Exhibit 4.1

 

EXECUTION VERSION

 


 



 

Published CUSIP Number:                             

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

Dated as of July 26, 2011

 

among

 

RELIANCE STEEL & ALUMINUM CO.,

 

as Borrower,

 

BANK OF AMERICA, N.A.,

as Administrative Agent, Issuing Lender

and

Swing Line Lender,

 

JP MORGAN CHASE BANK, N.A. and WELLS FARGO BANK, N.A.,

as Co-Syndication Agents

 

LLOYDS TSB BANK PLC, MIZUHO CORPORATE BANK (USA)

and

U.S. BANK NATIONAL ASSOCIATION,

as Co-Documentation Agents,

 

and

 

THE OTHER FINANCIAL

INSTITUTIONS PARTY HERETO,

 

and

 

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

J.P. MORGAN SECURITIES LLC

and

WELLS FARGO SECURITIES, LLC

as Joint Lead Arrangers

and

Joint Book Managers

 


 



 











 

TABLE OF CONTENTS

 

	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    
	
SECTION 1
    	
DEFINITIONS   AND ACCOUNTING TERMS
    	
3
    
	
 
    	
 
    	
 
    
	
 
    	
1.1
    	
Defined   Terms
    	
3
    
	
 
    	
1.2
    	
Use   of Defined Terms
    	
30
    
	
 
    	
1.3
    	
Accounting   Terms
    	
30
    
	
 
    	
1.4
    	
Rounding
    	
31
    
	
 
    	
1.5
    	
Exhibits   and Schedules
    	
31
    
	
 
    	
1.6
    	
Letter   of Credit Amounts
    	
31
    
	
 
    	
1.7
    	
Miscellaneous   Terms
    	
31
    
	
 
    	
 
    	
 
    	
 
    
	
SECTION 2
    	
COMMITMENTS;   INTEREST, FEES AND PAYMENT PROCEDURES
    	
31
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
2.1
    	
Committed   Loans
    	
31
    
	
 
    	
2.2
    	
Borrowings,   Conversions and Continuations of Committed Loans
    	
32
    
	
 
    	
2.3
    	
Swing   Line
    	
33
    
	
 
    	
2.4
    	
Letters   of Credit
    	
34
    
	
 
    	
2.5
    	
Prepayments
    	
41
    
	
 
    	
2.6
    	
Voluntary   Reduction or Termination of Commitments
    	
42
    
	
 
    	
2.7
    	
Principal   and Interest
    	
42
    
	
 
    	
2.8
    	
Fees
    	
43
    
	
 
    	
2.9
    	
Computation   of Interest and Fees; Retroactive Adjustments of Applicable Margin
    	
43
    
	
 
    	
2.10
    	
Manner   and Treatment of Payments among Lenders, Borrower and Administrative Agent
    	
44
    
	
 
    	
2.11
    	
Funding   Sources
    	
45
    
	
 
    	
2.12
    	
Automatic   Deduction
    	
45
    
	
 
    	
2.13
    	
Obligations   of Lenders Several
    	
45
    
	
 
    	
2.14
    	
Sharing   of Payments by Lenders
    	
46
    
	
 
    	
2.15
    	
Increase   in Commitments
    	
46
    
	
 
    	
2.16
    	
Defaulting   Lenders
    	
47
    
	
 
    	
2.17
    	
Cash   Collateral
    	
49
    
	
 
    	
 
    	
 
    	
 
    
	
SECTION 3
    	
TAXES,   YIELD PROTECTION AND ILLEGALITY
    	
51
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
3.1
    	
Taxes
    	
51
    
	
 
    	
3.2
    	
Increased   Costs
    	
51
    
	
 
    	
3.3
    	
Capital   Adequacy
    	
51
    
	
 
    	
3.4
    	
Illegality
    	
52
    
	
 
    	
3.5
    	
Inability   to Determine Rates
    	
52
    
	
 
    	
3.6
    	
Breakfunding   Costs
    	
53
    
	
 
    	
3.7
    	
Matters   Applicable to all Requests for Compensation
    	
53
    
	
 
    	
 
    	
 
    	
 
    
	
SECTION 4
    	
CONDITIONS
    	
53
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
4.1
    	
Conditions   of Amendment and Restatement
    	
53
    
	
 
