exh4_1.htm


 










Exhibit 4.1


 


 


EXECUTION COPY


 



	

Deal CUSIP 98181DAA4




	
 


 


CREDIT AGREEMENT


 


 


dated as of


 


 


May 4, 2012


 


 


among


 


 


WORTHINGTON INDUSTRIES, INC.


 


The Foreign Subsidiary Borrowers Party Hereto


 


 


The Lenders Party Hereto


 


PNC BANK, NATIONAL ASSOCIATION


as Administrative Agent


 


JPMORGAN CHASE BANK, N.A.


as Syndication Agent


 


and


 


BANK OF AMERICA, N.A., U.S. BANK NATIONAL ASSOCIATION and WELLS FARGO BANK, 


NATIONAL ASSOCIATION


as Co-Documentation Agents


 


 


 


	  	  	  
	
 


J.P. MORGAN SECURITIES LLC and PNC CAPITAL MARKETS LLC


as Joint Bookrunners and Joint Lead Arrangers


 



















  





  











  






 



Table Of Contents





 



	 	 Page
	 	 
	ARTICLE I Definitions	1
	 	 
	SECTION 1.01.  DEFINED TERMS 	1
	SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS 	23
	SECTION 1.03. TERMS GENERALLY 	24
	SECTION 1.04. ACCOUNTING TERMS; GAAP; PRO FORMA CALCULATIONS 	24
	SECTION 1.05. STATUS OF OBLIGATIONS 	25
	 	 
	ARTICLE II The Credits 	25
	 	 
	SECTION 2.01. COMMITMENTS 	25
	SECTION 2.02. LOANS AND BORROWINGS 	25
	SECTION 2.03. REQUESTS FOR REVOLVING BORROWINGS 	26
	SECTION 2.04. UTILIZATION OF COMMITMENTS IN A FOREIGN CURRENCY	27
	SECTION 2.05. SWINGLINE LOANS 	28
	SECTION 2.06. LETTERS OF CREDIT 	29
	SECTION 2.07. FUNDING OF BORROWINGS 	35
	SECTION 2.08. INTEREST ELECTIONS 	35
	SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS 	37
	SECTION 2.10. REPAYMENT OF LOANS; EVIDENCE OF DEBT 	37
	SECTION 2.11. PREPAYMENT OF LOANS 	38
	SECTION 2.12. FEES 	39
	SECTION 2.13. INTEREST 	39
	SECTION 2.14. ALTERNATE RATE OF INTEREST 	40
	SECTION 2.15. INCREASED COSTS 	41
	SECTION 2.16. BREAK FUNDING PAYMENTS 	43
	SECTION 2.17. TAXES 	43
	SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS 	47
	SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS 	49
	SECTION 2.20. EXPANSION OPTION 	50
	SECTION 2.21. [INTENTIONALLY OMITTED] 	51
	SECTION 2.22. JUDGMENT CURRENCY 	51
	SECTION 2.23. DESIGNATION OF FOREIGN SUBSIDIARY BORROWERS 	51
	SECTION 2.24. DEFAULTING LENDERS 	52
	 	 
	ARTICLE III Representations and Warranties	54
	 	 
	SECTION 3.01. ORGANIZATION 	54
	SECTION 3.02. FINANCIAL CONDITION 	54
	SECTION 3.03. LITIGATION, ETC 	54
	SECTION 3.04. TAXES 	55
	SECTION 3.05. AUTHORITY 	55
	SECTION 3.06. OTHER DEFAULTS 	55
	SECTION 3.07. LICENSES, ETC 	55
	SECTION 3.08. ERISA 	55
	SECTION 3.09. ENVIRONMENTAL MATTERS 	55
	SECTION 3.10. OWNERSHIP OF PROPERTY; LIENS 	55
	SECTION 3.11. INSURANCE 	56
	SECTION 3.12. SUBSIDIARIES 	56





 




 


 




  





  











  






 



Table Of Contents


(continued)




 



	 	 Page
	 	 
	SECTION 3.13. MARGIN REGULATION; INVESTMENT COMPANY ACT 	56
	SECTION 3.14. DISCLOSURE 	56
	SECTION 3.15. ANTI-TERRORISM LAWS 	56
	 	 
	ARTICLE IV Conditions	57
	 	 
	SECTION 4.01. EFFECTIVE DATE 	57
	SECTION 4.02. EACH CREDIT EVENT 	58
	
SECTION 4.03. DESIGNATION OF A FOREIGN SUBSIDIARY BORROWER

	58
	 	 
	ARTICLE V Affirmative Covenants	59
	 	 
	SECTION 5.01. INFORMATION 	59
	SECTION 5.02. BOOKS AND RECORDS 	61
	SECTION 5.03. PAYMENT OF OBLIGATIONS 	61
	SECTION 5.04. COMPLIANCE WITH LAWS 	61
	SECTION 5.05. ENVIRONMENTAL VIOLATIONS 	61
	SECTION 5.06. ERISA COMPLIANCE 	61
	SECTION 5.07. MAINTENANCE OF PROPERTIES 	62
	SECTION 5.08. MAINTENANCE OF INSURANCE 	62
	SECTION 5.09. USE OF PROCEEDS 	62
	SECTION 5.10. EXISTENCE; CONDUCT OF BUSINESS 	62
	 	 
	ARTICLE VI Negative Covenants	62
	 	 
	SECTION 6.01. LIMITATION ON INDEBTEDNESS OF RESTRICTED SUBSIDIARIES 	62
	SECTION 6.02. RESTRICTION ON LIENS 	63
	SECTION 6.03. INVESTMENTS 	63
	SECTION 6.04. MERGER 	64
	SECTION 6.05. DISPOSITIONS	64
	SECTION 6.06. ERISA 	64
	SECTION 6.07. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES	64
	SECTION 6.08. CHANGE IN NATURE OF BUSINESS 	65
	SECTION 6.09. TRANSACTIONS WITH AFFILIATES 	65
	SECTION 6.10. BURDENSOME AGREEMENTS 	65
	SECTION 6.11. USE OF PROCEEDS 	65
	SECTION 6.12. GOVERNANCE DOCUMENTS 	65
	SECTION 6.13. FINANCIAL COVENANTS 	65
	SECTION 6.14. ANTI-TERRORISM LAWS 	66
	SECTION 6.15. SUBORDINATED INDEBTEDNESS AND AMENDMENTS TO SUBORDINATED INDEBTEDNESS DOCUMENTS 	66
	 	 
	 ARTICLE VII Events of Default	66
	 	 
	 ARTICLE VIII The Administrative Agent and the Syndication Agent	68
	 	 
	 ARTICLE IX Miscellaneous	71
	 	 
	SECTION 9.01. NOTICES	71





 


 




  





  











  






 




Table Of Contents


(continued)




 



	 	 Page
	 	 
	SECTION 9.02. WAIVERS; AMENDMENTS 	72
	SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER 	73
	SECTION 9.04. SUCCESSORS AND ASSIGNS 	75
	SECTION 9.05. SURVIVAL 	78
	SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS 	78
	SECTION 9.07. SEVERABILITY 	79
	SECTION 9.08. RIGHT OF SETOFF	79
	SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS 	79
	SECTION 9.10. WAIVER OF JURY TRIAL	80
	SECTION 9.11. HEADINGS 	80
	SECTION 9.12. CONFIDENTIALITY 	80
	SECTION 9.13. USA PATRIOT ACT 	81
	SECTION 9.14. INTEREST RATE LIMITATION 	81
	SECTION 9.15. NO ADVISORY OR FIDUCIARY RESPONSIBILITY 	81
	 	 
	ARTICLE X Cross-Guarantee	82







 


 


 


 




  





  











  






 



Table Of Contents


(continued)


 


 




 


 



	 	 	Page
	 	 	 
	SCHEDULES:	 	 
	 	 	 
	Schedule 1.01	– Existing Letters of Credit	 
	Schedule 1.02	– Liens	 
	Schedule 2.01	– Commitments	96
	Schedule 2.02	– Mandatory Cost	97
	Schedule 3.12	– Restricted Subsidiaries	100
	Schedule 6.03	– Existing Investments	 101  
	Schedule 6.07	– Unrestricted Subsidiaries	 102  
	 	 	 
	EXHIBITS:	 	 
	 	 	 
	Exhibit A	– Form of Assignment and Assumption	103
	Exhibit B-1	– Form of Opinion of Borrowers’ Counsel	107
	Exhibit B-2	– Form of Opinion of General Counsel of Company	108
	Exhibit C 	– Form of Increasing Lender Supplement	109
	Exhibit D	– Form of Augmenting Lender Supplement	111
	Exhibit E 	– List of Closing Documents	114
	Exhibit F-1	– Form of Borrowing Request	116
	Exhibit F-2	– Form of Swingline Loan Request	119
	Exhibit G-1	– Form of Borrowing Subsidiary Agreement	122
	Exhibit G-2	– Form of Borrowing Subsidiary Termination	124
	Exhibit H-1	– Form of U.S. Tax Certificate (Foreign Lenders That Are Not Partnerships)	126
	Exhibit H-2	– Form of U.S. Tax Certificate (Foreign Participants That Are Not Partnerships)	127
	Exhibit H-3	– Form of U.S. Tax Certificate (Foreign Participants That Are Partnerships)	128
	Exhibit H-4	– Form of U.S. Tax Certificate (Foreign Lenders That Are Partnerships)	129





 


 




  





  











  






 


CREDIT AGREEMENT (this “Agreement”) dated as of May 4, 2012 among WORTHINGTON INDUSTRIES, INC., the FOREIGN SUBSIDIARY BORROWERS from time to time party hereto, the LENDERS from time to time party hereto, PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent, JPMORGAN CHASE BANK, N.A., as Syndication Agent and BANK OF AMERICA, N.A., U.S. BANK NATIONAL ASSOCIATION and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Co-Documentation Agents.


 


The parties hereto agree as follows:


 


ARTICLE I


 







 


Definitions


 


SECTION 1.01. Defined Terms.  As used in this Agreement, the following terms have the meanings specified below:


 


“ABR”, when used in reference to any Loan or Borrowing, refers to a Loan, or the Loans comprising such Borrowing, bearing interest at a rate determined by reference to the Alternate Base Rate.


 


“Active Restricted Subsidiary” means a Restricted Subsidiary having a net worth in excess of $1,000,000.


 


“Adjusted LIBO Rate” means the following:


 


(A)           with respect to any Eurocurrency Borrowing denominated in Dollars for any Interest Period, the interest rate per annum determined by the Administrative Agent by dividing (the resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1%) (i) the rate which appears on the Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which Dollar deposits are offered by leading banks in the London interbank deposit market), or the rate which is quoted by another source selected by the Administrative Agent which has been approved by the British Bankers' Association as an authorized information vendor for the purpose of displaying rates at which Dollar deposits are offered by leading banks in the London interbank deposit market (an “Alternate Source”), at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period as the London interbank offered rate for Dollars for an amount comparable to such Borrowings and having a borrowing date and a maturity comparable to such Interest Period (or if there shall at any time, for any reason, no longer exist a Bloomberg Page BBAM1 (or any substitute page) or any Alternate Source, a comparable replacement rate determined by the Administrative Agent at such time (which determination shall be conclusive absent manifest error)), by (ii) a number equal to 1.00 minus the LIBOR Reserve Percentage.  Such Adjusted LIBO Rate may also be expressed by the following formula:


 



	 	London interbank offered rates quoted by Bloomberg
	Adjusted LIBO Rate    =	
or appropriate successor as shown on Bloomberg Page BBAM1


	 	1.00 - LIBOR Reserve Percentage





 


 




  





  











  






 


(B)  with respect to any Eurocurrency Borrowing denominated in any Foreign Currency for any Interest Period, the interest rate per annum determined by the Administrative Agent by dividing (the resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1%) (i) the rate of interest per annum for deposits in the relevant Foreign Currency which appears on the relevant Bloomberg Page (or, if no such quotation is available on such Bloomberg Page, on the appropriate such other substitute Bloomberg page that displays rates at which the relevant Foreign Currency deposits are offered by leading banks in the London interbank deposit market) or the rate which is quoted by another source selected by the Administrative Agent which has been approved by the British Bankers' Association as an authorized information vendor for the purpose of displaying such rates at which such Foreign Currency deposits are offered by leading banks in the London interbank deposit market, at approximately 11:00 a.m., London time, two (2) Business Days prior to the first day of such Interest Period for delivery on the first day of such Interest Period for a period, and in an amount, comparable to such Interest Period and principal amount of such Borrowing by (ii) a number equal to 1.00 minus the LIBOR Reserve Percentage.  Such Adjusted LIBO Rate may also be expressed by the following formula:


 


 



	 	
London interbank offered rates quoted


	Adjusted LIBO Rate    =	
by Bloomberg or appropriate successor


	 	
1.00 - LIBOR Reserve Percentage







 


The Adjusted LIBO Rate shall be adjusted with respect to any Eurocurrency Borrowing that is outstanding on the effective date of any change in the LIBOR Reserve Percentage as of such effective date.  The Administrative Agent shall give prompt notice to the Company of the Adjusted LIBO Rate as determined or adjusted in accordance herewith, which determination shall be conclusive absent manifest error.


 


“Administrative Agent” means PNC Bank, National Association (including its branches and affiliates), in its capacity as administrative agent for the Lenders hereunder.


 


“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.


 


“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.


 


“Aggregate Commitment” means the aggregate of the Commitments of all of the Lenders, as reduced or increased from time to time pursuant to the terms and conditions hereof.  As of the Effective Date, the Aggregate Commitment is $425,000,000.


 


“Agreed Currencies” means (i) Dollars, (ii) euro, (iii) Pounds Sterling and (iv) any other currency that is (x) a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars, (y) available in the London interbank deposit market and (z) agreed to by the Administrative Agent and each of the Lenders.


 


“Alternate Base Rate” means, for any day, a fluctuating per annum rate of interest equal to the highest of (a) the Federal Funds Open Rate, plus 0.50%, (b) the Prime Rate, and (c) the Daily LIBOR Rate, plus 1.00%.  Any change in the Alternate Base Rate (or any component thereof) shall take effect at the opening of business on the day such change occurs.


 


“Anti-Terrorism Laws” means any laws, regulations or executive orders relating to counter-terrorism or anti-money laundering, including the USA PATRIOT Act, the laws comprising or implementing the Bank Secrecy Act and the laws administered by the United States Treasury Department’s Office of Foreign Assets Control (as any of the foregoing may from time to time be amended, renewed, extended or replaced).


 


“Applicable Percentage” means, with respect to any Lender, the percentage of the Aggregate Commitment represented by such Lender’s Commitment; provided that, in the case of Section 2.24 when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the percentage of the Aggregate Commitment (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s Commitment.  If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments and to any Lender’s status as a Defaulting Lender at the time of determination.


 


 




  





2











  






 


“Applicable Rate” means, for any day, with respect to any Eurocurrency Revolving Loan or any ABR Revolving Loan or with respect to the facility fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “Eurocurrency Spread”, “ABR Spread” or “Facility Fee Rate”, as the case may be, based upon the applicable Designated Ratings on such date:


 



	  	
Designated Ratings


(S&P/ Moody’s/ Fitch)

	
Eurocurrency Spread

	
ABR


Spread


 

	
Facility


Fee Rate


	
Category 1:

	
BBB+/ Baa1/  BBB+ or higher

	
0.975%

	
0.00%

	
0.15%


	
Category 2:

	
BBB/ Baa2/ BBB

	
1.05%

	
0.05%

	
0.20%


	
Category 3:

	
BBB-/ Baa3/ BBB-

	
1.25%

	
0.25%

	
0.25%


	
Category 4:

	
BB+/ Ba1/ BB+ or lower

	
1.45%

	
0.45%

	
0.30%












For purposes of the foregoing,


 


the Applicable Rate shall be determined in accordance with the foregoing table based on the Company's Status as determined from its then-current Designated Ratings;


 


in addition, (a) if the Designated Ratings are split and all three Designated Ratings fall in different categories, the Applicable Rate shall be based upon the middle Designated Rating; (b) if the Designated Ratings are split and two of the Designated Ratings fall in the same category (the “Majority Category”) and the third Designated Rating is in a different category, the Applicable Rate shall be based upon the Majority Category; (c) if only two of the Rating Agencies issue Designated Ratings, the Applicable Rate shall be based upon the higher of such Designated Ratings, provided that if the higher Designated Rating is two or more categories above the lower Designated Rating, the Applicable Rate shall be based upon the Designated Rating next below the higher of the two Designated Ratings; (d) if only one of the three Rating Agencies issues a Designated Rating, the Applicable Rate shall be based upon such Designated Rating; and (e) if the Designated Ratings established by any of the three Rating Agencies shall be changed (other than as a result of a change in the rating system of such Rating Agency), such change shall be effective as of the date on which it is first announced by the applicable Rating Agency (it being understood that a change in outlook status (e.g., watch status, negative outlook status) does not constitute a change in any Designated Rating for purposes hereof).  If at any time the Company has no Designated Rating, Category 4 Status shall exist.  If the rating system of any Rating Agency shall change, or if any Rating Agency shall cease to be in the business of rating corporate debt obligations, the Company and the Administrative Agent shall negotiate in good faith if necessary to amend the determination hereof to reflect such changed rating system or the unavailability of ratings from such Rating Agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the rating of such Rating Agency most recently in effect prior to such change or cessation;







on the Effective Date, Category 2 Status shall be in effect unless the Company’s Designated Rating requires that Category 3 or Category 4 Status should then be in effect, in which case such applicable category shall be given effect on the Effective Date. Thereafter, each change in the Applicable Rate resulting from a publicly announced change in the Designated Rating by S&P, Moody's, or Fitch, as applicable, shall be effective during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change in the Designated Rating.


 


 




  





3











  






 


“Approved Fund” has the meaning assigned to such term in Section 9.04.


 


“Assignment and Assumption” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.


 


“Augmenting Lender” has the meaning assigned to such term in Section 2.20.


 


“Availability Period” means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Commitments.


 


“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.


 


“Blocked Person” means any Person (i) with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; (ii) that is included in the most-current list of Specially Designated Nationals and Blocked Persons published by the U.S. Treasury Department Office of Foreign Assets Control at its official website or any replacement website or other replacement official publication of such list; or (iii) 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 the Company or any Foreign Subsidiary Borrower.


 


“Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect or (b) a Swingline Loan.


 


“Borrowing Request” means a Borrowing Request substantially in the form of Exhibit F-1.


 


 




  





4











  






 


“Borrowing Subsidiary Agreement” means a Borrowing Subsidiary Agreement substantially in the form of Exhibit G-1.


 


“Borrowing Subsidiary Termination” means a Borrowing Subsidiary Termination substantially in the form of Exhibit G-2.


 


“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurocurrency Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in the relevant Agreed Currency in the London interbank market or the principal financial center of such Agreed Currency (and, if the Borrowings or LC Disbursements which are the subject of a borrowing, drawing, payment, reimbursement or rate selection are denominated in euro, the term “Business Day” shall also exclude any day on which the TARGET2 payment system is not open for the settlement of payments in euro).


 


“Capitalization” means Consolidated Indebtedness plus Consolidated Net Worth.


 


“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.







“Cash Equivalents” means:


 


(i)           securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition;


 


(ii)           Dollar-denominated certificates of deposit of (A) any Lender, (B) any United States commercial bank of recognized standing having capital and surplus in excess of $1,000,000,000 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;


 


(iii)           commercial paper and variable or fixed rate notes issued by any Approved Lender (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation not an Affiliate of the Company rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within six months of the date of acquisition;


 


(iv)           repurchase agreements with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $1,000,000,000 for direct obligations issued by or fully guaranteed by the United States of America in which the Company 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


 


 




  





5











  






 


(v)           Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by reputable financial institutions having capital of at least $1,000,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing clauses (i) through (iv).


 


“Change of Control” means, with respect to any Person, an event or series of events by which:


 


(i)           any “person” or “group” (within the meaning of Section 13(d) and 14(d) of the Exchange Act) (other than the spouses, siblings, descendants, spouses of any such siblings or descendants, trusts created exclusively for the benefit of such Persons, executors, administrators, guardians, or conservators of the estate of John H. McConnell, John P. McConnell, their respective Affiliates and 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 Company or any Subsidiary of the Company or any trustee or fiduciary with respect to any such plan when acting in such capacity) has become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have “beneficial ownership” of all securities that any such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), by way of merger, consolidation or otherwise, of 30% or more of the Equity Interests of such Person on a fully-diluted basis after giving effect to the conversion and exercise of all outstanding Equity Equivalents (whether or not such Equity Equivalents are then currently convertible or exercisable); or


 


(ii)           during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of such Person cease to be composed of individuals (A) who were members of that board or equivalent governing body on the first day of such period, (B) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (ii)(A) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (C) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (ii)(A) and (B) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.


 


“Change in Law” means the occurrence, after the date of this Agreement (or with respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the following:  (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rules, guideline, requirement or directive (whether or not having the force of law) by any Governmental Authority; provided however, that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law” regardless of the date enacted, adopted, issued or implemented.


 


“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.


 


 




  





6











  






 


“Code” means the Internal Revenue Code of 1986, as amended.


 


“Co-Documentation Agent” means each of Bank of America, N.A., U.S. Bank National Association and Wells Fargo Bank, National Association in its capacity as co-documentation agent for the credit facility evidenced by this Agreement.


 


“Commitment” means, with respect to each Lender, the commitment of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced or terminated from time to time pursuant to Section 2.09, (b) increased from time to time pursuant to Section 2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption or other documentation contemplated hereby pursuant to which such Lender shall have assumed its Commitment, as applicable.


 


“Company” means Worthington Industries, Inc., an Ohio corporation.


 


“Computation Date” has the meaning assigned to such term in Section 2.04.


 


“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.


 


“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) (1) depreciation, (2) amortization (including, without limitation, amortization of goodwill and other intangibles), (3) any writedown of goodwill, long-lived asset, or intangible asset impairment and (4) 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 Company 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 Interest  Coverage  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 Company and its Consolidated Subsidiaries for such period attributable to the Person or assets divested, all as reasonably determined by the Company and certified to the Administrative Agent and the Lenders.







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







“Consolidated Interest Expense”  means,  for any period, the aggregate interest expense  of  the Company and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, including, without duplication, the portion of any cash payments made or accrued in respect of Capital Lease Obligations allocable to interest expense.


 


 




  





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“Consolidated Net Income” means, for any period, the net income (or net loss) after Taxes of the Company 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 (referred to herein as “Person  A”) in which any other Person (other than the Company or any of its Wholly-Owned Subsidiaries) has an ownership  interest  and  which  Person A would not be consolidated with the Company and its Subsidiaries in their consolidated financial statements if such statements were prepared for such period in accordance with GAAP, except to the extent that any such income is actually received by the Company or any of its Wholly-Owned Subsidiaries in the form of dividends or other distributions during such period and (ii) the income of any  Subsidiary of the Company 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 Company 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 Company 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 Company 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 Company’s subsidiaries held by Persons other than the Company or a wholly-owned Subsidiary of the Company; 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 Company 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.


 


“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  The terms “Controlling” and “Controlled” have meanings correlative thereto.


 


“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 Event” means a Borrowing, the issuance of a Letter of Credit, an LC Disbursement or any of the foregoing.


 


 




  





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“Credit Party” means the Administrative Agent, the Issuing Banks, the Swingline Lender or any other Lender.


 


“Daily LIBOR Rate” means, for any day, the rate per annum determined by the Administrative Agent by dividing (the resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1%) (x) the Published Rate by (y) a number equal to 1.00 minus the LIBOR Reserve Percentage on such day.  The rate of interest charged shall be adjusted as of each Business Day based on changes in the Daily LIBOR Rate without notice to the Borrowers, and shall, if the Daily LIBOR Rate applies, be applicable to the then outstanding balance under the Swingline Loan from the effective date of any such change.  If the Daily LIBOR Rate applies, all calculations of interest on the Swingline Loan will be computed on the basis of a year of 360 days and paid on the actual number of days elapsed.


 


“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 event or condition which constitutes an Event of Default or which upon the giving of notice, the lapse of time or both would, unless cured or waived, become an Event of Default.


 


“Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent and the Syndication Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Company or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three (3) Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d) has become the subject of 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.


 


 




  





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“Designated Rating” means the Company’s S&P Rating, Moody’s Rating and/or Fitch Rating, as the case may be.


 


“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.


 


“Dollar Amount” means, with respect to any amount of any currency, the Equivalent Amount of such currency expressed in Dollars.


 


“Dollars” or “$” refers to lawful money of the United States of America.


