrower, the
banks and other financial institutions from
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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.
"TRADE LETTER OF CREDIT" has the meaning set forth in SECTION
2.06(b).
"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.
"TRUSTEE" means ▇▇▇▇▇ 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.
"UCP" has the meaning set forth in SECTION 2.06(n).
"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 ▇▇▇▇▇'▇ 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
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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 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, all reimbursements of LC Disbursements made, 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 all 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 2.10, 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
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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 plus its Participation
Interests in outstanding LC Obligations 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 364-Day
Credit Agreement) are outstanding under the 364- Day 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
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,
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the loss of the amount so recovered shall be ratably shared among all Revolving
Lenders in the manner contemplated by SECTION 2.14.
(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 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
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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;
(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 2.07(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 ▇▇▇▇▇'▇ 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
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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
(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;
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(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 1/1,00(th) of 1%) to be added to or subtracted from
such base rate;
(D) in the case of an Absolute Rate Auction,
the rate of interest per annum (specified to the nearest
1/100(th) 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)
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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);
(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 or LC
Disbursements, then the funds so received shall be applied, FIRST, to
the payment of such LC Disbursements, SECOND, to the repayment of such
Swingline Loans and THIRD, to the Borrower as provided above.
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(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 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
2.07, 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
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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.
(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.
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SECTION 2.06 LETTERS OF CREDIT.
(a) LETTERS OF CREDIT. Each Issuing Lender agrees, on the terms
and conditions set forth in this Agreement, to issue Letters of Credit from time
to time before the Maturity Date for the account, and upon the request, of the
Borrower and in support of (i) trade obligations of the Borrower and/or its
Subsidiaries, which shall be payable at sight (each such letter of credit, a
"TRADE LETTER OF CREDIT" and, collectively, the "TRADE LETTERS OF CREDIT") and
(ii) such other obligations of the Borrower that are acceptable to the Lenders
(each such letter of credit, a "STANDBY LETTER OF CREDIT" and, collectively, the
"STANDBY LETTERS OF CREDIT"); PROVIDED, that immediately after each Letter of
Credit is issued, (i) the aggregate amount of the LC Obligations shall not
exceed $20,000,000 (the "LC COMMITTED AMOUNT"), (ii) the aggregate of the
Revolving Outstandings shall not exceed the aggregate amount of the Revolving
Commitments and (iii) with respect to each individual Revolving Lender, the
aggregate outstanding principal amount of the Revolving Lender's Revolving Loans
plus its Participation Interest in outstanding LC Obligations plus its (other
than the Swingline Lender's in its capacity as such) Participation Interests in
outstanding Swingline Loans shall not exceed such Revolving Lender's Revolving
Commitment Percentage of the Revolving Committed Amount.
(b) METHOD OF ISSUANCE OF LETTERS OF CREDIT; AMENDMENT OF
LETTERS OF CREDIT. The Borrower shall give the applicable Issuing Lender notice
(with a copy to the Administrative Agent) substantially in the form of EXHIBIT
A-6 hereto and, to the extent required by the Issuing Lender, the Issuing
Lender's then current application for a letter of credit (collectively, a
"LETTER OF CREDIT REQUEST") of the requested issuance or amendment of a Letter
of Credit prior to 1:00 P.M. on the proposed date of the issuance or amendment
of Trade Letters of Credit (which shall be a Business Day) and at least three
Business Days before the proposed date of issuance or extension of Standby
Letters of Credit (which shall be a Business Day) (or such shorter period as may
be agreed by the applicable Issuing Lender in any particular instance). In the
case of a request for an initial issuance of a Letter of Credit, such Letter of
Credit Request shall specify in form and detail satisfactory to the Issuing
Lender: (A) the proposed issuance date of the requested Letter of Credit (which
shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as the Issuing Lender may
require. In the case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Request shall specify in form and detail
satisfactory to the Issuing Lender: (A) the Letter of Credit to be amended; (B)
the proposed date of amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; and (D) such other matters as the Issuing
Lender may require. The extension or renewal of any Letter of Credit shall be
deemed to be an issuance of such Letter of Credit. No Letter of Credit shall
have a term of more than one year or shall have a term extending or be
extendible beyond the fifth Business Day before the Maturity Date.
Promptly after receipt of any Letter of Credit Request, the
Issuing Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter of
Credit Request from the Borrower and, if not, the Issuing Lender will provide
the Administrative Agent with a copy thereof. Upon receipt by the Issuing Lender
of confirmation from the Administrative Agent that the requested issuance or
amendment is permitted in accordance with the terms hereof, then, subject to the
terms and conditions thereof, the Issuing Lender shall, on the requested date,
issue a Letter of Credit for the account of the Borrower or enter into the
applicable amendment, as the case may be, in each case in accordance with the
Issuing Lender's usual and customary business practices.
Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or to
the beneficiary thereof, the Issuing Lender will also deliver
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to the Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) CONDITIONS TO ISSUANCE OF LETTERS OF CREDIT. The issuance
by an Issuing Lender of each Letter of Credit shall, in addition to the
conditions precedent set forth in SECTION 4.02, be subject to the conditions
precedent that (i) such Letter of Credit shall be satisfactory in form and
substance to the applicable Issuing Lender, (ii) the Borrower shall have
executed and delivered such other instruments and agreements relating to such
Letter of Credit as the Issuing Lender shall have reasonably requested, (iii)
the Issuing Lender shall have confirmed with the Administrative Agent on the
date of (and after giving effect to) such issuance that (A) the aggregate amount
of all LC Obligations will not exceed the LC Committed Amount and (B) the
aggregate Revolving Outstandings will not exceed the aggregate amount of the
Revolving Commitments and (iv) the Issuing Lender shall not have been notified
by the Administrative Agent that any condition specified in SECTION 4.02(b) or
(c) is not satisfied on the date such Letter of Credit is to be issued.