    	
4.2
    	
Any   Extension of Credit
    	
55
    


 

i











 

TABLE OF CONTENTS

(continued)

 

	
 
    	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    	
 
    
	
SECTION 5
    	
REPRESENTATIONS   AND WARRANTIES
    	
56
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
5.1
    	
Existence   and Qualification; Power; Compliance With Laws
    	
56
    
	
 
    	
5.2
    	
Authority;   Compliance With Other Agreements and Instruments and Government Regulations
    	
56
    
	
 
    	
5.3
    	
No   Governmental Approvals or Other Consents Required
    	
57
    
	
 
    	
5.4
    	
Binding   Obligations
    	
57
    
	
 
    	
5.5
    	
Litigation
    	
57
    
	
 
    	
5.6
    	
No   Default
    	
57
    
	
 
    	
5.7
    	
ERISA   Compliance
    	
57
    
	
 
    	
5.8
    	
Use   of Proceeds; Margin Regulations
    	
58
    
	
 
    	
5.9
    	
Title   to Property
    	
58
    
	
 
    	
5.10
    	
Intangible   Assets
    	
58
    
	
 
    	
5.11
    	
Tax   Liability
    	
58
    
	
 
    	
5.12
    	
Financial   Statements
    	
59
    
	
 
    	
5.13
    	
Environmental   Compliance
    	
59
    
	
 
    	
5.14
    	
Investment   Company Act
    	
59
    
	
 
    	
5.15
    	
Subsidiaries
    	
59
    
	
 
    	
5.16
    	
Insurance
    	
60
    
	
 
    	
5.17
    	
Disclosure
    	
60
    
	
 
    	
 
    	
 
    	
 
    
	
SECTION 6
    	
AFFIRMATIVE   COVENANTS
    	
60
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
6.1
    	
Financial   Statements
    	
60
    
	
 
    	
6.2
    	
Certificates,   Notices and Other Information
    	
61
    
	
 
    	
6.3
    	
Guaranties
    	
63
    
	
 
    	
6.4
    	
Preservation   of Existence
    	
64
    
	
 
    	
6.5
    	
Maintenance   of Properties
    	
64
    
	
 
    	
6.6
    	
Maintenance   of Insurance
    	
64
    
	
 
    	
6.7
    	
Payment   of Obligations
    	
64
    
	
 
    	
6.8
    	
Compliance   With Laws
    	
64
    
	
 
    	
6.9
    	
Environmental   Laws
    	
64
    
	
 
    	
6.10
    	
Inspection   Rights
    	
65
    
	
 
    	
6.11
    	
Keeping   of Records and Books of Account
    	
65
    
	
 
    	
6.12
    	
Compliance   with ERISA
    	
65
    
	
 
    	
6.13
    	
Compliance   With Agreements
    	
65
    
	
 
    	
6.14
    	
Use   of Proceeds
    	
65
    
	
 
    	
6.15
    	
Post-Closing   Deliveries
    	
65
    
	
 
    	
 
    	
 
    	
 
    
	
SECTION 7
    	
NEGATIVE   COVENANTS
    	
66
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
7.1
    	
Liens,   Negative Pledges
    	
66
    
	
 
    	
7.2
    	
Investments
    	
67
    
	
 
    	
7.3
    	
Indebtedness
    	
67
    
	
 
    	
7.4
    	
Prepayment   of Indebtedness
    	
68
    
	
 
    	
7.5
    	
Dispositions
    	
68
    
	
 
    	
7.6
    	
Sales   and Leasebacks
    	
69
    


 

ii











 

TABLE OF CONTENTS

(continued)

 

	
 
    	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
7.7
    	
Mergers
    	
69
    
	
 
    	
7.8
    	
Acquisitions
    	
69
    
	
 
    	
7.9
    	
ERISA
    	
70
    
	
 
    	
7.10
    	
Interest   Coverage Ratio
    	
70
    
	
 
    	
7.11
    	
Total   Leverage Ratio
    	
70
    
	
 
    	
7.12
    	
Change   in Nature of Business
    	
70
    
	
 
    	
7.13
    	
Transactions   with Affiliates
    	
70
    
	
 
