FOURTH AMENDMENT TO LOAN AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AGREEMENT (the "Fourth
Amendment"), is made and entered into as of the 11th day of
October, 1996, by and among (i) STEEL TECHNOLOGIES INC., a Kentucky
corporation with principal office and place of business in
Louisville, Kentucky (the "Borrower"), (ii)(a) PNC BANK, KENTUCKY,
INC., a Kentucky banking corporation with principal office and
place of business in Louisville, Kentucky ("PNC"), (b) NATIONAL
CITY BANK OF KENTUCKY, f/k/a NATIONAL CITY BANK, KENTUCKY, a
national banking association with principal office and place of
business in Louisville, Kentucky ("National City"), (c) NBD BANK,
N.A., a national banking association with principal office and
place of business in Detroit, Michigan ("NBD"), and (d) SUNTRUST
BANK, NASHVILLE, N.A., f/k/a THIRD NATIONAL BANK IN NASHVILLE, a
national banking association with principal office and place of
business in Nashville, Tennessee ("SunTrust") (PNC, National City,
NBD and SunTrust is each hereinafter individually referred to as a
"Bank," and all of the same are hereinafter collectively referred
to as the "Banks"), and (iii) PNC BANK, KENTUCKY, INC., in its
capacity as agent for the Banks (in such capacity, the "Agent").
P R E L I M I N A R Y S T A T E M E N T S:
A. Pursuant to that certain Loan Agreement dated as of
October 15, 1994, among the Borrower, the Banks and the Agent, as
amended pursuant to (i) that certain First Amendment to Loan
Agreement dated as of January 17, 1995, among the Borrower, the
Banks and the Agent, (ii) that certain Second Amendment to Loan
Agreement dated as of April 6, 1995, among the Borrower, the Banks
and the Agent, and (iii) that certain Third Amendment to Loan
Agreement dated as of October 14, 1995, among the Borrower, the
Banks and the Agent (collectively, the "Loan Agreement"), the Banks
have established a revolving credit facility in the current
principal amount of Forty Million Dollars ($40,000,000.00) in favor
of the Borrower (the "Revolver") for the purposes set forth in
Section 2.5 of the Loan Agreement.
B. The current stated maturity date of the Revolver is
October 14, 1996.
C. The Borrower has requested that the Banks extend the
stated maturity date of the Revolver from October 14, 1996 to
October 11, 1999 and reduce the principal amount of the Revolver
from Forty Million Dollars ($40,000,000.00) to Thirty Million
Dollars ($30,000,000.00).
D. The Banks are willing to and desire to extend the stated
maturity date of the Revolver from October 14, 1996 to October 11,
1999 and to reduce the principal amount of the Revolver from Forty
Million Dollars ($40,000,000.00) to Thirty Million Dollars
($30,000,000.00) upon the terms and conditions set forth herein.
E. The Borrower has also requested that the Banks establish
a 364-day revolving credit facility in favor of the Borrower in the
principal amount of Twenty-Five Million Dollars ($25,000,000.00)
(the "Line of Credit").
F. The obligation of the Borrower to repay advances under
the Line of Credit together with accrued interest thereon is
evidenced by (i) that certain Line of Credit Promissory Note dated
October 11, 1996, made by the Borrower, payable to the order of
PNC, and in the face principal amount of Nine Million Three Hundred
Seventy-Five Thousand Dollars ($9,375,000.00) (together with all
amendments, modifications, renewals, extensions, restatements and
replacements thereof, the "PNC Line of Credit Note"), (ii) that
certain Line of Credit Promissory Note dated October 11, 1996, made
by the Borrower, payable to the order of NBD, and in the face
principal amount of Six Million Two Hundred Fifty Thousand Dollars
($6,250,000.00) (together with all amendments, modifications,
renewals, extensions, restatements and replacements thereof, the
"NBD Line of Credit Note"), (iii) that certain Line of Credit
Promissory Note dated October 11, 1996, made by the Borrower,
payable to the order of SunTrust, and in the face principal amount
of Six Million Two Hundred Fifty Thousand Dollars ($6,250,000.00)
(together with all amendments, modifications, renewals, extensions,
restatements and replacements thereof, the "SunTrust Line of Credit
Note"), and (iv) that certain Line of Credit Promissory Note dated
October 11, 1996, made by the Borrower, payable to the order of
National City, and in the face principal amount of Three Million
One Hundred Twenty-Five Thousand Dollars ($3,125,000.00) (together
with all amendments, modifications, renewals, extensions,
restatements and replacements thereof, the "National City Line of
Credit Note") (the PNC Line of Credit Note, the NBD Line of Credit
Note, the SunTrust Line of Credit Note and the National City Line
of Credit Note are hereinafter collectively referred to as the
"Line of Credit Notes").
G. The Banks are willing to establish the Line of Credit in
favor of the Borrower pursuant to the terms and conditions set
forth in this Fourth Amendment (the term "Loan Agreement", as
hereinafter used, includes the Fourth Amendment and all future
amendments and modifications to the Loan Agreement).
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements set forth in the Loan Agreement and
herein, and for other good and valuable consideration, the
mutuality, receipt and sufficiency of which are hereby acknowl-
edged, the parties hereto hereby agree as follows:
1. Each capitalized term used herein, unless otherwise
expressly defined herein, shall have the meaning set forth in the
Loan Agreement.
2. The term "Base Rate", as defined in Section 1.11 of the
Loan Agreement, is hereby redefined to mean, at the time of its
selection, the higher of (i) the Prime Rate, or (ii) the Federal
Funds Rate plus one percent (1%); provided, in the event that, and
during the periods that, the Federal Funds Rate cannot be deter-
mined by the Agent under the circumstances specified in Section 2.2
hereof, the Base Rate shall be the Prime Rate.
3. The term "Base Rate Loans", as defined in Section 1.12
of the Loan Agreement, is hereby redefined to mean Revolving Loans,
Swing Line Loans or Line of Credit Advances made to the Borrower
and bearing interest at rates determined by reference to the Base
Rate as provided in Sections 2.2(a) and 2.2(g) hereof.
4. The term "Consolidated Interest Expense", as defined in
Section 1.23 of the Loan Agreement, is hereby redefined to mean for
any period, total interest expense (including that attributable to
Capital Leases in conformity with GAAP) of the Borrower and its
Consolidated Subsidiaries on a consolidated basis with respect to
all outstanding Indebtedness of the Borrower and its Consolidated
Subsidiaries on a consolidated basis, including, without limitation
all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing and
net costs and benefits under interest rate agreements, whether
payable in cash or accrued (including amortization of discount),
all as determined on a consolidated basis in conformity with GAAP.
5. The term "Default Rate", as defined in Section 1.36 of
the Loan Agreement, is hereby redefined to mean, upon the occur-
rence and during the continuation of the Events of Default referred
to in Section 7 of the Loan Agreement, as well as upon the
acceleration of the maturity of the Obligations due to the
occurrence of any other Event of Default (i) with respect to Line
of Credit Advances, Revolving Loans and Swing Line Loans, a
variable rate per annum equal to the sum of (a) two percent (2%)
per annum, plus (b) the Base Rate, and (ii) with respect to Letters
of Credit outstanding on the date of the occurrence of such Event
of Default or thereafter issued by PNC during the continuation of
such Event of Default (it being understood that PNC has no
obligation to issue any Letter of Credit upon the occurrence and
during the continuation of any Event of Default), a Letter of
Credit Fee equal to the sum of (a) two percent (2%) per annum, plus
(b) the Letter of Credit Fee Percentage.
6. The term "Funding Date", as defined in Section 1.46 of
the Loan Agreement, is hereby redefined to mean the date of funding
of a Revolving Loan, a Swing Line Loan or a Line of Credit Advance.
7. The term "Guaranty Agreement", as defined in Section
1.48 of the Loan Agreement, is hereby redefined to mean that
certain Guaranty Agreement dated as of March 1, 1995, executed and
delivered by Wabash Steel Corporation in favor of the Agent for the
benefit of the Banks, (i) that certain Ratification and
Reaffirmation Agreement dated as of October 15, 1995, executed and
delivered by Wabash Steel Corporation in favor of the Agent for the
benefit of the Banks, and (ii) that certain Second Ratification and
Reaffirmation Agreement dated as of October 11, 1996, executed and
delivered by Wabash Steel Corporation in favor of the Agent for the
benefit of the Banks.
8. The term "Letter of Credit Fee Percentage", as defined
in Section 1.57 of the Loan Agreement, is hereby redefined to mean
the Applicable LIBOR Rate Margin in effect during a particular
Pricing Period in which a Letter of Credit is issued by PNC for the
account of the Borrower.
9. The term "LIBOR Rate", as defined in Section 1.59 of the
Loan Agreement, is hereby redefined to mean the Adjusted LIBOR Rate
plus the Applicable LIBOR Rate Margin in effect for the particular
Interest Period.
