EXHIBIT 4(e)
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AMENDMENT AND RESTATEMENT AGREEMENT
dated as of
December 27, 2002
among
THE ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY
The Lenders Party Hereto
JPMORGAN CHASE BANK
as Administrative Agent and
Competitive Advance Facility Agent
WACHOVIA BANK, NATIONAL ASSOCIATION
as Syndication Agent
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
WACHOVIA SECURITIES, INC.,
as Joint Lead Arrangers and Joint Bookrunners
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AMENDMENT AND RESTATEMENT AGREEMENT dated as of
December 27, 2002 (this "Amendment and Restatement") in
respect of the AMENDED AND RESTATED 364-DAY REVOLVING CREDIT
AGREEMENT dated as of December 31, 1999, as amended by
Amendment No. 1 dated as of December 1, 2000, and as further
amended by Amendment No. 2 dated as of December 28, 2001
(the "Credit Agreement"), among THE ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
COMPANY, an Ohio corporation (the "Company"); the LENDERS
from time to time party thereto; JPMORGAN CHASE BANK (as
successor to THE CHASE MANHATTAN BANK), a New York banking
corporation, as administrative agent for the Lenders (in
such capacity, the "Administrative Agent") and competitive
advance facility agent for the Lenders (in such capacity,
the "Competitive Advance Facility Agent"); and WACHOVIA
BANK, NATIONAL ASSOCIATION, as Syndication Agent.
The Company has requested that the Credit Agreement be amended and
restated as set forth in Section 1 below and the parties hereto are willing so
to amend and restate the Credit Agreement (as amended and restated, the
"Restated Credit Agreement"). Each capitalized term used but not defined herein
has the meaning assigned thereto in the Credit Agreement.
In consideration of the premises and the agreements herein contained,
the parties hereto hereby agree, on the terms and subject to the conditions set
forth herein, as follows:
SECTION 1. AMENDMENT AND RESTATEMENT. Provided that the conditions set
forth in Section 3 are satisfied in full, effective as of the date hereof, the
Credit Agreement shall be amended and restated in the form in which it exists on
the date hereof but with the following revisions:
(a) Article I of the Credit Agreement is hereby amended as follows:
(i) FACILITY FEE. The definition of the term "Facility Fee" is
hereby amended by deleting the amount "five (5) basis points" in the
seventh line and substituting therefor "seven (7) basis points" and by
inserting in the seventh line thereof after the word "Commitment" the
words "or outstanding Loans, as the case may be,".
(ii) DEBT. The definition of the Term "Debt" is hereby amended by
inserting immediately after the words "Facility Fees" a comma and the
words "the Utilization Fees".
(iii) EFFECTIVE DATE. The definition of the term "Effective Date"
is hereby amended to read as follows:
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"'EFFECTIVE DATE' shall mean December 27, 2002."
(iv) MARGIN. The definition of the term "Margin" is hereby
amended to read as follows:
"'MARGIN' shall mean eighteen (18) basis points."
(v) OTHER FEES. The definition of the term "Other Fees" is
hereby amended to read as follows:
"'OTHER FEES' shall mean the annual administration fee and
the auction administration fee to be paid by the Company to
JPMorgan Chase Bank as separately agreed upon."
(vi) UTILIZATION FEE. The following definition is hereby
inserted in the correct alphabetical order:
"'UTILIZATION FEE' shall mean the sum to be paid by the
Company to the Administrative Agent on behalf of each Lender
on the last Banking Day of each calendar quarter prior to
the termination of the Commitments and the repayment of the
outstanding Loans, calculated, for each day, as the product
of each Lender's outstanding Loans on such day and twelve
and one-half (12 1/2) basis points."
(b) AMOUNT OF CREDIT. Each of the first paragraph of Section 2.1 and
Sections 2.1(B)(i), 2.1(C)(i) and 2.1(C)(ii) of the Credit Agreement is hereby
amended by deleting the amount "One Hundred Twelve Million Two Hundred Thousand
Dollars ($112,200,000)" and substituting therefor "One Hundred Ten Million
Dollars ($110,000,000)".