Notwithstanding any other provision of this SECTION 2.06, no Issuing Lender
shall be under any obligation to issue any Letter of Credit if: (i) any order,
judgment or decree of any Governmental Authority shall by its terms purport to
enjoin or restrain the Issuing Lender from issuing such Letter of Credit, or any
requirement of Law applicable to such Issuing Lender or any request or directive
(whether or not having a force of Law) from any Governmental Authority with
jurisdiction over such Issuing Lender shall prohibit, or request that such
Issuing Lender refrain from, the issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon such Issuing Lender with
respect to such Letter of Credit any restriction, reserve or capital requirement
(for which such Issuing Lender is not otherwise compensated hereunder) not in
effect on the Closing Date, or shall impose upon such Issuing Lender any
unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which such Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; or (ii) the
issuance of such Letter of Credit shall violate any applicable general policies
of such Issuing Lender.
(d) PURCHASE AND SALE OF LETTER OF CREDIT PARTICIPATIONS. Upon
the issuance by an Issuing Lender of a Letter of Credit, such Issuing Lender
shall be deemed, without further action by any party hereto, to have sold to
each Revolving Lender, and each Revolving Lender shall be deemed, without
further action by any party hereto, to have purchased from such Issuing Lender,
without recourse or warranty, an undivided participation interest in such Letter
of Credit and the related LC Obligations in the proportion its Revolving
Commitment Percentage bears to the Revolving Committed Amount (although any
fronting fee payable under SECTION 2.12 shall be payable directly to the
Administrative Agent for the account of the applicable Issuing Lender, and the
Lenders (other than such Issuing Lender) shall have no right to receive any
portion of any such fronting fee) and any security therefor or guaranty
pertaining thereto. Upon any change in the Revolving Commitments pursuant to
SECTION 10.06, there shall be an automatic adjustment to the Participation
Interests in all outstanding Letters of Credit and all LC Obligations to reflect
the adjusted Revolving Commitments of the assigning and assignee Lenders or of
all Lenders having Revolving Commitments, as the case may be.
(e) DRAWINGS UNDER LETTERS OF CREDIT. Upon receipt from the
beneficiary of any Letter of Credit of any notice of a drawing under such Letter
of Credit, the applicable Issuing Lender shall determine in accordance with the
terms of such Letter of Credit whether such drawing should be honored. If the
Issuing Lender determines that any such drawing shall be honored, such Issuing
Lender shall make available to such beneficiary in accordance with the terms of
such Letter of Credit the amount of the drawing and shall notify the Borrower
and the Administrative Agent as to the amount to be paid as a result of such
drawing and the payment date.
(f) DUTIES OF ISSUING LENDERS TO REVOLVING LENDERS; RELIANCE. In
determining whether to pay under any Letter of Credit, the relevant Issuing
Lender shall not have any obligation relative to the Revolving Lenders
participating in such Letter of Credit or the related LC Obligations other
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than to determine that any document or documents required to be delivered under
such Letter of Credit have been delivered and that they substantially comply on
their face with the requirements of such Letter of Credit. Any action taken or
omitted to be taken by an Issuing Lender under or in connection with any Letter
of Credit shall not create for the Issuing Lender any resulting liability if
taken or omitted in the absence of gross negligence or willful misconduct. Each
Issuing Lender shall be entitled (but not obligated) to rely, and shall be fully
protected in relying, on the representation and warranty by the Borrower set
forth in the last sentence of SECTION 4.02 to establish whether the conditions
specified in PARAGRAPHS (b) and (c) of SECTION 4.02 are met in connection with
any issuance or extension of a Letter of Credit. Each Issuing Lender shall be
entitled to rely, and shall be fully protected in relying, upon advice and
statements of legal counsel, independent accountants and other experts selected
by such Issuing Lender and upon any Letter of Credit, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopier, telex or teletype message, statement, order or other
document believed by it in good faith to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary unless
the beneficiary and the Borrower shall have notified such Issuing Lender that
such documents do not comply with the terms and conditions of the Letter of
Credit. Each Issuing Lender shall be fully justified in refusing to take any
action requested of it under this SECTION 2.06 in respect of any Letter of
Credit unless it shall first have received such advice or concurrence of the
Required Revolving Lenders as it reasonably deems appropriate or it shall first
be indemnified to its reasonable satisfaction by the Revolving Lenders against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take, or omitting or continuing to omit, any such
action. Notwithstanding any other provision of this SECTION 2.06, each Issuing
Lender shall in all cases be fully protected in acting, or in refraining from
acting, under this SECTION 2.06 in respect of any Letter of Credit in accordance
with a request of the Required Revolving Lenders, and such request and any
action taken or failure to act pursuant hereto shall be binding upon all
Revolving Lenders and all future holders of participations in such Letter of
Credit.
(g) REIMBURSEMENT OBLIGATIONS. The Borrower shall be
irrevocably and unconditionally obligated forthwith to reimburse each Issuing
Lender for any amounts paid by such Issuing Lender in accordance with Section
2.06(e) and (f) of this Agreement upon any drawing under any Letter of Credit,
together with any and all reasonable charges and expenses which the Issuing
Lender may pay or incur relative to such drawing and interest on the amount
drawn at the rate applicable to Revolving Base Rate Loans for each day from and
including the date such amount is drawn to but excluding the date such
reimbursement payment is due and payable. Such reimbursement payment shall be
due and payable (i) at or before 1:00 P.M. on the date the Issuing Lender
notifies the Borrower of such drawing, if such notice is given at or before
10:00 A.M. on such date or (ii) at or before 10:00 A.M. on the next succeeding
Business Day if such notice is given after 10:00 A.M. on the immediately
preceding Business Day; PROVIDED, that no payment otherwise required by this
sentence to be made by the Borrower at or before 1:00 P.M. on any day shall be
overdue hereunder if arrangements for such payment satisfactory to the Issuing
Lender, in its reasonable discretion, shall have been made by the Borrower at or
before 1:00 P.M. on such day and such payment is actually made at or before 3:00
P.M. on such day. In addition, the Borrower agrees to pay to the Issuing Lender
interest, payable on demand, on any and all amounts not paid by the Borrower to
the Issuing Lender when due under this SUBSECTION (g), for each day from and
including the date when such amount becomes due to but excluding the date such
amount is paid in full, whether before or after judgment, at a rate per annum
equal to the sum of 2% plus the rate applicable to Revolving Base Rate Loans for
such day. Subject to the satisfaction of all applicable conditions set forth in
ARTICLE IV, the Borrower may, at its option, utilize the Swingline Commitment or
the Revolving Commitments, or make other arrangements for payment satisfactory
to the Issuing Lender, for the reimbursement of all LC Disbursements as required
by this SUBSECTION (g). Each reimbursement payment to be made by the Borrower
pursuant to this SUBSECTION (g) shall be made to the Issuing Lender in Federal
or other funds immediately available to it at its address referred to SCHEDULE
10.02.