10. The term "LIBOR Rate Loans", as defined in Section 1.60
of the Loan Agreement, is hereby redefined to mean Revolving Loans
and Line of Credit Advances made to the Borrower bearing interest
at the LIBOR Rate.
11. The term "Loan Instruments", as defined in Section 1.63
of the Loan Agreement, is hereby redefined to mean the Revolving
Notes, the Line of Credit Notes, the Guaranty Agreement, each
Application and Agreement for Letter of Credit and all other
applications, reimbursement agreements and other documents or
certificates executed in favor of PNC relating to the Letters of
Credit, each Request for Revolving Loan, each Request for Line of
Credit Advance, each Request for Swing Line Loan, each Compliance
Certificate and all other agreements, documents and instruments
delivered by the Borrower pursuant to this Loan Agreement.
12. The term "Notice of Conversion/Continuation", as defined
in Section 1.66 of the Loan Agreement, is hereby redefined to mean
a Notice in the form of Exhibit A annexed hereto (formerly Exhibit
G to the Loan Agreement) with respect to a proposed conversion or
continuation of a Revolving Loan or a Line of Credit Advance.
13. The term "Obligations", as defined in Section 1.67 of
the Loan Agreement, is hereby redefined to mean (i) the entire
unpaid principal balance of and all interest accrued on the
Revolving Notes, (ii) the entire unpaid principal balance of and
all interest accrued on the Line of Credit Notes, and (iii) all
other liabilities owing by the Borrower to the Banks arising under
or pursuant to this Loan Agreement or the other Loan Instruments of
any kind or nature, present or future, and whether or not evidenced
by any note, guaranty or other instrument. The term "Obligations"
includes, without limitation, all interest, charges, expenses,
reasonable attorneys' fees and any other sums chargeable to the
Borrower under this Loan Agreement or any other Loan Instrument.
14. The term "Pro Rata Share", as defined in Section 1.72 of
the Loan Agreement, is hereby redefined to mean, (i) with respect
to each Revolving Loan Commitment of each Bank, the percentage set
forth opposite that Bank's name on Schedule 2.1 annexed hereto, and
(ii) with respect to each Line of Credit Commitment of each Bank,
the percentage set forth opposite that Bank's name on Schedule 2.1
annexed hereto; provided that Schedule 2.1 shall be amended and
each Bank's Pro Rata Share shall be adjusted from time to time to
give effect to the addition or removal of any Banks as provided
herein or by assignment pursuant to Section 10 of the Loan
Agreement.
15. The term "Requisite Banks", as defined in Section 1.76
of the Loan Agreement, is hereby redefined to mean Banks holding at
least sixty percent (60%) of the sum of the Total Utilization of
Revolving Loan Commitments and Total Utilization of Line of Credit
Commitments as of the date of determination of the Requisite Banks;
provided, if there are no Revolving Loans, Line of Credit Advances
or Letters of Credit outstanding as of the date of determination of
the Requisite Banks, the term "Requisite Banks" shall mean Banks
holding at least sixty percent (60%) of the sum of the Revolving
Loan Commitments and the Line of Credit Commitments as of the date
of determination of the Requisite Banks. It is expressly under-
stood that the Total Utilization of Revolving Loan Commitments for
purposes of determination of the Requisite Banks includes each
Bank's obligation to make Revolving Loans in an amount equal to its
Pro Rata Share of all drawings under Letters of Credit issued by
PNC pursuant to the Loan Agreement.
16. The term "Revolver", as defined in Section 1.78 of the
Loan Agreement, is hereby redefined to mean the revolving credit
facility established by the Banks in favor of the Borrower in the
principal amount of Thirty Million Dollars ($30,000,000.00)
pursuant to the Loan Agreement, pursuant to which the Borrower may
obtain Revolving Loans and Letters of Credit during the term of the
Revolver upon the terms and conditions set forth in the Loan
Agreement. All references to the "aggregate principal balance of
the Revolving Loans outstanding" or similar phrases in this Loan
Agreement shall mean, as of the date of determination thereof, the
sum of (i) the entire aggregate outstanding principal balance of
all Revolving Loans made by the Banks pursuant to the Loan
Agreement and (ii) the then existing Letter of Credit Usage.
17. The term "Revolving Notes", as defined in Section 1.82
of the Loan Agreement, is hereby redefined to mean, collectively,
(i) that certain Amended and Restated Revolving Promissory Note
dated October 11, 1996, made by the Borrower, payable to the order
of PNC, and in the face principal amount of Eleven Million Two
Hundred Fifty Thousand Dollars ($11,250,000.00), together with all
amendments, modifications, renewals, extensions, restatements and
replacements thereof, (ii) that certain Amended and Restated
Revolving Promissory Note dated October 11, 1996, made by the
Borrower, payable to the order of NBD, and in the face principal
amount of Seven Million Five Hundred Thousand Dollars
($7,500,000.00), together with all amendments, modifications,
renewals, extensions, restatements and replacements thereof, (iii)
that certain Amended and Restated Revolving Promissory Note dated
October 11, 1996, made by the Borrower, payable to the order of
SunTrust, and in the face principal amount of Seven Million Five
Hundred Thousand Dollars ($7,500,000.00), together with all
amendments, modifications, renewals, extensions, restatements and
replacements thereof, and (iv) that certain Amended and Restated
Revolving Promissory Note dated October 11, 1996, made by the
Borrower, payable to the order of National City, and in the face
principal amount of Three Million Seven Hundred Fifty Thousand
Dollars ($3,750,000.00), together with all amendments, modifica-
tions, renewals, extensions, restatements and replacements thereof.
18. Section 1 of the Loan Agreement is hereby amended to add
certain additional definitions to the Loan Agreement as follows:
1.94 "Applicable Letter of Credit Fee" means
each per annum percentage set forth in the
table appearing in Section 2.7F(ii) of this
Loan Agreement.
1.95 "Applicable LIBOR Rate Margin" means
each per annum percentage set forth in the
table appearing in Section 2.2(a)(ii) of this
Loan Agreement.
1.96 "Applicable Revolver Commitment Fee"
means each per annum percentage set forth in
the table appearing in Section 2.3A(i) of this
Loan Agreement.
1.97 "Date of Determination" means, for
purposes of determining the applicable Pricing
Level on any Pricing Level Calculation Date,
the forty-fifth (45th) day following the most
recent Fiscal Quarter of the Borrower.
1.98 "Leverage Ratio" means, as of each Date
of Determination, (a) the Borrower's Xxxxxxx-
dated Total Debt as of the particular Date of
Determination, divided by (b) the Borrower's
Consolidated Total Capitalization as of the
particular Date of Determination, in each case
determined for the Borrower on a consolidated
basis in accordance with GAAP.
1.99 "Line of Credit" means the revolving
line of credit in the original principal
amount of Twenty-Five Million Dollars
($25,000,000.00) established by the Banks in
favor of the Borrower pursuant to this Loan
Agreement.
1.100 "Line of Credit Advances" means the
advances under the Line of Credit made from
time to time by the Banks to the Borrower
pursuant to, and subject to the terms and
conditions set forth in, this Loan Agreement.
1.101 "Line of Credit Commitment" means the
commitment of each Bank to maintain or make
Line of Credit Advances as set forth in this
Loan Agreement.
1.102 "Line of Credit Commitment Fee" or "Line
of Credit Commitment Fees" has the meaning
specified in Section 2.3A(ii) of this Loan
Agreement.
1.103 "Line of Credit Commitment Fee Pro Rata
Shares" means, with respect to each Bank's
share of each Line of Credit Commitment Fee
paid by the Borrower, the percentage deter-
mined by dividing (i) the average daily amount
of the unused portion of such Bank's Line of
Credit Commitment during the period for which
the Line of Credit Commitment Fee is payable,
by (ii) the aggregate average daily amount of
the unused portions of all of the Banks' Line
of Credit Commitments during the period for
which the Line of Credit Commitment Fee is
payable.
1.104 "Line of Credit Notes" means, collec-
tively, (i) that certain Line of Credit Prom-
issory Note dated October 11, 1996, made by
the Borrower, payable to the order of PNC, and
in the face principal amount of Nine Million
Three Hundred Seventy-Five Thousand Dollars
($9,375,000.00) (together with all amendments,
modifications, renewals, extensions, restate-
ments and replacements thereof, the "PNC Line
of Credit Note"), (ii) that certain Line of
Credit Promissory Note dated October 11, 1996,
made by the Borrower, payable to the order of
NBD, and in the face principal amount of Six
Million Two Hundred Fifty Thousand Dollars
($6,250,000.00) (together with all amendments,
modifications, renewals, extensions, restate-
ments and replacements thereof, the "NBD Line
of Credit Note"), (iii) that certain Line of
Credit Promissory Note dated October 11, 1996,
made by the Borrower, payable to the order of
SunTrust, and in the face principal amount of
Six Million Two Hundred Fifty Thousand Dollars
($6,250,000.00) (together with all amendments,
modifications, renewals, extensions, restate-
ments and replacements thereof, the "SunTrust
Line of Credit Note"), and (iv) that certain
Line of Credit Promissory Note dated October
11, 1996, made by the Borrower, payable to the
order of National City, and in the face prin-
cipal amount of Three Million One Hundred
Twenty-Five Thousand Dollars ($3,125,000.00)
(together with all amendments, modifications,
renewals, extensions, restatements and re-
placements thereof, the "National City Line of
Credit Note").