 


“Domestic Subsidiary” means a Subsidiary organized under the laws of the United States of America, any state thereof or the District of Columbia.


 


“Effective Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).


 


“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.


 


“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.


 


 “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.


 


 




  





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“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.


 


“Equivalent Amount” of any currency at any date means at any time, as determined by the Administrative Agent (which determination shall be conclusive absent manifest error) with respect to an amount of any currency (the “Reference Currency”) which is to be computed as an equivalent amount of another currency (the “Equivalent Currency”), the amount of such Equivalent Currency converted from such Reference Currency using the average spot rate quoted to the Administrative Agent (based on market rates then prevailing and available to the Administrative Agent) or the commercial market rate of exchange, as determined by the Administrative Agent, for the sale of such Equivalent Currency for such Reference Currency at a time determined by the Administrative Agent on the second Business Day immediately preceding the event for which such calculation is made.


 


“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.


 


“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Company, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.


 


“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the failure to satisfy the “minimum funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Company or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Company or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal of the Company or any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the Company or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Company or any ERISA Affiliate of any notice, concerning the imposition upon the Company or any of its ERISA Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.


 


“euro” and/or “EUR” means the single currency of the Participating Member States.


 


“Eurocurrency”, when used in reference to a currency means an Agreed Currency and when used in reference to any Loan or Borrowing, means that such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.


 


 




  





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“Eurocurrency Payment Office” of the Administrative Agent means, for each Foreign Currency, the office, branch, affiliate or correspondent bank of the Administrative Agent for such currency as specified from time to time by the Administrative Agent to the Company and each Lender.


 


“Event of Default” has the meaning assigned to such term in Article VII.


 


“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor statute thereto, together with the rules and regulations promulgated thereunder.


 


“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by any Borrower under Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(f) and (d) any U.S. Federal withholding Taxes imposed under FATCA.


 


“Existing Letters of Credit” means the Letters of Credit set forth on Schedule 1.01, which were issued under the credit agreement described under Section 4.01(f), but from and after the Effective Date, shall be deemed to be outstanding under this Agreement.


 


“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof.


 


“Federal Funds Effective Rate” means, for any day,  the rate per annum (based on a year of 360 days and actual days elapsed and rounded upward, if necessary, to the nearest 1/100th of 1%) announced by the Federal Reserve Bank of New York (or any successor) on such day as being the weighted average of the rates on overnight federal funds transactions arranged by federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank (or any successor) in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the “Federal Funds Effective Rate” as of the date of this Agreement; provided, if such Federal Reserve Bank (or its successor) does not announce such rate on any day, the “Federal Funds Effective Rate” for such day shall be the Federal Funds Effective Rate for the last day on which such rate was announced.


 


“Federal Funds Open Rate” for any day means the rate per annum (based on a year of 360 days and actual days elapsed) which is the daily federal funds open rate as quoted by ICAP North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for that day opposite the caption “OPEN” (or on such other substitute Bloomberg Screen that displays such rate), or as set forth on such other recognized electronic source used for the purpose of displaying such rate as selected by the Administrative Agent  (an  “Alternate  Source”)  (or  if such rate for such day does not appear on the Bloomberg Screen BTMM (or any substitute screen) or on any Alternate  Source, or if there shall at any time, for any reason, no longer exist a Bloomberg Screen BTMM (or any substitute screen) or any Alternate Source, a comparable replacement rate determined by the Administrative Agent at such time (which determination shall be conclusive absent manifest error);  provided  however, 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.  If and when the Federal Funds Open Rate changes, the rate of interest hereunder will change automatically without notice to the Borrower, effective on the date of any such change.


 


 




  





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“Fitch” means Fitch, Inc., and its successors.


 


“Fitch Rating” means, at any time, the rating issued by Fitch and then in effect with respect to the Company’s senior unsecured long-term debt securities without third-party credit enhancement or, if no such rating is in effect, Fitch’s general corporate rating with respect to the Company.


 


“Foreign Currencies” means Agreed Currencies other than Dollars.


 


 “Foreign Currency LC Exposure” means, at any time, the sum of (a) the Dollar Amount of the aggregate undrawn and unexpired amount of all outstanding Foreign Currency Letters of Credit at such time plus (b) the aggregate principal Dollar Amount of all LC Disbursements in respect of Foreign Currency Letters of Credit that have not yet been reimbursed at such time.


 


“Foreign Currency Letter of Credit” means a Letter of Credit denominated in a Foreign Currency.


 


“Foreign Currency Sublimit” means $50,000,000.


 


“Foreign Lender” means (a) if the applicable Borrower is a U.S. Person, a Lender, with respect to such Borrower, that is not a U.S. Person, and (b) if the applicable Borrower is not a U.S. Person, a Lender, with respect to such Borrower, that is resident or organized under the laws of a jurisdiction other than that in which the Company is resident for tax purposes.


 


“Foreign Subsidiary” means any Subsidiary which is not a Domestic Subsidiary.


 


“Foreign Subsidiary Borrower” has the meaning assigned to such term in Section 2.23.


 


“GAAP” means generally accepted accounting principles in the United States of America.


 


“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.


 


“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.


 


 




  





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“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.


 


 “Hostile Acquisition” means (a) the acquisition of the Equity Interests of a Person through a tender offer or similar solicitation of the owners of such Equity Interests which has not been approved (prior to such acquisition) by the board of directors (or any other applicable governing body) of such Person or by similar action if such Person is not a corporation and (b) any such acquisition as to which such approval has been withdrawn.


 


“Increasing Lender” has the meaning assigned to such term in Section 2.20.


 


“Incremental Term Loan” has the meaning assigned to such term in Section 2.20.


 


“Incremental Term Loan Amendment” has the meaning assigned to such term in Section 2.20.


 


“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 bonds, 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 Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.


 


“Interest Coverage Ratio”  means,  for any  period,  the  ratio  of (i) Consolidated EBITDA of the Company and its Subsidiaries for such period to (ii) Consolidated  Interest  Expense of the  Company and its  Subsidiaries for such period.







“Interest Election Request” means a request by the applicable Borrower to convert or continue a Revolving Borrowing in accordance with Section 2.08, which, if written, shall be in the form of Exhibit F-1.


 


 




  





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“Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each March, June, September and December and the Maturity Date, (b) with respect to any Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and the Maturity Date.


 


“Interest Period” means (i) with respect to any Eurocurrency Borrowing in Dollars, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, or more than six months thereafter as otherwise agreed by all Lenders, as the applicable Borrower (or the Company on behalf of the applicable Borrower) may elect and (ii) with respect to any Eurocurrency Borrowing in any Foreign Currency, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one month thereafter; provided, that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a Eurocurrency Borrowing only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period pertaining to a Eurocurrency Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.


 


“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, Equity Interests, 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 Company, any release, cancellation, compromise or forgiveness in whole or in part of any Indebtedness owing by such Restricted Subsidiary.


 


 “IRS” means the United States Internal Revenue Service.


 


“Issuing Bank” means each of PNC Bank, National Association and JPMorgan Chase Bank, N.A., in their respective capacities as issuers of Letters of Credit hereunder, and their respective successors in such capacities as provided in Section 2.06(i).  Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.


 


“Joint Lead Arrangers” means each of J.P. Morgan Securities LLC and PNC Capital Markets LLC, and their respective successors in such capacities.


 


“LC Collateral Account” has the meaning assigned to such term in Section 2.06(c).


 


“LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.


 


 




  





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“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn Dollar Amount of all outstanding Letters of Credit at such time plus (b) the aggregate Dollar Amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Company at such time.  The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.


 


“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have become a Lender hereunder pursuant to Section 2.20 or pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.  Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.


 


“Letter of Credit” means any letter of credit issued pursuant to this Agreement.


 


“LIBOR Reserve Percentage” means the maximum percentage (expressed as a decimal rounded upwards, if necessary, to the nearest 1/100th of 1%) as determined by the Administrative Agent which is in effect during any relevant period, (i) as prescribed by the Board (or any successor) for determining the reserve requirements (including supplemental, marginal and emergency reserve requirements) with respect to eurocurrency funding of a member bank in such system; and (ii) to be maintained by a Lender as required for reserve liquidity, special deposit, or a similar purpose by any governmental or monetary authority of any country or political subdivision thereof (including any central bank), against (A) any category of liabilities that includes deposits by reference to which an Adjusted LIBO Rate is to be determined, or (B) any category of extension of credit or other assets that includes Eurocurrency Borrowings.


 


“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 Documents” means this Agreement, each Borrowing Subsidiary Agreement, each Borrowing Subsidiary Termination, any promissory notes issued pursuant to Section 2.10(e), any Letter of Credit applications and any and all other agreements, instruments, documents and certificates identified in Section 4.01 executed and delivered to, or in favor of, the Administrative Agent, the Syndication Agent or any Lenders.  Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative.


 


“Loans” means the loans made by the Lenders to the Borrowers pursuant to this Agreement.


 


“Mandatory Cost” means in relation to any Loan that is denominated in any Foreign Currency for any Interest Period, the cost as calculated by each Lender in accordance with Schedule 2.02 of compliance with the mandatory liquid assets requirements or other reserve, special deposit, assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (or its applicable lending office) of the Bank of England, the European Central Bank or other applicable central bank or similar authority, as applicable, during that Interest Period.


 


 




  





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“Material Adverse Change” has the meaning assigned to such term in Section 3.02(b).


 


“Material Adverse Effect” means an effect on the business, financial condition, assets or liabilities of the Company 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 Company and its Consolidated Subsidiaries, considered on a consolidated basis: (i) would have a material adverse effect on the ability of any Borrower to perform its obligations under the Loan Documents or (ii) would result in a material adverse change in the financial condition of the Company and its Restricted Subsidiaries, considered on a consolidated basis.


 


“Maturity Date” means May 4, 2017.


 


“Moody’s” means Moody’s Investors Service, Inc.


 


“Moody’s Rating” means, at any time, the rating issued by Moody’s and then in effect with respect to the Company’s senior unsecured long-term debt securities without third-party credit enhancement or, if no such rating is in effect, Moody’s general corporate rating with respect to the Company.


 


 “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.


 


“Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations and indebtedness (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) of the Borrowers arising or incurred under this Agreement or any of the other Loan Documents, or in respect of any of the Loans made or reimbursement or other obligations incurred or any of the Letters of Credit or other instruments at any time evidencing any thereof.


 


“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).


 


“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19).


 


“Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.


 


“Participant” has the meaning assigned to such term in Section 9.04.


 


 




  





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“Participant Register” has the meaning assigned to such term in Section 9.04(c).


 


“Participating Member State” means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Union relating to economic and monetary union.


 


“Patriot Act” means USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).


 


“Payment Date” means the first day of each calendar quarter after the date hereof and the Maturity Date, or any earlier date to which the Maturity Date may be accelerated.


 


 “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.


 


“Permitted Acquisition” means any acquisition (whether by purchase, merger, consolidation or otherwise but excluding in any event a Hostile Acquisition) or series of related acquisitions by the Company or any Restricted Subsidiary of (i) all or substantially all the assets of, (ii) all or substantially all the Equity Interests in, or (iii) such amount of assets or Equity Interests as allows the Company or such Restricted Subsidiary to become a Controlling Person in, a Person, or division or line of business of a Person, if, at the time of and immediately after giving effect thereto, (a) no Default has occurred and is continuing or would arise after giving effect thereto, (b) the Company is in compliance, on a pro forma basis, with the covenants contained in Section 6.13 recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available, as if such acquisition (and any related incurrence or repayment of Indebtedness, with any new Indebtedness being deemed to be amortized over the applicable testing period in accordance with its terms) had occurred on the first day of each relevant period for testing such compliance, (c) the representations and warranties of the Borrowers set forth in this Agreement and all other Loan Documents are true and correct, except to the extent that the same specifically relate to an earlier date and (d) in the case of an acquisition or merger involving the Company or a Restricted Subsidiary, the Company or such Restricted Subsidiary is the surviving entity of such merger and/or consolidation.


 


 “Permitted Investments” has the meaning assigned to such term in Section 6.03.


 


 “Permitted Liens” means:


 


(i)           Liens securing the payment of Taxes and special assessments, either not yet due or the validity of which is being contested by the Person being charged in good faith by appropriate proceedings, and as to which it has set aside on its books adequate reserves to the extent required by GAAP;


 


(ii)           deposits 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;


 


(iii)           Liens imposed by law, such as carriers’, warehousemen’s or mechanics’ liens and liens of landlords or mortgagees of landlords arising by operation of law on property located on leased premises, incurred by it in good faith in the ordinary course of business;


 


 




  





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(iv)           Liens incurred in connection with the lease or acquisition of fixed or capital assets limited to the specific assets acquired with such lease or financing or Capital Lease Obligation (subject to the acquisition of such assets and incurrence of such debt being otherwise permitted by the terms of this Agreement);


 


(v)           Liens existing on the date of this Agreement securing Indebtedness outstanding on the date of this Agreement and set forth on Schedule 1.02;


 


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


 


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


 


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


 


(ix)           any Lien arising out of the refinancing, extension, renewal or refunding of any Indebtedness secured by any Lien permitted by any of the foregoing clauses (iv), (v), (vi), (vii) or (viii) of this definition; provided that such Indebtedness is not increased and is not secured by any additional assets;


 


(x)           Liens incidental to the conduct of the business of the Company or its Subsidiaries or the ownership of their respective assets which (i) do not secure Indebtedness, (ii) do not secure any obligation, or related series of obligations, in an amount exceeding $40,000,000 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 Company or its Subsidiaries;


 


(xi)           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;


 


(xii)           any judgment Lien, unless (a) 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 or (b) the judgment it secures would result in an Event of Default under Section 7(h);


 


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


 


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


 


 




  





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(xv)           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 Company 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 Company or any Subsidiary with the issuing banks, and any other claims of the Company or any Subsidiary against the issuing banks; and all property claims and demands and all rights and interests therein of the Company 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


 


(xvi)           any Lien on accounts of the Company 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 any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.


 


“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Company or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.


 


“PNC” means PNC Bank, National Association.


 


“Pounds Sterling” means the lawful currency of the United Kingdom.


 


“Prime Rate” means the interest rate per annum announced from time to time by the Administrative Agent at its Principal Office as its then prime rate, which rate may not be the lowest or most favorable rate then being charged commercial borrowers or others by the Administrative Agent.  Any change in the Prime Rate shall take effect at the opening of business on the day such change is announced.


 


“Principal Office” means the main banking office of the Administrative Agent in Pittsburgh, Pennsylvania.


 


“Published Rate” means the rate of interest published each Business Day in The Wall Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates” for a one month period (or, if no such rate is published therein for any reason, then the Published Rate shall be the rate at which Dollar deposits are offered by leading banks in the London interbank deposit market for a one month period as published in another publication selected by the Administrative Agent).


 


“Rating Agencies” means each of Fitch, Moody’s and S&P.


 


 




  





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“Recipient” means (a) the Administrative Agent, (b) any Lender, (c) any Issuing Bank and (d) the Syndication Agent, as applicable.


 


“Register” has the meaning assigned to such term in Section 9.04.


 


“Regulation D, O, S-T, T, U or X” means Regulation D, O, S-T, 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.


 


“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.


 


“Required Lenders” means, at any time, Lenders having Revolving Credit Exposures and unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures and unused Commitments at such time.


 


“Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer or assistant treasurer of the Company.  Any document delivered hereunder that is signed by a Responsible Officer of the Company shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the Company and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Company.


 


“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 Company 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 Company 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 Company at any date, all Unrestricted Subsidiaries designated as such pursuant to Section 6.07.


 


“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline Exposure at such time.


 


“Revolving Loan” means a Loan made pursuant to Section 2.01.


 


“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business.


 


“S&P Rating” means, at any time, the rating issued by S&P and then in effect with respect to the Company’s senior unsecured long-term debt securities without third-party credit enhancement or, if no such rating is in effect, S&P’s general corporate rating with respect to the Company.


 


 




  





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“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 Company or any of its Subsidiaries of any property, whether owned by the Company or any of its Subsidiaries as of the Effective Date or later acquired, which has been or is to be sold or transferred by the Company 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.


 


“SEC” means the United States Securities and Exchange Commission.


 


“Securities Act” means the Securities Act of 1933, as amended, and any successor statute thereto, together with the rules and regulations promulgated thereunder.


 


“Status” means either Category 1 Status, Category 2 Status, Category 3 Status or Category 4 Status, each as set forth in the definition of “Applicable Rate”.


 


“Subordinated Indebtedness” means any Indebtedness of the Company or any Subsidiary the payment of which is subordinated to payment of the obligations under the Loan Documents in a manner reasonably satisfactory to the Administrative Agent.


 


“Subordinated Indebtedness Documents” means any document, agreement or instrument evidencing any Subordinated Indebtedness or entered into in connection with any Subordinated Indebtedness.


 


“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 Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time.  The Swingline Exposure of any Lender at any time shall be its Applicable Percentage of the total Swingline Exposure at such time.


 


“Swingline Lender” means PNC Bank, National Association, in its capacity as lender of Swingline Loans hereunder.


 


“Swingline Loan” means a Loan made pursuant to Section 2.05.


 


“Swingline Loan Request” means a Swingline Loan Request substantially in the form of Exhibit F-2.


 


 




  





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“Syndication Agent” means JPMorgan Chase Bank, N.A. in its capacity as syndication agent for the credit facility evidenced by this Agreement.


 


“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET2) payment system (or, if such payment system ceases to be operative, such other payment system (if any) reasonably determined by the Administrative Agent to be a suitable replacement) for the settlement of payments in euro.


 


“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.


 


“Transactions” means the execution, delivery and performance by the Borrowers of this Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.


 


“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.


 


“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.


 


“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(f)(ii)(B)(3).


 


“Unrestricted Subsidiary” means any Subsidiary which would otherwise be a Consolidated Subsidiary, but which has been designated as an Unrestricted Subsidiary by the Company pursuant to the provisions of Section 6.07.







“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.







“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.


 


“Withholding Agent” means any Borrower and the Administrative Agent.


 


“Worthington Receivables” means Worthington Receivables Corporation, a Delaware corporation established as a “special purpose entity” for the Company’s trade receivables securitization facility.


 


SECTION 1.02. Classification of Loans and Borrowings.  For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency Revolving Loan”).  Borrowings also may be classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g., a “Eurocurrency Revolving Borrowing”).


 


 




  





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SECTION 1.03. Terms Generally.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  The word “law” shall be construed as referring to 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.  Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein), (b) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (c) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (e) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (g) unless otherwise specified, all references herein to times of day shall be references to Eastern time.


 


SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations.  (a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Company notifies the Administrative Agent and the Syndication Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Company that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision  amended in accordance herewith.  Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Company or any Subsidiary at “fair value”, as defined therein and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof.


 


 




  





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(b)  All pro forma computations required to be made hereunder giving effect to any acquisition or disposition, or issuance, incurrence or assumption of Indebtedness, or other transaction shall in each case be calculated giving pro forma effect thereto (and, in the case of any pro forma computation made hereunder to determine whether such acquisition or disposition, or issuance, incurrence or assumption of Indebtedness, or other transaction is permitted to be consummated hereunder, to any other such transaction consummated since the first day of the period covered by any component of such pro forma computation and on or prior to the date of such computation) as if such transaction had occurred on the first day of the period of four consecutive fiscal quarters ending with the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(b) or 5.01(c) (or, prior to the delivery of any such financial statements, ending with the last fiscal quarter included in the financial statements referred to in Section 3.04(a)), and, to the extent applicable, to the historical earnings and cash flows associated with the assets acquired or disposed of (but without giving effect to any synergies or cost savings) and any related incurrence or reduction of Indebtedness, all in accordance with Article 11 of Regulation S-X under the Securities Act. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Derivatives Agreement applicable to such Indebtedness).


 


SECTION 1.05. Status of Obligations.  In the event that the Company or any other Borrower shall at any time issue or have outstanding any Subordinated Indebtedness, the Company shall take or cause such other Borrower to take all such actions as shall be necessary to cause the Obligations to constitute senior indebtedness (however denominated) in respect of such Subordinated Indebtedness and to enable the Administrative Agent and the Lenders to have and exercise any payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness.  Without limiting the foregoing, the Obligations are hereby designated as “senior indebtedness” and as “designated senior indebtedness” and words of similar import under and in respect of any indenture or other agreement or instrument under which such Subordinated Indebtedness is outstanding and are further given all such other designations as shall be required under the terms of any such Subordinated Indebtedness in order that the Lenders may have and exercise any payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness.


 


ARTICLE II


 


The Credits


 


SECTION 2.01. Commitments.  Subject to the terms and conditions set forth herein, each Lender agrees to make Revolving Loans to the Borrowers in Agreed Currencies from time to time during the Availability Period in an aggregate principal amount that will not result in (a) subject to Sections 2.04 and 2.11(b), the Dollar Amount of such Lender’s Revolving Credit Exposure exceeding such Lender’s Commitment, (b) subject to Sections 2.04 and 2.11(b), the sum of the Dollar Amount of the total Revolving Credit Exposures exceeding the Aggregate Commitment or (c) subject to Sections 2.04 and 2.11(b), the Dollar Amount of the total outstanding Revolving Loans and LC Exposure, in each case denominated in Foreign Currencies, exceeding the Foreign Currency Sublimit.  Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans.


 


SECTION 2.02. Loans and Borrowings.  (a) Each Revolving Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their respective Commitments.  The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.  Any Swingline Loan shall be made in accordance with the procedures set forth in Section 2.05.


 


 




  





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(b) Subject to Section 2.14, each Revolving Borrowing shall be comprised entirely of ABR Loans or Eurocurrency Loans as the relevant Borrower may request in accordance herewith; provided that each ABR Loan shall only be made in Dollars.  Each Swingline Loan shall be an ABR Loan or a Loan at another interest rate agreed upon by the Swingline Lender and the Company.  Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.14, 2.15, 2.16 and 2.17 shall apply to such Affiliate to the same extent as to such Lender); provided that any exercise of such option shall not affect the obligation of the relevant Borrower to repay such Loan in accordance with the terms of this Agreement.  No Borrowing made in an Agreed Currency may be converted into an ABR Loan or a Eurocurrency Loan denominated in another currency.


 


(c) At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000; provided that such limitations shall not apply to Borrowings in Foreign Currencies.  At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $1,000,000; provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Aggregate Commitment or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e).  Each Swingline Loan shall be in an amount that is not less than $100,000.  Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of ten (10) Eurocurrency Revolving Borrowings outstanding.


 


(d) Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.


 


SECTION 2.03. Requests for Revolving Borrowings.  To request a Revolving Borrowing, the applicable Borrower, or the Company on behalf of the applicable Borrower, shall notify the Administrative Agent of such request (a) by irrevocable written notice (via a written Borrowing Request in a form approved by the Administrative Agent and signed by the applicable Borrower, or the Company on behalf of the applicable Borrower, promptly followed by telephonic confirmation of such request) in the case of a Eurocurrency Borrowing, not later than 11:00 a.m., three (3) Business Days (in the case of a Eurocurrency Borrowing denominated in Dollars) or by irrevocable written notice (via a written Borrowing Request in a form approved by the Administrative Agent and signed by such Borrower, or the Company on its behalf)  not later than four (4) Business Days (in the case of a Eurocurrency Borrowing denominated in a Foreign Currency), in each case before the date of the proposed Borrowing or (b) by telephone in the case of an ABR Borrowing, not later than 11:00 a.m. on the date of the proposed Borrowing; provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e) may be given not later than 10:00 a.m. on the date of the proposed Borrowing.  Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by the applicable Borrower, or the Company on behalf of the applicable Borrower.  Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:


 


(i) the aggregate amount of the requested Borrowing;


 


 




  





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(ii) the date of such Borrowing, which shall be a Business Day;


 


(iii) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;


 


(iv) in the case of a Eurocurrency Borrowing, the Agreed Currency and initial Interest Period to be applicable thereto, which shall be a period


contemplated by the definition of the term “Interest Period”; and


 


(v) the location and number of the applicable Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.07.


 


If no election as to the Type of Revolving Borrowing is specified, then, in the case of a Borrowing denominated in Dollars, the requested Revolving Borrowing shall be an ABR Borrowing.  If no Interest Period is specified with respect to any requested Eurocurrency Revolving Borrowing, then the relevant Borrower shall be deemed to have selected an Interest Period of one month’s duration.  Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.


 


SECTION 2.04. Utilization of Commitments in a Foreign Currency.


