AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT

Exhibit 4.6

 

 

$435,000,000

 

 

AMENDED AND RESTATED

REVOLVING

CREDIT AGREEMENT

 

dated as of July 22, 2004

 

 

(amending and restating the

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

 

 

THE BANK OF NOVA SCOTIA,

as Syndication Agent and Sole Bookrunner

 

 

 

THE BANK OF NOVA SCOTIA

 

and

 

PNC CAPITAL MARKETS, INC.,

as Joint Lead Arrangers

 

 

AMENDED AND RESTATED REVOLVING

CREDIT AGREEMENT

 

This Amended and Restated Revolving Credit Agreement (this “ Agreement ”) is dated as of July 22, 2004 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, and THE BANK OF NOVA SCOTIA, as Syndication Agent and Sole Bookrunner.

 

W I T N E S S E T H :

 

WHEREAS, pursuant to the Five Year Revolving Credit Agreement, dated as of May 10, 2002 (as amended, supplemented or otherwise modified prior to the date hereof, the “ Existing Credit Agreement ”), among the Borrower, certain financial institutions and other Persons from time to time party thereto (the “ Existing Lenders ”) and PNC Bank, National Association, as Issuing Agent, Swingline Lender and Administrative Agent thereunder, the Existing Lenders were committed to make extensions of credit to the Borrower on the terms and conditions set forth therein and made revolving loans (the “ Existing Revolving Loans ”) and swingline loans (the “ Existing Swingline Loans ” and, together with the Existing Revolving Loans, the “ Existing Committed Loans ”) to the Borrower;

 

WHEREAS, the Borrower desires to, among other things, obtain the Commitments to make Loans on the terms and conditions set forth herein for the purposes set forth herein;

 

WHEREAS, the Borrower has requested that the Existing Credit Agreement be amended and restated in its entirety to become effective and binding on the Borrower pursuant to the terms of this Agreement, and the Lenders have agreed (subject to the terms of this Agreement) to amend and restate the Existing Credit Agreement in its entirety to read as set forth in this Agreement, and it has been agreed by the parties to the Existing Credit Agreement that (a) the commitments which the Existing Lenders have agreed to extend to the Borrower under the Existing Credit Agreement shall be extended or advanced upon the amended and restated terms and conditions contained in this Agreement, and (b) the Existing Committed Loans and other Obligations (as defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement shall be governed by and deemed to be outstanding under the amended and restated terms and conditions contained in this Agreement, with the intent that the terms of this Agreement shall amend and restate in their entirety the terms of the Existing Credit Agreement (each of which shall hereafter have no further effect upon the parties thereto, other than for fees and expenses accrued and owing and indemnification provisions arising under the terms of the Existing Credit Agreement on or prior to the date hereof or arising (in the case of an indemnification) under the terms of the Existing Credit Agreement); and

 

WHEREAS, the Borrower desires and the Lenders hereby agree that the Pledged Notes (as defined in the Existing Credit Agreement) and the other Loan Documents securing the Obligations under the Existing Credit Agreement shall be released as of the date hereof;

 

NOW, THEREFORE, the parties hereto hereby agree to amend and restate the Existing Credit Agreement, and the Existing Credit Agreement is hereby amended and restated in its entirety 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.

 

“ 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 Syndication Agent 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 the Existing Credit Agreement, as amended and restated hereby and as further amended, restated, supplemented or otherwise modified from time to time.

 

“ Amendment Effective Date ” means the date this Agreement becomes effective pursuant to Section 10.17.

 

“ Anti-Terrorism Laws ” means any Laws relating to terrorism or money laundering, including Executive Order No. 13224, the USA Patriot Act, the Laws compromising or implementing the Bank Secrecy Act and the Laws administered by the United States Treasury Department’s Office of Foreign Asset Control (as any of the foregoing Laws may from time to time be amended, renewed, extended or replaced).

 

“ 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 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:

 

 

 

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 Open Rate for such day (any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Open Rate shall be effective on the effective date of such change in the Prime Rate or the Federal Funds Open 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.

 

“ 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 .

 

“ Blocked Person ” means any Person (i) that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224; (ii) owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224; (iii) with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; (iv) that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224; (v) that is named as a “specially designated national” on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list; or (vi) who is affiliated or associated with a person or entity listed above.

 

“ 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 2003 Form 10-K ” means the Borrower’s annual report on Form 10-K for the fiscal year ended May 31, 2003, 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 29, 2004, 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.