1.105 "Line of Credit Commitment Termination
Date" means the Line of Credit Commitment
Termination Date then in effect, which shall
originally be October 10, 1997, subject to
extension thereof pursuant to Section 20 of
the Fourth Amendment, or, if sooner, (i) the
date as of which the Obligations shall have
become immediately due and payable pursuant to
Section 7 of this Loan Agreement, or (ii) the
date on which all of the Obligations are paid
in full and all Line of Credit Commitments are
reduced to zero.
1.106 "Offered Rate" means the interest rate
quoted from time to time by PNC to the Bor-
rower as applicable to Swing Line Loans. The
Offered Rate shall constitute, on each Funding
Date of a Swing Line Loan, the offer quoted by
an officer of PNC to the Borrower on each such
Funding Date of a Swing Line Loan.
1.107 "Pricing Level" means, for any Pricing
Period, Pricing Level I, Pricing Level II or
Pricing Level III, as may be in effect for
such Pricing Period; provided that the Default
Rate shall be in effect upon the occurrence
and during the continuation of any Event of
Default.
1.108 "Pricing Level I" means the Pricing
Level that will be in effect for the applica-
ble Pricing Period if, as of the relevant Date
of Determination, the Leverage Ratio of the
Borrower is equal to or less than .30 to 1.0.
1.109 "Pricing Level II" means the Pricing
Level that will be in effect for the applica-
ble Pricing Period if, as of the relevant Date
of Determination, the Leverage Ratio of the
Borrower is greater than .30 to 1.0 but is
less than .40 to 1.0.
1.110 "Pricing Level III" means the Pricing
Level that will be in effect for the applica-
ble Pricing Period if, as of the relevant Date
of Determination, the Leverage Ratio of the
Borrower is equal to or greater than .40 to
1.0.
1.111 "Pricing Level Calculation Date" means
the date of delivery to the Banks of the
Compliance Certificate for the preceding
Fiscal Quarter of the Borrower pursuant to
Section 5.3(c) of this Loan Agreement.
1.112 "Pricing Period" means, with respect to
any Date of Determination, the period commenc-
ing on such Date of Determination and ending
on the day immediately preceding the next Date
of Determination.
1.113 "Request for Line of Credit Advance"
means the request in the form of Exhibit C
annexed to the Fourth Amendment with respect
to a proposed Line of Credit Advance to be
delivered by the Borrower to the Agent pursu-
ant to Section 2.1C of this Loan Agreement.
1.114 "Request for Swing Line Loan" means the
request in the form of Exhibit M annexed to
the Fourth Amendment with respect to a pro-
posed Swing Line Loan to be delivered by the
Borrower to PNC pursuant to Section 2.11B of
this Loan Agreement.
1.115 "Swing Line Loan Commitment" means the
commitment of PNC to maintain or make Swing
Line Loans as set forth in Section 2.11A of
this Loan Agreement.
1.116 "Swing Line Loan Commitment Termination
Date" means the Swing Line Loan Commitment
Termination Date then in effect, which shall
originally be October 10, 1997, subject to
extension thereof pursuant to Section 2.11C of
this Loan Agreement, or if sooner (i) the date
as of which the Obligations shall have become
immediately due and payable pursuant to Sec-
tion 7 of this Loan Agreement, or (ii) the
date on which all of the Obligations are paid
in full (including, without limitation, the
repayment, expiration, termination or cash
collateralization of Letters of Credit pursu-
ant to this Loan Agreement) and the Swing Line
Loan Commitment is reduced to zero.
1.117 "Swing Line Loans" means the Swing Line
Loans which PNC has agreed to maintain or make
pursuant to Section 2.11A of this Loan Agree-
ment.
1.118 "Swing Line Note" means the Swing Line
Loan Promissory Note issued by the Borrower to
PNC to evidence the obligation of the Borrower
to repay all Swing Line Loans made by PNC
together with accrued interest thereon and
substantially in the form of Exhibit N annexed
to the Fourth Amendment.
1.119 "Total Utilization of Line of Credit
Commitments" means, as at any day of determi-
nation thereof, the sum of the aggregate
principal amount of all outstanding Line of
Credit Advances.
19. The Banks hereby extend the stated maturity date of the
Revolver from October 14, 1996 to October 11, 1999. In furtherance
thereof, the term "Revolving Loan Commitment Termination Date", as
defined in Section 1.80 of the Loan Agreement, is hereby redefined
to mean the Revolving Loan Commitment Termination Date then in
effect, which is currently October 11, 1999, subject to extension
thereof pursuant to Section 2.1B of the Loan Agreement, or, if
sooner, (i) the date as of which the Obligations shall have become
immediately due and payable pursuant to Section 7 of the Loan
Agreement, or (ii) the date on which all of the Obligations are
paid in full (including, without limitation, the repayment,
expiration, termination or cash collateralization of Letters of
Credit pursuant to the Loan Agreement) and all Revolving Loan
Commitments are reduced to zero.
20. The Banks hereby establish a revolving line of credit in
favor of the Borrower in the original principal amount of Twenty-
Five Million Dollars ($25,000,000.00) (the "Line of Credit"). The
Line of Credit shall be evidenced by the Line of Credit Notes.
Pursuant to the Line of Credit, the Borrower may obtain Line of
Credit Advances pursuant to, and subject to the terms and condi-
tions set forth in, the Loan Agreement and this Fourth Amendment.
The Line of Credit shall be subject to the following terms and
conditions:
(a) Term of Line of Credit. The Line of Credit shall
become effective immediately as of the date of this Fourth
Amendment, and as of the date hereof, the Borrower may obtain Line
of Credit Advances, in each case subject to the terms and condi-
tions contained herein and in the Loan Agreement. The Line of
Credit shall terminate on the Line of Credit Commitment Termination
Date, unless sooner terminated (a) by the Banks upon the occurrence
and during the continuation of an Event of Default, or (b) by the
Borrower at any time in its sole and absolute discretion. The
Borrower may request in writing, not less than sixty (60) days
prior to the current Line of Credit Commitment Termination Date or
any subsequent Line of Credit Commitment Termination Date (which
shall be 364 days from the immediately preceding Line of Credit
Commitment Termination Date), that the Line of Credit Commitment
Termination Date be extended for a period selected by the Borrower
and acceptable to the Banks. The Agent shall notify the Borrower
in writing, within thirty (30) days of receipt of such request,
whether the Banks have elected to so extend the Line of Credit
Commitment Termination Date. In the event the Borrower fails to
receive such written notice from the Agent, such failure shall
constitute an affirmative election by the Banks not to so extend
the Line of Credit Commitment Termination Date. The Line of Credit
Commitment Termination Date may only be extended by the unanimous
written consent of all of the Banks in their sole and absolute
discretion as communicated in writing to the Agent. If any Bank
elects not to extend the Line of Credit Commitment Termination
Date, the Agent shall notify the Borrower thereof and such Bank
shall constitute an "Affected Bank" for purposes of Section 10.E of
the Loan Agreement. In the event the Banks elect not to extend the
Line of Credit Commitment Termination Date, the Line of Credit
Commitments shall terminate, and the entire unpaid principal
balance of and all accrued and unpaid interest on the Line of
Credit Advances and the other Obligations shall be respectively due
and payable in full to the Banks on the then Line of Credit
Commitment Termination Date, subject at all times to the Banks'
absolute right to terminate the Line of Credit Commitments upon the
occurrence and during the continuation of an Event of Default.
Upon termination of the Line of Credit Commitments by the Banks
upon the occurrence and during the continuation of an Event of
Default, or by the Borrower at any time in its sole and absolute
discretion, the entire unpaid principal balance of and all accrued
and unpaid interest on the Line of Credit Advances and all other
Obligations shall be respectively due and payable in full to the
Banks. The termination of the Line of Credit Commitments, for
whatever reason, shall not in any way release or relieve the
Borrower from its obligations incurred hereunder or in connection
herewith or under the Line of Credit Notes or the other Loan
Instruments and the provisions hereof and of the Line of Credit
Notes and the other Loan Instruments shall continue in full force
and effect until the Line of Credit Notes and all other Obligations
have been respectively paid in full to the Banks. In the event the
Borrower terminates the Line of Credit Commitments, which the
Borrower has the right to do at any time in its sole and absolute
discretion, the Borrower shall be obligated to pay the Line of
Credit Notes and all other Obligations in full to the Banks,
respectively.