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(h) OBLIGATIONS OF REVOLVING LENDERS TO REIMBURSE ISSUING
LENDER FOR UNPAID LC DISBURSEMENTS. If the Borrower shall not have reimbursed an
Issuing Lender in full for any LC Disbursement as required pursuant to
SUBSECTION (g) of this SECTION 2.06, the Issuing Lender shall promptly notify
the Administrative Agent, and the Administrative Agent shall promptly notify
each Revolving Lender (other than the relevant Issuing Lender) of (x) the date
of drawing under the related Letter of Credit, (y) the amount of the
unreimbursed LC Disbursement and (z) such Revolving Lender's pro-rata share of
the LC Disbursement). Upon receipt of notice from the Administrative Agent
pursuant to this CLAUSE (h), each such Revolving Lender shall promptly and
unconditionally pay to the Administrative Agent, for the account of such Issuing
Lender, such Revolving Lender's pro-rata share of the amount of each LC
Disbursement which is the subject of such notice (determined by the proportion
its Revolving Commitment Percentage bears to the aggregate Revolving Committed
Amount) in Dollars in Federal or other immediately available funds; PROVIDED,
HOWEVER, that no Revolving Lender shall be obligated to pay to the
Administrative Agent its pro-rata share of such unreimbursed amount for any
wrongful payment made by the relevant Issuing Lender under a Letter of Credit as
a result of acts or omissions constituting willful misconduct or gross
negligence by such Issuing Lender. Such payment from the Revolving Lender shall
be due (i) at or before 1:00 P.M. on the date the Administrative Agent so
notifies a Revolving Lender, if such notice is given at or before 10:00 A.M. on
such date or (ii) at or before 10:00 A.M. on the next succeeding Business Day,
together with interest on such amount for each day from and including the date
of such drawing to but excluding the day such payment is due from such Revolving
Lender at the Federal Funds Rate for such day (which funds the Administrative
Agent shall promptly remit to the applicable Issuing Lender). The failure of any
Revolving Lender to make available to the Administrative Agent for the account
of an Issuing Lender its pro-rata share of any unreimbursed LC Disbursement
shall not relieve any other Revolving Lender of its obligation hereunder to make
available to the Administrative Agent for the account of such Issuing Lender its
pro-rata share of any payment made under any Letter of Credit on the date
required, as specified above, but no such Lender shall be responsible for the
failure of any other Lender to make available to the Administrative Agent for
the account of the Issuing Lender such other Lender's pro-rata share of any such
payment. Upon payment in full of all amounts payable by a Lender under this
SUBSECTION (h), such Lender shall be subrogated to the rights of the Issuing
Lender against the Borrower to the extent of such Lender's pro-rata share of the
related LC Obligation so paid (including interest accrued thereon). If any
Revolving Lender fails to pay any amount required to be paid by it pursuant to
this SUBSECTION (h) on the date on which such payment is due, interest shall
accrue on such Lender's obligation to make such payment, for each day from and
including the date such payment became due to but excluding the date such Lender
makes such payment, whether before or after judgment, at a rate per annum equal
to (i) for each day from the date such payment is due to the third succeeding
Business Day, inclusive, the Federal Funds Rate for such day as determined by
the relevant Issuing Lender and (ii) for each day thereafter, the sum of 2% plus
the rate applicable to its Revolving Base Rate Loans for such day. Any payment
made by any Lender after 3:00 P.M. on any Business Day shall be deemed for
purposes of the preceding sentence to have been made on the next succeeding
Business Day.
(i) FUNDS RECEIVED FROM THE BORROWER IN RESPECT OF DRAWN
LETTERS OF CREDIT. Whenever an Issuing Lender receives a payment of an LC
Obligation as to which the Administrative Agent has received for the account of
such Issuing Lender any payments from the Lenders pursuant to SUBSECTION (i)
above, such Issuing Lender shall pay the amount of such payment to the
Administrative Agent, and the Administrative Agent shall promptly pay to each
Lender which has paid its pro-rata share thereof, in Dollars in Federal or other
immediately available funds, an amount equal to such Lender's pro- rata share of
the principal amount thereof and interest thereon for each day after relevant
date of payment at the Federal Funds Rate.
(j) OBLIGATIONS IN RESPECT OF LETTERS OF CREDIT UNCONDITIONAL.