    	
7.14
    	
Distributions
    	
70
    
	
 
    	
 
    	
 
    	
 
    
	
SECTION 8
    	
EVENTS   OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
    	
71
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
8.1
    	
Events   of Default
    	
71
    
	
 
    	
8.2
    	
Remedies   Upon Event of Default
    	
73
    
	
 
    	
8.3
    	
Application   of Funds
    	
73
    
	
 
    	
 
    	
 
    	
 
    
	
SECTION 9
    	
ADMINISTRATIVE   AGENT
    	
74
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
9.1
    	
Appointment   and Authority
    	
74
    
	
 
    	
9.2
    	
Rights   as a Lender
    	
75
    
	
 
    	
9.3
    	
Exculpatory   Provisions
    	
75
    
	
 
    	
9.4
    	
Reliance   by Administrative Agent
    	
76
    
	
 
    	
9.5
    	
Delegation   of Duties
    	
76
    
	
 
    	
9.6
    	
Resignation   of Administrative Agent
    	
77
    
	
 
    	
9.7
    	
Non-Reliance   on Administrative Agent and Other Lenders
    	
78
    
	
 
    	
9.8
    	
No   Other Duties, Etc
    	
78
    
	
 
    	
9.9
    	
Administrative   Agent May File Proofs of Claim
    	
78
    
	
 
    	
9.10
    	
Master   Subsidiary Guaranty Matters
    	
79
    
	
 
    	
9.11
    	
Guarantied   Cash Management Agreements and Guarantied Hedge Agreements
    	
79
    
	
 
    	
 
    	
 
    	
 
    
	
SECTION 10
    	
MISCELLANEOUS
    	
79
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
10.1
    	
Amendments,   Etc
    	
79
    
	
 
    	
10.2
    	
Notices;   Effectiveness; Electronic Communication
    	
81
    
	
 
    	
10.3
    	
No   Waiver; Cumulative Remedies
    	
83
    
	
 
    	
10.4
    	
Expenses;   Indemnity; Damage Waiver
    	
84
    
	
 
    	
10.5
    	
Payments   Set Aside
    	
86
    
	
 
    	
10.6
    	
Successors   and Assigns
    	
86
    
	
 
    	
10.7
    	
Treatment   of Certain Information; Confidentiality
    	
92
    
	
 
    	
10.8
    	
Right   of Setoff
    	
93
    
	
 
    	
10.9
    	
Interest   Rate Limitation
    	
93
    
	
 
    	
10.10
    	
Counterparts;   Integration; Effectiveness
    	
93
    
	
 
    	
10.11
    	
Survival   of Representations and Warranties
    	
94
    
	
 
    	
10.12
    	
Severability
    	
94
    
	
 
    	
10.13
    	
Replacement   of Lenders
    	
94
    
	
 
    	
10.14
    	
Governing   Law; Jurisdiction; Etc
    	
95
    


 

iii











 

TABLE OF CONTENTS

(continued)

 

	
 
    	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
10.15
    	
Waiver   of Jury Trial
    	
96
    
	
 
    	
10.16
    	
USA   PATRIOT Act Notice
    	
98
    
	
 
    	
10.17
    	
Time   of the Essence
    	
99
    
	
 
    	
10.18
    	
Tax   Forms
    	
99
    
	
 
    	
10.19
    	
Surety   Waivers
    	
100
    
	
 
    	
10.20
    	
Electronic   Execution of Assignments
    	
100
    
	
 
    	
10.21
    	
No   Advisory or Fiduciary Responsibility
    	
100
    


 

EXHIBITS

 

Exhibit A — Form of Request For Extension of Credit

Exhibit B — Form of Compliance Certificate

Exhibit C — Form of Committed Loan Note

Exhibit D — Form of Assignment and Assumption

Exhibit E — Form of Master Subsidiary Guaranty

Exhibit F — Form of Opinion of Counsel

 

SCHEDULES

 

Schedule 2.1 — Commitments

Schedule 2.4 — Existing Letters of Credit

Schedule 5.5 — Certain Litigation

Schedule 5.9 — Existing Liens and Negative Pledges

Schedule 5.15 — Subsidiaries

Schedule 7.2 — Investments

Schedule 7.3 — Existing Indebtedness

Schedule 10.2 — Administrative Agent’s Office; Certain Addresses for Notices

 

iv











 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

This SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 26, 2011, is entered into by and among Reliance Steel & Aluminum Co., a California corporation (“Borrower”), each lender whose name is set forth on the signature pages of this Agreement and each lender which may hereafter become a party to this Agreement (collectively, “Lenders” and individually, a “Lender”), and Bank of America, N.A., as Administrative Agent, Issuing Lender and Swing Line Lender.