 


(a) Determination of Dollar Amounts.  The Administrative Agent will determine the Dollar Amount of:


 


(i) each proposed Eurocurrency Borrowing and Letter of Credit, on the requested borrowing date or date of issuance, as the case may be,


and each outstanding Eurocurrency Borrowing as of the last day of each Interest Period,


 


(ii) the LC Exposure as of the last day of each calendar month, and


 


(iii) all outstanding Credit Events on and as of the last Business Day of each calendar quarter and, during the continuation of an Event of Default,


on any other Business Day elected by the Administrative Agent in its discretion or upon instruction by the Required Lenders.


 


Each day upon or as of which the Administrative Agent determines Dollar Amounts as described in the preceding clauses (i), (ii) and (iii) is herein described as a “Computation Date” with respect to each Credit Event for which a Dollar Amount is determined on or as of such day.


 


(b) Foreign Currency Amounts.  Notwithstanding anything contained herein to the contrary, the Administrative Agent may, with respect to notices by any Borrower for Loans in a Foreign Currency or voluntary prepayments of less than the full amount of a Borrowing in a Foreign Currency, engage in reasonable rounding of the Foreign Currency amounts requested to be loaned or repaid, and any Borrower’s request or notice shall thereby be deemed to reflect such rounded amounts.


 


(c) Requests for Additional Agreed Currencies.  The Borrowers may deliver to the Administrative Agent a written request that Loans hereunder also be permitted to be made in any other lawful currency (other than Dollars), in addition to the currencies specified in the definition of “Agreed Currencies” herein, provided that such currency is readily available and freely transferable and convertible into Dollars and available in the London interbank deposit market.  After receipt of any such request, the Administrative Agent will promptly notify the Lenders thereof.  The Administrative Agent and each Lender may accept such request in their sole discretion.  The Administrative Agent will promptly notify the Borrowers of the acceptance or rejection by the Administrative Agent and each of the Lenders of the Borrowers’ request.  The requested currency shall be approved as an Agreed Currency hereunder only if the Administrative Agent and all of the Lenders approve of the Borrowers’ request.


 


 




  





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SECTION 2.05. Swingline Loans.  (a) Subject to the terms and conditions set forth herein, the Swingline Lender may make (but shall not be required to make) Swingline Loans in Dollars to the Company from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $40,000,000 or (ii) the Dollar Amount of the total Revolving Credit Exposures exceeding the Aggregate Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan.  Within the foregoing limits and subject to the terms and conditions set forth herein, the Company may borrow, prepay and reborrow Swingline Loans.


 


(b) To request a Swingline Loan, the Company shall notify the Administrative Agent of such request by telephone (confirmed by telecopy of a Swingline Loan Request), not later than 2:00 p.m. on the day of a proposed Swingline Loan, it being understood that the Administrative Agent may rely on the authority of any individual making such telephonic request without the necessity of receipt of such written telecopy.  Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and principal amount of the requested Swingline Loan, which shall not be less than $100,000.  The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Company.  The Swingline Lender shall make each Swingline Loan to the Company by wire transfer to the Company’s bank account specified in the Swingline Loan Request (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e), by remittance to the relevant Issuing Bank) by 4:00 p.m. on the requested date of such Swingline Loan, unless the Administrative Agent shall have notified the Swingline Lender that any applicable condition specified in Article IV hereof has not been satisfied.


 


(c) The Swingline Lender may by written notice given to the Administrative Agent on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding.  Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate.  Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each  Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans.  Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender (whether or not the conditions specified in Article IV hereof are then satisfied), such Lender’s Applicable Percentage of such Swingline Loan or Loans, which payment shall be due by the time the Swingline Lender requests (which shall not be earlier than 3:00 p.m. on the Business Day next after the date the Lenders receive such notice from the Administrative Agent).  Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders.  The Administrative Agent shall notify the Company of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender from the Company (or other party on behalf of the Company) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Company for any reason.  The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Company of any default in the payment thereof.


 


 




  





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SECTION 2.06. Letters of Credit.  (a) General.  Subject to the terms and conditions set forth herein, the Company may request the issuance of Letters of Credit for its own account, in a form reasonably acceptable to the Administrative Agent and the relevant Issuing Bank, at any time and from time to time during the Availability Period.  In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Company to, or entered into by the Company with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.  Each Existing Letter of Credit shall for all purposes be deemed to be a Letter of Credit issued under this Agreement on the Effective Date.


 


(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Company shall, by 10:00 a.m. at least five Business Days prior to the proposed date of issuance (or such later date in advance of the proposed date of issuance as the relevant Issuing Bank may agree in its sole discretion),  hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the relevant Issuing Bank) to the relevant Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the Agreed Currency applicable thereto, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit.  If requested by the relevant Issuing Bank, the Company also shall submit a letter of credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit.  Unless the relevant Issuing Bank shall have received notice from any Lender, the Administrative Agent or any Borrower, at least one day prior to the requested date of issuance, amendment or extension of the applicable Letter of Credit, that one or more applicable conditions in Article IV hereof are not satisfied, then subject to the terms and conditions hereof, a Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Company shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) subject to Sections 2.04 and 2.11(b), the Dollar Amount of the LC Exposure shall not exceed $50,000,000, (ii) subject to Sections 2.04 and 2.11(b), the sum of the Dollar Amount of the total Revolving Credit Exposures shall not exceed the Aggregate Commitment and (iii) subject to Sections 2.04 and 2.11(b), the Dollar Amount of the total outstanding Revolving Loans and LC Exposure, in each case denominated in Foreign Currencies, shall not exceed the Foreign Currency Sublimit.  The Issuing Bank shall provide a copy of the issued Letter of Credit to the Administrative Agent within five Business Days after the issuance of such Letter of Credit.


 


 




  





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(c) Expiration Date.  Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five (5) Business Days prior to the Maturity Date; provided, however, that the expiry date of a Letter of Credit may be up to one (1) year later than the fifth Business Day prior to the Maturity Date if the Company has posted on or before the fifth Business Day prior to the Maturity Date cash collateral in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders (the “LC Collateral Account”) on terms and conditions satisfactory to the applicable Issuing Bank, the Syndication Agent and the Administrative Agent in an amount equal to 105% of the face amount of such Letter of Credit.  The Borrowers hereby grant for the benefit of the Issuing Banks a security interest in all cash collateral pledged pursuant to this section or otherwise in this Agreement.


 


(d) Participations.  By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Banks or the Lenders, each Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from each Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate Dollar Amount available to be drawn under such Letter of Credit.  In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the relevant Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Company on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the Company for any reason.  Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.


 


(e) Reimbursement.  If an Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Company shall reimburse such LC Disbursement by paying to the Administrative Agent in Dollars the Dollar Amount equal to such LC Disbursement, calculated as of the date such Issuing Bank made such LC Disbursement (or if such Issuing Bank shall so elect in its sole discretion by notice to the Company, in such other Agreed Currency which was paid by such Issuing Bank pursuant to such LC Disbursement in an amount equal to such LC Disbursement) not later than 12:00 noon on the date that such LC Disbursement is made, if the Company shall have received notice of such LC Disbursement prior to 10:00 a.m. on such date, or, if such notice has not been received by the Company prior to such time on such date, then not later than 12:00 noon on the Business Day immediately following the day that the Company receives such notice, if such notice is not received prior to such time on the day of receipt; provided that, if such LC Disbursement is not less than the Dollar Amount of $1,000,000, the Company may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or 2.05 that such payment be financed with an ABR Revolving Borrowing or Swingline Loan in an equivalent Dollar Amount of such LC Disbursement and, to the extent so financed, the Company’s obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing or Swingline Loan.  If the Company fails to make such payment when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Company in respect thereof and such Lender’s Applicable Percentage thereof.  Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Company, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the relevant Issuing Bank the amounts so received by it from the Lenders.  Promptly following receipt by the Administrative Agent of any payment from the Company pursuant to this paragraph, the Administrative Agent shall distribute such payment to the relevant Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear.  Any payment made by a Lender pursuant to this paragraph to reimburse an Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the Company of its obligation to reimburse such LC Disbursement.


 


 




  





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(f) Obligations Absolute.  The Company’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever including the following circumstances:


 


(i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein;


 


(ii) payment by any Issuing Bank or any of its Affiliates under a Letter of Credit against presentation of a demand, draft, certificate


or other document that does not comply with the terms of such Letter of Credit;


 


(iii) any claim of breach of warranty that might be made by any Borrower or any Lender against any beneficiary of a Letter of Credit,


or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which any Borrower or any Lender may


have at any time against a beneficiary, successor beneficiary any transferee or assignee of any Letter of Credit or the proceeds thereof


(or any Persons for whom any such transferee may be acting), any Issuing Bank or any of its Affiliates or any Lender or any other Person,


whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying


transaction between any Borrower or its Subsidiaries and the beneficiary for which any Letter of Credit was procured);


 


(iv) the lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or


lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document


presented under or in connection with any Letter of Credit, or any fraud or alleged fraud in connection with any Letter of Credit, or the


transport of any property or provision of services relating to a Letter of Credit, or any statement therein being untrue or inaccurate in any


respect, in each case even if any Issuing Bank or any of its Affiliates has been notified thereof;


 


(v) the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction


or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property


or services relating to a Letter of Credit;


 


(vi) any failure by any Issuing Bank or any of its Affiliates to issue any Letter of Credit in the form requested by any Borrower, unless such


Issuing Bank has received written notice from such Borrower of such failure within three Business Days after such Issuing Bank shall have


furnished such Borrower and the Administrative Agent a copy of such Letter of Credit and such error is material and no drawing has been made


thereon prior to receipt of such notice;


 


 




  





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(vii) any adverse change in the business, assets, financial condition or operations of the Company and its Consolidated Subsidiaries, considered as a whole;


 


(viii) any breach of this Agreement or any other Loan Document by any party thereto;


 


(ix) the occurrence or continuance of an Bankruptcy Event with respect to any Borrower;


 


(x) the fact that an Event of Default or a Default shall have occurred and be continuing;


 


(xi) the fact that the Maturity Date shall have passed or this Agreement or the Commitments hereunder shall have been terminated; and


 


(xii) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this


Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Company’s obligations hereunder, any set-off,


counterclaim, recoupment, defense or other right which such Lender may have against any Issuing Bank or any of its Affiliates, any Borrower


or any other Person for any reason whatsoever, or which any Borrower may have against any Issuing Bank or any of its Affiliates, any


Lender or any other Person for any reason whatsoever.


 


Except as otherwise provided, and subject to the specific limitations set forth, in this Agreement, each Borrower hereby agrees to protect, indemnify, pay and save harmless the Issuing Banks and any of their respective Affiliates that has issued a Letter of Credit from and against any and all losses, claims, damages, liabilities, costs, Taxes (solely to the extent that such Taxes represent losses, claims or damages arising from any non-Tax claim) and related expenses, including the fees, charges and disbursements of any outside counsel, which such Issuing Bank or any of its Affiliates may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, other than as a result of (A) the gross negligence or willful misconduct of such Issuing Bank as determined by a final non-appealable judgment of a court of competent jurisdiction or (B) the wrongful dishonor by such Issuing Bank or any of such Issuing Bank's Affiliates of a proper demand for payment made under any Letter of Credit, except if such dishonor resulted from any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority.


 


As between any Borrower and any Issuing Bank, or any Issuing Bank's Affiliates, such Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit.  In furtherance and not in limitation of the foregoing, no Issuing Bank shall be responsible for any of the following, including any losses or damages to any Borrower or other Person or property relating therefrom:  (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the relevant Issuing Bank or its Affiliates shall have been notified thereof); (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any Borrower and any beneficiary of any Letter of Credit or any such transferee; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of any Issuing Bank or its Affiliates, as applicable, including any act or omission of any Governmental Authority, and none of the above shall affect or impair, or prevent the vesting of, any of any Issuing Bank's or its Affiliates rights or powers hereunder.  Nothing in the preceding sentence shall relieve any Issuing Bank from liability for such Issuing Bank's gross negligence or willful misconduct in connection with actions or omissions described in such clauses (i) through (viii) of such sentence.  In no event shall any Issuing Bank or its Affiliates be liable to any Borrower for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit.


 


 




  





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Without limiting the generality of the foregoing, each Issuing Bank and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by such Issuing Bank or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented on their face substantially comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuing Bank or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuing Bank or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document and honor any drawing in connection with any Letter of Credit that is the subject of such order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.


 


In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by any Issuing Bank or its Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put any Issuing Bank or its Affiliates under any resulting liability to the Borrower or any Lender.


 


(g) Disbursement Procedures.  Each Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit.  Each Issuing Bank shall promptly notify the Administrative Agent and the Company by telephone (confirmed by telecopy) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Company of its obligation to reimburse such Issuing Bank and the Lenders with respect to any such LC Disbursement.


 


 




  





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(h) Interim Interest.  If an Issuing Bank shall make any LC Disbursement, then, unless the Company shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Company reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that, if the Company fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.13(d) shall apply.  Interest accrued pursuant to this paragraph shall be for the account of the relevant Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to paragraph (e) of this Section to reimburse an Issuing Bank shall be for the account of such Lender to the extent of such payment.


 


(i) Replacement of Issuing Bank.  An Issuing Bank may be replaced at any time by written agreement among the Company, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.  The Administrative Agent shall notify the Lenders of any such replacement of an Issuing Bank.  At the time any such replacement shall become effective, the Company shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b).  From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the Issuing Banks under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require.  After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit then outstanding and issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.


 


(j) Cash Collateralization.  If any Event of Default shall occur and be continuing, on the Business Day that the Company receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the Company shall deposit in the LC Collateral Account an amount in Dollars in cash equal to 105% of the Dollar Amount of the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Company described in clause (h) or (i) of Article VII.  For the purposes of this paragraph, the Dollar Amount of the Foreign Currency LC Exposure shall be calculated on the date notice demanding cash collateralization is delivered to the Company.  The Company also shall deposit cash collateral pursuant to this paragraph as and to the extent required by Section 2.11(b).  Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the Obligations.  The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account.  Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Company’s risk and expense, such deposits shall not bear interest.  Interest or profits, if any, on such investments shall accumulate in such account.  Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Banks for LC Disbursements for which they have not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Company for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure  representing greater than 50% of the total LC Exposure), be applied to satisfy other Obligations.  If the Company is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Company within three (3) Business Days after all Events of Default have been cured or waived.


 


 




  





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SECTION 2.07. Funding of Borrowings.  (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds (i) in the case of Loans denominated in Dollars, by 2:00 p.m., to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders and (ii) in the case of each Loan denominated in a Foreign Currency, by 2:00 p.m., in the city of the Administrative Agent’s Eurocurrency Payment Office for such currency and at such Eurocurrency Payment Office for such currency; provided that Swingline Loans shall be made as provided in Section 2.05.  The Administrative Agent will make such Loans available to the relevant Borrower by promptly crediting the amounts so received, in like funds, to (x) an account of the Company maintained with the Administrative Agent in Pittsburgh, Pennsylvania and designated by the Company in the applicable Borrowing Request, in the case of Loans denominated in Dollars and (y) an account of such Borrower in the relevant jurisdiction and designated by such Borrower in the applicable Borrowing Request, in the case of Loans denominated in a Foreign Currency; provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the relevant Issuing Bank.


 


(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any 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 on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and such Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of such Borrower, the interest rate applicable to ABR Loans.  If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.


 


SECTION 2.08. Interest Elections.  (a) Each Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.  Thereafter, the relevant Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect Interest Periods therefor, all as provided in this Section.  A Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.  This Section shall not apply to Swingline Borrowings, which may not be converted or continued.


 


(b) To make an election pursuant to this Section, a Borrower, or the Company on its behalf, shall notify the Administrative Agent of such election (by telephone or irrevocable written notice in the case of a Borrowing denominated in Dollars or by irrevocable written notice (via an Interest Election Request in a form approved by the Administrative Agent and signed by such Borrower, or the Company on its behalf) in the case of a Borrowing denominated in a Foreign Currency) by the time that a Borrowing Request would be required under Section 2.03 if such Borrower were requesting a Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election.  Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by the relevant Borrower, or the Company on its behalf.  Notwithstanding any contrary provision herein, this Section shall not be construed to permit any Borrower to (i) change the currency of any Borrowing, (ii) elect an Interest Period for Eurocurrency Loans that does not comply with Section 2.02(d) or (iii) convert any Borrowing to a Borrowing of a Type not available under such Borrowing.


 


 




  





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(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:


 


(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different


portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant


to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);


 


(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;


 


(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing; and


 


(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period and Agreed Currency to be applicable thereto after giving


effect to such election, which Interest Period shall be a period contemplated by the definition of the term “Interest Period”.


 


If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an Interest Period, then the applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration.


 


(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.


 


(e) If the relevant Borrower fails to deliver a timely Interest Election Request with respect to a Eurocurrency Revolving Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period (i) in the case of a Borrowing denominated in Dollars, such Borrowing shall be converted to an ABR Borrowing and (ii) in the case of a Borrowing denominated in a Foreign Currency in respect of which the applicable Borrower shall have failed to deliver an Interest Election Request prior to the third (3rd) Business Day preceding the end of such Interest Period, such Borrowing shall automatically continue as a Eurocurrency Borrowing in the same Agreed Currency with an Interest Period of one month unless such Eurocurrency Borrowing is or was repaid in accordance with Section 2.11.  Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Company, then, so long as an Event of Default is continuing (i) no outstanding Revolving Borrowing denominated in Dollars may be converted to or continued as a Eurocurrency Borrowing, (ii) unless repaid, each Eurocurrency Revolving Borrowing denominated in Dollars shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto and (iii) unless repaid, each Eurocurrency Revolving Borrowing denominated in a Foreign Currency shall automatically be continued as a Eurocurrency Borrowing with an Interest Period of one month.


 


 




  





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(f) The Company may call the Administrative Agent on or before the date on which an Interest Election Request is to be delivered to receive an indication of the rates and the applicable currency exchange rates then in effect, but it is acknowledged that such projection shall not be binding on the Administrative Agent or the Lenders nor affect the rate of interest which thereafter is actually in effect when the election is made.


 


SECTION 2.09. Termination and Reduction of Commitments.  (a) Unless previously terminated, the Commitments shall terminate on the Maturity Date.


 


(b) The Company may at any time terminate, or from time to time reduce, the Commitments; provided that (i) each reduction of the Commitments shall be in an amount that is an integral multiple of $5,000,000 and not less than $1,000,000 and (ii) the Company shall not terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.11, the Dollar Amount of the sum of the Revolving Credit Exposures would exceed the Aggregate Commitment.


 


(c) The Company shall notify the Administrative Agent of any election to terminate or reduce the Commitments under paragraph (b) of this Section at least five (5) Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Company pursuant to this Section shall be irrevocable; provided that a notice of termination of the Commitments delivered by the Company may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Company (by notice to the Administrative Agent prior to, or by 10:00 a.m. on, the specified effective date) if such condition is not satisfied.  Any termination or reduction of the Commitments shall be permanent.  Each reduction of the Commitments shall be made ratably among the Lenders in accordance with their respective Commitments.  The Borrowers shall pay to the Administrative Agent for the account of the Lenders on the date of each termination or reduction of the Commitments any fees accrued through the date of such termination or reduction on the amount of the Commitments so terminated or reduced.


 


SECTION 2.10. Repayment of Loans; Evidence of Debt.  (a) (i) Each Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan made to such Borrower on the Maturity Date in the currency of such Loan, together with all outstanding interest thereon and (ii) the Company hereby unconditionally promises to pay to the Swingline Lender the then unpaid principal amount of each Swingline Loan, together with all outstanding interest thereon, on demand by the Swingline Lender.


 


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


 


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


 


(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; 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 obligation of any Borrower to repay the Loans in accordance with the terms of this Agreement.


 


 




  





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(e) Any Lender may request that Loans made by it to any Borrower be evidenced by a promissory note; provided that if any Lender so requests a promissory note, the Borrower will issue a promissory note to each Lender.  In such event, the relevant Borrower shall prepare, execute and deliver to each Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent.  Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if any such promissory note is a registered note, to such payee and its registered assigns).


 


SECTION 2.11. Prepayment of Loans.


 


(a) Any Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in accordance with the provisions of this Section 2.11(a).  The applicable Borrower, or the Company on behalf of the applicable Borrower, shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Revolving Borrowing, not later than three (3) Business Days (in the case of a Eurocurrency Borrowing denominated in Dollars) or four (4) Business Days (in the case of a Eurocurrency Borrowing denominated in a Foreign Currency), in each case before the date of prepayment or (ii) in the case of prepayment of an ABR Revolving Borrowing or a Swingline Loan, not later than 12:00 noon on the date of prepayment.  Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Commitments as contemplated by Section 2.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.09.  Promptly following receipt of any such notice relating to a Revolving Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof.  Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02.  Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing.  Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.13 and (ii) break funding payments pursuant to Section 2.16.


 


(b) If at any time, (i) other than as a result of fluctuations in currency exchange rates, (A) the sum of the aggregate principal Dollar Amount of all of the Revolving Credit Exposures (calculated, with respect to those Credit Events denominated in Foreign Currencies, as of the most recent Computation Date with respect to each such Credit Event) exceeds the Aggregate Commitment or (B) the sum of the aggregate principal Dollar Amount of all of the outstanding Revolving Credit Exposures denominated in Foreign Currencies (the “Foreign Currency Exposure”) (so calculated), as of the most recent Computation Date with respect to each such Credit Event, exceeds the Foreign Currency Sublimit or (ii) solely as a result of fluctuations in currency exchange rates, the Foreign Currency Exposure, as of the most recent Computation Date with respect to each such Credit Event, exceeds 105% of the Foreign Currency Sublimit, the Borrowers shall in each case immediately repay Borrowings or cash collateralize LC Exposure in an account with the Administrative Agent pursuant to Section 2.06(j), as applicable, in an aggregate principal amount sufficient to cause (x) the aggregate Dollar Amount of all Revolving Credit Exposures (so calculated) to be less than or equal to the Aggregate Commitment and (y) the Foreign Currency Exposure to be less than or equal to the Foreign Currency Sublimit, as applicable.


 


 




  





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SECTION 2.12. Fees.  (a) The Company agrees to pay to the Administrative Agent for the account of each Lender a facility fee in Dollars, which shall accrue at the Applicable Rate on the daily amount of the Commitment of such Lender (whether used or unused) during the period from and including the Effective Date to but excluding the date on which such Commitment terminates; provided that, if such Lender continues to have any Revolving Credit Exposure after its Commitment terminates, then such facility fee shall continue to accrue on the daily amount of such Lender’s Revolving Credit Exposure from and including the date on which its Commitment terminates to but excluding the date on which such Lender ceases to have any Revolving Credit Exposure.  Accrued facility fees shall be payable quarterly in arrears on each Payment Date, commencing on the first such date to occur after the date hereof; provided that any facility fees accruing after the date on which the Commitments terminate shall be payable on demand.  All facility fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).


 


(b) The Company agrees to pay (i) to the Administrative Agent for the account of each Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the same Applicable Rate used to determine the interest rate applicable to Eurocurrency Revolving Loans on such Lender’s Applicable Percentage of the face amount of all outstanding Letters of Credit during the period from and including the Effective Date to but excluding the later of the date on which such Lender’s Commitment terminates and the date on which such Lender ceases to have any LC Exposure and (ii) to each Issuing Bank for its own account a fronting fee, which shall accrue at the rate of 0.125% per annum on the face amount of all outstanding Letters of Credit issued by each Issuing Bank during the period from and including the Effective Date to but excluding the later of the date of termination of the Commitments and the date on which there ceases to be any LC Exposure, as well as each Issuing Bank’s standard fees and commissions with respect to the issuance, amendment, cancellation, negotiation, maintenance, transfer, presentment, renewal or extension of any Letter of Credit or processing of drawings thereunder.  Unless otherwise specified above, participation fees and fronting fees shall be payable quarterly in arrears on each Payment Date, commencing on the first such date to occur after the date hereof; provided that any such fees accruing after the date on which the Commitments terminate shall be payable on demand.  Any other fees payable to the Issuing Banks pursuant to this paragraph shall be payable on demand.  All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  Participation fees and fronting fees shall be paid in Dollars.


 


(c) The Company agrees to pay to (i) the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Company and the Administrative Agent and (ii) the Syndication Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Company and the Syndication Agent.


 


(d) All fees payable hereunder shall be paid on the dates due, in Dollars (except as otherwise expressly provided in this Section 2.12) and immediately available funds, to the Administrative Agent (or to the Issuing Banks or the Syndication Agent, in the case of fees payable to them) for distribution, in the case of facility fees and participation fees, to the Lenders.  Fees paid shall not be refundable under any circumstances.


 


SECTION 2.13. Interest.  (a) The Loans comprising each ABR Borrowing (including each Swingline Loan that is an ABR Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.


 


(b) The Loans comprising each Eurocurrency Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.