The obligations of the Borrower under SECTION 2.06(g) above shall be absolute,
unconditional and irrevocable, and shall be
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performed strictly in accordance with the terms of this Agreement, under all
circumstances whatsoever, including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement or any Letter of Credit or any document related hereto or
thereto;
(ii) any amendment or waiver of or any consent to
departure from all or any of the provisions of this Agreement or any
Letter of Credit or any document related hereto or thereto;
(iii) the use which may be made of the Letter of
Credit by, or any acts or omission of, a beneficiary of a Letter of
Credit (or any Person for whom the beneficiary may be acting);
(iv) the existence of any claim, set-off, defense or
other rights that the Borrower may have at any time against a
beneficiary of a Letter of Credit (or any Person for whom the
beneficiary may be acting), any Issuing Lender or any other Person,
whether in connection with this Agreement or any Letter of Credit or
any document related hereto or thereto or any unrelated transaction;
(v) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent or invalid in
any respect or any statement therein being untrue or inaccurate in any
respect whatsoever; PROVIDED, that the relevant Issuing Lender's
determination that documents presented under such Letter of Credit
comply with the terms thereof shall not have constituted gross
negligence or willful misconduct of such Issuing Lender;
(vi) payment under a Letter of Credit against
presentation to an Issuing Lender of a draft or certificate that does
not comply with the terms of such Letter of Credit; PROVIDED, that the
relevant Issuing Lender's determination that documents presented under
such Letter of Credit comply with the terms thereof shall not have
constituted gross negligence or willful misconduct of such Issuing
Lender; or
(vii) any other act or omission to act or delay of any
kind by any Issuing Lender or any other Person or any other event or
circumstance whatsoever that might, but for the provisions of this
SUBSECTION (vii), constitute a legal or equitable discharge of the
Borrower's obligations hereunder.
(k) DESIGNATION OF SUBSIDIARIES AS ACCOUNT PARTIES.
Notwithstanding anything to the contrary set forth in this Agreement, a Letter
of Credit issued hereunder may contain a statement to the effect that such
Letter of Credit is issued for the account of a Subsidiary of the Borrower;
PROVIDED, that notwithstanding such statement, the Borrower shall be the actual
account party for all purposes of this Agreement for such Letter of Credit and
such statement shall not affect the Borrower's reimbursement obligations
hereunder with respect to such Letter of Credit.
(l) MODIFICATION AND EXTENSION. The issuance of any supplement,
modification, amendment, renewal, or extensions to any Letter of Credit shall,
for purposes hereof, be treated in all respects the same as a Credit Extension
hereunder.
(m) INTERNATIONAL STANDBY PRACTICES; UNIFORM CUSTOMS AND
PRACTICES. Unless otherwise expressly agreed by the Issuing Lender and the
Borrower when a Letter of Credit is issued, (i) the rules of the "International
Standby Practices 1998" published by the Institute of International
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Banking Law & Practice (or such later version thereof as may be in effect at the
time of issuance) shall apply to each Standby Letter of Credit, and (ii) the
rules of the Uniform Customs and Practice for Documentary Credits (collectively,
the "UCP"), as most recently published by the International Chamber of Commerce
(the "ICC") at the time of issuance shall apply to each Trade Letter of Credit.
(n) RESPONSIBILITY OF ISSUING LENDERS. It is expressly
understood and agreed that the obligations of the Issuing Lenders hereunder to
the Revolving Lenders are only those expressly set forth in this Agreement and
that the Issuing Lender shall be entitled to assume that the conditions
precedent set forth in SECTION 4.02 have been satisfied unless it shall have
acquired actual knowledge that any such condition precedent has not been
satisfied; PROVIDED, HOWEVER, that nothing set forth in this SECTION 2.06 shall
be deemed to prejudice the right of any Revolving Lender to recover from the
Issuing Lender any amounts made available by such Revolving Lender to the
Issuing Lender pursuant to this SECTION 2.06 in the event that it is determined
by a court of competent jurisdiction that the payment with respect to a Letter
of Credit constituted gross negligence or willful misconduct on the part of the
Issuing Lender.
(o) CONFLICT WITH LC DOCUMENTS. In the event of any conflict
between this Agreement and any LC Document, this Agreement shall govern.
(p) INDEMNIFICATION OF ISSUING LENDERS.
(i) In addition to its other obligations under this
Agreement, the Borrower hereby agrees to protect, indemnify, pay and
save each Issuing Lender harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable and actual attorneys' fees) that such Issuing
Lender may incur or be subject to as a consequence, direct or indirect,
of (A) the issuance of any Letter of Credit or (B) the failure of such
Issuing Lender to honor a drawing under a Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority (all
such acts or omissions, herein called "GOVERNMENT ACTS").
(ii) As between the Borrower and each Issuing Lender,
the Borrower shall assume all risks of the acts, omissions or misuse of
any Letter of Credit by the beneficiary thereof. The Issuing Lender
shall not be responsible for: (A) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any
party in connection with the application for and issuance of any Letter
of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason; (C) failure of the
beneficiary of a Letter of Credit to comply fully with conditions
required in order to draw upon a Letter of Credit; (D) errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not
they be in cipher; (E) errors in interpretation of technical terms; (F)
any loss or delay in the transmission or otherwise of any documents
required in order to make a drawing under a Letter of Credit or of the
proceeds thereof; and (G) any consequences arising from causes beyond
the control of the Issuing Lender, including, without limitation, any
Government Acts. None of the above shall affect, impair, or prevent the
vesting of the Issuing Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth, any action
taken or omitted by an Issuing Lender, under or in connection with any
Letter of Credit or the related certificates, if taken or omitted in
good faith, shall not put the Issuing Lender under any resulting
liability to the Borrower. It is the intention of
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the parties that this Agreement shall be construed and applied to
protect and indemnify the Issuing Lenders against any and all risks
involved in the issuance of any Letter of Credit, all of which risks
are hereby assumed by the Borrower, including, without limitation, any
and all risks of the acts or omissions, whether rightful or wrongful,
of any present or future Government Acts. The Issuing Lenders shall
not, in any way, be liable for any failure by the Issuing Lenders or
anyone else to pay any drawing under any Letter of Credit as a result
of any Government Acts or any other cause beyond the control of the
Issuing Lenders.
(iv) Nothing in this SUBSECTION (p) is intended to
limit the reimbursement obligation of the Borrower contained in this
SECTION 2.06. The obligations of the Borrower under this SUBSECTION (p)
shall survive the termination of this Agreement. No act or omission of
any current or prior beneficiary of a Letter of Credit shall in any way
affect or impair the rights of any Issuing Lender to enforce any right,
power or benefit under this Agreement.