 

RECITALS

 

A.            Borrower, Bank of America, N.A, as administrative agent, and the lenders party thereto (the “Existing Lenders”) entered into that certain Amended and Restated Credit Agreement dated as of November 6, 2006 (as amended, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”), pursuant to which the Existing Lenders have made available to Borrower a revolving credit facility, with a letter of credit subfacility and a swing line loan subfacility.

 

B.            Borrower has requested that the Existing Credit Agreement be amended and restated, among other things, to extend the maturity date and make certain other changes as set forth herein, and the Administrative Agent and the Lenders are willing to make such amendments to the Existing Credit Agreement.

 

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

(i)            Simultaneously with the Effective Date, (A)  the commitments of Existing Lenders under the Existing Credit Agreement who elect not to become Lenders under this Agreement shall be terminated, (B) the Commitment of each of the Lenders who elect to become Lenders under this Agreement shall be as set forth in Schedule 2.1, (C) the outstanding amount of the Committed Loans (as defined in and  under the Existing Credit Agreement, without giving effect to any Borrowings of Loans under this Agreement on the Effective Date, but after giving effect to any repayment or reduction thereof with the proceeds of any applicable sources) shall be reallocated in accordance with such Commitments, and the requisite assignments shall be deemed to be made in such amounts among the Lenders party hereto to the extent necessary to make such reallocation, with the same force and effect as if such assignments were evidenced by applicable Assignment and Assumptions (as defined in the Existing Credit Agreement) under the Existing Credit Agreement, but without the payment of any related assignment fee, (D) the swing line subfacility under the Existing Credit Agreement shall continue as the swing line subfacility hereunder, with the Swing Line Sublimit set out herein, and the Swing Line Loans (as defined in the Existing Credit Agreement), if any, shall continue as and deemed to be Swing Line Borrowings hereunder, and (E) the letter of credit subfacility provided in the Existing Credit Agreement shall continue as the Letter of Credit facility hereunder and the Existing Letters of Credit (as defined herein) shall be deemed to be Letters of Credit issued hereunder.

 

(ii)           Notwithstanding anything to the contrary in Section 10.6 of the Existing Credit Agreement or Section 10.6 of this Agreement, no other documents or instruments,

 











 

including any Assignment and Assumption, shall be executed in connection with these assignments (all of which requirements are hereby waived), and such assignments shall be deemed to be made with all applicable representations, warranties and covenants as if evidenced by an Assignment and Assumption.  On the Effective Date, the applicable Lenders shall make full cash settlement with one another (including with any Lender whose commitments are being decreased or terminated), either directly or through the Administrative Agent, as the Administrative Agent may direct or approve, with respect to all assignments, reallocations and other changes in Commitments, such that after giving effect to such settlements each Lender shall have funded its Pro Rata Share of the Outstanding Amount of all Committed Loans.

 

(iii)          Borrower, the Administrative Agent, and the Lenders hereby agree that upon the effectiveness of this Agreement, the terms and provisions of the Existing Credit Agreement which in any manner govern or evidence the Obligations, the rights and interests of the Administrative Agent and the Lenders and any terms, conditions or matters related to any thereof, shall be and hereby are amended and restated in their entirety by the terms, conditions and provisions of this Agreement, and the terms and provisions of the Existing Credit Agreement, except as otherwise expressly provided herein, shall be superseded by this Agreement.