 

“ Cash Equivalents ” means:

 

(iii)          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;

 

(iv)          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 Moody’s 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;

 

(v)         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;

 

(vi)         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

 

(vii)         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:

 

(viii)        any “person” or “group” (within the meaning of Section 13(d) and 14(d) of the Exchange Act) (other than John H. McConnell, John P. McConnell, 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

 

(ix)         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 May 10, 2002.

 

“ 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.

 

“ 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.

 

“ Committed Loan ” means a Syndicated Loan or a Swingline Loan.

 

“ Competitive Bid ” has the meaning set forth in Section 2.03(d) .

 

“ Competitive Bid Absolute Rate ” has the meaning set forth in Section 2.03(d)(ii)(D) .

 

“ Competitive Bid Absolute Rate Loan ” means a Competitive Bid Loan made by a Lender pursuant to an Absolute Rate Auction.

 

“ Competitive Bid LIBOR Loan ” means a Competitive Bid Loan made by a Lender pursuant to a LIBOR Auction (including such a Loan bearing interest at the Base Rate pursuant to Article III ).

 

“ Competitive Bid Loan ” means a Competitive Bid LIBOR Loan or a Competitive Bid Absolute Rate Loan.

 

“ Competitive Bid Margin ” has the meaning set forth in Section 2.03(d)(ii)(C) .

 

“ Competitive Bid Note ” means a promissory note, substantially in the form of Exhibit B-2 hereto, evidencing the obligation of the Borrower to repay outstanding Competitive Bid Loans, as such note may be amended, modified, supplemented, extended, renewed or replaced from time to time.

 

“ Competitive Bid Quote ” has the meaning set forth in Section 2.03(b)(iv) .

 

“ Competitive Bid Request ” has the meaning set forth in Section 2.03(b) .

 

“ Consolidated EBITDA ” means for any period the sum of (i) Consolidated Net Income for such period plus (ii) an amount which, in the determination of Consolidated Net Income for such period, has been deducted for (A) Consolidated Interest Expense, (B) provisions for Federal, state, local and foreign income, value

 

added and similar taxes and (C) depreciation, amortization (including, without limitation, amortization of goodwill and other intangibles) and other non-cash expense, all determined in accordance with GAAP, 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 a material acquisition or divestiture, in either case to the extent permitted pursuant to this Agreement, during any period for which Consolidated EBITDA is measured, then for purposes of determining the Leverage Ratio, Consolidated EBITDA shall be adjusted for the period of time prior to the date of such acquisition or divesture by adding the historical financial results for such period of the Person or assets acquired (without taking account of cost savings or others synergies unless approved by the Required Lenders) or deleting that portion of the financial results of the Borrower and its Consolidated Subsidiaries for such period attributable to the Person or assets divested, all as reasonably determined by the Borrower and certified to the Administrative Agent and the Lenders.

 

“ Consolidated Indebtedness ” means at any date the Indebtedness of the Borrower and its Subsidiaries, determined on a consolidated basis as of such date.

 

“ Consolidated Interest Expense ” means, for any period, the total interest expense, whether paid or accrued and whether or not capitalized (including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments under Capital Lease Obligations and the implied interest component of Synthetic Lease Obligations (regardless of whether accounted for as interest expense under GAAP), all commissions, discounts and other fees and charges owed with respect to letters of credit, bankers’ acceptances and asset securities and other similar off balance street transactions and net costs in respect of Derivatives Obligations constituting interest rate swaps, collars, caps or other arrangements requiring payments contingent upon interest rates of the Borrower and its Restricted Subsidiaries), determined on a consolidated basis for such period.

 

“ Consolidated Net Income ” means, for any period, the net income (or net loss) after taxes of the Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from the calculation of Consolidated Net Income (i) the income (or loss) of any Person in which any other Person (other than the Borrower or any of its Wholly-Owned Subsidiaries) has an ownership interest, except to the extent that any such income is actually received by the Borrower or such Wholly-Owned Subsidiary in the form of dividends or other distributions during such period and (ii) the income of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary.

 

“ Consolidated Net Tangible Assets ” means, as of any date of determination, the sum of the amounts that would appear on a consolidated balance sheet of the Borrower and its Subsidiaries for the total assets (less accumulated depletion, depreciation or amortization, allowances for doubtful receivables, other applicable reserves and other properly deductible items) of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, after 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.