 


 




  





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(c) The Loans comprising each Swingline Loan shall bear interest at the Alternate Base Rate plus the Applicable Rate, or at such other interest rate agreed upon by the Company and the Swingline Lender.


 


(d) Notwithstanding the foregoing, upon the occurrence and continuance of any Event of Default, all outstanding amounts shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.  Each Borrower acknowledges that the increase in rates referred to in this Section 2.13(d) reflects, among other things, the fact that such Loans or other amounts have become a substantially greater risk given their default status and that the Lenders are entitled to additional compensation for such risk; and all such interest shall be payable by the Borrowers upon demand by the Administrative Agent.


 


(e) Accrued interest on each Revolving Loan shall be payable in arrears on each Interest Payment Date for such Revolving Loan and upon termination of the Commitments; provided that (i) interest accrued pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurocurrency Revolving Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.


 


(f) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest (i) computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and (ii) for Borrowings denominated in Foreign Currencies shall be computed on the basis of a year of 360 days or 365 days, depending upon the market practice for each such currency, and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  The applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.


 


SECTION 2.14. Alternate Rate of Interest.


 


(a) Unascertainable.  If on any date on which an Adjusted LIBO Rate would otherwise be determined, the Administrative Agent shall have determined that:


 


(i) adequate and reasonable means do not exist for ascertaining such Adjusted LIBO Rate; or


 


(ii) a contingency has occurred which materially and adversely affects the London interbank eurodollar market relating to the Adjusted


LIBO Rate; then the Administrative Agent shall have the rights specified in Section 2.14(c).


 


(b) Illegality; Increased Costs; Deposits Not Available.  If at any time any Lender shall have determined that:


 


(i) the making, maintenance or funding of any Loan to which an Adjusted LIBO Rate applies has been made impracticable or unlawful by


compliance by such Lender in good faith with any law or any interpretation or application thereof by any Governmental Authority or with


any request or directive of any such Governmental Authority (whether or not having the force of law), or


 


 




  





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(ii) such Adjusted LIBO Rate will not adequately and fairly reflect the cost to such Lender of the establishment or maintenance of any such Loan, or


 


(iii) after making all reasonable efforts, deposits of the relevant amount in Dollars or in the relevant Foreign Currency (as applicable) for the


relevant Interest Period for a Loan, or to banks generally, to which an Adjusted LIBO Rate applies, respectively, are not available to such


Lender with respect to such Loan or to banks generally, in the interbank eurodollar market,


 


then the Administrative Agent shall have the rights specified in Section 2.14(c).


 


(c) Administrative Agent's and Lenders’ Rights.  In the case of any event specified in Section 2.14(a) above, the Administrative Agent shall promptly so notify the Lenders and the Company thereof, and in the case of an event specified in Section 2.14(b) above, such Lender shall promptly so notify the Administrative Agent thereof, and the Administrative Agent shall promptly send copies of such notice to the other Lenders and the Company.  Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the obligation of (A) the Lenders, in the case of such notice given by the Administrative Agent, or (B) such Lender, in the case of such notice given by such Lender, to allow the Company to select, convert to or renew an Adjusted LIBO Rate Loan or select an Agreed Currency (as applicable) shall be suspended until the Administrative Agent shall have later notified the Company, or such Lender shall have later notified the Administrative Agent, of the Administrative Agent's or such Lender's, as the case may be, determination that the circumstances giving rise to such previous determination no longer exist.  If at any time the Administrative Agent makes a determination under Section 2.14(a) and the Company has previously notified the Administrative Agent of its selection of, conversion to or renewal of an Adjusted LIBO Rate Loan and such Interest Rate has not yet gone into effect, such notification shall be deemed to provide for selection of, conversion to or renewal of the Alternate Base Rate otherwise available with respect to such Loans.  If any Lender notifies the Administrative Agent of a determination under Section 2.14(b), the Company shall, subject to the Borrowers' obligations under Section 2.16, as to any Loan of the Lender to which the Adjusted LIBO Rate applies, on the date specified in such notice either convert such Loan to the Alternate Base Rate otherwise available with respect to such Loan or prepay such Loan in accordance with the terms and conditions of this Agreement.  Absent due notice from the Company of conversion or prepayment, such Loan shall automatically be converted to the Alternate Base Rate otherwise available with respect to such Loan upon such specified date.


 


SECTION 2.15. Increased Costs.  (a) If any Change in Law shall:


 


(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets


of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO


Rate) or any Issuing Bank;


 


(ii) impose on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes)


affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or


 


(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition


of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its


deposits, reserves, other liabilities or capital attributable thereto;


 


 




  





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and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making or maintaining any Loan or of maintaining its obligation to make any such Loan (including, without limitation, pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to increase the cost to such Lender, such Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (including, without limitation, pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to reduce the amount of any sum received or receivable by such Lender, such Issuing Bank or such other Recipient hereunder, whether of principal, interest or otherwise (including, without limitation, pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency), then the applicable Borrower will pay to such Lender, such Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, such  Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered; provided, in each case, that such Lender, such Issuing Bank or such other Recipient has requested such payments from similarly situated borrowers.


 


(b) If any Lender or any Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy and liquidity), then from time to time the applicable Borrower will pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered; provided, in each case, that such Lender or such Issuing Bank has requested such payments from similarly situated borrowers.


 


(c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Company and shall be conclusive absent manifest error.  The Company shall pay, or cause the other Borrowers to pay, such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.


 


(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to clauses (a) through (c) above shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that the Company shall not be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Company of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.


 


 




  





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(e) Notwithstanding anything to the contrary in this Section 2.15, in the event that any Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that it shall have incurred Mandatory Costs in connection with any Loans made by such Lender, each Borrower agrees, within five (5) Business Days of request by such Lender, to pay to such Lender the amount of such Mandatory Costs; provided that payments for Mandatory Costs under this paragraph shall be without duplication of any other payment under this Section 2.15.


 


SECTION 2.16. Break Funding Payments.  In the event of (a) the payment of any principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to Section 2.11), (b) the conversion of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurocurrency Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(a) and is revoked in accordance therewith) or (d) the assignment of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Company pursuant to Section 2.19, then, in any such event, the Borrowers shall compensate each Lender for the loss, cost and expense attributable to such event.  Such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for deposits in the relevant currency of a comparable amount and period from other banks in the eurocurrency market.  A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the applicable Borrower and shall be conclusive absent manifest error.  The applicable Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof.


 


SECTION 2.17. Taxes.  (a) Payments Free of Taxes.  Any and all payments by or on account of any obligation of any Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law.  If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.17) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.


 


(b) Payment of Other Taxes by the Borrowers.  The relevant Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for, Other Taxes.


 


(c) Evidence of Payments.  As soon as practicable after any payment of Taxes by any Borrower to a Governmental Authority pursuant to this Section 2.17, such Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.


 


 




  





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(d) Indemnification by the Borrowers.  The Borrowers shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the relevant Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.


 


(e) Indemnification by the Lenders.  Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrowers to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).


 


(f) Status of Lenders.


 


(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.  Notwithstanding the submission of such documentation claiming a reduced rate of or exemption from U.S. Federal withholding tax, the Borrowers and the Administrative Agent shall be entitled to withhold United States Federal income taxes at the full 30% withholding rate if in its reasonable judgment it is required to do so under the due diligence requirements imposed upon a withholding agent under § 1.1441-7(b) of the United States Income Tax Regulations.  Further, the Administrative Agent is indemnified under § 1.1461-1(e) of the United States Income Tax Regulations against any claims and demands of any Lender or assignee or participant of a Lender for the amount of any tax it deducts and withholds in accordance with regulations under § 1441 of the Code.


 


 




  





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(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person:


 


(A) any Lender that is a U.S. Person shall deliver to such Borrower and the Administrative Agent on or prior to the date on


which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of such


Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup


withholding tax;


 


(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to such Borrower and the Administrative Agent


(in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes


a Lender under this Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative


Agent), whichever of the following is applicable;


 


(1)  in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;







(2)  executed originals of IRS Form W-8ECI;







(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of such Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN; or







(4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;


 


 




  





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(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to such Borrower and the Administrative Agent


(in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes


a Lender under this Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative


Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S.


Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law


to permit such Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and


 


(D) if a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA


if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section


1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to such Borrower and the Administrative Agent at the time


or times prescribed by law and at such time or times reasonably requested by such Borrower or the Administrative Agent such


documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional


documentation reasonably requested by such Borrower or the Administrative Agent as may be necessary for such Borrower and


the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such


Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of


this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.


 


Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Company and the Administrative Agent in writing of its legal inability to do so.


 


(g) Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.  This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.


 


 




  





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(h) Survival.  Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.


 


(i) Issuing Bank.  For purposes of this Section 2.17, the term “Lender” includes each Issuing Bank.


 


SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.


 


(a) Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to (i) in the case of payments denominated in Dollars by the Company, 2:00 p.m. and (ii) in the case of payments denominated in a Foreign Currency, 12:00 noon, in the city of the Administrative Agent’s Eurocurrency Payment Office for such currency, in each case on the date when due, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrowers, in immediately available funds, without set-off, counterclaim or other deduction of any nature.  Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made (i) in the same currency in which the applicable Credit Event was made (or where such currency has been converted to euro, in euro) and (ii) to the Administrative Agent at its Principal Office or, in the case of a Credit Event denominated in a Foreign Currency, the Administrative Agent’s Eurocurrency Payment Office for such currency, except payments to be made directly to the Issuing Banks or Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto.  The Administrative Agent shall distribute any such payments denominated in the same currency received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof.  If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.


 


(b) Notwithstanding the foregoing provisions of this Section, if, after the making of any Credit Event in any Foreign Currency, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Credit Event was made (the “Original Currency”) no longer exists or any Borrower is not able to make payment to the Administrative Agent for the account of the Lenders in such Original Currency, the Required Lenders may at their option permit such payment to be made (i) at and to a different location, subsidiary, affiliate or correspondent of Administrative Agent, or (ii) in the Dollar Amount or (iii) in the Dollar Amount of such other currency (freely convertible into Dollars) as the Required Lenders may solely at their option designate.  Upon any events described in (i) through (iii) of the preceding sentence, the Borrowers shall make such payment and each Borrower agrees to hold each Lender harmless from and against any loss incurred by any Lender arising from the cost to such Lender of any premium, any costs of exchange, the cost of hedging and covering the Foreign Currency in which such Loan was originally made, and from any change in the value of Dollars, or such other currency, in relation to the Foreign Currency that was due and owing.  Such loss shall be calculated for the period commencing with the first day of the Interest Period for such Loan and continuing through the date of payment thereof.  Without prejudice to the survival of any other agreement of the parties hereunder, the Borrowers' obligations under this clause (b) shall survive termination of this Agreement.


 


(c) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.


 


 




  





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(d) At the election of the Administrative Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by a Borrower (or the Company on behalf of a Borrower) pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account of such Borrower maintained with the Administrative Agent.  Each Borrower hereby irrevocably authorizes (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) the Administrative Agent to charge any deposit account of the relevant Borrower maintained with the Administrative Agent for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents.


 


(e) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered,  such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements and Swingline Loans to any assignee or participant, other than to the Company or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply).  Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.


 


(f) Unless the Administrative Agent shall have received notice from the relevant Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Banks hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due.  In such event, if such Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.


 


 




  





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(g) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent, the Swingline Lender or any Issuing Bank to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under such Sections; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.


 


SECTION 2.19. Mitigation Obligations; Replacement of Lenders.  (a) If any Lender requests compensation under Section 2.15, or if any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Company hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.


 


(b) If (i) any Lender requests compensation under Section 2.15, (ii) any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17 or (iii) any Lender becomes a Defaulting Lender, then the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under the Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Company shall have received the prior written consent of the Administrative Agent (and if a Commitment is being assigned, the Issuing Banks), which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or payments.  A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such  assignment and delegation cease to apply.


 


 




  





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SECTION 2.20. Expansion Option.  The Company may from time to time elect to increase the Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $200,000,000.  The Company may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”), to increase their existing Commitments, or to participate in such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each Augmenting Lender shall be subject to the approval of the Company, the Syndication Agent and the Administrative Agent and (ii)(x) in the case of an Increasing Lender, the Company and such Increasing Lender execute an agreement substantially in the form of Exhibit C hereto, and (y) in the case of an Augmenting Lender, the Company and such Augmenting Lender execute an agreement substantially in the form of Exhibit D hereto.  No consent of any Lender (other than the Lenders participating in the increase or any Incremental Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this Section 2.20.  Increases and new Commitments and Incremental Term Loans created pursuant to this Section 2.20 shall become effective on the date agreed by the Company, the Syndication Agent, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof.  Notwithstanding the foregoing, no increase in the Commitments (or in the Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Company and (B) the Company shall be in compliance (on a pro forma basis) with the covenants contained in Section 6.13 and (ii) the Administrative Agent shall have received documents consistent with those delivered on the Effective Date as to the corporate power and authority of the Borrowers to borrow hereunder after giving effect to such increase.  On the effective date of any increase in the Commitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Loans of all the Lenders to equal its Applicable Percentage of such outstanding Revolving Loans, and (ii) except in the case of any Incremental Term Loans, the Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, or the Company on behalf of the applicable Borrower, in accordance with the requirements of Section 2.03).  The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan, shall be subject to indemnification by the Borrowers pursuant to the provisions of Section 2.16 if the deemed payment occurs other than on the last day of the related Interest Periods.  The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (ii) the Incremental Term Loans may be priced differently than the Revolving Loans.  Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, the Syndication Agent and the Administrative Agent.  The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Syndication Agent or the Administrative Agent, to effect the provisions of this Section 2.20.  Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder, or provide Incremental Term Loans, at any time.


 


 




  





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SECTION 2.21. [Intentionally Omitted].


 


SECTION 2.22. Judgment Currency.  If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from any Borrower hereunder in the currency expressed to be payable herein (the “specified currency”) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the specified currency with such other currency at the Administrative Agent’s Principal Office on the Business Day preceding that on which final, non-appealable judgment is given.  The obligations of each Borrower in respect of any sum due to any Lender or the Administrative Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, and whether pursuant to a judgment or otherwise, be discharged only to the extent that on the Business Day following receipt by such Lender or the Administrative Agent (as the case may be) of any sum adjudged to be so due in such other currency such Lender or the Administrative Agent (as the case may be) may in accordance with normal, reasonable banking procedures purchase the specified currency with such other currency.  If the amount of the specified currency so purchased is less than the sum originally due to such Lender or the Administrative Agent, as the case may be, in the specified currency, each Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Administrative Agent, as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds (a) the sum originally due to any Lender or the Administrative Agent, as the case may be, in the specified currency and (b) any amounts shared with other Lenders as a result of allocations of such excess as a disproportionate payment to such Lender under Section 2.18, such Lender or the Administrative Agent, as the case may be, agrees to remit such excess to such Borrower.


 


SECTION 2.23. Designation of Foreign Subsidiary Borrowers.  The Company may from time to time request that a Foreign Subsidiary be added to this Agreement and the other Loan Documents as an additional Borrower with the ability to request and receive Loans from the Lenders (each, a “Foreign Subsidiary Borrower”).  No more than five (5) requests shall be delivered during the term of this Agreement.  Each such request shall be delivered in writing to the Administrative Agent and the Lenders and shall specify the name of such Foreign Subsidiary, such Foreign Subsidiary’s jurisdiction of organization, and the Business Day on which the Company would like such joinder to be given effect.  Such request shall be delivered at least thirty (30) days prior to the date on which the Company wishes to join such Foreign Subsidiary Borrower hereto.  The Administrative Agent and the Lenders, subsequent to their receipt of such request, may ask the Company for additional information related to the proposed Foreign Subsidiary Borrower in their respective reasonable discretion.  Taxes resulting from payments to any Lender by any such Foreign Subsidiary Borrower shall not be treated as Indemnified Taxes to the extent that Taxes resulting from such payment would have been Excluded Taxes if such payments had been made by the Company.  In addition, no Lender shall be required to make Loans to such Foreign Subsidiary Borrower if such Lender shall have given notice to the Administrative Agent and the Company within fifteen (15) Business Days after its receipt of the request to join such Foreign Subsidiary Borrower hereto that such Lender has determined in good faith that it would be subject, in making Loans to such Foreign Subsidiary Borrower, to (i) regulatory or legal limitations or restrictions, (ii) material internal operations burdens or (iii) material financial disadvantage arising out of or attributable to the location or jurisdiction of organization of such Foreign Subsidiary Borrower or the nature of its activities.  If all of the Lenders inform the Administrative Agent and the Company that they are subject to such regulatory, legal or other burdens or limitations and restrictions or are otherwise disadvantaged as described above, then such Foreign Subsidiary Borrower shall not be joined hereto. If only a subset of the Lenders are unable to make Loans to such Foreign Subsidiary Borrower as a result of the foregoing, then the Administrative Agent and the Syndication Agent shall have the right to adjust (including, without limitation, tranching hereof) the provisions of Article II and the other terms and conditions of this Agreement as they may reasonably determine to enable the Lenders that are able to make Loans to such Foreign Subsidiary Borrower without becoming subject to any such regulatory or any legal restriction or limitation or such burden or financial disadvantage, and without causing the Company or any Foreign Subsidiary Borrower to incur any such disadvantages of its own (including any such disadvantage in the form of being required to indemnify Lenders for withholding payments including Taxes), to make Loans available to such Foreign Subsidiary Borrower on a non-pro rata basis with Lenders that are not so able, with such adjustments to be made in a manner that, to the extent practicable, are reasonably equitable to all the Lenders.  In order to join a Foreign Subsidiary Borrower hereto, the Company shall cause the delivery or satisfaction of the following to the Administrative Agent and the Lenders at least ten (10) Business Days prior to the date on which the Company has requested that such joinder be given effect: (i) a Borrowing Subsidiary Agreement executed by the Company, the applicable Foreign Subsidiary Borrower, the Syndication Agent and the Administrative Agent, in form and substance reasonably acceptable to each of them, pursuant to which such Foreign Subsidiary Borrower shall agree to be bound by the terms and conditions hereof and shall be entitled to request and receive Loans hereunder and (ii) all other conditions precedent set forth in Section 4.03.  Upon satisfaction of the requirements set forth in this Section 2.23, the applicable Foreign Subsidiary Borrower shall for all purposes of this Agreement be a party to this Agreement until the Company shall have executed and delivered to the Administrative Agent a Borrowing Subsidiary Termination with respect to such Subsidiary, whereupon such Subsidiary shall cease to be a Foreign Subsidiary Borrower and a party to this Agreement.  The Company, the Syndication Agent and the Administrative Agent may enter into an amendment hereto, in form and substance reasonably acceptable to each of them, to give further effect to the addition of such Foreign Subsidiary Borrower hereto, and the Lenders authorize the Syndication Agent and the Administrative Agent to enter into such an amendment; provided, however, that such amendment shall be technical and ministerial in nature and shall be focused solely on appropriately inserting the Foreign Subsidiary Borrower into this Agreement and the other Loan Documents.  The Company shall guarantee the Obligations of each Foreign Subsidiary Borrower pursuant to Article X. Each Foreign Subsidiary that is or becomes a Foreign Subsidiary Borrower pursuant hereto hereby irrevocably appoints the Company as its agent for all purposes relevant to this Agreement and each related document, including service of process.  For the avoidance of doubt, no Lender shall be required to make any Loans to any Foreign Subsidiary Borrower if in contravention of applicable laws.


 


 




  





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SECTION 2.24. Defaulting Lenders.  Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:


 


(a) fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section 2.12(a);


 


(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;


 


(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:


 


 




  





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(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;


 


(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant Issuing Bank only the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(j) for so long as such LC Exposure is outstanding;


 


(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;


 


(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and


 


(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Banks or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and


 


(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.24(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.24(c)(i) (and such Defaulting Lender shall not participate therein).


 


If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the relevant Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder.


 


 




  





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In the event that the Administrative Agent, the Syndication Agent, the Company, the Swingline Lender and each Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.


 


ARTICLE III


 


Representations and Warranties


 


Each Borrower represents and warrants to the Lenders that:


 


SECTION 3.01. Organization.  The Company and each of its Active Restricted Subsidiaries is a corporation duly organized and in good standing under the laws of the state of its incorporation, is duly qualified in all jurisdictions where required by the conduct of its business or ownership of its assets, except where the failure to so qualify would not have a Material Adverse Effect, and has the power and authority to own and operate its assets and to conduct its business as is now done.


 


SECTION 3.02. Financial Condition.


 


(a) Audited Financial Statements.  The consolidated balance sheet of the Company and its Consolidated Subsidiaries as of May 31, 2011 and the related consolidated statements of income and cash flows for the fiscal year then ended, reported on by KPMG LLP and set forth in the Company’s 2011 Form 10-K, a copy of which has been delivered to each of the Lenders, fairly present, in conformity with GAAP, the consolidated financial position of the Company and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such fiscal year.


 


(b) Material Adverse Change.  Since May 31, 2011, except as reflected in the Company’s most recent filing with the SEC prior to the Effective Date, there has been no change in the business, assets, financial condition or operations of the Company and its Consolidated Subsidiaries, considered as a whole, that would materially and adversely affect the Company’s ability to perform any of its respective obligations under this Agreement or the other Loan Documents (a “Material Adverse Change”), and no event or development has occurred which could reasonably be expected to result in a Material Adverse Effect.


 


(c) Post-Closing Financial Statements.  The financial statements delivered to the Lenders pursuant to Section 5.01(a)(i), (a)(iii), (b) and (c), if any, (i) have been prepared in accordance with GAAP (except as may otherwise be permitted under Section 5.01(a), (b) and (c)) and (ii) present fairly (on the basis disclosed in the footnotes to such financial statements, if any) the consolidated financial condition, results of operations and cash flows of the Company and its Consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby.


 


SECTION 3.03. Litigation, Etc.  As of the date hereof, there are no actions, suits, proceedings or governmental investigations pending, or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries which, in the reasonable judgment of the Company, would result in a Material Adverse Effect.


 


 




  





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SECTION 3.04. Taxes.  The Company and its Restricted Subsidiaries have filed all United States Federal income tax returns and all other material tax returns which are required to be filed by them and have paid all Taxes due pursuant to such returns or pursuant to any assessment received by the Company or any Restricted Subsidiary except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided in accordance with GAAP.  The charges, accruals and reserves on the books of the Company and its Restricted Subsidiaries in respect of Taxes or other governmental charges are, in the opinion of the Company, adequate.


 


SECTION 3.05. Authority.  Each Borrower has full power and authority to enter into the transactions provided for in this Agreement.  The documents to be executed by it in connection with this Agreement, when executed and delivered by it will constitute the legal, valid and binding obligations of it enforceable in accordance with their respective terms except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or similar laws in effect from time to time affecting the rights of creditors generally and except as such enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).


 


SECTION 3.06. Other Defaults.  There does not now exist any material default or violation by any Borrower or any Restricted Subsidiary of the Company of or under any of the terms, conditions or obligations of: (i) its Articles or Certificate of Incorporation and Regulations or Bylaws, as applicable, (ii) any indenture, mortgage, deed of trust, franchise, permit, contract, agreement, or other instrument to which it is a party or by which it is bound or (iii) any law, regulation, ruling, order, injunction, decree, condition or other requirement applicable to or imposed upon it by any law or by any governmental authority, court or agency; and the transactions contemplated by this Agreement and the other Loan Documents will not result in any such default or violation.  As used herein, a material default or violation will mean one which would result in a Material Adverse Effect.


 


SECTION 3.07. Licenses, Etc.  The Company and each of its Restricted Subsidiaries has obtained any and all licenses, permits, franchises, or other governmental authorizations necessary for the ownership of its properties and the conduct of its business, except where failure to obtain any such item would not cause a Material Adverse Effect.


 


SECTION 3.08. ERISA.  The Company and each of its Subsidiaries is in compliance with the applicable provisions of ERISA, the related applicable provisions of the Code and other Federal and state laws and the regulations and published interpretations thereunder, to the extent necessary to avoid a Material Adverse Effect.


 


SECTION 3.09. Environmental Matters.  The Company and its Subsidiaries are in material compliance with Environmental Laws and neither the Company nor any of its Subsidiaries are subject to any liability or obligation under any Environmental Laws which would have a Material Adverse Effect.


 


SECTION 3.10. Ownership of Property; Liens.  The Company and each Restricted Subsidiary has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as would not, individually or in the aggregate, have a Material Adverse Effect.  As of the Effective Date, the property of the Company and its Restricted Subsidiaries is subject to no Liens, other than Liens permitted by Section 6.02.


 


 




  





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SECTION 3.11. Insurance.  The properties of the Company and its Restricted Subsidiaries are insured with responsible insurance companies against loss or damage from hazards and the Company and its Restricted Subsidiaries maintain public liability insurance, all in amounts reasonably consistent with the Company’s current practices.