(b) Purpose. The Borrower agrees that the proceeds of
the Line of Credit and each Line of Credit Advance obtained
thereunder shall be used to support working capital and the general
corporate purposes of the Borrower. The Borrower further agrees
that no portion of the proceeds of the Line of Credit or any Line
of Credit Advance obtained thereunder shall be used to purchase or
carry any margin stock, to extend credit to others for the purpose
of purchasing or carrying margin stock or for any purpose pro-
scribed by Regulation G, Regulation T, Regulation U or Regulation X
of the Board of Governors of the Federal Reserve System.
(c) Payments. All payments on the Line of Credit Notes
shall be in legal tender of the United States of America. If the
date any payment due under the Line of Credit Notes shall not be a
Business Day, the payment otherwise then due shall be due and
payable on the next succeeding Business Day (provided, interest
shall continue to accrue on each such non-Business Day).
21. Section 2.1C of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
2.1C Borrowing Mechanics. The obtaining
by the Borrower of each Revolving Loan and
each Line of Credit Advance shall be subject
to the following terms and conditions:
(a) Base Rate Loans shall be in the
minimum amount of One Million Dollars
($1,000,000.00) and integral multiples of One
Hundred Thousand Dollars ($100,000.00) in
excess of that amount or, if less, the amount
available to be borrowed under either the
Revolver or the Line of Credit at the time the
Base Rate Loan is requested by the Borrower.
Subject to there being sufficient availability
under the Revolver and the Line of Credit, as
applicable, LIBOR Rate Loans shall be in the
minimum amount of Five Million Dollars
($5,000,000.00) and integral multiples of One
Million Dollars ($1,000,000.00) in excess of
that amount. Whenever the Borrower desires
that the Banks make a Revolving Loan and/or a
Line of Credit Advance to the Borrower, the
Borrower shall deliver to the Banks a Request
for Revolving Loan or a Request for Line of
Credit Advance no later than 10:30 A.M.
(Louisville, Kentucky time) at least three (3)
Business Days in advance of the proposed
Funding Date in the case of a LIBOR Rate Loan
and on the day of the proposed Funding Date in
the case of a Base Rate Loan. The Request for
Revolving Loan and the Request for Line of
Credit Advance shall be in the form of Ex-
hibits B (formerly Exhibit B to the Loan
Agreement) and C, respectively, attached
hereto and made a part of the Fourth Amend-
ment. Revolving Loans and Line of Credit
Advances may be continued as or converted into
Base Rate Loans and LIBOR Rate Loans in the
manner provided in Section 2.2(d) hereof. In
lieu of delivering the above described Request
for Revolving Loan and the Request for Line of
Credit Advance, the Borrower may give the
Agent telephonic notice by the required time
of the requested Revolving Loan and/or Line of
Credit Advance under this Section 2.1C; pro-
vided that such notice shall be promptly
confirmed in writing by delivery of a Request
for Revolving Loan and the Request for Line of
Credit Advance to the Agent on or before the
applicable Funding Date.
(b) Neither the Agent nor the Banks
shall incur any liability to the Borrower in
acting upon any telephonic notice referred to
above which the Agent and/or the Banks believe
in good faith to have been given by an Autho-
rized Officer or other person authorized to
borrow on behalf of the Borrower or for other-
wise acting in good faith under this Section
2.1C, and, upon funding of any Revolving Loans
or any Line of Credit Advances by the Banks in
accordance with this Loan Agreement pursuant
to any telephonic notice, the Borrower shall
have effected such Revolving Loans or such
Line of Credit Advances hereunder.
(c) Except as provided in Sections
2.6(b), 2.6(c) or 2.6(f) hereof, a Request for
Revolving Loan or a Request for Line of Credit
Advance for a LIBOR Rate Loan (or telephonic
notice in lieu thereof) shall be irrevocable
on and after the related Interest Rate Deter-
mination Date, and the Borrower shall be bound
to borrow the particular LIBOR Rate Loan in
accordance therewith.
(d) The Agent shall make the pro-
ceeds of each Revolving Loan and each Line of
Credit Advance requested by the Borrower
available to the Borrower on the Funding Date
by causing an amount of same day funds equal
to the proceeds of such Revolving Loan and
such Line of Credit Advance to be credited to
the account of the Borrower maintained with
the Banks.
(e) The Borrower shall have no
right to obtain, and the Banks shall have no
obligation to make, any Revolving Loan or any
Line of Credit Advance if a Potential Event of
Default or an Event of Default has occurred
and is continuing.
(f) Each request by the Borrower
for a Revolving Loan, a Line of Credit Advance
or a Swing Line Loan shall, in and of itself,
constitute a continuing representation and
warranty by the Borrower to the Banks (i) that
the Borrower then is, and at the time the
Revolving Loan, Line of Credit Advance or
Swing Line Loan is actually made will be,
entitled under this Loan Agreement to obtain
the particular Revolving Loan, Line of Credit
Advance or Swing Line Loan, and (ii) that all
of the covenants, agreements, representations
and warranties made by the Borrower herein and
in the other Loan Instruments are true and
correct, and have been fully complied with, as
of such date.
(g) The Borrower shall have no
right to obtain any Revolving Loan, Line of
Credit Advance or Swing Line Loan unless all
of the terms and conditions set forth in this
Section 2.1C have been fully satisfied with
regard to that Revolving Loan, that Line of
Credit Advance or that Swing Line Loan.
22. Section 2.2 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
2.2 Interest on the Revolving Loans and
the Line of Credit Advances.
(a) Rates of Interest. Subject to
the provisions of Sections 2.2(g) and 2.6
hereof, each Revolving Loan and each Line of
Credit Advance made to the Borrower shall bear
interest on the unpaid principal amount
thereof from the date made through maturity
(whether by acceleration or otherwise) at
either the Base Rate or the LIBOR Rate as
provided below, as the case may be. The
applicable basis for determining the rate of
interest with respect to Revolving Loans
and/or Line of Credit Advances made to the
Borrower shall be selected by the Borrower
initially at the time a Request for Revolving
Loan or a Request for Line of Credit Advance
is delivered to the Agent pursuant to Section
2.1(a) hereof. The basis for determining the
interest rate with respect to any Revolving
Loan or any Line of Credit Advance made to the
Borrower may be changed from time to time
pursuant to Section 2.2(d) hereof. If on any
day a Revolving Loan or a Line of Credit
Advance is outstanding to the Borrower with
respect to which notice has not been delivered
to the Banks in accordance with the terms of
this Loan Agreement specifying the applicable
basis for determining the rate of interest to
apply to such Revolving Loan or such Line of
Credit Advance then, for that day, that Re-
volving Loan or that Line of Credit Advance
shall be deemed a Base Rate Loan and shall
bear interest at the Base Rate.
Subject to the provisions of Sections
2.6(b) and 2.6(c) hereof, Revolving Loans
and/or Line of Credit Advances shall bear
interest through maturity as follows:
(i) If a Base Rate Loan, then
at a rate per annum equal to the Base Rate;
(ii) If a LIBOR Rate Loan,
then at a rate per annum equal to the Adjusted
LIBOR Rate plus the Applicable LIBOR Rate
Margin; provided that, on each Date of Deter-
mination, commencing with the first such date
to occur after October 11, 1996, the Applica-
ble LIBOR Rate Margin in effect for the Pric-
ing Period commencing on such Date of Determi-
nation and continuing for the term of the
Pricing Period that begins on such Date of
Determination shall be the Applicable LIBOR
Rate Margin corresponding to the Pricing Level
in effect for such Pricing Period, as applica-
ble:
Applicable
Pricing Level LIBOR Rate Margin
Pricing Level I .500%
Pricing Level II .575%
Pricing Level III .625%
Notwithstanding anything in the foregoing to
the contrary, if any Compliance Certificate
delivered by the Borrower demonstrating the
appropriate Pricing Level shall prove to be
incorrect (as determined by reference to the
Borrower's financial statements or otherwise),
such Compliance Certificate shall no longer be
in effect, and the Banks shall notify the
Borrower of such incorrectness and shall
calculate the difference between the amount of
interest actually paid by the Borrower on the
basis of such incorrect Compliance Certificate
and the amount of interest which would have
been due had such incorrect Compliance Certif-
icate not been delivered. The Agent shall
notify the Borrower of the amount of such
difference, if any, in a statement setting
forth the method of calculation of such amount
(which calculation, in the absence of demon-
xxxxxxx error, shall be deemed correct) and
the Borrower shall pay such amount to the
Agent, for the benefit of the Banks, within
three (3) Business Days of such notice.