 

“ 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.

 

“ 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.

 

“ 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 that the Borrower and its Affiliates shall not qualify as Eligible Assignees.

 

“ Environmental Laws ” means any current or future legal requirement of any Governmental Authority pertaining to (i) the protection of health, safety, and the environment, (ii) the conservation, management or use of natural resources and wildlife, (iii) the protection or use of surface water and groundwater or (iv) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, release, threatened release, abatement, removal, remediation or handling of, or exposure to, any hazardous or toxic substance or material and includes, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984, 42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49 USC App. 1801 et seq., Occupational Safety and Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 USC 300(f) et seq., any analogous implementing or successor law, and any amendment, rule, regulation, order or directive issued thereunder.

 

“ Equity Equivalents ” means with respect to any Person any rights, warrants, options, convertible securities, exchangeable securities, indebtedness or other rights, in each case exercisable for or convertible or exchangeable into, directly or indirectly, Equity Interests of such Person or securities exercisable for or convertible or exchangeable into Equity Interests of such Person, whether at the time of issuance or upon the passage of time or the occurrence of some future event.

 

“ Equity Interests ” means all shares of capital stock, partnership interests (whether general or limited), limited liability company membership interests, beneficial interests in a trust and any other interest or participation that confers on a Person the right to receive a share of profits or losses, or distributions of assets, of an issuing Person, but excluding any debt securities convertible into such Equity Interests.

 

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto, as interpreted by the rules and regulations issued thereunder, in each case as in effect from time to time.

 

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

 

“ ERISA Event ” means: (i) a Reportable Event with respect to a Pension Plan; (ii) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA); (iii) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (iv) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (v) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (vi) the imposition of any liability under Title IV of ERISA,

 

other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

 

“ Eurodollar Rate ” means, for each Interest Period for each Eurodollar Loan comprising the same Group, the quotient obtained (rounded upward, if necessary, to the next higher 1/100 ^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.

 

“ Executive Order No. 13224 ” means the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

 

“ Existing Committed Loans ” is defined in the first recital .

 

“ Existing Credit Agreement ” is defined in the first recital .

 

“ Existing Lenders ” is defined in the first recital .

 

“ Existing Letters of Credit ” means the letters of credit issued for the account of the Borrower and any Restricted Subsidiary before the Amendment Effective 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.

 

“ Existing Revolving Loans ” is defined in the first recital .

 

“ Existing Swingline Loans ” is defined in the first recital .

 

“ 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 Open Rate ” means the rate per annum determined by the Administrative Agent in accordance with its usual procedures (which determination shall be conclusive absent manifest error) to be the “open” rate for federal funds transactions as of the opening of business for federal funds transactions among members of the Federal Reserve System arranged by federal funds brokers on such day, as quoted by Garvin Guybutler, any successor entity thereto or any other broker selected by the Administrative Agent, as set forth on the applicable Telerate display page; provided that if such day is not a Business Day, the Federal Funds Open Rate for

 

such day shall be the “open” rate on the immediately preceding Business Day, or if no such rate shall be quoted by a federal funds broker at such time, such other rate as determined by the Administrative Agent in accordance with its usual procedures.

 

“ 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.

 

“ 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 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.

 

“ 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 .

 

“ 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:

 

(x)          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;

 

(xi)         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

 

(xii)        with respect to each Competitive Bid Absolute Rate Loan, the period commencing on the date of borrowing specified in the applicable Notice of Borrowing and ending such number of days thereafter (but not less than seven) as the Borrower may elect in accordance with Section 2.03 ; provided that:

 

(A)         any Interest Period (except an Interest Period determined pursuant to clause (iii)(B) below) which would otherwise end on a day which is not a Business Day shall be extended to the next succeeding Business Day; and

 

(B)         any Interest Period which would otherwise end after the Maturity Date shall end on such Maturity Date.

 

“ Investment ” in any Person means (i) the acquisition (whether for cash, property, services, assumption of Indebtedness, securities or otherwise) of all or substantially all of the 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 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 and the Notes, 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.