 


SECTION 3.12. Subsidiaries.  Schedule 3.12 sets forth a complete and accurate list as of the Effective Date of all Restricted Subsidiaries of the Company.  Schedule 3.12 sets forth as of the Effective Date the jurisdiction of formation of each such Restricted Subsidiary, and for each Restricted Subsidiary which is not a Wholly-Owned Subsidiary of the Company, the number of authorized shares of each class of Equity Interests of each such Restricted Subsidiary, the number of outstanding shares of each class of Equity Interests, the number and percentage of outstanding shares of each class of Equity Interests of each such Restricted Subsidiary owned (directly or indirectly) by any Person and the number and effect, if exercised, of all Equity Equivalents with respect to Equity Interests of each such Restricted Subsidiary.


 


SECTION 3.13. Margin Regulation; Investment Company Act.


 


(a) None of the Company and its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock” within the meaning of Regulation U.  No part of the Letters of Credit or proceeds of the Loans will be used, directly, or indirectly, for the purpose of purchasing or carrying any “margin stock” within the meaning of Regulation U.  If requested by any Lender or the Administrative Agent, the Company will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form U-1 referred to in Regulation U.  No indebtedness being reduced or retired out of the proceeds of the Loans was or will be incurred for the purpose of purchasing or carrying any margin stock within the meaning of Regulation U or any “margin security” within the meaning of Regulation T. “Margin stock” within the meaning of Regulation U does not constitute more than 25% of the value of the consolidated assets of the Company and its Consolidated Subsidiaries.  None of the transactions contemplated by this Agreement (including the direct or indirect use of the proceeds of the Loans) will violate or result in a violation of the Securities Act, as amended, the Exchange Act or regulations issued pursuant thereto, or Regulation T, U or X.


 


(b) None of the Company and its Subsidiaries is subject to regulation under the Federal Power Act or the Investment Company Act of 1940, each as amended.  In addition, none of the Company and its Subsidiaries is (i) an “investment company” registered or required to be registered under the Investment Company Act of 1940, as amended or (ii) controlled by such a company.


 


(c) No director, executive officer or principal holder of any Equity Interest of the Company or any of its Subsidiaries is a director, executive officer or principal shareholder of any Lender.  For the purposes hereof, the terms “director”, “executive officer” and “principal shareholder” (when used with reference to any Lender) have the respective meanings assigned thereto in Regulation O.


 


SECTION 3.14. Disclosure


.  No statement, information, report, representation, or warranty made by any Borrower in any Loan Document or furnished to the Administrative Agent or any Lender by or on behalf of any Borrower as required by any Loan Document contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect.


 


SECTION 3.15. Anti-Terrorism Laws.


 


(a) None of the Company nor or any Subsidiary or Affiliate of the Company is in violation of any Anti-Terrorism Law or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.


 


 




  





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(b) None of the Company nor or any Subsidiary or Affiliate of the Company  or, to the knowledge of the Company, their respective agents acting or benefiting in any capacity in connection with the Loans, Letters of Credit or other transactions hereunder, is a Blocked Person.


 


(c) None of the Company nor, to the knowledge of the Company, any of its agents acting in any capacity in connection with the Loans, Letters of Credit or other transactions hereunder (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, or (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to any Anti-Terrorism Law.


 


ARTICLE IV


 


Conditions


 


SECTION 4.01. Effective Date.  The initial Credit Event hereunder shall not occur until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):


 


(a) The Administrative Agent (or its counsel) shall have received (i) from each party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies of the Loan Documents and such other legal opinions and certificates (and all required attachments thereto) as the Administrative Agent or the Syndication Agent shall reasonably request in connection with the Transactions, all in form and substance satisfactory to the Syndication Agent, the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit E.


 


(b) The Administrative Agent and the Syndication Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of each of (i) Vorys, Sater, Seymour and Pease LLP, counsel for the Borrowers, substantially in the form of Exhibit B-1 and (ii) the General Counsel of the Company, substantially in the form of Exhibit B-2, in each case, covering such other matters relating to the Borrowers, the Loan Documents or the Transactions as the Syndication Agent or the Administrative Agent shall reasonably request.  The Company hereby requests such counsel to deliver such opinion.


 


(c) The Lenders shall have received (i) satisfactory audited consolidated financial statements of the Company for the two most recent fiscal years ended prior to the Effective Date as to which such financial statements are available, (ii) satisfactory unaudited interim consolidated financial statements of the Company for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph as to which such financial statements are available and (iii) satisfactory financial statement projections through and including the Company’s 2017 fiscal year, together with such information as the Administrative Agent, the Syndication Agent and the Lenders shall reasonably request (including, without limitation, a detailed description of the assumptions used in preparing such projections).


 


(d) The Lenders shall have received such documents and certificates as the Syndication Agent, the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the initial Borrowers, the authorization of the Transactions and any other legal matters relating to such Borrowers, the Loan Documents or the Transactions, all in form and substance satisfactory to the Syndication Agent, the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit E.


 


 




  





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(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Responsible Officer of the Company, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.


 


(f) The Administrative Agent and the Syndication Agent shall have received evidence satisfactory to each of them that the Second Amended and Restated Revolving Credit Agreement, dated as of September 29, 2005, by and among the Company, the lenders party thereto and PNC, as Administrative Agent (as amended, restated, supplemented or otherwise modified from time to time) shall have been terminated and cancelled and all indebtedness thereunder shall have been fully repaid (except to the extent being so repaid with the initial Revolving Loans) and any and all liens thereunder shall have been terminated.


 


(g) The Administrative Agent and the Syndication Agent shall have received evidence reasonably satisfactory to each of them that all governmental and third party approvals necessary or, in the discretion of the Administrative Agent and the Syndication Agent, advisable in connection with the Transactions and the continuing operations of the Company and its Subsidiaries have been obtained and are in full force and effect.


 


(h) The Administrative Agent, the Syndication Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder.


 


The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and such notice shall be conclusive and binding.


 


SECTION 4.02. Each Credit Event.  The obligation of each Lender to make a Loan on the occasion of any Borrowing, and of each Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to the satisfaction of the following conditions:


 


(a) The representations and warranties of the Borrowers set forth in this Agreement and all other Loan Documents shall be true and correct on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except to the extent that the same specifically relate to an earlier date.


 


(b) At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing.


 


Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.


 


SECTION 4.03. Designation of a Foreign Subsidiary Borrower.  The designation of a Foreign Subsidiary Borrower pursuant to Section 2.23 is subject to the condition precedent that the Company or such proposed Foreign Subsidiary Borrower shall have furnished or caused to be furnished to the Administrative Agent and the Syndication Agent:


 


 




  





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(a) Copies, certified by the Secretary or Assistant Secretary of such Subsidiary, of its Board of Directors’ resolutions (and resolutions of other bodies, if any are deemed necessary by the Syndication Agent or counsel for the Administrative Agent) approving the Borrowing Subsidiary Agreement and any other Loan Documents to which such Subsidiary is becoming a party and such documents and certificates as the Syndication Agent, the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of such Subsidiary;


 


(b) An incumbency certificate, executed by the Secretary or Assistant Secretary of such Subsidiary, which shall identify by name and title and bear the signature of the officers of such Subsidiary authorized to request Borrowings hereunder and sign the Borrowing Subsidiary Agreement and the other Loan Documents to which such Subsidiary is becoming a party, upon which certificate the Administrative Agent, the Syndication Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Company or such Subsidiary;


 


(c) Opinions of counsel to such Subsidiary, in form and substance reasonably satisfactory to the Syndication Agent, the Administrative Agent and its counsel, with respect to the laws of its jurisdiction of organization and such other matters as are reasonably requested by the Syndication Agent or counsel to the Administrative Agent and addressed to the Administrative Agent, the Syndication Agent and the Lenders;


 


(d) To the extent requested by any Lender, promissory notes for each Lender, and any other instruments and documents reasonably requested by the Administrative Agent or the Syndication Agent;


 


(e) All compliance certificates, borrowing requests and other similar deliverables as required for the Company under Sections 5.01 and 5.02;


 


(f) All documentation and other information reasonably requested by the Lenders or the Administrative Agent under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; and


 


(g) Such other similar or related agreements, documents and instruments reasonably requested by the Administrative Agent and the Syndication Agent, and not otherwise inconsistent with the terms hereof.


 


ARTICLE V


 


Affirmative Covenants


 


Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired, terminated or been cash-collateralized pursuant to Section 2.06 and all LC Disbursements shall have been reimbursed, the Company covenants and agrees with the Lenders that:


 


SECTION 5.01. Information.  The Company will furnish, or cause to be furnished, to the Administrative Agent and each of the Lenders:


 


(a) Certain SEC Filings and Shareholder Reports.  As soon as available, and in any event within 14 days of the filing or distribution thereof, (i) copies of all periodic reports on Forms 10-K and 10-Q, (ii) copies of all current reports on Form 8-K, and (iii) its annual reports to its shareholders (in all cases as filed with the SEC).


 


 




  





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(b) Annual Financial Statements.  If the Company is not required to file 10-K filings with the SEC or does not file the same within 75 days after the end of each fiscal year, as soon as available, and in any event within 75 days after the end of each fiscal year of the Company, a consolidated balance sheet and income statement of the Company and its Consolidated Subsidiaries, as of the end of such fiscal year, and the related consolidated statements of operations and retained earnings and cash flows for such fiscal year, setting forth in comparative form consolidated figures for the preceding fiscal year, all such financial statements to be in reasonable form and detail and audited by independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be subject to any qualifications or exceptions as to the scope of the audit nor to any qualifications or exceptions not reasonably acceptable to the Required Lenders) to the effect that such consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial position and consolidated results of operations and cash flows of the Company and its Consolidated Subsidiaries in accordance with GAAP consistently applied (except for changes with which such accountants concur).


 


(c) Quarterly Financial Statements.  If the Company is not required to file 10-Q filings with the SEC or does not file the same within 45 days after the end of each fiscal year, as soon as available, and in any event within 45 days after the end of each of the first three fiscal quarters in each fiscal year of the Company, a consolidated balance sheet of the Company and its Consolidated Subsidiaries as of the end of such fiscal quarter, together with related consolidated statements of operations and retained earnings and cash flows for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in comparative form consolidated figures for the corresponding periods of the preceding fiscal year, all such financial statements to be in form and detail and reasonably acceptable to the Administrative Agent, and accompanied by a certificate of the chief financial officer of the Company to the effect that such quarterly financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP in all material respects the consolidated financial position and consolidated results of operations and cash flows of the Company and its Consolidated Subsidiaries in accordance with GAAP consistently applied, subject to changes resulting from normal year-end audit adjustments and the absence of footnotes required by GAAP.


 


(d) Officer’s Certificate.  At the time of delivery of the financial statements provided for in Sections 5.01(a), 5.01(b) and 5.01(c) above, a certificate of the chief financial officer of the Company (i) demonstrating compliance with the financial covenants contained in Section 6.13 by calculation thereof as of the end of the fiscal period covered by such financial statements, stating that no Default or Event of Default exists, or if any Default or Event of Default does exist, specifying the nature and extent thereof and what action the Company proposes to take with respect thereto, and (ii) stating whether, since the date of the most recent financial statements delivered hereunder, there has been any material change in the GAAP applied in the preparation of the financial statements of the Company and its Consolidated Subsidiaries, and, if so, describing such change.


 


(e) Reports.  Promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Company, and copies of all annual, regular, periodic and special reports and registration statements which the Company may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto.


 


(f) Notices.  Prompt notice of: (i) the occurrence of any Default or Event of Default; (ii) breach or non-performance of, or any default under, a material Contractual Obligation of the Company or any Subsidiary; (iii) any dispute, litigation, investigation, proceeding or suspension between the Company or any Subsidiary and any Governmental Authority; (iv) the commencement of, or any material development in, any litigation or proceeding affecting the Company or any Subsidiary, including pursuant to any applicable Environmental Law; (v) the occurrence of any ERISA Event; (vi) any material change in accounting policies or financial reporting practice by the Company or any Restricted Subsidiary; and (vii) of any public announcement by Fitch, Moody’s or S&P of any change or possible change in the Designated Ratings; provided that in the case of the events set forth in clauses (ii) through (v), of this subsection (f), any such event has had, or the Company reasonably expects such event will have, a Material Adverse Effect.  Each notice pursuant to this Section 5.01(f) shall (i) be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the Company has taken and proposes to take with respect thereto and (ii) describe with particularity any and all provisions of this Agreement or other Loan Document that have been breached.


 


 




  





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(g) Other Information.  With reasonable promptness upon request therefor, such other information regarding the business, properties or financial condition of the Company or any Restricted Subsidiary as the Administrative Agent or the Required Lenders may reasonably request.


 


SECTION 5.02. Books and Records.  The Company will, and will cause each of its Restricted Subsidiaries to, maintain proper books of account and other records and enter therein complete and accurate entries and records of all of its transactions and give representatives of the Administrative Agent, at the Lenders’ expense, reasonable access thereto at all reasonable times, including permission to examine, copy and make abstracts from any of such books and records and such other information as it may from time to time reasonably request.  In addition, it will be available to the Lenders, or cause its officers to be available from time to time upon reasonable notice to discuss the status of the Loans, its business and any statements, records or documents furnished or made available to the Lenders in connection with this Agreement.


 


SECTION 5.03. Payment of Obligations.  The Company will, and will cause each of its Restricted Subsidiaries to, pay and discharge as the same shall become due and payable, all its obligations and liabilities the non-payment of which could reasonably be expected to have a Material Adverse Effect, including: (i) material Taxes, assessments, charges, levies and other similar material liabilities imposed upon it, its income, profits, property or business, except those which currently are being contested in good faith by appropriate proceedings and for which it has set aside reserves or made other adequate provision with respect thereto; and (ii) all lawful claims which, if unpaid, would by law become a Lien upon its property which is not a Permitted Lien.


 


SECTION 5.04. Compliance with Laws.  The Company will, and will cause each of its Restricted Subsidiaries to, comply in all material respects with all laws and regulations applicable to each of them and to the operation of their respective businesses, including without limitation those relating to environmental and health matters, and do all things necessary to maintain, renew and keep in full force and effect all rights, permits, licenses, certificates, satisfactory clearances and franchises necessary to enable them to continue their respective businesses, to the extent its failure to comply with or do any of the foregoing could result in a Material Adverse Effect.


 


SECTION 5.05. Environmental Violations.  The Company will promptly notify the Administrative Agent of any violation by it or any of its Subsidiaries of any Environmental Law to the extent such violation would, in the reasonable judgment of the Company, have a Material Adverse Effect.


 


SECTION 5.06. ERISA Compliance.  To the extent necessary to prevent a Material Adverse Effect, the Company will, and will cause each of its Subsidiaries to, comply in all material respects with the applicable provisions of ERISA, the applicable related provisions of the Code and other Federal and state laws.


 


 




  





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SECTION 5.07. Maintenance of Properties.  The Company will, and will cause each of its Restricted Subsidiaries to, (i) maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted, and (ii) make all necessary repairs thereto and renewals and replacements thereof, except in each case where the failure to do so could not reasonably be expected to have a Material Adverse Effect.


 


SECTION 5.08. Maintenance of Insurance.  The Company will, and will cause each of its Restricted Subsidiaries to, maintain insurance with responsible insurance companies against loss or damage from hazards and the Company and its Restricted Subsidiaries will maintain public liability insurance, all in amounts reasonably consistent with the Company’s current practice.


 


SECTION 5.09. Use of Proceeds.  The proceeds of the Loans and Letters of Credit will be used only to repay existing indebtedness and for working capital and other general corporate purposes of the Company and its Subsidiaries, including, without limitation, capital expenditures or acquisitions, not in contravention of any law or of any Loan Document.


 


    SECTION 5.10. Existence; Conduct of Business.  The Company will, and will cause each of its Restricted Subsidiaries to, (i) do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence, (ii) do or cause to be done all things necessary to preserve, renew and keep in full force and effect the rights, qualifications, licenses, permits, privileges, franchises, governmental authorizations and intellectual property rights necessary to the conduct of its business, and (iii) maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted, except, with respect to clauses (ii) and (iii), where the failure to so preserve, renew, keep in full force and effect and maintain could not reasonably be expected to have a Material Adverse Effect; provided that none of the foregoing shall prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.04.


 


ARTICLE VI


 


Negative Covenants


 


Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees  payable hereunder have been paid in full and all Letters of Credit have expired, terminated  or been cash-collateralized pursuant to Section 2.06, and all LC Disbursements shall have been reimbursed, the Company covenants and agrees with the Lenders that:


 


SECTION 6.01. Limitation on Indebtedness of Restricted Subsidiaries.  The Company will not cause or permit any Restricted Subsidiary to, directly or indirectly, incur, create, assume or permit to exist any Indebtedness except:


 


(i) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of the Company (including any Indebtedness of a Person existing at


the time such Person is merged with or into or consolidated with a Subsidiary of the Company, or at the time of a sale, lease or other disposition of all or


substantially all of the properties of a Person to a Subsidiary of the Company); provided that such Indebtedness was not incurred in connection with, or


in anticipation of, such event;


 


(ii) Indebtedness owing to the Company, any Restricted Subsidiary or Worthington Receivables (or any replacement or substitute thereof);


 


 




  





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(iii) Indebtedness evidenced by letters of credit not issued or deemed issued hereunder; provided that the aggregate face amount of all such letters


of credit shall not exceed $20,000,000 in the aggregate at any time; and


 


(iv) other Indebtedness of the Restricted Subsidiaries in an aggregate principal amount at any time outstanding not in excess of 10% of Consolidated Net Tangible Assets.


 


SECTION 6.02. Restriction on Liens.  The Company will not, and will not cause or permit any Restricted Subsidiary to, incur, create, assume, become or be liable in any way, or suffer to exist any mortgage, pledge, lien, charge, or other encumbrance of any nature whatsoever on any of its assets, now or hereafter owned, other than Permitted Liens.


 


SECTION 6.03. Investments.  The Company will not, and will not cause or permit any Restricted Subsidiary to, make or acquire, any Investment in any Person, except the following (such Investments described below being herein referred to as “Permitted Investments”):


 


(i) Investments other than those permitted by subsections (i) through (xii) existing on the date hereof and listed on Schedule 6.03;


 


(ii) Investments held by the Company or such Restricted Subsidiary in the form of Cash Equivalents;


 


(iii) advances to officers, directors and employees of the Company and Subsidiaries for travel, entertainment, relocation and analogous ordinary business


purposes, in each case only to the extent that the making or incurrence of any such advance or obligation to any director or executive officer (or equivalent


thereof) would not be in violation of Section 402 of the Sarbanes-Oxley Act;


 


(iv) Investments of the Company in any Restricted Subsidiary or of any Restricted Subsidiary in the Company or another Restricted Subsidiary;


 


(v) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the sale or lease of goods or


services in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors


to the extent reasonably necessary in order to prevent or limit loss;


 


(vi) Guaranty Obligations permitted by Section 6.01;


 


(vii) Investments permitted by Section 6.04;


 


(viii) Investments consisting of capital expenditures or inventory for use by or in the business of the Company or a Restricted Subsidiary;


 


(ix) Permitted Acquisitions;


 


(x) Investments (including Investments made in connection with the acquisition of assets) in any Person of which the Company or any Restricted Subsidiary


is not the Controlling Person; provided that as at the end of the immediately preceding fiscal quarter prior to and after giving effect to any such Investment,


the Company is in pro forma compliance with the financial covenants set forth in Section 6.13; provided further that the initial amount (determined at the time


made) of such Investments which are made after the Effective Date shall not exceed $100,000,000 in the aggregate;


 


 




  





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(xi) Investments in the nature of seller financing or other consideration received in a Disposition permitted under Section 6.05;


 


(xii) additional Investments not exceeding $50,000,000 in the aggregate in any fiscal year of the Company.


 


SECTION 6.04. Merger.  The Company will not, and will not cause or permit any Restricted Subsidiary to, merge or consolidate with or into any other Person except: (i) any Restricted Subsidiary or any other Person may merge or consolidate with the Company; provided that (a) the Company is the surviving entity of such merger or consolidation and (b) such surviving entity has the majority of its property and assets within the continental limits of the United States of America; or (ii) the Company may merge or consolidate with any Restricted Subsidiary; provided that (a) such Restricted Subsidiary is the surviving entity of such merger or consolidation, (b) such surviving entity is organized and existing under the laws of a state of the United States, (c) such surviving entity has the majority of its property and assets within the continental limits of the United States of America and (d) such surviving entity assumes in writing all of the obligations and liabilities of the Company under the Loan Documents; or (iii) any Restricted Subsidiary may merge or consolidate with any other Person; provided that the surviving entity of such merger or consolidation is a Restricted Subsidiary after such merger or consolidation; or (iv) any merger may be consummated in furtherance of a Disposition not prohibited under Section 6.05; or (v) any Foreign Subsidiary may merge or consolidated into any Foreign Subsidiary; provided that with respect to any merger or consolidation described in subsections (i) through (v) above, immediately prior to and after giving effect to any such transaction, no condition or event exists which constitutes a Default or an Event of Default shall have occurred and be continuing.


 


SECTION 6.05.  Dispositions.  The Company will not, and will not cause or permit any Restricted Subsidiary to, make any Disposition or enter into any agreement to make any Disposition of all or substantially all of the assets of the Company and its Subsidiaries on a consolidated basis.


 


SECTION 6.06. ERISA.  The Company will not, and will not cause or permit any Subsidiary to, at any time engage in a transaction which could be subject to Section 4069 or 4212(c) of ERISA, or permit any Plan to (i) engage in any non-exempt “prohibited transaction” (as defined in Section 4975 of the Code); (ii) fail to comply with ERISA or any other related applicable laws; or (iii) fail to satisfy the “minimum funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived, which, with respect to each event listed above, could be reasonably expected to have a Material Adverse Effect.


 


SECTION 6.07. Designation of Restricted and Unrestricted Subsidiaries.


 


(a) Schedule 6.07 sets forth a complete and accurate list of the Company’s Unrestricted Subsidiaries as of the Effective Date.  From and after the Effective Date, the Company may designate any Restricted Subsidiary as an Unrestricted Subsidiary; provided that: (i) immediately prior to and after giving effect to such change in designation no Default or an Event of Default would exist and (ii) the designation of the Subsidiary as an Unrestricted Subsidiary would not have a Material Adverse Effect; provided further that Company may not designate any Restricted Subsidiaries as Unrestricted Subsidiaries if the aggregate operating income of the Restricted Subsidiaries so designated at that time would account for more than 30% of the consolidated operating income of the Company and its Consolidated Subsidiaries for the most recently completed four fiscal quarters.  Thereafter for purposes of such calculation operating income (including operating income from prior fiscal quarters) of Unrestricted Subsidiaries will be excluded from the consolidated operating income of the Company and its Consolidated Subsidiaries.


 


 




  





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(b) From and after the Effective Date, the Company shall not designate any Unrestricted Subsidiary which otherwise meets the definition of a Restricted Subsidiary, as a Restricted Subsidiary, unless if, and only if, immediately after giving effect to such change in designation: (i) any and all outstanding Indebtedness of such Subsidiary could then have been incurred in compliance with Section 6.01 and (ii) immediately prior to and after giving effect to such change in designation no Default or an Event of Default would exist; provided that if the Company has designated a Subsidiary which was previously treated as a Restricted Subsidiary as an Unrestricted Subsidiary during the term of this Agreement, the Company may not again designate such Subsidiary as a Restricted Subsidiary without the consent of the Required Lenders.


 


(c) Any change in designation pursuant to this Section 6.07 will be made by the Company giving written notice to the Administrative Agent and the Syndication Agent on or prior to the date for such change in designation, specifying such date and the name of the Subsidiary whose designation is to be so changed, which notice will be accompanied by an officer’s certificate certifying that the conditions required for such change in designation will not be violated.  The Administrative Agent will promptly provide a copy of such change in designation to the Lenders.  Notwithstanding the foregoing, if due to an acquisition or other event, in either case to the extent permitted by this Agreement, which would cause a Person which was not previously a Consolidated Subsidiary to become a Consolidated Subsidiary, Company may immediately elect to have such Person not become a Consolidated Subsidiary, but instead to be designated as an Unrestricted Subsidiary.


 


SECTION 6.08. Change in Nature of Business.  The Company will not, and will not cause or permit any Restricted Subsidiary to, make any change in its business which would cause the type of business primarily conducted by the Company and its Restricted Subsidiaries, considered on a consolidated basis, to be materially different from the type of business primarily being conducted on the Effective Date.