 

(iv)           Notwithstanding this amendment and restatement of the Existing Credit Agreement and in any related “Loan Documents” (as such term is defined in the Existing Credit Agreement and referred to herein, individually or collectively, as the “Existing Loan Documents”), (A) all of the indebtedness, liabilities and obligations owing by any Person under the Existing Credit Agreement and other Existing Loan Documents outstanding as of the Effective Date shall continue as Obligations hereunder, (B) each of this Agreement and the Notes and the other Loan Documents is given as a substitution or supplement of, as the case may be, and not as a payment of, the indebtedness, liabilities and obligations of Borrower and the Guarantors (as herein defined) under the Existing Credit Agreement or any Existing Loan Document and is not intended to constitute a novation thereof or of any of the other Existing Loan Documents, and (C) certain of the Existing Loan Documents will remain in full force and effect, as set forth in this Agreement.  Upon the effectiveness of this Agreement all loans outstanding and owing by Borrower under the Existing Credit Agreement as of the Effective Date, shall constitute Loans hereunder accruing interest with respect to the Base Rate Loans under the Existing Credit Agreement, at the Base Rate hereunder.  The parties hereto agree that the Interest Periods for all Eurodollar Rate Loans outstanding under the Existing Credit Agreement on the Effective Date shall be terminated, Borrower shall pay (on the Effective Date) all accrued interest with respect to such Loans, and Borrower shall furnish to the Administrative Agent interest rate selection notices for existing Loans and borrowing notices for additional Loans as may be required in connection with the allocation of Loans among Lenders in accordance with their Pro Rata Shares.  The Administrative Agent and the Existing Lenders agree that the transactions contemplated in these clauses (i) through (iv) shall not give rise to any obligation of Borrower to make any payment under Section 3.6 of the Existing Credit Agreement.

 

2











 

SECTION 1
 DEFINITIONS AND ACCOUNTING TERMS

 

1.1           Defined Terms.  As used in this Agreement, the following terms shall have the meanings set forth below:

 

“Accounting Change” has the meaning specified in Section 1.3.

 

“Acquired Business” means the entity or assets acquired by Borrower or a Subsidiary of Borrower in an Acquisition, whether before or after the date hereof.

 

“Acquired Business EBITDA” means for any period ending on or before the date of any Acquisition of an Acquired Business the sum of items (a) through (f) of the definition of EBITDA with respect to such Acquired Business.

 

“Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person or any business or division of a Person, (b) the acquisition of in excess of 50% of the capital stock, partnership interests, membership interests or equity of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary) provided that Borrower or one of its Subsidiaries is the surviving entity.

 

“Administrative Agent” means Bank of America, NA., in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

 

“Administrative Agent’s Office” means Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.2, or such other address or account as Administrative Agent hereafter may designate by written notice to Borrower and Lenders.

 

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

 

“Affiliate” means, as to any Person, any other Person which directly or indirectly controls, or is under common control with, or is controlled by, such Person. As used in this definition, “control” (and the correlative terms, “controlled by” and “under common control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise); provided that, in any event, any Person that owns, directly or indirectly, 10% or more of the securities having ordinary voting power for the election of directors or other governing body of a corporation that has more than 100 record holders of such securities, or 10% or more of the partnership or other ownership interests of any other Person that has more than 100 record holders of such interests, will be deemed to control such corporation, partnership or other Person.

 

3











 

“Aggregate Commitments” has the meaning set forth in the definition of “Commitment”.

 

“Agreement” means this Agreement, either as originally executed or as it may from time to time be supplemented, modified, amended, restated or extended.

 

“Applicable Margin” means, for any Pricing Period, the per annum amounts set forth below (in basis points per annum) opposite the applicable Pricing Level; provided, however, that until Administrative Agent’s receipt of the Compliance Certificate required under Section 6.2(a) for the Fiscal Quarter ending September 30, 2011, such amounts shall be those indicated for Pricing Level II:

 

	
Pricing 
   Level
    	
 
    	
Total
   Leverage Ratio
    	
 
    	
Letters of Credit
   Eurodollar Rate 
   +
    	
 
    	
Base Rate
   +
    	
 
    	
Commitment
   Fee
    	
 
    
	
I
    	
 
    	
>0.40:1.00
    	
 
    	
175.0
    	
 
    	
75.0
    	
 
    	
30.0
    	
 
    
	
II
    	
 
    	
<0.40:1.00   but >0.30:1.00
    	
 
    	
150.0
    	
 
    	
50.0
    	
 
    	
25.0
    	
 
    
	
III
    	
 
    	
<0.30:1.00   but >0.20:1.00
    	
 
    	
125.0
    	
 
    	
25.0
    	
 
    	
20.0
    	
 
    
	
IV
    	
 
    	
<0.20:1.00
    	
 
    	
100.0
    	
 
    	
0.0
    	
 
    	
15.0
    	
 
    


 

As used in this definition, the following terms have the following respective meanings:

 

“Pricing Level” means, for each period, the pricing level set forth above opposite the Total Leverage ratio achieved by Borrower and its Subsidiaries as of the first day of that Pricing Period.