(b) LIBOR Interest Periods. In
connection with each LIBOR Rate Loan made to
the Borrower, the Borrower may, pursuant to
the Request for Revolving Loan, Request for
Line of Credit Advance or Notice of Conver-
sion/Continuation, as the case may be, select
an interest period (each an "Interest Period")
to be applicable to such LIBOR Rate Loan,
which Interest Period shall be at the
Borrower's option either a one, two, three or
six month period, provided that:
(i) the initial Interest
Period for any LIBOR Rate Loan made to the
Borrower shall commence on the Funding Date of
such LIBOR Rate Loan, in the case of a Revolv-
ing Loan or a Line of Credit Advance initially
made as a LIBOR Rate Loan, or on the date
specified in the applicable Notice of Conver-
sion/Continuation, in the case of a Base Rate
Loan converted to a LIBOR Rate Loan;
(ii) in the case of
immediately successive Interest Periods
applicable to a LIBOR Rate Loan made to the
Borrower continued as such pursuant to a
Notice of Conversion/Continuation, each
successive Interest Period shall commence on
the day on which the next preceding Interest
Period expires;
(iii) if an Interest Period
would otherwise expire on a day that is not a
Business Day, such Interest Period shall
expire on the next succeeding Business Day;
provided that, if any Interest Period would
otherwise expire on a day that is not a Busi-
ness Day but is a day of the month after which
no further Business Day occurs in such month,
such Interest Period shall expire on the next
preceding Business Day;
(iv) any Interest Period that
begins on the last Business Day of a calendar
month (or on a day for which there is no
numerically corresponding day in the calendar
month at the end of such Interest Period)
shall, subject to clause (iii) of this Section
2.2(b), end on the last Business Day of a
calendar month;
(v) there shall be no more
than seven (7) Interest Periods relating to
the LIBOR Rate Loans made to the Borrower
outstanding at any time, unless there are Base
Rate Loans outstanding, in which event there
shall be no more than six (6) Interest Periods
relating to LIBOR Rate Loans outstanding at
such time;
(vi) in the event the Borrower
fails to specify an Interest Period in the
particular Request for Revolving Loan, Request
for Line of Credit Advance and/or Notice of
Conversion/Continuation, the Borrower shall be
deemed to have selected an Interest Period of
one month; and
(vii) no Interest Period shall
extend beyond the then stated maturity date of
the Revolver or the Line of Credit, as appli-
cable.
(c) Interest Payments. Subject to
the provisions of Section 2.2(e) hereof,
interest shall be payable on the Revolving
Loans and the Line of Credit Advances made to
the Borrower as follows:
(i) interest on each Base
Rate Loan shall be payable in arrears on the
last day of each Fiscal Quarter, upon any
prepayment or repayment of any such Revolving
Loan or Line of Credit Advance (to the extent
accrued on the amount being prepaid or repaid)
and at maturity (including final maturity);
all the interest on the Base Rate Loans shall
be computed based upon the actual number of
days elapsed over an assumed year of three
hundred sixty-five (365) or three hundred
sixty-six (366) days; and
(ii) interest on each LIBOR
Rate Loan shall be payable in arrears on the
last day of an Interest Period, if the Inter-
est Period is one, two or three months, or
shall be payable in arrears on the ninetieth
(90th) day of each Interest Period and on the
last day of the Interest Period if the Inter-
est Period is six months, upon the date of any
prepayment or repayment of such LIBOR Rate
Loan (to the extent accrued on the amount
being prepaid or repaid) and at maturity
(including final maturity); all the interest
on the LIBOR Rate Loans shall be computed
based upon the actual number of days elapsed
over an assumed year of three hundred sixty
(360) days.
(d) Conversion or Continuation.
Subject to the provisions of Section 2.6
hereof, the Borrower shall have the option (i)
to convert at any time all or any part of
outstanding Revolving Loans made to the Bor-
rower from Revolving Loans bearing interest at
a rate determined by reference to one basis to
Revolving Loans bearing interest at a rate
determined by reference to an alternative
basis, (ii) to convert at any time all or any
part of outstanding Line of Credit Advances
made to the Borrower from Line of Credit
Advances bearing interest at a rate determined
by reference to one basis to Line of Credit
Advances bearing interest at a rate determined
by reference to an alternative basis, or (iii)
upon the expiration of any Interest Period
applicable to a LIBOR Rate Loan made to the
Borrower, to continue all or any portion of
such LIBOR Rate Loan as a LIBOR Rate Loan, and
the succeeding Interest Period of such contin-
ued LIBOR Rate Loan shall commence on the last
day of the current Interest Period with re-
spect thereto; provided however that a LIBOR
Rate Loan may only be converted into a Base
Rate Loan on the expiration date of the Inter-
est Period applicable thereto.
The Borrower shall deliver a Notice of
Conversion/Continuation to the Agent no later
than 10:30 A.M. (Louisville, Kentucky time) on
the same Business Day in advance of the pro-
posed conversion/continuation date (in the
case of a conversion to a Base Rate Loan) and
at least three (3) Business Days in advance of
the proposed conversion/continuation date (in
the case of a conversion to, or a continuation
of, a LIBOR Rate Loan). A Notice of Conver-
sion/Continuation shall specify (i) the pro-
posed conversion/continuation date (which
shall be a Business Day), (ii) the amount of
the Revolving Loan or the Line of Credit
Advance to be converted/continued, (iii) the
nature of the proposed
conversion/continuation, (iv) in the case of a
conversion to, or continuation of, a LIBOR
Rate Loan, the requested Interest Period, and
(v) in the case of a conversion to, or a
continuation of, a LIBOR Rate Loan, that no
Event of Default has occurred and is
continuing. In lieu of delivering the above-
described Notice of Conversion/Continuation,
the Borrower may give the Banks telephonic
notice by the required time of any proposed
conversion/continuation under this Section
2.2(d); provided that such notice shall be
promptly confirmed in writing by delivery of a
Notice of Conversion/Continuation to the Agent
on or before the proposed conver-
sion/continuation date.
Neither the Agent nor the Bank shall
incur any liability to the Borrower in acting
upon any telephonic notice referred to above
that the Agent believes in good faith to have
been given by an Authorized Officer of the
Borrower or for otherwise acting in good faith
under this Section 2.2(d), and upon conversion
or continuation of the applicable basis for
determining the interest rate with respect to
any Revolving Loans or any Line of Credit
Advances made to the Borrower in accordance
with this Loan Agreement pursuant to any such
telephonic notice, the Borrower shall have
effected a conversion or continuation, as the
case may be, hereunder.
Except as otherwise provided in Sections
2.6(b), 2.6(c) and 2.6(g) hereof, a Notice of
Conversion/Continuation for conversion to, or
continuation of, a LIBOR Rate Loan (or tele-
phonic notice in lieu thereof) shall be irre-
vocable on and after the related Interest Rate
Determination Date and the Borrower shall be
bound to effect the conversion or continuation
in accordance therewith.
(e) Post-Maturity Interest. All
installments of accrued interest on and all
unpaid principal of the Revolving Notes and/or
the Line of Credit Notes not paid to the Banks
when due or within fifteen (15) days thereaf-
ter shall bear interest (including post-peti-
tion interest in any proceeding under the
Bankruptcy Code or other applicable Bankruptcy
laws) at the Default Rate until such overdue
installments of accrued interest and unpaid
principal have been paid in full to the Banks.
Payment or acceptance of the increased rates
of interest provided for in this Section
2.2(e) is not a permitted alternative to
timely payment and shall not constitute a
waiver of any Event of Default or otherwise
prejudice or limit any rights or remedies of
the Agent or any Bank.
(f) Computation of Interest. In
computing interest on any Revolving Loan or
any Line of Credit Advance made to the Borrow-
er, the date of the making of such Revolving
Loan or such Line of Credit Advance or the
first day of an Interest Period applicable to
such Revolving Loan or such Line of Credit
Advance or, with respect to a Base Rate Loan
being converted from a LIBOR Rate Loan, the
date of conversion of such LIBOR Rate Loan to
such Base Rate Loan, as the case may be, shall
be included, and the date of payment of such
Revolving Loan or such Line of Credit Advance
or the expiration date of an Interest Period
applicable to such Revolving Loan or such Line
of Credit Advance or, with respect to a Base
Rate Loan being converted to a LIBOR Rate
Loan, the date of conversion of such Base Rate
Loan to such LIBOR Rate Loan shall be exclud-
ed; provided that if a Revolving Loan or a
Line of Credit Advance is repaid on the same
day on which it is made, one day's interest
shall be paid on that Revolving Loan or that
Line of Credit Advance.
(g) Special Provisions Governing
Federal Funds Rate.
(i) Federal Funds Rate Unas-
certainable. In the event that, on any date
on which a Federal Funds Rate would otherwise
be set, the Agent shall have determined (which
determination shall be final and conclusive)
that, by reason of circumstances affecting the
reporting of the average national federal
funds rate by the Federal Reserve Bank of New
York or such other agency then reporting such
rate, reasonable means do not exist for ascer-
taining the Federal Funds Rate, the Agent
shall give prompt notice of such determination
to the Borrower and to the Banks and, until
the Agent notifies the Borrower and the Banks
that the circumstances giving rise to such
determination no longer exist, all Base Rate
Loans then or thereafter outstanding shall
bear interest at the Prime Rate.