(c) FEES. Article II of the Credit Agreement is hereby amended by
deleting each of Sections 2.3 and 2.4 in its entirety and substituting therefor
the following Sections:
"SECTION 2.3. FEES. (a) The Company agrees to pay to each
Lender a Facility Fee, for the period from and including the date
of this Agreement until the Commitments have terminated and the
outstanding Loans have been repaid. The first payment of the
Facility Fee under this Agreement shall be made no later than
March 31, 2003 for the period December 27, 2002 to March 31, 2003
and payments of the Facility Fee accrued during each calendar
quarter thereafter will be made on the last Banking Day of such
quarter. All payments of the Facility Fee shall be made to the
Administrative Agent in immediately available funds for the
account of the Lenders by no later than 3:00 p.m. (New York time)
on the applicable payment date. The Administrative Agent shall
promptly
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distribute to each Lender its ratable share of the Facility
Fee received by it for the account of such Lender.
(b) For any day on which the outstanding principal
amounts of Loans shall be greater than 50% of the total
Commitments (including each day after the Termination Date
that Loans are outstanding), the Company shall pay to each
Lender a Utilization Fee. The first payment of the
Utilization Fee, if any, under this Agreement shall be made
no later than March 31, 2003 for the period December 27,
2002 to March 31, 2003 and payments of the Utilization Fee,
if any, accrued during each calendar quarter thereafter will
be made on the last Banking Day of such quarter. All
payments of the Utilization Fee shall be made to the
Administrative Agent in immediately available funds for the
account of the Lenders by no later than 3:00 p.m. (New York
time) on the applicable payment date. The Administrative
Agent shall promptly distribute to each Lender its ratable
share of the Utilization Fee received by it for the account
of such Lender.
SECTION 2.4. COMPUTATION OF FEES. Facility Fees and
Utilization Fees shall be computed for the actual number of
days elapsed on the basis of a 360 day year."
(d) TERMINATION OF COMMITMENTS AND RIGHT OF SUBSTITUTION.
(i) Section 2.5(i) of the Credit Agreement is hereby
amended by deleting the words "Facility Fees accrued and
unpaid" in the eleventh line and substituting therefor
"accrued and unpaid Facility Fees, accrued and unpaid
Utilization Fees, if any,".
(ii) Section 2.5(vi) of the Credit Agreement is hereby
amended by inserting immediately after the words "Facility
Fees" in the second line the words "and the Utilization
Fees".
(e) CHANGES IN TAX LAWS. Section 3.2 of the Credit Agreement
is hereby amended by deleting the words "interest or Facility
Fee" in the eleventh and twelfth lines and substituting therefor
"interest, Facility Fee or Utilization Fee".
(f) EVENTS OF DEFAULT. Article VII of the Credit Agreement
is hereby amended by deleting Section 7.1 in its entirety and
substituting therefor the following Section:
"SECTION 7.1. NON-PAYMENT OF NOTES, INTEREST, FACILITY FEE,
UTILIZATION FEE OR OTHER FEES. If the principal on any Note
shall not be paid in full when due and payable and shall
remain unpaid for a period of three (3) consecutive Banking
Days, or London Banking Days, as the case may be and/or any
interest due on any Note or any Facility Fee, Utilization
Fee or Other Fee shall not be paid
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within five (5) Banking Days after written notice thereof to
the Company from the Lender (or the Administrative Agent or
Competitive Advance Facility Agent, as the case may be) to
whom such amount(s) are owed."
(g) AMENDMENTS. Section 10.3 of the Credit Agreement is
hereby amended by inserting immediately after the words "Facility
Fee" in the fourth and eighth lines of the second paragraph the
words "or Utilization Fee".
(h) DATE OF EFFECTIVENESS. Provided that the conditions set
forth in Section 3 are satisfied, from and after the date hereof,
all references in the Credit Agreement to "the date hereof", "the
date of this Agreement" or other words or phrases of similar
import shall be deemed references to the date of this Amendment
and Restatement.
(i) SCHEDULE A. The Commitments and Percentages set forth on
Schedule A to the Credit Agreement are hereby deleted and the
Commitments and Percentages set forth on Schedule A hereto are
substituted in lieu thereof.
SECTION 2. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Lenders as of the date hereof that:
(a) The representations and warranties set forth in Article
IV of the Credit Agreement are true and correct, and after giving
effect to this Amendment and Restatement shall remain true and
correct, with the same effect as if made on the date hereof,
except to the extent such representations and warranties
expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct as of
such earlier date).
(b) Immediately before and after giving effect to this
Amendment and Restatement, no Possible Default or Event of
Default has occurred and is continuing.