 

“Pricing Level Change Date” means, with respect to any change in the Pricing Level which results in a change in the Applicable Margin, the earlier of (a) 5 Business Days after the date upon which Borrower delivers a Compliance Certificate to Administrative Agent reflecting such changed Pricing Level and (b) 5 Business Days after the date upon which Borrower is required by Section 6.2(a), to deliver such Compliance Certificate; provided, however, that if the Compliance Certificate is not delivered by the date required by the Section 6.2(a), then, upon the request of the Requisite Lenders, subject to the other provisions of this Agreement, commencing on the date such Compliance Certificate was required until such Compliance Certificate is delivered, the Applicable Margin shall be based on the next higher level than the one previously in effect, and from and after the date such Compliance Certificate is thereafter received, the Applicable Margin shall be as determined from such Compliance Certificate.

 

“Pricing Period” means (a) the period commencing on the Effective Date and ending on the first Pricing Level Change Date to occur thereafter and (b) each subsequent period commencing on each Pricing Level Change Date and ending the day prior to the next Pricing Level Change Date.

 

4











 

“Applicable Taxes” means any and all present or future taxes (including documentary taxes), levies, assessments, imposts, duties, deductions, fees, withholdings or similar charges, and all liabilities with respect thereto imposed by a Governmental Authority relating to any Loan Document, including any liabilities imposed on amounts paid by Borrower to indemnify or reimburse any Person for such amounts, excluding Lender Taxes.

 

“Approved Fund” has the meaning specified in Section 10.6(h).

 

“Arranger” means each of MLPFS, J.P. Morgan Securities LLC and Wells Fargo Securities, LLC in its capacity as joint lead arranger and joint book manager.

 

“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

 

“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit D or any other form approved by the Administrative Agent.

 

“Attorney Costs” means and includes all fees and disbursements of any law firm or other external counsel and the allocated cost of internal legal services and all disbursements of internal counsel.

 

“Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.

 

“Auto-Extension Letter of Credit” has the meaning specified in Section 2.4(g).

 

“Availability Period” means the period commencing on the Effective Date and ending on the earliest of (a) the day before the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.6 and (c) the date on which the commitment of each Lender to make Loans and any obligations of the Issuing Lender to make Letter of Credit Extensions are terminated pursuant to Section 8.2.

 

“Bank of America” means Bank of America, N.A.

 

“Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publically announced from time to time by Bank of America as its “Prime Rate” and (c) the rate determined by Bank of America to be the Eurodollar Rate for a one month Interest Period beginning on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%.  The “Prime Rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for

 

5












 

pricing some loans, which may be priced at, above or below such announced rate.  Any change (i) in such Prime Rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change and (ii) in such Eurodollar Base Rate shall take effect on the date of such change.

 

“Base Rate Loan” means a Loan which bears interest based on the Base Rate.

 

“Borrower” has the meaning set forth in the introductory paragraph hereto.

 

“Borrower Account” shall have the meaning specified in Section 2.12.

 

“Borrower Materials” has the meaning specified in Section 6.2.

 

“Borrower Party” means any Person, other than Administrative Agent and Lenders, which now or hereafter is a party to any of the Loan Documents.

 

“Borrowing” and “Borrow” each mean a borrowing hereunder consisting of Loans of the same type made on the same day and, other than in the case of Base Rate Loans, having the same Interest Period.

 

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks in New York City or San Francisco are authorized or required by law to close and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

 

“Capital Lease Obligations” means all monetary obligations of a Person under any leasing or similar arrangement which, in accordance with GAAP, is classified as a capital lease.

 

“Cash” means, when used in connection with any Person, all monetary and non-monetary items owned by that Person that are treated as cash or cash equivalents in accordance with GAAP, consistently applied.