(ii) Impracticability of Offering
Federal Funds Rate by Any Bank. In the event
that any Bank shall determine, in good faith,
that it is impracticable or impossible for
such Bank to offer funds to the Borrower at
the Federal Funds Rate because changes in
market conditions and/or in such Bank's cost
of funds occurring after the Closing Date have
made it not feasible for such Bank to realize
the anticipated and bargained-for-yield here-
under, then such Bank shall be an "Affected
Bank" hereunder and shall promptly notify the
Agent of such impracticability. The Agent
upon receipt of such notice shall notify the
Borrower that all Base Rate Loans from the
Affected Bank shall thereafter bear interest
at the Prime Rate. Nothing in this Section
2.2(g)(ii) shall affect the obligation of any
Bank other than an Affected Bank to make or
maintain Revolving Loans and/or Line of Credit
Advances as, or to convert Revolving Loans
and/or Line of Credit Advances to, Base Rate
Loans in accordance with the other terms of
this Loan Agreement.
23. The provisions of Sections 2.4, 2.6, 2.8, 2.9, 2.10, 9
and 10 of the Loan Agreement shall apply to Line of Credit Advances
with the same force and effect as such provisions apply to
Revolving Loans.
24. Section 2.3A of the Loan Agreement is hereby amended and
restated as follows:
2.3A Commitment Fees.
(i) Revolver Commitment Fee. The
Borrower agrees to pay the Agent, for the
benefit of the Banks in proportion to their
respective Commitment Fee Pro Rata Shares,
commitment fees (the "Commitment Fees") for
the period from and including October 11, 1996
to and excluding the Revolving Loan Commitment
Termination Date, equal to the average of the
daily excess of the Revolving Loan Commitments
(as reduced pursuant to Section 2.4C hereof)
over the aggregate principal amount of Revolv-
ing Loans plus the Letter of Credit Usage
multiplied by the Applicable Revolver Commit-
ment Fee per annum. The Commitment Fees shall
be calculated on the basis of a 360-day year
and the actual number of days elapsed and
shall be payable quarterly in arrears on the
last day of each Fiscal Quarter, commencing on
the first such day to occur after October 11,
1996, and on the Revolving Loan Commitment
Termination Date. The Borrower shall have no
liability to any Banks for any Commitments
Fees paid to the Agent which the Agent does
not properly remit to such Banks, and any such
Bank's sole remedy in respect thereof shall be
against the Agent. The Applicable Revolver
Commitment Fee in effect for the Pricing
Period commencing on the first day of each
Fiscal Quarter and continuing for the term of
the Fiscal Quarter that begins on such first
day of the Fiscal Quarter shall be the Appli-
cable Revolver Commitment Fee corresponding to
the Pricing Level in effect for such period,
as applicable:
Applicable Revolver
Pricing Level Commitment Fee
Pricing Level I .175%
Pricing Level II .200%
Pricing Level III .225%
(ii) Line of Credit Commitment Fee.
Borrower agrees to pay to the Agent, for the
benefit of the Banks in proportion to their
respective Line of Credit Commitment Fee Pro
Rata Shares, commitment fees ("the Line of
Credit Commitment Fees") for the period from
and including October 11, 1996 to and exclud-
ing the Line of Credit Termination Date, equal
to the average of the daily excess of the Line
of Credit Commitments (as reduced pursuant to
Section 2.4C hereof) over the aggregate prin-
cipal amount of Line of Credit Advances multi-
plied by one eighth of one percent (0.125%)
per annum. The Line of Credit Commitment Fees
shall be calculated on the basis of a 360-day
year and the actual number of days elapsed and
shall be payable quarterly in arrears on the
last day of each Fiscal Quarter, commencing on
the first such date to occur after October 11,
1996, and on the Line of Credit Commitment
Termination Date. The Borrower shall have no
liability to any Bank for any Line of Credit
Commitment Fees paid to the Agent which the
Agent does not properly remit to such Bank,
and any such Bank's sole remedy and respect
thereof shall be against the Agent.
25. Section 2.7A(i) of the Loan Agreement is hereby amended
and restated in its entirety to read as follows:
2.7A Letters of Credit.
(i) The Borrower may not request
that PNC issue any Letter of Credit if, after
giving effect to such issuance, (y) the total
Letter of Credit Usage would exceed Ten
Million Dollars ($10,000,000), or (z) the
Total Utilization of Revolving Loan Commit-
ments would exceed the Revolving Loan Commit-
ments as the amount available under such
Revolving Loan Commitments may be limited from
time to time pursuant to the second paragraph
of Section 2.1A hereof or shall be reduced
from time to time pursuant to Section 2.4C
hereof.
26. Section 2.7F of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
2.7F Compensation. The Borrower agrees
to pay, without duplication, the following
amounts to PNC with respect to each Letter of
Credit issued by PNC for the account of the
Borrower:
(i) With respect to each Letter of
Credit a letter of credit issuance fee payable
to PNC equal to 1/8th of 1% per annum of the
maximum amount available from time to time to
be drawn under such Letter of Credit, calcu-
lated on the basis of a 360-day year and the
actual number of days elapsed and payable in
immediately available funds quarterly in
advance to PNC until the expiration of such
Letter of Credit;
(ii) With respect to each Letter of
Credit a letter of credit fee (the "Letter of
Credit Fee") payable to PNC for the account of
the Banks (and to be shared by the Banks as
provided in Section 2.7E hereof) equal to the
per annum Applicable Letter of Credit Fee
multiplied by the maximum amount available
from the time to time to be drawn under such
Letter of Credit, calculated on the basis of a
360-day year and the actual number of days
elapsed and payable in immediately available
funds quarterly in advance on the first Busi-
ness Day immediately succeeding the last day
of each Fiscal Quarter and upon expiration of
such Letter of Credit; provided, however, upon
the occurrence and during the continuation of
any Event of Default, the Letter of Credit Fee
shall equal two percent (2%) per annum plus
the Applicable Letter of Credit Fee in effect
on the date of the occurrence of such Event of
Default;
On each Date of Determination, commencing
with the first such date to occur after
October 11, 1996, the Applicable Letter of
Credit Fee in effect for the Pricing Period
commencing on such Date of Determination and
continuing for the term of the Pricing Period
that begins on such Date of Determination
shall be the Applicable Letter of Credit Fee
corresponding to the Pricing Level in effect
for such Pricing Period, as follows:
Applicable Letter
Pricing Level of Credit Fee
Pricing Level I .500%
Pricing Level II .575%
Pricing Level III .625%
(iii) With respect to drawings made
under any Letter of Credit, interest, payable
in immediately available funds to PNC on
demand, on the amount paid by PNC in respect
of each drawing from the date of the drawing
through the date such amount is reimbursed by
the Borrower at a variable rate equal to the
Base Rate then in effect for Base Rate Loans
made or available to be made to the Borrower;
(iv) With respect to the issuance,
amendment or transfer of each Letter of Credit
and each drawing made thereunder, documentary
and processing charges payable to PNC in
accordance with PNC's standard schedule for
such charges in effect at the time of such
issuance, amendment, transfer or drawing, as
the case may be; and
(v) Promptly upon receipt by PNC of
the amount described in subsections (ii) and
(iii) of this Section 2.7F, PNC shall distrib-
ute to each Bank its pro rata share of such
amount.
27. Section 2 of the Loan Agreement is hereby amended by
adding Subsection 2.11 as follows:
2.11 Swing Line Loans.
A. Swing Line Loan Commitment.
Subject to the terms and conditions of this
Loan Agreement and in reliance upon the repre-
sentations and warranties of the Borrower set
forth herein, PNC hereby agrees, subject to
the limitations set forth below with respect
to the maximum amount of Swing Line Loans per-
mitted to be outstanding from time to time, to
make a portion of its Revolving Loan Commit-
ment and a portion of its Line of Credit
Commitment available to the Borrower from time
to time during the period up to but not in-
cluding the Revolving Loan Commitment Termina-
tion Date and the Line of Credit Commitment
Termination Date, respectively, in an aggre-
gate principal amount of up to Five Million
Dollars ($5,000,000.00), by making Swing Line
Loans to the Borrower, notwithstanding the
fact that such Swing Line Loans, when aggre-
gated with PNC's outstanding Revolving Loans
and Line of Credit Advances, may exceed PNC's
Revolving Loan Commitment or its Line of
Credit Commitment. PNC's commitment to make
Swing Line Loans to the Borrower pursuant to
this Section 2.11 is herein called its "Swing
Line Loan Commitment." In no event shall (a)
the aggregate principal amount of Swing Line
Loans outstanding at any time exceed the Swing
Line Loan Commitment, or (b) the aggregate
principal amount of Revolving Loans, Line of
Credit Advances and Swing Line Loans outstand-
ing at any time exceed the sum of the aggre-
gate Revolving Loan Commitments reduced by the
aggregate Letter of Credit Usage at such time
plus the aggregate Line of Credit Commitments.