 

“ Moody’s ” means Moody’s 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:

 

(xiii)         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;

 

(xiv)         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;

 

(xv)         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

 

(xvi)         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 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:

 

(xvii)        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;

 

(xviii)        deposits or Liens securing property 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;

 

(xix)         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 property located on leased premises, incurred by it in good faith in the ordinary course of business;

 

(xx)         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);

 

(xxi)         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;

 

(xxii)         any Lien existing on any asset of any Person at the time such Person becomes a Subsidiary of the Borrower and not created in contemplation of such event;

 

(xxiii)         any Lien on any asset of any Person existing at the time such Person is merged or consolidated with or into Borrower or a Subsidiary and not created in contemplation of such event;

 

(xxiv)         any Lien existing on any asset prior to the acquisition thereof by Borrower or a Subsidiary and not created in contemplation of such event;

 

(xxv)         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;

 

(xxvi)         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;

 

(xxvii)         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;

 

(xxviii)        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;

 

(xxix)         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;

 

(xxx)         easements, rights-of-way, zoning restrictions and other restrictions, charges or encumbrances not materially interfering with the ordinary conduct of the business;

 

(xxxi)        any Lien on property of a Subsidiary securing Indebtedness of such Subsidiary owing to Borrower or a Restricted Subsidiary;

 

(xxxii)        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 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; and

 

(xxxiii)    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.

 

“ 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.

 

“ 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.

 

“ 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.

 

“ 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 .

 

“ 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, (a) prior to the Amendment Effective Date, $235,000,000, and (b) as of and after the Amendment Effective Date, $435,000,000, 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.

 

“ Sarbanes-Oxley Act ” means the United States Sarbanes-Oxley Act of 2002.

 

“ 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 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) $30,000,000 or (ii) an amount which, when added to the aggregate principal amount of all other Loans then outstanding under this Agreement, does not exceed $435,000,000.

 

“ 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.

 

“ Syndication Agent ” means The Bank of Nova Scotia, in its capacity as syndication agent for the Lenders hereunder and under the other Loan Documents, and its successor or successors in such capacity.

 

“ 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 .

 

“ Trade Letter of Credit ” has the meaning set forth in Section 2.06(b) .

 

“ 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 .

 

“ USA Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

 

“ Worthington’s Ratings ” means the ratings from Moody’s and S&P with respect to the senior, unsecured, long-term indebtedness for borrowed money of the Borrower that is not guaranteed by any other Person.

 

“ Wholly-Owned Subsidiary ” means, with respect to any Person at any date, any Subsidiary of such Person all of the shares of capital stock or other ownership interests of which (except directors’ qualifying shares) are at the time directly or indirectly owned by such Person.

 

Section 1.02 Computation of Time Periods and Other Definitional Provisions . For purposes of computation of periods of time hereunder, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”. All references to time herein shall be references to Eastern Standard time or Eastern Daylight time, as the case may be, unless specified otherwise. References in this Agreement to Articles, Sections, Schedules, Appendices or Exhibits shall be to Articles, Sections, Schedules, Appendices or Exhibits of or

 

to this Agreement unless otherwise specifically provided. The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined.

 

Section 1.03 Accounting Terms and Determinations . Except as otherwise expressly provided herein, all accounting terms used herein shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to the Lenders hereunder shall be prepared, in accordance with GAAP applied on a consistent basis. All financial statements delivered to the Lenders hereunder shall be accompanied by a statement from the Borrower that GAAP has not changed since the most recent financial statements delivered by the Borrower to the Lenders or, if GAAP has changed, describing such changes in detail and explaining how such changes affect the financial statements. All calculations made for the purposes of determining compliance with this Agreement shall (except as otherwise expressly provided herein) be made by application of GAAP applied on a basis consistent with the most recent annual or quarterly financial statements delivered pursuant to Section 6.01 (or, prior to the delivery of the first financial statements pursuant to Section 6.01 , consistent with the financial statements described in Section 5.02(a)) . Any change in GAAP that effects the calculation of financial covenants will result in an adjustment in the affected covenant so that it is no more or less restrictive than on the Closing Date.

 