 


SECTION 6.09. Transactions with Affiliates.  The Company will not, and will not cause or permit any Restricted Subsidiary to, enter into any material transaction, including, without limitation, any purchase, sale, lease or exchange of property or the rendering of any service with any Affiliate of the Company (other than a Restricted Subsidiary), other than arm’s-length transactions with Affiliates that are otherwise permitted hereunder.


 


SECTION 6.10. Burdensome Agreements.  The Company will not, and will not cause or permit any Restricted Subsidiary to, enter into any Contractual Obligation that materially limits the ability of any Restricted Subsidiary to make Restricted Payments to the Company or to otherwise generally transfer property to the Company.


 


SECTION 6.11. Use of Proceeds.  The Company will not, and will not cause or permit any Restricted Subsidiary to, use the proceeds of any Loans or Letters of Credit, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the Board) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.


 


SECTION 6.12. Governance Documents.  The Company will not amend or change its Articles of Incorporation or code of regulations in any manner which is materially adverse to the Lenders.


 


SECTION 6.13. Financial Covenants.


 


 




  





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(a) Interest Coverage Ratio.  The Company will not permit the Interest Coverage Ratio for any period of four consecutive fiscal quarters of the Company, in each case taken as a single accounting period, calculated as of the end of each fiscal quarter of the Company, to be less than 3.25:1.


 


(b) Consolidated Indebtedness to Capitalization.  The Company will not permit the ratio of Consolidated Indebtedness to Capitalization, calculated as of the end of each fiscal quarter of the Company, to be greater than 55%.


 


SECTION 6.14. Anti-Terrorism Laws.  The Company will not, and will not cause or permit any Subsidiary to, (i) conduct any business or engage in any transaction or dealing with any Blocked Person, including the making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to any Anti-Terrorism Law, or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.


 


    SECTION 6.15. Subordinated Indebtedness and Amendments to Subordinated Indebtedness Documents.  The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly voluntarily prepay, defease or in substance defease, purchase, redeem, retire or otherwise acquire, any Subordinated Indebtedness or any Indebtedness from time to time outstanding under the Subordinated Indebtedness Documents.  Furthermore, the Company will not, and will not permit any Restricted Subsidiary to, amend the Subordinated Indebtedness Documents or any document, agreement or instrument evidencing any Indebtedness incurred pursuant to the Subordinated Indebtedness Documents (or any replacements, substitutions, extensions or renewals thereof) or pursuant to which such Indebtedness is issued where such amendment, modification or supplement provides for the following or which has any of the following effects:


 


(a) shortens or accelerates the date upon which any installment of principal or interest becomes due or adds any additional mandatory redemption provisions or


 


(b) shortens the final maturity date of such Indebtedness or otherwise accelerates the amortization schedule with respect to such Indebtedness.


 


ARTICLE VII


 


Events of Default


 


If any of the following events (“Events of Default”) shall occur:


 


(a) Payment.  Any Borrower shall fail to pay: (i) as and when due (whether by scheduled maturity, mandatory prepayment, acceleration or otherwise) any amount of principal of any Loan or any reimbursement obligation in respect of any LC Disbursement or (ii) within five (5) days of when due (whether by scheduled maturity, mandatory prepayment, acceleration or otherwise) any interest on any Loan or any reimbursement obligation in respect of any LC Disbursement, any commitment facility, utilization or other fee due hereunder, or any other amount payable hereunder or under any other Loan Document.


 


(b) Representation and Warranties.  Any representation, warranty or statement made or deemed to be made by any Borrower herein, in any of the other Loan Documents or in any statement or certificate delivered or required to be delivered pursuant hereto or thereto shall prove untrue in any material respect on the date as of which it was made or deemed to have been made.


 


 




  





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(c) Covenants.  Any Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(f), 5.09, 5.10 (with respect to any Borrower’s existence), in Article VI or in Article X;


 


(d) All Other Terms and Agreements.  Any Borrower shall default in the due performance or observance by it of any term, covenant or agreement contained in this Agreement (other than those covered in the foregoing clauses (a), (b) and (c)) and such default shall continue unremedied for a period of at least 30 days after the earlier of an executive officer of any Borrower becoming aware of such default or notice thereof given by the Administrative Agent.


 


(e) Bankruptcy, etc. with respect to the Company and Active Restricted Subsidiaries.  A Bankruptcy Event shall occur with respect to the Company or any of its Active Restricted Subsidiaries.


 


(f) Bankruptcy, etc. with respect to Unrestricted Subsidiaries.  A Bankruptcy Event shall occur with respect to any of the Company’s Unrestricted Subsidiaries and such event would reasonably be expected to have a Material Adverse Effect.


 


(g) Cross-Default.  A default by the Company or any of its Subsidiaries with respect to any evidence of Indebtedness in excess of $25,000,000 by it for borrowed money (other than to the Lenders pursuant to this Agreement), if the effect of such default is to accelerate the maturity of such Indebtedness or to permit the holder thereof to cause such Indebtedness to become due prior to the stated maturity thereof, or if any Indebtedness of it in excess of $25,000,000 for borrowed money (other than to the Lenders pursuant to this Agreement) is not paid when due and payable, whether at the due date thereof or a date fixed for prepayment or otherwise (after the expiration of any applicable grace period).


 


(h) Judgments.  Unless adequately insured or bonded, the entry of a final judgment for the payment of money involving more than $25,000,000 against the Company or any of its Subsidiaries and the failure by the Company or any of its Subsidiaries: (i) to discharge the same, or cause it to be discharged, within 30 days from the date of the order, decree or process under which or pursuant to which such judgment was entered or (ii) to secure a stay of execution pending appeal of such judgment; or the entry of one or more final non-monetary judgments or orders against the Company or any of its Subsidiaries which, singly or in the aggregate, does or could reasonably be expected to cause a Material Adverse Effect.


 


(i) Ownership.  There shall occur a Change of Control of any Borrower.


 


(j) ERISA.  An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; or


 


(k) Loan Documents.  Any material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (or the Company or any other Borrower shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms);


 


then, and in every such event (other than an event with respect to the Company described in clause (e) or (f) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and the Administrative Agent at the request of the Required Lenders shall, by notice to the Company, take either or both of the following actions, at the same or different times:  (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations of the Borrowers accrued hereunder and under the other Loan Documents, shall become  due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to any Borrower described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other Loan Documents, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers.  Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and the Administrative Agent at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent and the Syndication Agent under the Loan Documents or at law or equity.


 


 




  





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From and after the date on which the Administrative Agent has taken any action pursuant to the foregoing paragraph and until all Obligations of the Borrowers have been paid in full, any and all proceeds received by the Administrative Agent from the exercise of any other remedy by the Administrative Agent shall be applied as follows:


 


(A) first, to reimburse the Administrative Agent, the Syndication Agent, the Joint Lead Arrangers, the Issuing Banks and the Lenders for all out-of-pocket expenses, including the reasonable fees, charges and disbursements of any outside counsel for the Administrative Agent, the Syndication Agent, the Joint Lead Arrangers, any Issuing Bank or any Lender, in connection with the collection of any Obligations of any of the Borrowers under any of the Loan Documents;


 


(B) second, to the repayment of all Obligations then due and unpaid of the Loan Parties to the Lenders or their Affiliates incurred under this Agreement or any of the other Loan Documents, whether of principal, interest, fees, expenses or otherwise and to cash collateralize the LC Exposure, in such manner as the Administrative Agent may determine in its discretion; and


 


(C) the balance, if any, as required by law.


 


ARTICLE VIII




 


The Administrative Agent and the Syndication Agent


 


Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.  Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Syndication Agent as its agent and authorizes the Syndication Agent to take such actions on its behalf, and to exercise such powers as are delegated to the Syndication Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Article VIII are solely for the benefit of the Administrative Agent, the Syndication Agent and the Issuing Banks, and no Borrower shall have rights as a third party beneficiary of such provisions.


 


 




  





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Each of the banks serving as the Administrative Agent and the Syndication Agent hereunder shall have the same rights and powers in their respective capacities as Lenders as any other Lender and may exercise the same as though it were not the Administrative Agent or the Syndication Agent, respectively, and each such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent or Syndication Agent hereunder without any duty to account therefor to the Lenders.  Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender.


 


Neither the Administrative Agent nor the Syndication Agent shall have any duties or obligations except those expressly set forth in the Loan Documents.  Without limiting the generality of the foregoing, (a) neither the Administrative Agent nor the Syndication Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (b) neither the Administrative Agent nor the Syndication Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers of the Administrative Agent expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), provided that neither the Syndication Agent nor the Administrative Agent shall be required to take any action that, in their respective opinions or the opinions of their counsel, may expose the Administrative Agent or the Syndication Agent, as applicable, to liability or that is contrary to the Loan Documents or applicable law, and (c) except as expressly set forth in the Loan Documents, neither the Administrative Agent nor the Syndication Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or Syndication Agent, as applicable, or any of their respective Affiliates in any capacity.  The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02).  Neither the Administrative Agent nor the Syndication Agent shall be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct.  The Administrative Agent and the Syndication Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent or the Syndication Agent by the Company or a Lender, or an Issuing Bank, and neither the Administrative Agent nor the Syndication Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) except to the extent of each of their respective obligations, the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or the Syndication Agent, as applicable.


 


Each of the Administrative Agent and the Syndication Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person.  Each of the Administrative Agent and the Syndication Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit.  Each of the Administrative Agent and the Syndication Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.


 


 




  





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Each of the Administrative Agent and the Syndication Agent may perform any and all its respective duties and exercise its respective rights and powers by or through any one or more sub-agents appointed by the Administrative Agent or the Syndication Agent, as applicable.  Each of the Administrative Agent and the Syndication Agent and any such respective sub-agent may perform any and all its respective duties and exercise its respective rights and powers through its respective Related Parties.  The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent, the Syndication Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent and Syndication Agent, respectively.


 


The Administrative Agent may at any time resign by notifying the Lenders, the Issuing Banks and the Company.  Upon any such resignation, the Required Lenders shall have the right, in consultation with and subject to the approval of the Company (so long as no Event of Default has occurred and is continuing), to appoint a successor from among the Lenders (such approval of the Required Lenders and the Company not to be unreasonably withheld or delayed).  If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, with a combined capital and surplus of at least $1,000,000,000; provided that if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the Loan Documents and (ii) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for in this Article VIII.  Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired)  Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder (if not already discharged therefrom as provided above in this Section).  The fees payable by any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between such Borrower and such successor.  After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.


 


If PNC resigns as Administrative Agent under this Section 9.03, PNC shall also resign as an Issuing Bank.  Upon the appointment of a successor Administrative Agent hereunder, such successor shall (i) succeed to all of the rights, powers, privileges and duties of PNC as the retiring Issuing Bank and Administrative Agent and PNC shall be discharged from all of its respective duties and obligations as Issuing Bank and Administrative Agent under the Loan Documents, and (ii) issue letters of credit in substitution for the Letters of Credit issued by PNC, if any, outstanding at the time of such succession or make other arrangement satisfactory to PNC to effectively assume the obligations of PNC with respect to such Letters of Credit.


 


 




  





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Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, the Syndication Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Syndication Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.


 


None of the Lenders, if any, identified in this Agreement as a Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.  Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender.  Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Co-Documentation Agents as it makes with respect to the Administrative Agent and the Syndication Agent in the preceding paragraph.


 


The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender.  The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.


 


ARTICLE IX


 


Miscellaneous


 


SECTION 9.01. Notices.  (a) Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:


 


(i) if to any Borrower, to it c/o Worthington Industries, Inc., 200 Old Wilson Bridge Road, Columbus, Ohio  43085, Attention of Matthew Lockard, Vice President of Corporate Development and Treasurer (Telecopy No. (614) 438-7508);


 


(ii) if to the Administrative Agent, to it at PNC Bank, National Association, PNC Firstside Center, 500 First Avenue, 4th Floor, Pittsburgh, Pennsylvania  15219, Attention of Agency Services (Telecopy No. (412) 762-8672);


 


(iii) if to JPMorgan Chase Bank, N.A., as Issuing Bank, to it at JPMorgan Chase Bank, N.A., 131 South Dearborn, Floor 05, Chicago, Illinois 60603-5506, Attention of Standby Letter of Credit Unit, (E-mail for applications and amendments for standby Letters of Credit:  Standbylc.chi.mc@jpmchase.com; E-mail for general inquiries regarding Letters of Credit:  GTS.client.services@jpmchase.com);


 


(iv) if to PNC Bank, National Association, as Issuing Bank, to it at PNC Bank, National Association, PNC Firstside Center, 500 First Avenue, 4th Floor, Pittsburgh, Pennsylvania  15219, Attention of Agency Services (Telecopy No. (412) 762-8672);


 


 




  





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(v) if to the Swingline Lender, to it at PNC Bank, National Association, PNC Firstside Center, 500 First Avenue, 4th Floor, Pittsburgh, Pennsylvania  15219, Attention of Agency Services (Telecopy No. (412) 762-8672) and


 


(vi) if to any other Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.


 


(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender.  Each of the Administrative Agent, the Swingline Lender, the Issuing Banks and the Company may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.


 


(c) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.  All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.


 


SECTION 9.02. Waivers; Amendments.  (a) No failure or delay by the Administrative Agent, the Syndication Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the Administrative Agent, the Syndication Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of this Agreement or consent to any departure by any Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, the Syndication Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.


 


(b) Except as provided in Section 2.20 with respect to an Incremental Term Loan Amendment, neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders or by the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall (i) increase  the Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.18(b) or (d) in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, (v) change any of the provisions of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender (it being understood that, solely with the consent of the parties prescribed by Section 2.20 to be parties to an Incremental Term Loan Amendment, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Commitments and the Revolving Loans are included on the Effective Date), (vi) release the Company from its obligations under Article X without the written consent of each Lender or (vii) change the definition of “Foreign Subsidiary Borrower”, Section 2.23 or Section 4.03, without the written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Syndication Agent, the Issuing Banks or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the Syndication Agent, the Issuing Banks or the Swingline Lender, as the case may be.


 


 




  





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(c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, the Syndication Agent and the Borrowers to each relevant Loan Document (x) to add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Term Loan Amendment) to this Agreement and to permit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.


 


(d) If, in connection with any proposed amendment, waiver or consent  requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Company may, at its sole expense, elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Company and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, (ii) each Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by such Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender and (iii) the Borrowers shall have paid to the Administrative Agent the  processing and recordation fee set forth in Section 9.03.


 


(e) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the Borrowers only, amend, modify or supplement this Agreement or any of the other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency.


 


SECTION 9.03. Expenses; Indemnity; Damage Waiver.  (a) The Company shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent, the Syndication Agent and the Joint Lead Arrangers and their respective Affiliates, including the reasonable fees, charges, disbursements and other charges of one U.S. counsel and one local counsel in each applicable jurisdiction for all of the Administrative Agent, the Syndication Agent and the Joint Lead Arrangers in connection with the syndication and distribution (including, without limitation, via the internet or through a service such as Intralinks) of the credit facilities provided for herein, the preparation and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Banks in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, the Syndication Agent, the Joint Lead Arrangers, any Issuing Bank or any Lender, including the fees, charges and disbursements of any outside counsel for the Administrative Agent, the Syndication Agent, the Joint Lead Arrangers, any Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement and any other Loan Document, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during  any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.


 


 




  





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(b) The Company shall indemnify the Administrative Agent, the Syndication Agent, each Joint Lead Arranger, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities, costs and related expenses, including the fees, charges and disbursements of any outside counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Loan Document or any agreement or instrument delivered in connection therewith, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Company or any of its Subsidiaries, or any Environmental Liability related in any way to the Company or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company or any of its Subsidiaries, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.  This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim.


 


(c) To the extent that the Company fails to pay any amount required to be paid by it to the Administrative Agent, the Syndication Agent, any Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent, the Syndication Agent, such Issuing Bank or the Swingline Lender, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (it being understood that the Company’s failure to pay any such amount shall not relieve the Company of any default in the payment thereof); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, the Syndication Agent, such Issuing Bank or the Swingline Lender in its capacity as such.


 


(d) To the extent permitted by applicable law, no Borrower shall assert, and each Borrower hereby waives, any claim against any Indemnitee (i) for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet), or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.


 


 




  





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(e) All amounts due under this Section shall be payable not later than ten (10) days after written demand therefor.


 


SECTION 9.04. Successors and Assigns.  (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender (and any attempted assignment or transfer by any Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section.  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Syndication Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.


 


(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:


 


(A) the Company (provided that the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof); provided, further, that no consent of the Company shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee;


 


(B) the Administrative Agent; and


 


(C) the Issuing Banks.


 


(ii) Assignments shall be subject to the following additional conditions:


 


(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Company and the Administrative Agent otherwise consent, provided that no such consent of the Company shall be required if an Event of Default has occurred and is continuing;


 


 




  





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(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;


 


(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500, such fee to be paid by either the assigning Lender or the assignee Lender or shared between such Lenders;


 


(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Company and its affiliates and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws; and


 


(E) no such assignment shall be made to any Borrower or any Borrowers’ Affiliates or Subsidiaries or any natural person.


 


For the purposes of this Section 9.04(b), the term “Approved Fund” has the following meaning:


 


“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.


 


(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03).  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.


 


(iv) The Administrative Agent, acting for this purpose as an agent of each Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive, and the Borrowers, the Administrative Agent, the Syndication Agent, the Issuing Banks and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by the Company, any Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice.


 


 




  





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(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon.  No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.


 


(c) Any Lender may, without the consent of any Borrower, the Administrative Agent, the Syndication Agent, any Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged; (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (C) the Borrowers, the Administrative Agent, the Syndication Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant.  Each Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the requirements and limitations therein, including the requirements under Section 2.17(f) (it being understood that the documentation required under Section 2.17(f) shall be delivered to the participating Lender, and such participating Lender shall be required to forward such documentation to the Administrative Agent and the Borrowers)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 2.18 and 2.19 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.15 or 2.17, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.18(d) as though it were a Lender.  Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) and the Syndication Agent (in its capacity as Syndication Agent) shall have no responsibility for maintaining a Participant Register.


 


 




  





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(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.


 


SECTION 9.05. Survival.  All covenants, agreements, representations and warranties made by the Borrowers in the Loan Documents and in the certificates or other instruments delivered pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, the Syndication Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement or any other Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated.  The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any other Loan Document or any provision hereof or thereof.


 


SECTION 9.06. Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent and the Syndication Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging shall be effective as delivery of a manually executed counterpart of this Agreement.


 


 




  





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SECTION 9.07. Severability.  Any provision of any Loan Document held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.


 


SECTION 9.08. Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender, each Issuing Bank and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final and in whatever currency denominated) at any time held and other obligations at any time owing by such Lender, Issuing Bank or Affiliate to or for the credit or the account of any Borrower against any of and all of the Obligations held by such Lender or Issuing Bank irrespective of whether or not such Lender shall have made any demand under the Loan Documents and although such obligations may be unmatured or are owed to a branch or office of such Lender or Issuing Bank different from the branch or office holding such deposit or obligated on such Indebtedness.  The rights of each Lender and Issuing Bank under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender or Issuing Bank, respectively, may have.  Each Lender and Issuing Bank agrees to notify the Borrowers and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.


 


SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.  (a) This Agreement shall be construed in accordance with and governed by the law of the State of New York.


 


(b) Each Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court.  Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement or any other Loan Document shall affect any right that the Administrative Agent, the Syndication Agent, any Issuing Bank or any Lender may otherwise have to bring any remedial action against any Borrower in any jurisdiction in which any Borrower’s properties may be located.


 


(c) Each Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section.  Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.


 


(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01.  Each Foreign Subsidiary Borrower irrevocably designates and appoints the Company, as its authorized agent, to accept and acknowledge on its behalf, service of any and all process which may be served in any suit, action or proceeding of the nature referred to in Section 9.09(b) in any federal or New York State court sitting in New York City.  The Company hereby represents, warrants and confirms that the Company has agreed to accept such appointment (and any similar appointment by a Borrower which is a Foreign Subsidiary).  Said designation and appointment shall be irrevocable by each such Foreign Subsidiary Borrower until all Loans, all reimbursement obligations, interest thereon and all other amounts payable by such Foreign Subsidiary Borrower hereunder and under the other Loan Documents shall have been paid in full in accordance with the provisions hereof and thereof and such Foreign Subsidiary Borrower shall have been terminated as a Borrower hereunder pursuant to Section 2.23.  Each Foreign Subsidiary Borrower hereby consents to process being served in any suit, action or proceeding of the nature referred to in Section 9.09(b) in any federal or New York State court sitting in New York City by service of process upon the Company as provided in this Section 9.09(d); provided that, to the extent lawful and possible, notice of said service upon such agent shall be mailed by registered or certified air mail, postage prepaid, return receipt requested, to the Company and (if applicable to) such Foreign Subsidiary Borrower at its address set forth in the Borrowing Subsidiary Agreement to which it is a party or to any other address of which such Foreign Subsidiary Borrower shall have given written notice to the Administrative Agent (with a copy thereof to the Company).  Each Foreign Subsidiary Borrower irrevocably waives, to the fullest extent permitted by law, all claim of error by reason of any such service in such manner and agrees that such service shall be deemed in every respect effective service of process upon such Foreign Subsidiary Borrower in any such suit, action or proceeding and shall, to the fullest extent permitted by law, be taken and held to be valid and personal service upon and personal delivery to such Foreign Subsidiary Borrower.  To the extent any Foreign Subsidiary Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether from service or notice, attachment prior to judgment, attachment in aid of execution of a judgment, execution or otherwise), each Foreign Subsidiary Borrower hereby irrevocably waives such immunity in respect of its obligations under the Loan Documents.  Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.


 


 




  





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SECTION 9.10. WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


SECTION 9.11. Headings.  Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.


 


SECTION 9.12. Confidentiality.  Each of the Administrative Agent, the Syndication Agent, the Joint Lead Arrangers, the Issuing Banks and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies under this Agreement or any other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any credit derivative transaction relating to any Borrower and its obligations, (g) with the consent of the Company or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, the Syndication Agent, any Joint Lead Arranger, any Issuing Bank or any Lender on a nonconfidential basis from a source other than the Company.  For the purposes of this Section, “Information” means all information received from the Company relating to the Company and its Subsidiaries or their business, other than any such information that is available to the Administrative Agent, the Syndication Agent, any Joint Lead Arranger, any Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by the Company; provided that, in the case of information received from the Company after the date hereof, such information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.


 


 




  





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SECTION 9.13. USA PATRIOT Act.  Each Lender that is subject to the requirements of the Patriot Act hereby notifies each Borrower that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies such Borrower, which information includes the name and address of such Borrower and other information that will allow such Lender to identify such Borrower in accordance with the Patriot Act.


 


SECTION 9.14. Interest Rate Limitation.  Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.


 


SECTION 9.15. No Advisory or Fiduciary Responsibility.  In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each Borrower acknowledges and agrees that: (i) (A) the arranging and other services regarding this Agreement provided by the Lenders are arm’s-length commercial transactions between such Borrower and its Affiliates, on the one hand, and the Lenders and their Affiliates, on the other hand, (B) such Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) such Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the Lenders and their Affiliates is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for such Borrower or any of its Affiliates, or any other Person and (B) no Lender or any of its Affiliates has any obligation to such Borrower or any of its Affiliates with respect to the transactions contemplated hereby except, in the case of a Lender, those obligations expressly set forth herein and in the other Loan Documents; and (iii) each of the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of such Borrower and its Affiliates, and no Lender or any of its Affiliates has any obligation to disclose any of such interests to such Borrower or its Affiliates.  To the fullest extent permitted by law, each Borrower hereby waives and releases any claims that it may have against each of the Lenders and their Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.


 


 




  





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ARTICLE X


 


Cross-Guarantee


 


In order to induce the Lenders to extend credit to the other Borrowers hereunder, but subject to the last sentence of this Article X, the Company hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the Obligations of all other Borrowers.  The Company further agrees that the due and punctual payment of such Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Obligation.


 


The Company waives presentment to, demand of payment from and protest to any other Borrower of any of the Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment.  The obligations of the Company hereunder shall not be affected by (a) the failure of the Administrative Agent, the Syndication Agent, any Issuing Bank or any Lender to assert any claim or demand or to enforce any right or remedy against any Borrower under the provisions of this Agreement, any other Loan Document or otherwise; (b) any extension or renewal of any of the Obligations; (c) any rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement, or any other Loan Document or agreement; (d) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (e) any change in the corporate, partnership or other existence, structure or ownership of any Borrower or any other guarantor of any of the Obligations; (f) the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Obligations or any part thereof, or any other invalidity or unenforceability relating to or against any Borrower or any other guarantor of any of the Obligations, for any reason related to this Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Borrower or any other guarantor of the Obligations, of any of the Obligations or otherwise affecting any term of any of the Obligations; or (g) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of such Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Borrower to subrogation.