(v) Notwithstanding anything to the contrary contained
in this SUBSECTION (p), the Borrower shall have no obligation to
indemnify any Issuing Lender in respect of any liability incurred by
the Issuing Lender arising solely out of the gross negligence or
willful misconduct of the Issuing Lender, as determined by a court of
competent jurisdiction. Nothing in this Agreement shall relieve any
Issuing Lender of any liability to the Borrower in respect of any
action taken by the Issuing Lender which action constitutes gross
negligence or willful misconduct of the Issuing Lender or a violation
of the UCP or Uniform Commercial Code, as applicable, as determined by
a court of competent jurisdiction.
(q) CASH COLLATERAL. If the Borrower is required pursuant to
the terms of this Agreement or any other Loan Document to Cash Collateralize any
LC Obligations, the Borrower shall deposit in an account with the Administrative
Agent an amount in cash equal to 100% of the amount of such LC Obligations. Such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the LC Obligations. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal,
over such account. The Administrative Agent will, at the request of the
Borrower, invest amounts deposited in such account in Cash Equivalents;
PROVIDED, HOWEVER, that (i) the Administrative Agent shall not be required to
make any investment that, in its sole judgment, would require or cause the
Administrative Agent to be in, or would result in any, violation of any Law,
(ii) such Cash Equivalents shall be subjected to a first priority perfected
security interest in favor of the Administrative Agent and (iii) if an Event of
Default shall have occurred and be continuing, the selection of such Cash
Equivalents shall be in the sole discretion of the Administrative Agent. The
Borrower shall indemnify the Administrative Agent for any losses relating to
such investments in Cash Equivalents. Other than any interest or profits earned
on such investments, such deposits shall not bear interest. Interest or profits,
if any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the Issuing
Lender immediately for drawings under Letters of Credit and, if the maturity of
the Loans has been accelerated, to satisfy the LC Obligations. If the Borrower
is required to provide an amount of cash collateral hereunder as a result of an
Event of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of Default
have been cured or waived. Any moneys remaining in such account after the
Obligations have been indefeasibly paid in full in cash shall be returned to the
Borrower.
(r) RESIGNATION OF AN ISSUING LENDER. (a) An Issuing Lender may
resign at any time by giving 60 days' notice to the Administrative Agent, the
Lenders and the Borrower. Upon any such resignation, the Borrower shall (within
60 days after such notice of resignation) either appoint a successor, or
terminate the unutilized LC Commitment of such Issuing Lender; PROVIDED,
HOWEVER, that, if the Borrower elects to terminate such unutilized LC
Commitment, the Borrower may at any time
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thereafter that the Revolving Credit Commitments are in effect reinstate such LC
Commitment in connection with the appointment of another Issuing Lender. Subject
to subsection (s) below, upon the acceptance of any appointment as an Issuing
Lender hereunder by a successor Issuing Lender, such successor shall succeed to
and become vested with all the interests, rights and obligations of the retiring
Issuing Lender, and the retiring Issuing Lender shall be discharged from its
obligations to issue Letters of Credit hereunder. The acceptance of any
appointment as Issuing Lender hereunder by a successor Issuing Lender shall be
evidenced by an agreement entered into by such successor, in a form reasonably
satisfactory to the Borrower and the Administrative Agent, and, from and after
the effective date of such agreement, (i) such successor shall be a party hereto
and have all the rights and obligations of an Issuing Lender under this
Agreement and the other Loan Documents and (ii) references herein and in the
other Loan Documents to the "Issuing Lender" shall be deemed to refer to such
successor or to any previous Issuing Lender, or to such successor and all
previous Issuing Lenders, as the context shall require.
(s) RIGHTS WITH RESPECT TO OUTSTANDING LETTER OF CREDIT. After
the resignation of an Issuing Lender hereunder, the retiring Issuing Lender
shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Lender under this Agreement and the other Loan
Documents with respect to Letters of Credit issued by it prior to such
resignation, but shall not be required to issue Letters of Credit.
SECTION 2.07 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 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
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sum of 2% plus the Applicable Margin for Eurodollar Loans for such day plus the
quotient obtained (rounded upward, if necessary, to the nearest 1/100(th) 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 2.07(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 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 2.07 plus 2.00%
(without duplication of any amount owing in respect of Base Rate Loans under the
third sentence of SECTION 2.07(b), in respect of Eurodollar Loans under the
third sentence of SECTION 2.07(c) or in respect of any Competitive Bid Loan
under the fourth sentence of SECTION 2.07(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 2.08 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
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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 2.08(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 2.08(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".
(c) NOTIFICATION TO LENDERS. Upon receipt of a Notice of
Extension/Conversion from the Borrower pursuant to SUBSECTION 2.08(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.
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(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 2.09 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 or the aggregate
amount of all LC Obligations exceeds the LC Committed Amount, 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) and/or Cash
Collateralize outstanding Letters of Credit to the extent necessary to eliminate
any such excess.
SECTION 2.10 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.
(b) Except as provided in SUBSECTION 2.10(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 2.11 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
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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 or Cash Collateralization of LC
Obligations) 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 2.11(a). Any partial reduction of the Revolving Committed Amount
pursuant to this SECTION 2.11(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 2.12, 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 and the LC Commitments of the Issuing 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 2.11(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:
(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:
(A) to each Lender subject to replacement an
amount equal in the aggregate to the sum of (x) the principal
amount of, and all accrued but unpaid interest on, its
outstanding Loans, (y) all LC Disbursements that have been
funded by (and not reimbursed to) it under SECTION 2.06,
together with all accrued but unpaid interest with respect
thereto, and (z) all accrued but unpaid fees owing to it
pursuant to SECTION 2.12; and
(B) to the Issuing Lenders an amount equal to
the aggregate amount owing by the replaced Lenders to the
Issuing Lenders as reimbursement pursuant to
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SECTION 2.06, to the extent such amount was not theretofore
funded by such replaced Lenders; 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)(A) above).