SECTION 3. CONDITIONS TO EFFECTIVENESS. The effectiveness of
this Amendment and Restatement and the obligations of the Lenders to
make Loans under the Restated Credit Agreement are subject to the
satisfaction (or waiver in accordance with Section 10.3 of the Credit
Agreement) of the following conditions:
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto (including each Lender named in
Schedule A hereto) either (i) a counterpart of this Amendment and
Restatement signed on behalf of such party or (ii) written
evidence reasonably satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature
page of this Amendment and Restatement) that such party has
signed a counterpart of this Amendment and Restatement.
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(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the
Lenders and dated the date hereof) of counsel for the Company as
to the matters referred to in Sections 4.1, 4.2, 4.3, 4.4, 4.6,
4.8 and 4.9 of the Credit Agreement and such other matters as the
Lenders may reasonably request. The Company hereby requests such
counsel to deliver such opinion.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its
counsel may reasonably request relating to the organization,
existence and good standing of the Company, any other legal
matters relating to the Company, this Amendment and Restatement
or the Restated Credit Agreement, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the date hereof and signed by the President, a
Vice President or the Chief Financial Officer, Treasurer or
Controller of the Company, certifying that (i) the
representations and warranties of the Company set forth in
Article IV of the Credit Agreement shall be true and correct, and
after giving effect to this Amendment and Restatement shall
remain true and correct, on and as of the date hereof, except to
the extent such representations and warranties expressly relate
to an earlier date (in which case such representations and
warranties shall be true and correct as of such earlier date),
and (ii) immediately before and after giving effect to this
Amendment and Restatement, on and as of the date hereof, no
Possible Default or Event of Default shall have occurred and be
continuing.
(e) No Loans under the Credit Agreement shall be outstanding
as of the date hereof, and all interest accrued thereon for the
account of the Lenders shall have been paid.
The Administrative Agent shall notify the Company and the Lenders of
the satisfaction of the foregoing conditions, and such notice shall be
conclusive and binding. Notwithstanding the foregoing, this Amendment
and Restatement and the obligations of the Lenders to make Loans shall
not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 10.3) at or prior to 5:00
p.m. (New York time) on December 27, 2002 (and, in the event such
conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION 4. AGREEMENT. The parties hereto expressly agree
that the Restated Credit Agreement shall be effective and binding upon
them notwithstanding that it shall not have been executed by one or
more Lenders under the Credit Agreement that are not parties hereto.
Except as specifically stated herein, the provisions of the Credit
Agreement are and shall remain in full force and effect. As used
therein, the terms "Credit Agreement", "herein", "hereunder",
"hereinafter", "hereto", "hereof" and words of similar import shall,
unless the context otherwise requires, refer to the Restated Credit
Agreement.
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SECTION 5. APPLICABLE LAW. THIS AMENDMENT AND RESTATEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF OHIO.
SECTION 6. COUNTERPARTS. This Amendment and Restatement may
be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall
constitute but one contract. Delivery of an executed counterpart of a
signature page of this Amendment and Restatement by telecopy shall be
effective as delivery of a manually executed counterpart of this
Amendment and Restatement.
SECTION 7. EXPENSES. The Company agrees to reimburse the
Administrative Agent, Wachovia Bank, National Association, ▇.▇. ▇▇▇▇▇▇
Securities Inc. and Wachovia Securities, Inc. for all reasonable
out-of-pocket expenses incurred by such parties in connection with
this Amendment and Restatement, including the reasonable fees, charges
and disbursements of Cravath, Swaine & ▇▇▇▇▇, counsel for the
Administrative Agent.
SECTION 8. HEADINGS. The headings of this Amendment and
Restatement are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
and Restatement to be duly executed by their respective authorized officers as
of the day and year first above written.
THE ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President-Finance
and Chief Financial Officer
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President and Treasurer
JPMORGAN CHASE BANK, individually
and as Administrative Agent and
Competitive Advance Facility Agent,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
NATIONAL CITY BANK,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NEW YORK,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
CITIBANK, N.A.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
SUNTRUST BANK,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
KEYBANK NATIONAL ASSOCIATION,
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
BANK OF AMERICA,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
▇▇▇▇▇ FARGO BANK, N.A.,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
ABN AMRO BANK N.V.,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
FIFTH THIRD BANK,
by
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