Section 1.04 Classes and Types of Borrowings . The term “ Borrowing ” denotes the aggregation of Loans of one or more Lenders to be made to the Borrower pursuant to Article II on the same date, all of which Loans are of the same Class and Type (subject to Article III ) and, except in the case of Base Rate Loans, have the same initial Interest Period. Loans hereunder are distinguished by “Class” and “Type”. The “ Class ” of a Loan (or of a Commitment to make such a Loan or of a Borrowing comprised of such Loans) refers to whether such Loan is a Committed Loan (Syndicated or Swingline) or a Competitive Bid Loan. The “ Type ” of a Loan refers (i) in the case of Committed Loans, to whether such Loan is a Base Rate Loan or a Eurodollar Loan and (ii) in the case of Competitive Bid Loan, to 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 the continuation and reallocation (as the case may be) of Existing Revolving Loans and 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 the continuation of Existing Swingline Loans and to make a portion of the Revolving Commitments available to the Borrower from time to time prior to the Swingline Termination Date by making Swingline Loans to the Borrower in Dollars (each such loan, a “ Swingline Loan ” and collectively, the “ Swingline Loans ”); provided that (i) the aggregate principal amount of the Swingline Loans outstanding at any one time shall not exceed the Swingline Committed Amount, (ii) with regard to each Lender individually (other than the Swingline Lender in its capacity as such), the principal amount of such Lender’s outstanding Revolving Loans plus its Participation Interests in outstanding Swingline Loans 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, and (iv) the Swingline Committed Amount shall not exceed the aggregate of the Revolving Commitments then in effect. Each of the parties hereto acknowledges and agrees that the Existing Swingline Loans shall continue as Swingline Loans for all purposes under this Agreement and the Loan Documents. 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, 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 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 Moody’s and S&P, respectively, and as set forth in this Section 2.03 , request the Lenders to make offers to make Competitive Bid Loans to the Borrower from time to time prior to the Maturity Date. The Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section 2.03 . After giving effect to any borrowing of Competitive Bid Loans, (i) the aggregate Revolving Outstandings plus the aggregate principal amount of all Competitive Bid Loans shall not exceed the aggregate amount of the Revolving Commitments and (ii) there shall not be more than five different Interest Periods in effect with respect to Competitive Bid Loans at any time.

 

(b)         Competitive Bid Request . When the Borrower wishes to request offers to make Competitive Bid Loans under this Section 2.03 , it shall transmit to the Administrative Agent by telephone call followed promptly by facsimile transmission (a “ Competitive Bid Request ”) substantially in the form of Exhibit A-2 hereto so as to be received by the Administrative Agent at the Administrative Agent’s Office not later than 12:00 Noon on (x) the fourth Business Day before the date of Borrowing proposed therein, in the case of a LIBOR Auction or (y) the Business Day next preceding the date of Borrowing proposed therein, in the case of an Absolute Rate Auction, or, in any such case, such other time or date as the Borrower and the Administrative Agent shall have mutually agreed and shall have notified to the Lenders not later than the date of the Competitive Bid Request for the first LIBOR Auction or Absolute Rate Auction for which such change is to be effective. Each such Competitive Bid Request shall specify:

 

(i)        the proposed date of Borrowing, which shall be a Business Day;

 

(ii)        the aggregate amount of such Borrowing, which shall be $5,000,000 in aggregate principal amount (or any larger multiple of $1,000,000);

 

(iii)         the duration of the Interest Period applicable thereto, subject to the provisions of the definition of Interest Period; and

 

(iv)        whether the Competitive Bid Borrowing quote requested (each, a “ Competitive Bid Quote ”) are to set forth a Competitive Bid Margin or a Competitive Bid Absolute Rate.

 

The Borrower may request offers to make Competitive Bid Loans for more than one Interest Period in a single Competitive Bid Request. No more than two Competitive Bid Requests shall be given within five Business Days (or such other number of days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Request.

 

(c)         Delivery of Competitive Bids Requests . The Administrative Agent shall promptly notify each Revolving Lender of each Competitive Bid Request received by it from the Borrower and the contents of such Competitive Bid Requests, which notice shall constitute an invitation by the Borrower to each Revolving Lender to submit Competitive Bids offering to make the Competitive Bid Loans to which such Competitive Bid Request relates in accordance with this Section 2.03 .

 

(d)         Submission and Contents of Competitive Bids . (i) Each Lender may submit a competitive bid (a “ Competitive Bid ”) containing an offer or offers to make Competitive Bid Loans in response to any invitation for Competitive Bids. Each Competitive Bid must comply with the requirements of this subsection 2.03(d) and must be submitted to the Administrative Agent by telex or facsimile at the Administrative Agent’s office not later than (x) 10:00 A.M. on the third Business Day before the proposed date of Borrowing, in the case of a LIBOR Auction or (y) 10:00 A.M. on the proposed date of Borrowing, in the case of an Absolute Rate Auction, or, in any such case, such other time or date as the Borrower and the Administrative Agent shall have mutually agreed and shall have notified to the Lenders not later than the date of the Competitive Bid Request for the first LIBOR Auction or Absolute Rate Auction for which such change is to be effective; provided that Competitive Bids submitted by the Administrative Agent (or any affiliate of the Administrative Agent) in the capacity of a Lender may be submitted, and may only be submitted, if the Administrative Agent or such affiliate notifies the Borrower of the terms of the offer or offers contained therein not later than 30 minutes before the deadline for the other Lenders. Subject to Articles III and IV , any Competitive Bid so made shall not be revocable except with the written consent of the Administrative Agent given on the instructions of the Borrower.