In the case of the removal of a Lender pursuant to this SECTION
2.11(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 and LC Obligations 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 and each Issuing 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 LC Obligations or 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, any Letters of Credit issued 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. 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 2.11 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 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
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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 adjustment 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 2.11,
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 2.11(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 Lender 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, any Letters of Credit issued or any other actions taken by such
Lender while it was a Lender.
(vi) If some or all of the Lenders shall have elected to extend
the availability period for Revolving Loans as provided in this SECTION 2.11(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
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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;
(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 2.11(e)) shall have
received a certificate of the secretary
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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 2.11(e).
SECTION 2.12 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 2.10(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) LETTER OF CREDIT FEES.
(i) LETTER OF CREDIT FEES. The Borrower shall pay to
the Administrative Agent for the account of each Lender a fee (the
"LETTER OF CREDIT FEE") on such Lender's Revolving Commitment
Percentage of the average daily maximum amount available to be drawn
under each such Letter of Credit computed at a per annum rate for each
day from the date of issuance to the date of expiration equal to the
Applicable Margin in respect of Eurodollar Revolving Loans in effect
from time to time. The Letter of Credit Fee will be payable quarterly
in arrears on the last Business Day of each March, June, September and
December for the immediately preceding quarter (or portion thereof),
beginning with the first of such dates to occur after the date of
issuance of such Letter of Credit and on the Maturity Date. If there is
a change in the Applicable Margins during any period, the actual amount
of each Letter of Credit shall be computed and multiplied by the
Applicable Margins separately for each period during which such
Applicable Margins are in effect.
(ii) FRONTING FEES. The Borrower shall pay directly to
each Issuing Lender for its own account a fronting fee in the amount
(A) with respect to each Trade Letter of Credit, equal to .125% of the
amount of such Trade Letter of Credit, due and payable upon the
issuance thereof and (B) with respect to each Standby Letter of Credit,
equal to .125% per annum on the daily maximum amount available to be
drawn thereunder, due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing
with the first such date after the issuance of such letter of credit
and on the Maturity Date.
(iii) ISSUING LENDER FEES. In addition to the Letter
of Credit Fee payable pursuant to CLAUSE (i) above and any fronting
fees payable pursuant to CLAUSE (ii) above, the Borrower promises to
pay to the Issuing Lender for its own account without sharing by the
other Lenders the letter of credit fronting and negotiation fees agreed
to by the Borrower and the Issuing Lender from time to time and the
customary charges from time to time of the Issuing Lender with respect
to the issuance, amendment, transfer, administration, cancellation and
conversion of, and drawings under, such Letters of Credit
(collectively, the "ISSUING LENDER FEES").
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(c) 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 and LC Obligations 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 LC Obligations 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.
(d) 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 2.13 PRO-RATA TREATMENT. Except to the extent otherwise
provided herein:
(a) Loans. Each Syndicated Loan, each payment or prepayment of
principal of or interest on any Syndicated Loan, each payment of fees (other
than the Issuing Lender Fees retained by the Issuing Lender for its own account
and 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 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.
(b) LETTERS OF CREDIT. Each payment of LC Obligations shall be
allocated to each Revolving Lender pro-rata in accordance with its Revolving
Commitment Percentage; PROVIDED, that if any Revolving Lender shall have failed
to pay its applicable pro-rata share of any LC Disbursement, then any amount to
which such Revolving Lender would otherwise be entitled pursuant to this
SUBSECTION (b) shall instead be payable to the Issuing Lender; PROVIDED,
FURTHER, that in the event any amount paid to any Revolving Lender pursuant to
this SUBSECTION (b) is rescinded or must otherwise be returned by the Issuing
Lender, each Revolving Lender shall, upon the request of the Issuing Lender,
repay to the Administrative Agent for the account of the Issuing Lender the
amount so paid to such Revolving Lender, with interest for the period commencing
on the date such payment is returned by the Issuing Lender until the date the
Issuing Lender 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 2.14 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, unreimbursed LC Disbursements or
any other obligation owing to such Lender under this Agreement
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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,
unreimbursed LC Disbursements, 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
2.14 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 2.14 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 2.14 to share in the benefits of any recovery on such secured claim.
SECTION 2.15 PAYMENTS; COMPUTATIONS.
(a) PAYMENTS BY THE BORROWER. Each payment of principal of and
interest on Loans, LC Obligations and fees hereunder (other than fees payable
directly to the Issuing Lenders or 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, Letters of Credit, 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 2.13, 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 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
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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 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.
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(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 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
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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;
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
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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 Letter of Credit
or any obligation to make Committed Loans or issue or participate in any Letter
of Credit 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
Letter of Credit, any Eurodollar Loans made by it or any of its Notes
or its obligation to make Eurodollar Loans or to participate in Letters
of Credit, 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 issuing or participating in Letters of
Credit 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
applicable Law, regarding capital adequacy, or compliance by such Lender, or its
parent corporation, with
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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 or the Issuing 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 2.08, 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
reasonable expense sustained or incurred or to be sustained or incurred in
liquidating or employing
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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 or issue a Letter of Credit 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, ▇▇▇▇ & 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 to the date of
the resolutions described in CLAUSE (C) below, (C) that attached thereto is a
true and
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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, ▇▇▇▇ & 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,
▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ 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, ▇▇▇▇ & 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, and
the obligation of any Issuing Lender to issue (or renew or extend the term of)
any Letter of Credit, 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, (ii) in the case of any Letter of Credit, to the Issuing Lender, an
appropriate Letter of Credit Request duly executed and completed in accordance
with the provisions of SECTION 2.06, and (iii) 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 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) or to the
issuance of a Letter of Credit, as the case may be, (i) the Revolving
Outstandings plus the aggregate principal amount of Competitive Bid Loans shall
not exceed the Revolving Committed Amount, (ii) the sum of LC Obligations
outstanding shall not exceed the LC Committed Amount, (iii) the sum of Swingline
Loans outstanding shall not exceed the Swingline Committed Amount and (iv) the
principal amount of all Competitive Bid Loans shall not exceed the Revolving
Committed Amount.