 


The Company further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by the Administrative Agent, any Issuing Bank or any Lender to any balance of any deposit account or credit on the books of the Administrative Agent, any Issuing Bank or any Lender in favor of any Borrower or any other Person.


 


The obligations of the Company hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Obligations, any impossibility in the performance of any of the Obligations or otherwise.


 


 




  





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The Company further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by the Administrative Agent, any Issuing Bank or any Lender upon the bankruptcy or reorganization of any Borrower or otherwise.


 


In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent, any Issuing Bank or any Lender may have at law or in equity against the Company by virtue hereof, upon the failure of any other Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the Company hereby promises to and will, upon receipt of written demand by the Administrative Agent, any Issuing Bank or any Lender, forthwith pay, or cause to be paid, to the Administrative Agent, any Issuing Bank or any Lender in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest thereon.  The Company further agrees that if payment in respect of any Obligation shall be due in a currency other than Dollars and/or at a place of payment other than PNC’s Principal Office or any other Eurocurrency Payment Office and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or other event, payment of such Obligation in such currency or at such place of payment shall be impossible or, in the reasonable judgment of the Administrative Agent, any Issuing Bank or any Lender, disadvantageous to the Administrative Agent, any Issuing Bank or any Lender in any material respect, then, at the election of the Administrative Agent, the Company shall make payment of such Obligation in Dollars (based upon the applicable Dollar Amount in effect on the date of payment) and/or in PNC’s Principal Office or such other Eurocurrency Payment Office as is designated by the Administrative Agent and, as a separate and independent obligation, shall indemnify the Administrative Agent, any Issuing Bank and any Lender against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such alternative payment.


 


Upon payment by the Company of any sums as provided above, all rights of the Company against any other Borrower arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations owed by such Borrower to the Administrative Agent, the Issuing Banks and the Lenders.


 


Nothing shall discharge or satisfy the liability of any Borrower hereunder except the full performance and payment in cash of the Obligations.


 


[Signature Pages Follow]


 


 




  





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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.


 


WORTHINGTON INDUSTRIES, INC.,


as the Company


 


 


By                                                                      


Name:


Title:


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 



 







Signature Page to Credit Agreement


Worthington Industries, Inc.







84











  






 







 



	 	 PNC BANK, NATIONAL ASSOCIATION,
	 	 individually as a Lender, as the Swingline Lender, as an
	 	 Issuing Bank and as Administrative Agent
	 	 
	 	 
	 	 
	 	 By                                                                      
	 	        Name:
	 	        Title:





 


 


 


 


 


 


 


 







 


 


 


 


 


 


 




 







Signature Page to Credit Agreement


Worthington Industries, Inc.







85











  






 


 


 



	 	 JPMORGAN CHASE BANK, N.A., individually as a
	 	 Lender, as an Issuing Bank and as Syndication Agent
	 	 
	 	 
	 	 By                                                                      
	 	        Name:
	 	        Title:





 


 



 







 


 


 


 


 


 


 


 


 







 


 


 


 


 


 




 












 







Signature Page to Credit Agreement


Worthington Industries, Inc.







86











  




 


 


 


 


 



	 	 BANK OF AMERICA, N.A., as a Lender
	 	 
	 	 
	 	 By                                                                      
	 	        Name:
	 	        Title:
	 	 





 




 




 







 


 


 


 


 


 


 


 


 


 







 


 


 


 


 


 




 












 









Signature Page to Credit Agreement


Worthington Industries, Inc.







87











  




 


 


 



	 	 U.S. BANK NATIONAL ASSOCIATION, as a Lender
	 	 
	 	 
	 	 By                                                                      
	 	        Name:
	 	        Title:
	 	 





 





  











 


 


 


 


 


 


 


 




 


 


 


 


 


 


 




 












 






 



  





 


  







Signature Page to Credit Agreement


Worthington Industries, Inc.







88











  




 


 


 


 



	 	 WELLS FARGO BANK, NATIONAL ASSOCIATION,
	 	 as a Lender
	 	 
	 	 
	 	 By                                                                      
	 	        Name:
	 	        Title:





 




 







  











 


 


 


 


 


 


 


 




 


 


 


 


 


 


 




 












 






 



  





 









Signature Page to Credit Agreement


Worthington Industries, Inc.







89











  






 


 


 



	 	 BRANCH BANKING AND TRUST COMPANY, as a
	 	 Lender
	 	 
	 	 
	 	 By                                                                      
	 	        Name:
	 	        Title:





 



 








  













 


 


 


 


 


 


 


 




 


 


 


 


 


 


 




 












 






 



  





 











Signature Page to Credit Agreement


Worthington Industries, Inc.







90











  




 


 


 


 



	 	 CITIZENS BANK OF PENNSYLVANIA, as a Lender
	 	 
	 	 
	 	 By                                                                      
	 	        Name:
	 	        Title:
	 	 





 





 








  













 


 


 


 


 


 


 


 




 


 


 


 


 


 


 




 












 






 



  




 






 






Signature Page to Credit Agreement


Worthington Industries, Inc.









91











  




 


 


 


 



	 	 CREDIT SUISSE AG, CAYMAN ISLANDS
	 	 BRANCH, as a Lender
	 	 
	 	 
	 	 By                                                                      
	 	        Name:
	 	        Title:





 






  












 


 


 


 


 


 


 


 




 


 


 


 


 


 


 




 












 






 



  





 








 





Signature Page to Credit Agreement


Worthington Industries, Inc.







92











  




 


 


 


 



	 	 FIFTH THIRD BANK, as a Lender
	 	 
	 	 
	 	 By                                                                      
	 	        Name:
	 	        Title:
	 	 





 





 






 









 


 


 


 


 


 


 


 




 


 


 


 


 


 


 




 












 






 



  




 










Signature Page to Credit Agreement


Worthington Industries, Inc.









93











  




 


 


 


 



	 	 THE HUNTINGTON NATIONAL BANK, as a Lender
	 	 
	 	 
	 	 By                                                                      
	 	        Name:
	 	        Title:
	 	 





 





 








  













 


 


 


 


 


 


 


 




 


 


 


 


 


 


 




 












 






 



  





 











Signature Page to Credit Agreement


Worthington Industries, Inc.







94











  






 


 


 


 



	 	 THE NORTHERN TRUST COMPANY, as a Lender
	 	 
	 	 
	 	 By                                                                      
	 	        Name:
	 	        Title:
	 	 





 








 











 


 


 


 


 


 


 


 




 


 


 


 


 


 


 




 












 






 



  





 











Signature Page to Credit Agreement


Worthington Industries, Inc.







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SCHEDULE 2.01


 


COMMITMENTS


 



	
LENDER


 

	
COMMITMENT

	
PERCENTAGE


	
PNC BANK, NATIONAL ASSOCIATION


 

	
$64,000,000.00

	
15.058823529%


	
JPMORGAN CHASE BANK, N.A.


 

	
$64,000,000.00

	
15.058823529%


	
BANK OF AMERICA, N.A.


 

	
$49,000,000.00

	
11.529411765%


	
U.S. BANK NATIONAL ASSOCIATION


 

	
$49,000,000.00

	
11.529411765%


	
WELLS FARGO BANK, NATIONAL ASSOCIATION


 

	
$49,000,000.00

	
11.529411765%


	
BRANCH BANKING AND TRUST COMPANY


 

	
$25,000,000.00

	
5.882352941%


	
CITIZENS BANK OF PENNSYLVANIA


 

	
$25,000,000.00

	
5.882352941%


	
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH


 

	
$25,000,000.00

	
5.882352941%


	
FIFTH THIRD BANK


 

	
$25,000,000.00

	
5.882352941%


	
THE HUNTINGTON NATIONAL BANK


 

	
$25,000,000.00

	
5.882352941%


	
THE NORTHERN TRUST COMPANY


 

	
$25,000,000.00

	
5.882352941%


	
AGGREGATE COMMITMENT


 

	
$425,000,000.00

	
100.00%












 




  





96











  






 


SCHEDULE 2.02


 


MANDATORY COST


 



	
1.  

	
The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of compliance with (a) the requirements of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank.







 



	
2.  

	
On the first day of each Interest Period (or as soon as possible thereafter) each Lender shall calculate, as a percentage rate per annum, a rate (the “Mandatory Costs Rate”) for that Lender, in accordance with the paragraphs set out below.







 



	
3.  

	
The Mandatory Costs Rate for any Lender lending from a lending office in a Participating Member State will be the percentage notified by that Lender to the Company.  This percentage will be certified by that Lender in its notice to the Company to be its reasonable determination of the cost (expressed as a percentage of that Lender’s participation in all Loans made from that lending office) of complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that lending office.







 



	
4.  

	
The Mandatory Costs Rate for any Lender lending from a lending office in the United Kingdom will be calculated by that Lender as follows:







 



	
(a)  

	
in relation to a Loan in Pounds Sterling:







 


AB+C(B - D) + E x 0.01


—————————  per cent. per annum


        100 - (A + C)


 



	
(b)  

	
in relation to a Loan in any currency other than Pounds Sterling:







 


E x 0.01


———  per cent. per annum.


   300


 


Where:


 



	
A           

	
is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time to time required to maintain as an interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements.







 



	
B           

	
is the percentage rate of interest (excluding the Applicable Rate and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of interest specified in Section 2.13(d)) payable for the relevant Interest Period on the Loan.







 



	
C           

	
is the percentage (if any) of Eligible Liabilities which that Lender is required from time to time to maintain as interest bearing Special Deposits with the Bank of England.







 



	
D           

	
is the percentage rate per annum payable by the Bank of England to that Lender on interest bearing Special Deposits.







 


 




  





97











  






 



	
E           

	
is designed to compensate Lenders for amounts payable under the Fees Rules and is determined by each Lender as being the most recent rate of charge payable by that Lender as referenced in paragraph 7 below and expressed in pounds per £1,000,000.







 



	
5.  

	
For the purposes of this Schedule:







 



	
(a)          

	
“Eligible Liabilities” and “Special Deposits” have the meanings given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England;







 



	
(b)          

	
“Fees Rules” means the rules on periodic fees contained in the Financial Services Authority Fees Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits;







 



	
(c)          

	
“Fee Tariffs” means the fee tariffs specified in the Fees Rules under the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but taking into account any applicable discount rate);







 



	
(d)          

	
“Tariff Base” has the meaning given to it in, and will be calculated in accordance with, the Fees Rules; and







 



	
(e)          

	
“Unpaid Sum” means any sum due and payable but unpaid by any Borrower under the Loan Documents.







 



	
6.  

	
In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent.  will be included in the formula as 5 and not as 0.05).  A negative result obtained by subtracting D from B shall be taken as zero.  The resulting figures shall be rounded to four decimal places.







 



	
7.  

	
The rate of charge for any Lender is the rate of charge payable by that Lender to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by that Lender as being the average of the Fee Tariffs applicable to that Lender for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base of that Lender.







 



	
8.  

	
The percentages of each Lender for the purpose of A and C above and the rates of charge of each Lender for the purpose of E above shall be determined by each Lender in accordance with this Schedule and on the assumption that, unless a Lender notifies the Company to the contrary, each Lender’s obligations in relation to cash ratio deposits and Special Deposits are the same as those of a typical bank from its jurisdiction of incorporation with a lending office in the same jurisdiction as its lending office.







 



	
9.  

	
The applicable Borrower shall pay to each Lender the Mandatory Cost of that Lender on the basis of the Mandatory Costs Rate for that Lender as determined by that Lender in accordance with this Schedule.







 



	
10.  

	
Any determination by a Lender pursuant to this Schedule in relation to a formula, the Mandatory Cost, a Mandatory Costs Rate or any amount payable to a Lender shall, in the absence of manifest error, be conclusive and binding on all Borrowers.







 


 




  





98











  






 



	
11.  

	
The Administrative Agent may from time to time, after consultation with the Company and the Lenders, determine and notify to all Borrowers any amendments which are required to be made to this Schedule in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all Borrowers.







 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




  





99











  






 


 



SCHEDULE 3.12


 


RESTRICTED SUBSIDIARIES


 


Domestic Restricted Subsidiaries


 


 


Worthington Steel of Michigan, Inc. (MI)


Dietrich Industries, Inc. (PA)


Worthington Cylinder Corporation (OH)


Worthington Cylinder Corporation, LLC (OH)


Worthington Cylinders Wisconsin, LLC (OH)


The Worthington Steel Company (DE)


The Worthington Steel Company (NC)


The Worthington Steel Company (OH)


Worthington Steel Company of Decatur, LLC (AL)


Spartan Steel Coating, LLC (MI)*


Worthington WSP, LLC (MI)


Precision Specialty Metals, Inc. (DE)


Viking & Worthington Steel Enterprise, LLC (OH)


Worthington Metal Fabricators, LLC (OH)


The Worthington Steel Company, LLC (OH)


Worthington Warehouse, Inc. (MI)


WSC Acquisition, LLC (OH)


Cleveland Pickling, Inc. (DE)


Worthington Energy Group, Inc. (OH)


Worthington Global Group, LLC (OH)


Worthington Services, LLC (OH)


Worthington Industries Medical Center, Inc. (OH)


Worthington Steelpac Systems, LLC (DE)


Worthington Cylinders Mississippi, LLC (OH)


Structural Composites Industries, LLC (DE)


Worthington Cylinders Kansas, LLC (OH)


Worthington Torch, LLC (OH)


Worthington Industries Global Holdings, LLC (OH)


Angus Industries, Inc. (DE)


Angus-Palm LLC (DE)


Advanced Component Technologies, Inc. (MN)







 


Foreign Restricted Subsidiaries


 


WI Netherlands Holdings, C.V. (Netherlands)


Worthington Industries Mauritius (Mauritius)


Worthington Industries Global Holdings, LLC & Co OG (Austria)


Worthington Cylinders Mexico, S de RL de CV (Mexico)


Suero Investments sp Z.O.O. (Poland)


 


 







 





*Spartan Steel Coating, LLC (“Spartan”) is the only Restricted Subsidiary that it not a Wholly-Owned Subsidiary of the Company.  Worthington Steel of Michigan Inc. owns 52% of the Equity Interests in Spartan and Severstal North America, Inc. owns the remaining 48%.


 


  




 




  





100











  






 



SCHEDULE 6.03


 


EXISTING INVESTMENTS


 







 



	
1.  

	
Any intercompany balance not to exceed $5 million between the Company or any Restricted Subsidiary and Worthington Specialty Processing, an unconsolidated Joint Venture in which Worthington WSP, LLC. owns 51%.













	
2.  

	
Any intercompany balance not to exceed $10 million between the Company or any Restricted Subsidiary and TWB Company LLC, an unconsolidated Joint Venture in which Worthington Steel of Michigan, Inc. owns 45%.













	
3.  

	
Any intercompany balance not to exceed $10 million between the Company or any Restricted Subsidiary and ArtiFlex Manufacturing LLC, an unconsolidated Joint Venture in which GerCo Holdings, Inc. owns 50%.













	
4.  

	
Any intercompany balance not to exceed $20 million between the Company or any Restricted Subsidiary and ClarkWestern Dietrich Building Systems LLC, an unconsolidated Joint Venture in which Dietrich Industries, Inc. owns 25%.













	
5.  

	
Any intercompany balance not to exceed $1 million between the Company or any Restricted Subsidiary and Samuel Steel Pickling Company, an unconsolidated Joint Venture in which Cleveland Pickling, Inc. owns 31.25%.













	
6.  

	
Any intercompany balance not to exceed $1 million between the Company or any Restricted Subsidiary and Worthington Modern Steel Framing Manufacturing Co., Ltd., an unconsolidated Joint Venture in which Worthington Industries International S.á.r.l. owns 40%.













	
7.  

	
Any intercompany balance not to exceed $1 million between the Company or any Restricted Subsidiary and Gestamp Worthington Wind Steel LLC, an unconsolidated Joint Venture in which Worthington Energy Group, Inc. owns 50%.













	
8.  

	
Any intercompany balance not to exceed $5 million between the Company or any Restricted Subsidiary and Serviacero Planos SA de CV, an unconsolidated Joint Venture in which Worthington Steel Mexico, S.A. de C.V. owns 50%.













	
9.  

	
Any intercompany balance not to exceed $20 million between the Company or any Restricted Subsidiary and WAVE, an unconsolidated Joint Venture in which The Worthington Steel Company (DE) owns 50%.













	
10.  

	
Preferred stock and various forms of debt issued to the Company or any Restricted Subsidiary by a purchaser in connection with divestitures made by the Company.













	
11.  

	
Certain corporate owned life insurance policies listed below:









 


 


 




  





101











  







SCHEDULE 6.07


 


UNRESTRICTED SUBSIDIARIES


 


Domestic Unrestricted Subsidiaries


 


Enterprise Protection Insurance Company (VT)


Worthington-Buckeye, Inc. (OH)


WI Products, Inc. (OH)


GerCo Holdings, Inc. (OH)


Worthington Receivables Corporation (DE)


VCS/WOR, Inc. (OH)


Worthington Precision Steel, Inc (OH)


Worthington OEG Company (MI)


The Worthington Steel Company of Decatur, Inc. (MI)


Worthington Industries Leasing, LLC (OH)


Worthington Military Construction, Inc. (OH)


Worthington Mid-Rise Construction, Inc. (OH)


The Sharon Companies, Inc. (OH)


Worthington Integrated Building Systems, LLC (OH)


Worthington Construction Group, Inc (OH)


PSI Energy Solutions, LLC (OH)









 


 


Foreign Unrestricted Subsidiaries


 


Worthington Cylinders of Canada Corp.


Worthington Cylinders GmbH (Austria)


Worthington Cylinders, a.s. (Czech Republic)


Worthington Cylinders-Embalagens Industrias de Gas, S.A. (Portugal)


Worthington Steel Mexico, S.A. de C.V. (Mexico)


Worthington Steel Company of Alabama, Inc. & Co. OEG (Austria)


Industrias Worthington do Brasil Ltda. (Brazil)


Dietrich Building Systems Consulting Company, Ltd. (China)


Worthington Industries International S.á.r.l. (Luxembourg)


Worthington Nitin Cylinders Limited (India)


 







 




 




  





102











  






EXHIBIT A


 


ASSIGNMENT AND ASSUMPTION


 


This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.


 


For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any letters of credit, guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”).  Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.


 



	
1.

	
Assignor:

	 	 





 



	
2.

	
Assignee:

	 	 






	
  

	
[and is an Affiliate/Approved Fund of [identify Lender]1]







 



	
3.

	
Borrowers:

	
Worthington Industries, Inc. and certain Foreign Subsidiary Borrowers







 



	
4.

	
Administrative Agent:

	
PNC Bank, National Association, as the administrative agent under the Credit Agreement







 



	
5.

	
Credit Agreement:

	
The Credit Agreement dated as of May 4, 2012 among Worthington Industries, Inc., the Foreign Subsidiary Borrowers from time to time parties thereto, the Lenders parties thereto, PNC Bank, National Association , as Administrative Agent, JPMorgan Chase Bank, N.A., as Syndication Agent, and the other agents parties thereto







 


 


 










1 Select as applicable.


 


 






  





103











  






 



	
6.

	
Assigned Interest:







 



	
Aggregate Amount of Commitment/Loans for all Lenders

	
Amount of Commitment/Loans Assigned

	
Percentage Assigned of Commitment/Loans2


	
$

	
$

	
%


	
$

	
$

	
%


	
$

	
$

	
%












Effective Date:  _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


The terms set forth in this Assignment and Assumption are hereby agreed to:


 


ASSIGNOR


 


 


[NAME OF ASSIGNOR]


 


 


By:                                                                        


Title:


 


 


ASSIGNEE


 


 


[NAME OF ASSIGNEE]


 


 


By:                                                                            


Title:


 


 


Consented to and Accepted:


 


PNC BANK, NATIONAL ASSOCIATION, as


Administrative Agent and Issuing Bank


 


By:                                                                          


Title:


 







 


JPMORGAN CHASE BANK, N.A., as Issuing


Bank


 


By:                                                                           


Title:


 












2 Set forth, so at least 9 decimals, as percentage of the Commitment/Loans of all Lenders thereunder.




 


 




  





104











  






 


[Consented to:]3


 


WORTHINGTON INDUSTRIES, INC.


 


By:                                                                           


Title:


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 









3 To be added only if the consent of the Company is required by the terms of the Credit Agreement.




  

 




  





105











  










 




ANNEX I


 


STANDARD TERMS AND CONDITIONS FOR


 


ASSIGNMENT AND ASSUMPTION


 


1.           Representations and Warranties.


 


1.1           Assignor.  The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Company, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.


 


1.2.           Assignee.  The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, and (v) if it is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.


 


2.           Payments.  From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.


 


3.           General Provisions.  This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.


 


 




  





106











  






 


EXHIBIT B-1


 


OPINION OF COUNSEL FOR THE BORROWERS


 


Attached.


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




  





107











  











EXHIBIT B-2


 


OPINION OF GENERAL COUNSEL OF THE COMPANY


 


Attached.


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




  





108











  






 


EXHIBIT C


 


FORM OF INCREASING LENDER SUPPLEMENT


 


INCREASING LENDER SUPPLEMENT, dated __________, 20___ (this “Supplement”), by and among each of the signatories hereto, to the Credit Agreement, dated as of May 4, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Worthington Industries, Inc. (the “Company”), the Foreign Subsidiary Borrowers from time to time party thereto, the Lenders party thereto, PNC Bank, National Association, as administrative agent  (in such capacity, the “Administrative Agent”) and JPMorgan Chase Bank, N.A., as syndication agent (the “Syndication Agent”).


 


W I T N E S S E T H


 


WHEREAS, pursuant to Section 2.20 of the Credit Agreement, the Company has the right, subject to the terms and conditions thereof, to effectuate from time to time an increase in the Aggregate Commitment and/or one or more tranches of Incremental Term Loans under the Credit Agreement by requesting one or more Lenders to increase the amount of its Commitment and/or to participate in such a tranche;


 


WHEREAS, the Company has given notice to the Administrative Agent of its intention to [increase the Aggregate Commitment] [and] [enter into a tranche of Incremental Term Loans] pursuant to such Section 2.20; and


 


WHEREAS, pursuant to Section 2.20 of the Credit Agreement, the undersigned Increasing Lender now desires to [increase the amount of its Commitment] [and] [participate in a tranche of Incremental Term Loans] under the Credit Agreement by executing and delivering to the Company and the Administrative Agent this Supplement;


 


NOW, THEREFORE, each of the parties hereto hereby agrees as follows:


 


1.           The undersigned Increasing Lender agrees, subject to the terms and conditions of the Credit Agreement, that on the date of this Supplement it shall [have its Commitment increased by $[__________], thereby making the aggregate amount of its total Commitments equal to $[__________]] [and] [participate in a tranche of Incremental Term Loans with a commitment amount equal to $[__________] with respect thereto].


 


2.           The Company hereby represents and warrants that no Default or Event of Default has occurred and is continuing on and as of the date hereof.


 


3.           Terms defined in the Credit Agreement shall have their defined meanings when used herein.


 


4.           This Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.


 


5.           This Supplement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same document.


 


 




  





109











  






 


IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be executed and delivered by a duly authorized officer on the date first above written.


 


[INSERT NAME OF INCREASING LENDER]


 


By:                                                                      


Name:


Title:


 


Accepted and agreed to as of the date first


written above:


 


WORTHINGTON INDUSTRIES, INC.


 


By:                                                             


Name:


Title:


 


Acknowledged as of the date first written above:


 


PNC BANK, NATIONAL ASSOCIATION


as Administrative Agent


 


By:                                                              


Name:


Title:


 


 


 


JPMORGAN CHASE BANK, N.A.


as Syndication Agent


 


By:                                                              


Name:


Title:


 









  





110











  






 


EXHIBIT D


 


FORM OF AUGMENTING LENDER SUPPLEMENT


 


AUGMENTING LENDER SUPPLEMENT, dated __________, 20___ (this “Supplement”), to the Credit Agreement, dated as of May 4, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Worthington Industries, Inc. (the “Company”), the Foreign Subsidiary Borrowers from time to time party thereto, the Lenders party thereto, PNC Bank, National Association, as administrative agent  (in such capacity, the “Administrative Agent”) and JPMorgan Chase Bank, N.A., as syndication agent (the “Syndication Agent”).