 

(ii)         Each Competitive Bid shall be substantially in the form of Exhibit A-3 hereto and shall in any case specify:

 

(A)        the proposed date of Borrowing;

 

(B)        the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount (w) may be greater than or less than the Commitment of the quoting Lender, (x) must be in the principal amount of $5,000,000 (or any larger multiple of $1,000,000), (y) may not exceed the principal amount of Competitive Bid Loans for which offers were requested and (z) may be subject to an aggregate limitation as to the principal amount of Competitive Bid Loans for which offers being made by such quoting Lender may be accepted;

 

(C)        in the case of a LIBOR Auction, the margin above or below the Applicable Interbank Offered Rate (the “ Competitive Bid Margin ”) offered for each such Competitive Bid Loan, expressed as a percentage (specified to the nearest 1/1,00 ^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) 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 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.

 

(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 Open 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 that the Administrative Agent shall have no obligation to disburse any such amount to the Borrower or otherwise apply it or deem it applied as provided herein unless the Administrative Agent shall have determined in its sole discretion that to so disburse such amount will not violate any law, rule, regulation or requirement applicable to the Administrative Agent. Upon any such disbursement by the Administrative Agent, such Lender shall be deemed to have made a Base Rate Loan of the same Class as the Failed Loan to the Borrower in satisfaction, to the extent thereof, of such Lender’s obligation to make the Failed Loan.

 

Section 2.05 Evidence of Loans .

 

(a)         Lender Accounts . Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness owed by the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

 

(b)         Administrative Agent Records . The Administrative Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Class and Type of each Loan made and the Interest Period, if any, applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Agent hereunder from the Borrower and each Lender’s share thereof.

 

(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 that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrower to repay the Loans in accordance with their terms.

 

(d)         Notes . Notwithstanding any other provision of this Agreement, if any Lender shall request and receive a Note or Notes as provided in Section 10.06 or otherwise, then the Loans of such Lender shall be evidenced by Notes of the applicable Class, in each case, substantially in the form of Exhibit B-1 or B-2 , as applicable, and payable to the order of such Lender for the account of its Applicable Lending Office in an amount equal to the aggregate unpaid principal amount of such Lender’s Revolving Loans or Competitive Bid Loans, as applicable. If requested by the Swingline Lender, the Swingline Loans shall be evidenced by a single Swingline Note, substantially in the form of Exhibit B-3 , and payable to the order of the Swingline Lender in an amount equal to the aggregate unpaid principal amount of the Swingline Loans.

 

(e)         Notes for Loans of Different Types . Each Lender may, by notice to the Borrower and the Administrative Agent, request that its Loans of a particular Type be evidenced by separate Notes in an amount equal to the aggregate unpaid principal amount of such Loans. Each such Note shall be in substantially the form of Exhibit B-1 or B-2 hereto with appropriate modifications to reflect the fact that it evidences solely Loans of the relevant Type. Each reference in this Agreement to such Lender’s “Note” of a particular Class shall be deemed to refer to and include any or all of such Notes, as the context may require.

 

(f)         Note Endorsements . Each Lender having one or more Notes shall record the date, amount, Class and Type of each Loan made by it and the date and amount of each payment of principal made by the Borrower with respect thereto, and may, if such Lender so elects in connection with any transfer or enforcement of any Note, endorse on the reverse side or on the schedule, if any, forming a part thereof appropriate notations to evidence the foregoing information with respect to each outstanding Loan evidenced thereby; provided that the

 

failure of any Lender to make any such recordation or endorsement shall not affect the obligations of the Borrower hereunder or under any such Note. Each Lender is hereby irrevocably authorized by the Borrower so to endorse each of its Notes and to attach to and make a part of each of its Notes a continuation of any such schedule as and when required.

 

Section 2.06 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 $50,000,000 (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 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 faith deems 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 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 .

 

(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 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 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 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 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 docume