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The delivery of each Notice of Borrowing, Swingline Loan
Request, notice requesting an extension of the availability period for Revolving
Loans pursuant to SECTION 2.11(d) and each request for a Letter of Credit shall
constitute a representation and warranty by the Borrower of the correctness of
the matters specified in subSECTIONs (b) and (c) above.
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
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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 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 Subsid iaries
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
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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 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 Letters of Credit or 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 or any LC Obligation remains unpaid or any
Letter of Credit remains in effect:
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 ▇▇▇▇▇'▇ 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 or any LC Obligation remains unpaid or any
Letter of Credit remains unexpired:
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 other than pursuant to SECTION 2.06 of this Agreement; 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 364-Day Credit Agreement, the Revolving Committed Amount (as
defined in the 364-Day 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 or any LC Obligation; (ii) within 5 days of when due
(whether by scheduled maturity, mandatory prepayment, acceleration or otherwise)
any interest on any Committed Loan or LC Obligation, 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 Subsidia ▇▇▇▇.
(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.
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(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 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, any reimbursement obligations
arising from drawings under Letters of Credit 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) CASH COLLATERAL. Direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice, or upon the occurrence of an
Event of Default under SECTION 8.01(d) or (e), it will immediately pay) to the
Administrative Agent additional cash, to be held by the Administrative Agent,
for the benefit of the Lenders, in a cash collateral account as additional
security for the LC Obligations in respect of subsequent drawings under all then
outstandin g Letters of Credit in an amount equal to the maximum aggregate
amount which may be drawn under all Letters of Credits then outstanding.
(d) 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 reimbursement obligations under
Letters of Credit, 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.
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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 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.
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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 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 the use of the Letters of Credit 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
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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 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 addit ional 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
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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 Letters of Credit issued
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.
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,
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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:
(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 or the time of
payment of any reimbursement obligation, or any portion thereof,
arising from drawings under Letters of Credit, 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) reduce or waive the principal amount of any Loan or
any LC Disbursement;
(D) except to the extent set forth in SECTION 2.11(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);
(E) release the Borrower from its Obligations under the
Loan Documents;
(F) 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
(G) 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, no provision of SECTION
2.06 may be amended without the consent of each Issuing Lender and
no provision of SECTION 2.02(d) may be amended without the consent
of the Swingline Lender.
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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 or the Letters of Credit, 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, any Issuing Lender or the Swingline Lender,
to such other address as shall be designated by such party in a notice to the
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, any Issuing Lender 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, any
Issuing Lender 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 confir mation 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
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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 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
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"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 or of the Letters of
Credit. 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, LC Obligations and other obligations under the Loan Documents and the
termination of the Commitments hereunder.
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 Letters of Credit and
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 and with respect to the
assignment of all or a portion of the Revolving Committed Amount the
Issuing Lenders for their 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.
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(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, any Issuing Lender, the
Swingline Lender, such assigning Lender or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement 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, the Issuing Lenders
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),
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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 Issuing Lenders, 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 Letters of Credit and 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 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 Issuing Lenders, 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
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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 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
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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, Commitments and LC Obligations hereunder pursuant to
SECTION 2.01(b), 2.06(a) or (e), 2.14 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.
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 relie d 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 or any Letter of Credit shall remain
outstanding.
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,
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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
LETTERS OF CREDIT AND 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. EACH LETTER OF
CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS
OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE
DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993
REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500 AND, AS TO
MATTERS NOT GOVERNED BY SUCH UNIFORM CUSTOMS, 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.
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 jur isdiction of
such courts. The Borrower irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or 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
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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 executed by their respective authorized officers as of the day
and year first above written.
BORROWER:
WORTHINGTON INDUSTRIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Chief Financial Officer
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PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
as Swingline Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. Hamjil
---------------------------------
Name: ▇▇▇▇▇▇ ▇. Hamjil
Title: Vice President
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THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ ▇. ▇▇▇▇
---------------------------
Name: ▇. ▇▇▇▇
Title: Senior Manager
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CREDIT SUISSE FIRST BOSTON CAYMAN
ISLANDS BRANCH,
as a Lender
By: /s/ ▇▇▇▇ ▇'▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇ Drodgan
-------------------------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Drodgan
Title: Director Associate
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FIFTH THIRD BANK (CENTRAL OHIO),
as a Lender
By: /s/ ▇▇▇▇ ▇. Beandslow
--------------------------------
Name: ▇▇▇▇ ▇. Beandslow
Title: Vice President
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FIRSTAR BANK, NA, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. Friend
--------------------------------
Name: ▇▇▇▇▇▇ ▇. Friend
Title: Vice President
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CIBC, INC., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
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COMERICA BANK, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Account Officer
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THE HUNTINGTON NATIONAL BANK,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
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JPMORGAN CHASE BANK,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
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NATIONAL CITY BANK, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