 


W I T N E S S E T H


 


WHEREAS, the Credit Agreement provides in Section 2.20 thereof that any bank, financial institution or other entity may [extend Commitments] [and] [participate in tranches of Incremental Term Loans] under the Credit Agreement subject to the approval of the Company and the Administrative Agent, by executing and delivering to the Company and the Administrative Agent a supplement to the Credit Agreement in substantially the form of this Supplement; and


 


WHEREAS, the undersigned Augmenting Lender was not an original party to the Credit Agreement but now desires to become a party thereto;


 


NOW, THEREFORE, each of the parties hereto hereby agrees as follows:


 


1.  The undersigned Augmenting Lender agrees to be bound by the provisions of the Credit Agreement and agrees that it shall, on the date of this Supplement, become a Lender for all purposes of the Credit Agreement to the same extent as if originally a party thereto, with a [Commitment with respect to Revolving Loans of $[__________]] [and] [a commitment with respect to Incremental Term Loans of $[__________]].


 


2.  The undersigned Augmenting Lender (a) represents and warrants that it is legally authorized to enter into this Supplement; (b) confirms that it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and has reviewed such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Supplement; (c) agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement or any other instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement or any other instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms thereof, together with such powers as are incidental thereto; and (e) agrees that it will be bound by the provisions of the Credit Agreement and will perform in accordance with its terms all the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.


 


3.  The undersigned’s address for notices for the purposes of the Credit Agreement is as follows:


 


[___________]


 


 




  





111











  






 


4.  The Company hereby represents and warrants that no Default or Event of Default has occurred and is continuing on and as of the date hereof.


 


5.  Terms defined in the Credit Agreement shall have their defined meanings when used herein.


 


6.  This Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.


 


7.  This Supplement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same document.


 


[remainder of this page intentionally left blank]


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




  





112











  






 


IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be executed and delivered by a duly authorized officer on the date first above written.


 


[INSERT NAME OF AUGMENTING LENDER]


 


 


By:                                                                           


Name:


Title:


 


Accepted and agreed to as of the date first written above:


 


WORTHINGTON INDUSTRIES, INC.


 


By:                                                                                                                                          


Name:


Title:


 


Acknowledged as of the date first written above:


 


PNC BANK, NATIONAL ASSOCIATION


as Administrative Agent


 


By:                                                                                                                                          


Name:


Title:


 







 


JPMORGAN CHASE BANK, N.A.


as Syndication Agent


 


By:                                                                                                                                          


Name:


Title:


 


 




  





113











  






 


EXHIBIT E


 


LIST OF CLOSING DOCUMENTS


 


WORTHINGTON INDUSTRIES, INC.


CERTAIN FOREIGN SUBSIDIARY BORROWERS


 


CREDIT FACILITIES


 


May 4, 2012


 


LIST OF CLOSING DOCUMENTS1


 


A.           LOAN DOCUMENTS


 



	
1.  

	
Credit Agreement (the “Credit Agreement”) by and among Worthington Industries, Inc., an Ohio corporation (the “Company”), the Foreign Subsidiary Borrowers from time to time parties thereto (collectively with the Company, the “Borrowers”), the institutions from time to time parties thereto as Lenders (the “Lenders”), PNC Bank, National Association, in its capacity as administrative agent  for itself and the other Lenders (the “Administrative Agent”) and JPMorgan Chase Bank, N.A., as syndication agent, evidencing a revolving credit facility to the Borrowers from the Lenders in an initial aggregate principal amount of $425,000,000.







 


SCHEDULES


 



	
Schedule 1.01

	
--

	
Existing Letters of Credit


	Schedule 1.02	--	Liens
	
Schedule 2.01

	
--

	
Commitments


	
Schedule 2.02

	
--

	
Mandatory Cost


	
Schedule 3.12

	
--

	
Restricted Subsidiaries


	
Schedule 6.03

	
--

	
Existing Investments


	
Schedule 6.0

	
--

	
Unrestricted Subsidiaries







 


EXHIBITS


 



	
Exhibit A

	
--

	
Form of Assignment and Assumption


	
Exhibit B-1

	
--

	
Form of Opinion of Borrowers’ Counsel


	
Exhibit B-2

	
--

	
Form of Opinion of General Counsel of Company


	Exhibit C	--	Form of Increasing Lender Supplement
	
Exhibit D

	
--

	
Form of Augmenting Lender Supplement


	
Exhibit E

	
--

	
List of Closing Documents


	
Exhibit F-1

	
--

	
Form of Borrowing Request


	
Exhibit F-2

	
--

	
Form of Swingline Loan Request


	
Exhibit G-1

	
--

	
Form of Borrowing Subsidiary Agreement


	
Exhibit G-2

	
--

	
Form of Borrowing Subsidiary Termination


	
Exhibit H-1

	
--

	
Form of U.S. Tax Certificate (Foreign Lenders That Are Not Partnerships)


	
Exhibit H-2

	
--

	
Form of U.S. Tax Certificate (Foreign Participants That Are Not Partnerships)


	
Exhibit H-3

	
--

	
Form of U.S. Tax Certificate (Foreign Participants That Are Partnerships)


	
Exhibit H-4

	
--

	
Form of U.S. Tax Certificate (Foreign Lenders That Are Partnerships)







 











1 Each capitalized term used herein and not defined herein shall have the meaning assigned to such term in the above-defined Credit Agreement.  Items appearing in bold and italics shall be prepared and/or provided by the Company and/or Company’s counsel.

 


 




  





114











  






 



	
2.  

	
Notes executed by the initial Borrowers in favor of each of the Lenders, to the extent any Lender has requested a note pursuant to Section 2.10(e) of the Credit Agreement.







 


B.           CORPORATE DOCUMENTS


 



	
3.  

	
Certificate of the Secretary or an Assistant Secretary of each Borrower certifying (i) that there have been no changes in the Certificate of Incorporation or other charter document of such Borrower, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (ii) the By-Laws or other applicable organizational document, as attached thereto, of such Borrower as in effect on the date of such certification, (iii) resolutions of the Board of Directors or other governing body of such Borrower authorizing the execution, delivery and performance of each Loan Document to which it is a party, and (iv) the names and true signatures of the incumbent officers of each Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowing or the issuance of a Letter of Credit  under the Credit Agreement.







 



	
4.  

	
Good Standing Certificate (or analogous documentation if applicable) for each Borrower from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, to the extent generally available in such jurisdiction.







 


C.           OPINIONS


 



	
5.  

	
Opinion of Vorys, Sater, Seymour and Pease LLP, counsel for the Borrowers.







 



	
6.  

	
Opinion of the General Counsel of the Company.







 


D.           CLOSING CERTIFICATES AND MISCELLANEOUS


 



	
7.  

	
A Certificate signed by a Responsible Officer of the Company certifying the following:  (i) all of the representations and warranties of the Company set forth in the Credit Agreement are true and correct and (ii) no Default or Event of Default has occurred and is then continuing.







 



	
8.  

	
Payoff documentation providing evidence satisfactory to the Administrative Agent that the Second Amended and Restated Revolving Credit Agreement, dated as of September 29, 2005, by and among the Company, the lenders from time to time party thereto and PNC Bank, National Association, as Administrative Agent, has been terminated and cancelled (along with all of the agreements, documents and instruments delivered in connection therewith) and all Indebtedness owing thereunder has been repaid and any and all liens thereunder have been terminated.









 




  





115











  








 




EXHIBIT F-1


 


[FORM OF]


 


BORROWING REQUEST


 







 




	
TO: 

	
PNC Bank, National Association, as Agent


500 First Avenue, 4th Floor


Pittsburgh, PA  15219


Telephone No.:  (412) 762-7638


Telecopier No.:  (412) 762-8672


Attention:  Rini Davis









 



	
FROM:

	
Worthington Industries, Inc.







 



	
RE:

	
Credit Agreement (as it may be amended, restated, supplemented or modified the "Credit Agreement") dated as of May 4, 2012, by and among Worthington Industries, Inc., an Ohio corporation (the "Company"), the Foreign Subsidiary Borrowers from time to time party thereto (collectively with the Company, the “Borrowers”), the Lenders from time to time party thereto, PNC Bank, National Association, as Administrative Agent for the Lenders (the "Administrative Agent") and JPMorgan Chase Bank, N.A., as Syndication Agent.







 


Capitalized terms not otherwise defined herein shall have the respective meanings ascribed to them in the Credit Agreement.


 



	
A.

	
Pursuant to Section [2.03][2.05] of the Credit Agreement, the undersigned hereby irrevocably requests [check one line under 1(a) below and fill in blank space next to the line as appropriate]:







 



	 	1.(a)	        A new Revolving Loan OR
	 	 	        Renewal of a Eurocurrency Borrowing, originally made on __________ __, 20__ OR
	 	 	        Conversion of an ABR Borrowing originally made on _________, 20__  to a Eurocurrency Borrowing, OR
	 	 	        Conversion of a Eurocurrency Borrowing originally made on _________, 20__  to an ABR Borrowing.





 


SUCH NEW, RENEWED OR CONVERTED REVOLVING LOAN


SHALL BEAR INTEREST:


 


[Check one line under 1(b) below and fill in blank spaces]:



 



	 	
1.(b)(i)


 

	        ABR Borrowing.  Such Revolving Loan shall have a borrowing date of __________, ___(which date shall be no later than (i) the date of this Borrowing Request or (ii) the last day of the preceding Interest Period if a Eurocurrency Borrowing being converted to an ABR Borrowing).







 



	
  

	
  

	
OR







 


 




  





116











  






 



	 	
       (ii)


 


 

	        Eurocurrency Borrowing.  Such Revolving Loan shall have a borrowing date of _____________ (which date shall be no later than (i) three (3) Business Days prior to the borrowing date if a Borrowing in Dollars or (ii) four (4) Business Days prior to the borrowing date if a Borrowing in a Foreign Currency for making a new Eurocurrency Borrowing, renewing a Eurocurrency Borrowing, or converting an ABR Borrowing to a Eurocurrency Borrowing).





 



	
  

	
2.

	
Such Revolving Loan is in the principal amount of U.S. $_____________ or the principal amount to be renewed or converted is U.S. $_____________.













	
  

	
3.

	
[Complete blank below if the Borrower is selecting a Eurocurrency Borrowing]:



Such Revolving Loan shall have an Interest Period of ________ months.















 



	
B.  

	
As of the date hereof and the date of making of the above-requested Revolving Loan (and after giving effect thereto):  the Borrowers have performed and complied with all covenants and conditions of the Credit Agreement and Loan Documents; all of the Borrowers' representations and warranties therein are true and correct (except representations and warranties which expressly relate solely to an earlier date or time, which representations and warranties were true and correct on and as of the specific dates or times referred to therein); no Event of Default or Default has occurred and is continuing or shall exist; the making of such Revolving Loan shall not contravene any law applicable to the Borrowers or any Subsidiary or the Lenders; and the making of any Revolving Loan shall not cause the Revolving Credit Exposure to exceed the Aggregate Commitment.







 



	
C.  

	
The undersigned hereby irrevocably requests [check one line under 1.(a) below and fill in blank space next to the line as appropriate]:







 


___ Funds to be deposited into PNC bank account per our current standing instructions.  Complete amount of deposit if not full loan advance amount:  $_______________.


 


___ Funds to be wired per the following wire instructions:


 


$_________________  Amount of Wire Transfer


Bank Name:  _____________________


ABA:  __________________________


Account Number: _________________


Account Name: ___________________


Reference: _______________________







___Funds to be wired per the attached Funds Flow (multiple wire transfers)


 








[SIGNATURE PAGE FOLLOWS]










 


 




  





117











  







 


[SIGNATURE PAGE TO LOAN REQUEST]










 


The undersigned certifies to the Administrative Agent as to the accuracy of the foregoing.


 



	ATTEST:	[BORROWER]
	 	 
	 	 
	 	 
	                                                               	By:                                                   (SEAL)
	Name:                                                    	Name:
	Title:                                                     	Title:
	 	 
	 	 
	 	 
	Date:                                 , 20     	 





 


                                                          


                                                           







 


 


 


 


 


 


 


 




 




  





118











  











EXHIBIT F-2


 


[FORM OF]


 


SWINGLINE LOAN REQUEST


 



	
TO:

	
PNC Bank, National Association, as Administrative Agent








	
  

	
PNC Firstside Center - 4th Floor








	
  

	
500 First Avenue








	
  

	
P7-PFSC-04-I








	
  

	
Pittsburgh, PA  15219








	
  

	
Telephone No.:  (412) 762 - 7638








	
  

	
Telecopier No.:  (412) 762 - 8672








	
  

	
Attn:  Rini Davis







 



	
FROM:

	
Worthington Industries, Inc.







 



	
RE:

	
Credit Agreement (as it may be amended, restated, modified or supplemented, the "Credit Agreement"), dated as of May 4, 2012, by and among Worthington Industries, Inc., an Ohio corporation (the "Company"), the Foreign Subsidiary Borrowers from time to time party thereto (collectively with the Company, the "Borrowers"), the Lenders party thereto, PNC Bank, National Association, as administrative agent for the Lenders (the "Administrative Agent") and JPMorgan Chase Bank, N.A., as Syndication Agent.







 


Capitalized terms not otherwise defined herein shall have the respective meanings given to them by the Credit Agreement.


 


Pursuant to Section 2.05(b) of the Credit Agreement, the undersigned hereby irrevocably requests on behalf of the Borrowers:


 



	
1. 


 

	
Aggregate principal amount of such Swingline Loan (may not be less than $100,000)

	
 U.S. $                                                                                    


	
2. 


 

	
Date of Proposed Swingline Loan (the “Borrowing Date”) (which date shall be on or after the date on which the Administrative Agent receives this Swingline Loan Request, with such Swingline Loan Request to be received no later than 2:00 p.m. Eastern time on the Borrowing Date)

	
 


                                                                     





 


 




  





119











  






 


	
3. 

	
As of the date hereof and the date of making the above-requested Swingline Loan (and after giving effect thereto):  all of the representations and warranties of the Borrowers contained in the Credit Agreement and in the other Loan Documents are true and correct as of such date, except to the extent the same specifically relate to an earlier date (which representations and warranties were true and correct on and as of the specific dates or times referred to therein); no Event of Default or Default has occurred and is continuing or exists; the making of such Swingline Loan shall not contravene any Law applicable to any Borrower, any Subsidiary or any Lender; the making of such Swingline Loan shall not cause the aggregate principal amount of all outstanding Swingline Loans to exceed $40,000,000 or cause the Dollar Amount of the total Revolving Credit Exposure to exceed the Aggregate Commitment.


	
4. 

	
Each of the undersigned hereby irrevocably requests [check one line below and fill in blank spaces next to the line as appropriate]:


 


___ Funds to be deposited into PNC bank account per our current standing instructions.  Complete amount of deposit if not full loan advance amount:  $_______________.


___ Funds to be wired per the following wire instructions:


$_________________  Amount of Wire Transfer


Bank Name:  _____________________


ABA:  __________________________


Account Number: _________________


Account Name: ___________________


Reference: _______________________


 


___Funds to be wired per the attached Funds Flow (multiple wire transfers)












[SIGNATURE PAGE FOLLOWS]


 


 




3





120











  






 


[SIGNATURE PAGE - SWINGLINE LOAN REQUEST]


 







The Company hereby certifies on behalf of the Borrowers to the Administrative Agent for the benefit of the Lenders as to the accuracy of the foregoing on ________________, 20___.


 



	 	 WORTHINGTON INDUSTRIES, INC.
	 	 
	 	 
	 	 By:                                                                          
	 	 Name:                                                                     
	 	 Title:                                                                       
	 	 





 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




  





121











  






 


EXHIBIT G-1


 


[FORM OF]


 


BORROWING SUBSIDIARY AGREEMENT


 


BORROWING SUBSIDIARY AGREEMENT dated as of [_____], among Worthington Industries, Inc., an Ohio corporation (the “Company”), [Name of Foreign Subsidiary Borrower], a [__________] (the “New Borrowing Subsidiary”), PNC Bank, National Association, as administrative agent (in such capacity, the “Administrative Agent”), JPMorgan Chase Bank, N.A., as syndication agent (the “Syndication Agent”).


 


Reference is hereby made to the Credit Agreement dated as of May 4, 2012 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Company, the Foreign Subsidiary Borrowers from time to time party thereto, the Lenders from time to time party thereto, PNC Bank, National Association, as Administrative Agent and JPMorgan Chase Bank, N.A., as syndication agent.  Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.  Under the Credit Agreement, the Lenders have agreed, upon the terms and subject to the conditions therein set forth, to make Loans to certain Foreign Subsidiary Borrowers (collectively with the Company, the “Borrowers”), and the Company and the New Borrowing Subsidiary desire that the New Borrowing Subsidiary become a Foreign Subsidiary Borrower.  In addition, the New Borrowing Subsidiary hereby authorizes the Company to act on its behalf as and to the extent provided for in Article II of the Credit Agreement.  [Notwithstanding the preceding sentence, the New Borrowing Subsidiary hereby designates the following officers as being authorized to request Borrowings under the Credit Agreement on behalf of the New Subsidiary Borrower and sign this Borrowing Subsidiary Agreement and the other Loan Documents to which the New Borrowing Subsidiary is, or may from time to time become, a party:  [______________].]


 


Each of the Company and the New Borrowing Subsidiary represents and warrants that the representations and warranties of the Company in the Credit Agreement relating to the New Borrowing Subsidiary and this Agreement are true and correct on and as of the date hereof, other than representations given as of a particular date, in which case they shall be true and correct as of that date.  [The Company and the New Borrowing Subsidiary further represent and warrant that the execution, delivery and performance by the New Borrowing Subsidiary of the transactions contemplated under this Agreement and the use of any of the proceeds raised in connection with this Agreement will not contravene or conflict with, or otherwise constitute unlawful financial assistance under, Sections 677 to 683 (inclusive) of the United Kingdom Companies Act 2006 of England and Wales (as amended).] [INSERT OTHER PROVISIONS REASONABLY REQUESTED BY SYNDICATION AGENT, ADMINISTRATIVE AGENT OR THEIR COUNSELS]1  The Company agrees that the guarantee of the Company contained in the Credit Agreement will apply to the Obligations of the New Borrowing Subsidiary.  Upon execution of this Agreement by each of the Company, the New Borrowing Subsidiary and the Administrative Agent, the New Borrowing Subsidiary shall be a party to the Credit Agreement and shall constitute a “Foreign Subsidiary Borrower” for all purposes thereof, and the New Borrowing Subsidiary hereby agrees to be bound by all provisions of the Credit Agreement.


 


This Agreement shall be governed by and construed in accordance with the laws of the State of New York.


 













1 To be included only if a New Borrowing Subsidiary will be a Borrower organized under the laws of England and Wales.


 


 




  





122











  






 




IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their authorized officers as of the date first appearing above.


 


 



	 	 WORTHINGTON INDUSTRIES, INC.
	 	 
	 	 
	 	 By:                                                                                    
	 	             Name:
	 	             Title:
	 	 
	 	 [NAME OF NEW BORROWING SUBSIDIARY]
	 	 
	 	 
	 	 By:                                                                                    
	 	             Name:
	 	             Title:
	 	 
	 	 
	 	 PNC BANK, NATIONAL ASSOCIATION, as
	 	 Administrative Agent
	 	 
	 	 
	 	 By:                                                                                  
	 	             Name:
	 	             Title:
	 	 
	 	 
	 	 JPMORGAN CHASE BANK, N.A., as Syndication
	 	 Agent
	 	 
	 	 
	 	 By:                                                                               
	 	             Name:
	 	             Title:





 



  











  





123











  






 


EXHIBIT G-2


 


[FORM OF]


 


BORROWING SUBSIDIARY TERMINATION


 


PNC Bank, National Association


as Administrative Agent


for the Lenders referred to below


[_________]


[_________]


Attention:  [__________]


[Date]


 


Ladies and Gentlemen:


 


The undersigned, Worthington Industries, Inc. (the “Company”), refers to the Credit Agreement dated as of May 4, 2012 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Company, the Foreign Subsidiary Borrowers from time to time party thereto, PNC Bank, National Association, as Administrative Agent and JPMorgan Chase Bank, N.A., as syndication agent.  Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.


 


The Company hereby terminates the status of [______________] (the “Terminated Borrowing Subsidiary”) as a Foreign Subsidiary Borrower under the Credit Agreement.  [The Company represents and warrants that no Loans made to the Terminated Borrowing Subsidiary are outstanding as of the date hereof and that all amounts payable by the Terminated Borrowing Subsidiary in respect of interest and/or fees (and, to the extent notified by the Administrative Agent or any Lender, any other amounts payable under the Credit Agreement) pursuant to the Credit Agreement have been paid in full on or prior to the date hereof.] [The Company acknowledges that the Terminated Borrowing Subsidiary shall continue to be a Borrower until such time as all Loans made to the Terminated Borrowing Subsidiary shall have been prepaid and all amounts payable by the Terminated Borrowing Subsidiary in respect of interest and/or fees (and, to the extent notified by the Administrative Agent or any Lender, any other amounts payable under the Credit Agreement) pursuant to the Credit Agreement shall have been paid in full, provided that the Terminated Borrowing Subsidiary shall not have the right to make further Borrowings under the Credit Agreement.]


 


[Signature Page Follows]


 


 


 


 


 


 


 


 


 


 


 


 


 




  





124











  






 


This instrument shall be construed in accordance with and governed by the laws of the State of New York.


 


Very truly yours,


 


 


WORTHINGTON INDUSTRIES, INC.


 


 


By:                                                                                                                                                 


Name:


Title:


 



	
  

	
Copy to:     PNC Bank, National Association








	
  

	
[__________]








	
  

	
[__________]












 


 


 


 


 


 


 


 


 




  





125











  






 


EXHIBIT H-1


 


[FORM OF]


 


U.S. TAX COMPLIANCE CERTIFICATE


(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)


 


Reference is hereby made to the Credit Agreement dated as of May 4, 2012 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Worthington Industries, Inc. (the “Company”), the Foreign Subsidiary Borrowers from time to time party thereto, the Lenders from time to time party thereto (collectively with the Company, the “Borrowers”), PNC Bank, National Association, as administrative agent  (in such capacity, the “Administrative Agent”) and JPMorgan Chase Bank, N.A., as syndication agent.


 


Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.


 


The undersigned has furnished the Administrative Agent and the Borrowers with a certificate of its non-U.S. Person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.


 


Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.


 


[NAME OF LENDER]


 


By:______________________________________


Name:


Title:


 


Date:  __________, 20[__]


 


 




  





126











  






 


EXHIBIT H-2


 


[FORM OF]







U.S. TAX COMPLIANCE CERTIFICATE


(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)


 


Reference is hereby made to the Credit Agreement dated as of May 4, 2012 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Worthington Industries, Inc. (the “Company”), the Foreign Subsidiary Borrowers from time to time party thereto, the Lenders from time to time party thereto (collectively with the Company, the “Borrowers”), PNC Bank, National Association, as administrative agent  (in such capacity, the “Administrative Agent”) and JPMorgan Chase Bank, N.A., as syndication agent.


 


Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.


 


The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.


 


Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.


 


[NAME OF PARTICIPANT]


 


By:______________________________________


Name:


Title:


 


Date:  __________, 20[__]


 


 




  





127











  






 


EXHIBIT H-3


 


[FORM OF]







U.S. TAX COMPLIANCE CERTIFICATE


(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)


 


Reference is hereby made to the Credit Agreement dated as of May 4, 2012 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Worthington Industries, Inc. (the “Company”), the Foreign Subsidiary Borrowers from time to time party thereto, the Lenders from time to time party thereto (collectively with the Company, the “Borrowers”), PNC Bank, National Association, as administrative agent  (in such capacity, the “Administrative Agent”) and JPMorgan Chase Bank, N.A., as syndication agent.


 


Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.


 


The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.


 


Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.


 


[NAME OF PARTICIPANT]


 


By:______________________________________


Name:


Title:


 


Date:  __________, 20[__]


 


 




  





128











  






 


EXHIBIT H-4


 


[FORM OF]







U.S. TAX COMPLIANCE CERTIFICATE


(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)


 


Reference is hereby made to the Credit Agreement dated as of May 4, 2012 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Worthington Industries, Inc. (the “Company”), the Foreign Subsidiary Borrowers from time to time party thereto, the Lenders from time to time party thereto (collectively with the Company, the “Borrowers”), PNC Bank, National Association, as administrative agent  (in such capacity, the “Administrative Agent”) and JPMorgan Chase Bank, N.A., as syndication agent.


 


Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.


 


The undersigned has furnished the Administrative Agent and the Borrowers with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.


 


Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.


 


[NAME OF LENDER]


 


By:______________________________________


Name:


Title:


 


Date:  __________, 20[__]


 


 


 


 


129