Any reduction of the Revolving Loan Commit-
ments or the Line of Credit Commitments made
pursuant to Section 2.4 hereof which reduces
the Revolving Loan Commitments and the Line of
Credit Commitments below the then current
amount of the Swing Line Loan Commitment shall
result in an automatic corresponding reduction
of the Swing Line Loan Commitment to the
amount of the Revolving Loan Commitments and
Line of Credit Commitments, as so reduced,
without any further action on the part of PNC.
PNC's Swing Line Loan Commitment shall
constitute a 364-day facility and shall be
renewable from time to time at the sole option
of PNC upon not less than thirty (30) days'
prior written notice to the Borrower; provid-
ed, that all outstanding Swing Line Loans on
the date of cancellation of the Swing Line
Loan Commitment, if such date is earlier than
the Revolving Loan Commitment Termination Date
or the Line of Credit Commitment Termination
Date shall be paid in full to PNC with Revolv-
ing Loans and/or Line of Credit Advances made
by the Banks in accordance with their respec-
tive Pro Rata Shares in the manner set forth
in Section 2.1D herein; provided further, the
Swing Line Commitment shall expire on either
the Revolving Loan Commitment Termination Date
or the Line of Credit Termination Date and all
Swing Line Loans shall be paid in full to PNC
no later than such date.
All Swing Line Loans shall bear interest
on the unpaid principal amount thereof from
the date made through maturity (whether by
acceleration or otherwise) at a rate per annum
equal to the Offered Rate, shall be payable
monthly in arrears and shall not be entitled
to be converted into LIBOR Rate Loans unless
and until such Swing Line Loans are converted
to Revolving Loans or Line of Credit Advances
in accordance with Section 2.11C hereof.
Swing Line Loans made on any Funding Date may
be in any amount up to Five Million Dollars
($5,000,000.00), or, if less, the positive
difference between Five Million Dollars
($5,000,000.00) and the aggregate principal
amount of all Swing Line Loans then outstand-
ing. All Swing Line Loans together with
accrued interest thereon shall be evidenced by
the Swing Line Note. All Swing Line Loans
shall be paid in full to PNC on the Swing Line
Loan Commitment Termination Date.
B. Request For Swing Line Loans.
Whenever the Borrower desires to obtain a
Swing Line Loan pursuant to Section 2.11A
hereof, it shall deliver to PNC a Request For
Swing Line Loan no later than 1:00 P.M.
(Louisville, Kentucky time) on the proposed
Funding Date. The Request For Swing Line Loan
shall specify (i) the proposed Funding Date
(which shall be a Business Day), and (ii) the
amount of the proposed Swing Line Loan. In
lieu of delivering the above-described Request
For Swing Line Loan, the Borrower may give PNC
telephonic notice by the required time of any
proposed borrowing under this Section 2.11B;
provided that such notice shall be promptly
confirmed in writing by delivery of a Request
For Swing Line Loan to PNC prior to or prompt-
ly after the Funding Date of the requested
Swing Line Loan.
Neither the Agent nor any Bank shall
incur any liability to the Borrower in acting
upon any telephonic notice referred to above
which PNC believes in good faith to have been
given by a duly Authorized Officer or other
Person authorized to borrow on behalf of the
Borrower or for otherwise acting in good faith
under this Section 2.11B and, upon funding of
Swing Line Loans by PNC in accordance with
this Loan Agreement pursuant to any telephonic
notice, the Borrower shall have effected such
Swing Line Loans hereunder.
C. Reimbursement to PNC for Swing
Line Loans. PNC shall notify each Bank on
Tuesday of each week of any Swing Line Loans
that are outstanding, and, within one (1)
Business Day after receipt of such notice,
each Bank, including PNC, shall make a Revolv-
ing Loan (which shall initially be funded as a
Base Rate Loan) or a Line of Credit Advance
(which shall initially be funded as a Base
Rate Loan), in each case as directed by PNC,
in an amount equal to such Bank's Pro Rata
Share of the amount of the Swing Line Loans
outstanding on the date notice is given to the
Banks to fund their Pro Rata Shares of the
Swing Line Loans; provided, however, the
obligation of each Bank to make any such Re-
volving Loan or Line of Credit Advance is sub-
ject to the condition that (i) PNC believed in
good faith that all conditions under Section
2.1C(f) hereof to the making of such Swing
Line Loan were satisfied at the time such
Swing Line Loan was made, or (ii) the satis-
faction of any such condition not satisfied
had been waived by the Requisite Banks prior
to or at the time such Swing Line Loan was
made. In the case of Revolving Loans or Line
of Credit Advances made by Banks other than
PNC under the immediately preceding sentence,
each such Bank shall make the amount of its
Revolving Loan or Line of Credit Advance
available to the Agent, in same day funds, at
the office of the Agent located at 000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
not later than 1:00 P.M. (Louisville, Kentucky
time) on the required Business Day. The
proceeds of such Revolving Loans or Line of
Credit Advances shall be immediately delivered
to PNC (and not to the Borrower) and applied
to repay the outstanding Swing Line Loans. On
the day such Revolving Loans or Line of Credit
Advances are made, PNC's Pro Rata Share of the
outstanding Swing Line Loans shall be deemed
to be paid with the proceeds of a Revolving
Loan or Line of Credit Advance made by PNC and
such portion of the Swing Line Loans deemed to
be so paid shall no longer be outstanding as
Swing Line Loans, shall no longer be due under
the Swing Line Note and shall be due under the
Revolving Note issued by the Borrower to PNC
or the PNC Line of Credit Note. The Borrower
authorizes the Agent to charge the Borrower's
accounts with the Agent (up to the amount
available in each such account) in order to
immediately pay PNC the amount of such out-
standing Swing Line Loans to the extent
amounts received from the Banks, including
amounts deemed to be received from PNC, are
not sufficient to repay in full such outstand-
ing Swing Line Loans. If any portion of any
such amount paid (or deemed to be paid) to PNC
should be recovered by or on behalf of the
Borrower from PNC in bankruptcy, by assignment
for the benefit of creditors or otherwise, the
loss of the amount so recovered shall be
ratably shared among all of the Banks that
have made Revolving Loans or Line of Credit
Advances pursuant to this Section 2.11C in the
manner contemplated by Section 10 hereof.
Subject to the proviso contained in the first
sentence of this paragraph, each Bank's obli-
gation to make the Revolving Loans referred to
in this Section 2.11C and each Bank's obliga-
tion to make Line of Credit Advances shall be
absolute and unconditional and shall not be
affected by any circumstance, including,
without limitation, (i) any set-off, counter-
claim, recoupment, defense or other right
which such Bank may have against PNC, the
Borrower or anyone else for any reason whatso-
ever; (ii) the occurrence or continuance of an
Event of Default or a Potential Event of
Default; (iii) any adverse change in the con-
dition (financial or otherwise) of the Bor-
rower; (iv) the acceleration or maturity of
any Revolving Loans or the termination of the
Revolving Loan Commitments after the making of
any Swing Line Loan; (v) the acceleration or
maturity of any Line of Credit Advances or the
termination of the Line of Credit Commitments
after the making of any Swing Line Loan; (vi)
any breach of this Loan Agreement by the
Borrower or any other Bank; or (vii) any other
circumstance, happening or event whatsoever,
whether or not similar to any of the forego-
ing. All Swing Line Loans outstanding on the
Revolving Loan Commitment Termination Date or
on the Line of Credit Commitment Termination
Date shall be paid in full to PNC on such
date.
In the event that the Borrower has filed
for protection under the Bankruptcy Code or
any other bankruptcy laws, each Bank shall
upon request by PNC acquire without recourse
or warranty an undivided participation inter-
est equal to such Bank's Pro Rata Share of any
Swing Line Loan otherwise required to be
repaid by such Bank pursuant to the preceding
paragraph by paying to PNC on the date on
which such Bank would otherwise have been
required to make a Revolving Loan or Line of
Credit Advance in respect of such Swing Line
Loan pursuant to the preceding paragraph, in
immediately available funds, an amount equal
to such Bank's Pro Rata Share of such Swing
Line Loan, and no Revolving Loans and no Line
of Credit Advances shall be made by such Bank
pursuant to the preceding paragraph. If such
amount is not in fact made available to PNC by
that Bank on the date when Revolving Loans or
Line of Credit Advances would otherwise be re-
quired to be made pursuant to the preceding
paragraph, PNC shall be entitled to recover
such amount on demand from that Bank together
with interest accrued from such date at the
customary rate set by PNC for the correction
of errors among banks for three Business Days
and thereafter at the Base Rate. From and
after the date on which any Bank purchases an
undivided participation interest in a Swing
Line Loan pursuant to this paragraph, PNC
shall promptly distribute to such Bank such
Bank's Pro Rata Share of all payments of
principal and interest in respect of such
Swing Line Loan.