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▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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MELLON BANK, NA, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: First Vice President
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS .............................................. 1
Section 1.01 Defined Terms ....................................................... 1
Section 1.02 Computation of Time Periods and Other Definitional Provisions ....... 24
Section 1.03 Accounting Terms and Determinations ................................. 24
Section 1.04 Classes and Types of Borrowings ..................................... 25
ARTICLE II THE CREDIT FACILITIES ......................................................... 25
Section 2.01 Commitments to Lend ................................................. 25
Section 2.02 Notice of Committed Loan ............................................ 28
Section 2.03 Competitive Bid Borrowings .......................................... 28
Section 2.04 Notice to Lenders; Funding of Loans ................................. 31
Section 2.05 Evidence of Loans ................................................... 33
Section 2.06 Letters of Credit ................................................... 34
Section 2.07 Interest ............................................................ 41
Section 2.08 Extension and Conversion ............................................ 42
Section 2.09 Scheduled Termination of Commitments; Mandatory Prepayments ......... 44
Section 2.10 Optional Prepayments ................................................ 44
Section 2.11 Adjustment of Commitments ........................................... 44
Section 2.12 Fees ................................................................ 49
Section 2.13 Pro-Rata Treatment .................................................. 50
Section 2.14 Sharing of Payments ................................................. 50
Section 2.15 Payments; Computations .............................................. 51
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY ........................................ 52
Section 3.01 Taxes ............................................................... 52
Section 3.02 Illegality .......................................................... 54
Section 3.03 Basis for Determining Interest Rate Inadequate or Unfair ............ 54
Section 3.04 Increased Costs and Reduced Return .................................. 55
Section 3.05 Funding Losses ...................................................... 56
Section 3.06 Base Rate Loans Substituted for Affected Fixed Rate Loans ........... 57
ARTICLE IV CONDITIONS .................................................................... 57
Section 4.01 Conditions to Closing ............................................... 57
Section 4.02 Conditions to All Credit Extensions ................................. 59
ARTICLE V REPRESENTATIONS AND WARRANTIES ................................................ 60
Section 5.01 Organization ........................................................ 60
Section 5.02 Financial Condition ................................................. 60
Section 5.03 Litigation, Etc ..................................................... 60
Section 5.04 Taxes ............................................................... 61
Section 5.05 Authority ........................................................... 61
Section 5.06 Other Defaults ...................................................... 61
Section 5.07 Licenses, Etc ....................................................... 61
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TABLE OF CONTENTS
(continued)
PAGE
Section 5.08 ERISA ............................................................... 61
Section 5.09 Environmental Matters ............................................... 61
Section 5.10 Ownership of Property; Liens ........................................ 61
Section 5.11 Insurance ........................................................... 62
Section 5.12 Subsidiaries ........................................................ 62
Section 5.13 Margin Regulation; Investment Company Act; Public Utility
Holding Company Act ................................................. 62
Section 5.14 Disclosure .......................................................... 62
ARTICLE VI AFFIRMATIVE COVENANTS .......................................................... 63
Section 6.01 Information ......................................................... 63
Section 6.02 Books and Records ................................................... 64
Section 6.03 Payment of Obligations .............................................. 64
Section 6.04 Compliance with Laws ................................................ 65
Section 6.05 Environmental Violations ............................................ 65
Section 6.06 ERISA Compliance .................................................... 65
Section 6.07 Maintenance of Properties ........................................... 65
Section 6.08 Maintenance of Insurance ............................................ 65
Section 6.09 Use of Proceeds ..................................................... 65
Section 6.10 Pledged Notes ....................................................... 65
ARTICLE VII NEGATIVE COVENANTS ............................................................. 65
Section 7.01 Limitation on Indebtedness of Restricted Subsidiaries ............... 65
Section 7.02 Restriction on Liens ................................................ 66
Section 7.03 Investments ......................................................... 66
Section 7.04 Merger .............................................................. 67
Section 7.05 Dispositions ........................................................ 67
Section 7.06 ERISA ............................................................... 67
Section 7.07 Designation of Restricted and Unrestricted Subsidiaries ............. 68
Section 7.08 Change in Nature of Business ........................................ 68
Section 7.09 Transactions with Affiliates ........................................ 68
Section 7.10 Burdensome Agreements ............................................... 69
Section 7.11 Impairment of Collateral ............................................ 69
Section 7.12 Use of Proceeds ..................................................... 69
Section 7.13 Governance Documents ................................................ 69
Section 7.14 Financial Covenants ................................................. 69
ARTICLE VIII DEFAULTS ....................................................................... 70
Section 8.01 Events of Default ................................................... 70
Section 8.02 Acceleration; Remedies .............................................. 71
ARTICLE IX AGENCY PROVISIONS .............................................................. 72
Section 9.01 Appointment; Authorization .......................................... 72
Section 9.02 Delegation of Duties ................................................ 72
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TABLE OF CONTENTS
(continued)
PAGE
Section 9.03 Exculpatory Provisions .............................................. 73
Section 9.04 Reliance on Communications .......................................... 73
Section 9.05 Notice of Default ................................................... 73
Section 9.06 Credit Decision; Disclosure of Information by Administrative Agent .. 73
Section 9.07 Indemnification ..................................................... 74
Section 9.08 Agents in Their Individual Capacity ................................. 74
Section 9.09 Successor Agents .................................................... 75
Section 9.10 Certain Other Agents ................................................ 75
Section 9.11 Agents' Fees; Arranger Fee .......................................... 75
ARTICLE X MISCELLANEOUS .................................................................. 75
Section 10.01 Amendments, Waivers and Consents .................................... 75
Section 10.02 Notices and Other Communications; Facsimile Copies .................. 77
Section 10.03 No Waiver; Cumulative Remedies ...................................... 78
Section 10.04 Attorney Costs, Expenses and Taxes .................................. 78
Section 10.05 Indemnification ..................................................... 78
Section 10.06 Successors and Assigns .............................................. 79
Section 10.07 Confidentiality ..................................................... 82
Section 10.08 Set-off ............................................................. 82
Section 10.09 Interest Rate Limitation ............................................ 83
Section 10.10 Counterparts ........................................................ 83
Section 10.11 Integration ......................................................... 83
Section 10.12 Survival of Representations and Warranties .......................... 83
Section 10.13 Severability ........................................................ 83
Section 10.14 Headings ............................................................ 84
Section 10.15 Governing Law; Submission to Jurisdiction ........................... 84
Section 10.16 Waiver of Jury Trial ................................................ 84
Section 10.17 Binding Effect ...................................................... 85
Section 10.18 Conflict ............................................................ 85
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TABLE OF CONTENTS
(continued)
PAGE
Schedules:
Schedule 1.01A - Lenders and Commitments
Schedule 5.12 - Subsidiaries
Schedule 7.01 Existing Letters of Credit
Schedule 7.03 - Investments
Schedule 7.07 - Unrestricted Subsidiaries
Schedule 10.0 2 - 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 A-6 - Form of Letter of Credit 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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