A copy of each notice given by PNC to the
Banks pursuant to the second preceding para-
graph shall be promptly delivered by PNC to
the Borrower. Upon the making of a Revolving
Loan or a Line of Credit Advance by a Bank
pursuant to this Section 2.11C, the amount so
funded shall become due under the Revolving
Note or the Line of Credit Note issued by the
Borrower to such Bank and shall no longer be
owed under the Swing Line Note.
Notwithstanding anything herein to the
contrary, PNC shall not be obligated to make
any Swing Line Loans if it has elected after
the occurrence of a Potential Event of Default
or Event of Default not to make Swing Line
Loans and has notified the Borrower in writing
or by telephone of such election. PNC shall
promptly give notice to the Banks of such
election not to make Swing Line Loans.
28. Section 4.19 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
4.19 Employee Retirement Income Security
Act of 1974. The Borrower (a) has not in-
curred any material accumulated funding defi-
ciency within the meaning of ERISA, (b) has
not incurred any material liability to the
Pension Benefit Guaranty Corporation estab-
lished under ERISA (or any successor thereto
under ERISA) in connection with any employee
benefit plan established or maintained by the
Borrower, nor has the Borrower had any tax
assessed against it by the Internal Revenue
Service for any alleged violation under Sec-
tion 4975 of the Internal Revenue Code, and
(c) has not and does not participate in any
Multi-Employer Pension Plan within the meaning
of Section 3(37) of ERISA except as approved
by the Banks and set forth on Schedule 4.19
attached hereto. Further, to the Borrower's
knowledge, each employee benefit plan estab-
lished or maintained by the Borrower is in
compliance in all material respects with ERISA
and all other applicable laws, and no pro-
hibited transaction within the meaning of
Section 4975 of the Internal Revenue Code has
occurred with respect to any such employee
benefit plan established or maintained by the
Borrower.
29. Section 6.2 of the Loan Agreement is hereby amended to
add Subsections (f) and (g) thereto as follows:
(f) the Line of Credit Notes.
(g) the Swing Line Note.
30. Section 6.5(vi) of the Loan Agreement is hereby amended
and restated in its entirety and Section 6.5 of the Loan Agreement
is hereby amended to add subsection (ix) thereto as follows:
(vi) The Borrower may extend, renew
and/or reissue from time to time, any guaran-
ties of payment up to an aggregate amount of
Six Million Two Hundred fifty Thousand Dollars
($6,250,000.00) of the unpaid principal of
and/or unpaid interest on each and every
promissory note now or hereafter issued by Mi-
Tech Steel, Inc;
(ix) So long as no Event of Default
or Potential Event of Default has occurred and
is continuing or would result therefrom, the
Borrower (A) may contribute capital and/or
make loans to Mi-Tech Steel, Inc. or guaranty
the obligations of Mi-Tech Steel, Inc. in an
aggregate amount not to exceed Ten Million
Dollars ($10,000,000.00) during the term of
the Loan Agreement, and (B) may increase its
existing investment in and/or make loans to
its other Consolidated Subsidiaries.
31. Section 6.9 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
6.9 Consolidated Total Debt to Xxxxxxx-
dated to Total Capitalization. The Borrower
will not permit the ratio of its Consolidated
Total Debt to its Consolidated Total Capital-
ization to exceed .55 to 1 as of any Fiscal
Quarter end.
32. Section 6.11 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
6.11 Minimum Consolidated Tangible Net Worth.
The Borrower will not permit its Consolidated
Tangible Net Worth:
(i) As of September 30, 1996 to be
less than Eighty-Five Million Dollars
($85,000,000.00); and
(ii) As of each subsequent Fiscal
Quarter end of the Borrower after September
30, 1996, to be less than the sum of the
Minimum Consolidated Tangible Net Worth re-
quired of the Borrower as of the immediately
preceding Fiscal Quarter end plus fifty per-
cent (50%) of the Borrower's Consolidated Net
Income for its Fiscal Quarter then ended plus
one hundred percent (100%) of the net proceeds
from any equity offering completed after
October 11, 1996.
For purposes of this Section 6.11, any net
losses hereinafter incurred by the Borrower
will not reduce the amount of the Minimum
Consolidated Tangible Net Worth required to be
maintained by the Borrower pursuant to this
Section 6.11.
33. The Borrower represents and warrants that no Event of
Default has occurred to date under the Loan Agreement.
34. This Fourth Amendment may be executed in one or more
counterparts, each of which shall constitute an original and all of
the same shall constitute one and the same instrument.
35. This Fourth Amendment shall be effective as of the later
of (a) October 14, 1996, or (b) the date of delivery of the
following documents to the Banks and/or the Agent:
(a) This Fourth Amendment, duly executed by the
Borrower; and
(b) An Amended and Restated Revolving Promissory Note
in the face principal amount of Eleven Million Two Hundred Fifty
Thousand Dollars ($11,250,000.00) made payable to the order of PNC,
duly executed by the Borrower, in the form of Exhibit D attached
hereto and made a part hereof;
(c) An Amended and Restated Revolving Promissory Note
in the face principal amount of Three Million Seven Hundred Fifty
Thousand Dollars ($3,750,000.00) made payable to the order of
National City, duly executed by the Borrower, in the form of
Exhibit E attached hereto and made a part hereof;
(d) An Amended and Restated Revolving Promissory Note
in the face principal amount of Seven Million Five Hundred Thousand
Dollars ($7,500,000.00) made payable to the order of NBD, duly
executed by the Borrower, in the form of Exhibit F attached hereto
and made a part hereof;
(e) An Amended and Restated Revolving Promissory Note
in the face principal amount of Seven Million Five Hundred Thousand
Dollars ($7,500,000.00) made payable to the order of SunTrust, duly
executed by the Borrower, in the form of Exhibit G attached hereto
and made a part hereof;
(f) The Line of Credit Promissory Note in the face
principal amount of Nine Million Three Hundred Seventy-Five
Thousand Dollars ($9,375,000.00) made payable to the order of PNC,
duly executed by the Borrower, in the form of Exhibit H attached
hereto and made a part hereof;
(g) The Line of Credit Promissory Note in the face
principal amount of Three Million One Hundred Twenty-Five Thousand
Dollars ($3,125,000.00) made payable to the order of National City,
duly executed by the Borrower, in the form of Exhibit I attached
hereto and made a part hereof;
(h) The Line of Credit Promissory Note in the face
principal amount of Six Million Two Hundred Fifty Thousand Dollars
($6,250,000.00) made payable to the order of NBD, duly executed by
the Borrower, in the form of Exhibit J attached hereto and made a
part hereof;
(i) The Line of Credit Promissory Note in the face
principal amount of Six Million Two Hundred Fifty Thousand Dollars
($6,250,000.00) made payable to the order of SunTrust, duly
executed by the Borrower, in the form of Exhibit K attached hereto
and made a part hereof;
(j) The Second Ratification and Reaffirmation
Agreement, duly executed by Wabash Steel Corporation;
(k) Certified Resolutions of the Board of Directors of
the Borrower, authorizing the Borrower's execution and delivery of
the Loan Instruments;
(l) Certified Resolutions of the Board of Directors of
Wabash Steel Corporation, authorizing its execution and delivery of
the Second Ratification and Reaffirmation Agreement; and
(m) A supplemental written opinion of counsel on behalf
of the Borrower and Wabash Steel Corporation, substantially in the
form of Exhibit L attached hereto and made a part hereof.
(n) The Promissory Note in the face principal amount of
Five Million Dollars ($5,000,000.00) made payable to the order of
PNC, duly executed by the Borrower, in the form of Exhibit N
attached hereto and made a part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to Loan Agreement to be duly executed as of the day and
year first above written.
STEEL TECHNOLOGIES INC.
By: /s/ Xxxxxxx X. Xxxxx
Its: Chief Financial Officer
(the "Borrower")
PNC BANK, KENTUCKY, INC.
By: /s/ Xxxxx X. Xxxxxxxx
Title: Vice President
Address: PNC Bank, Kentucky, Inc.
Citizens Plaza
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
("PNC")
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Xxxxx Xxxxx
Title: Vice President
Address: 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
("National City")
NBD BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
Title: Vice President
Address: Xxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
("NBD")
SUNTRUST BANK, NASHVILLE, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
Title: Group Vice President
Address: 000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx,
Group Vice
President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
("SunTrust")
(collectively, the "Banks")
PNC BANK, KENTUCKY, INC., in its
capacity as Agent
By: /s/ Xxxxx X. Xxxxxxxx
Title: Vice President
(the "Agent")
B:\4AM-LA.D-5
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