 

“Cash Collateralize” means to pledge and deposit with or deliver to Administrative Agent, for the benefit of the Issuing Lender and Lenders, as collateral for the Letter of Credit Usage, cash or deposit account balances pursuant to documentation in form and substance satisfactory to Administrative Agent and the Issuing Lender (which documents are hereby consented to by Lenders). Derivatives of such term shall have corresponding meaning. Borrower hereby grants Administrative Agent, for the benefit of the Issuing Lender and Lenders, a Lien on all such cash and deposit account balances. Cash collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America.

 

“Cash Management Agreement” means any agreement that is not prohibited by the terms hereof to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

 

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“Cash Management Bank” means any Person that, (a) at the time it enters into a Cash Management Agreement with a Borrower Party, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Cash Management Agreement with a Borrower Party, in each case in its capacity as a party to such Cash Management Agreement.

 

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

 

(a)           any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 40% or more of the equity securities of such Person entitled to vote for members of the board of directors or equivalent governing body of such Person on a partially-diluted basis (i.e., taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or

 

(b)           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 (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.

 

“Code” means the Internal Revenue Code of 1986, as amended or replaced and as in effect from time to time.

 

“Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to Borrower pursuant to Section 2.1, (b) purchase participations in Letter of Credit Usage, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.1 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (collectively, as of any time, the “Aggregate Commitments”).

 

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“Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of the same type and having the same Interest Period made by each of the Lenders pursuant to Section 2.1.

 

“Committed Loan” means a Loan of any type made to Borrower by any Lender pursuant to Section 2.1.

 

“Committed Loan Note” means the promissory note made by Borrower to a Lender evidencing Committed Loans made by such Lender, substantially in the form of Exhibit C, either as originally executed or as the same may from time to time be supplemented, modified, amended, renewed, extended or replaced (collectively, the “Committed Loan Notes”).

 

“Compliance Certificate” means a certificate in the form of Exhibit B, properly completed and signed by a Responsible Officer of Borrower.

 

“Consolidated Net Worth” means, as of the date of any determination thereof, the total consolidated assets of Borrower and its Subsidiaries less the total consolidated liabilities of Borrower and its Subsidiaries determined in accordance with GAAP.

 

“Consolidated Tangible Net Worth” means, as of any date of determination, for Borrower and its Subsidiaries on a consolidated basis, Shareholders’ Equity of Borrower and its Subsidiaries on that date minus the Intangible Assets of Borrower and its Subsidiaries on that date.

 

“Continuation” and “Continue” each mean, with respect to any Committed Loan other than a Base Rate Loan, the continuation of such Loan as the same type of Loan in the same principal amount, but with a new Interest Period and an interest rate determined as of the first day of such new Interest Period. Continuations must occur, if at all, on the last day of the Interest Period for such Loan.

 

“Contractual Obligation” means, as to any Person, any provision of any outstanding security issued by that Person or of any material agreement, instrument or undertaking to which that Person is a party or by which it or any of its Property is bound.

 

“Conversion” and “Convert” each mean, with respect to any Committed Loan, the conversion of one type of Loan into another type of Loan. With respect to Eurodollar Rate Loans, Conversions must occur on the last day of the Interest Period for such Loan in order to avoid potential breakfunding costs pursuant to Section 3.6.

 

“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, as amended from time to time, and all other applicable liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws from time to time in effect and affecting the rights of creditors generally.

 

“Default” means any event that, with the giving of any applicable notice or passage of time specified in Section 8.1, or both, would be an Event of Default.

 

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“Default Rate” means an interest rate equal to the Base Rate plus the Applicable Margin, if any, applicable to the Base Rate plus 2%, to the fullest extent permitted by applicable Laws.

 

“Defaulting Lender” means, subject to Section 2.16(b), any Lender that, (a) has failed to (i) fund all or any portion of its Loans within three Business Days of the date required to be funded by it hereunder, unless such Lender notifies the Administrative Agent and Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Issuing Lender, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within three Business Days of the date when due, (b) has notified Borrower, the Administrative Agent, the Issuing Lender or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied) (c) has failed, within three Business Days after request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its prospective funding obligations  hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent) or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b) upon delivery of written notice of such determination to Borrower, the Issuing Lender, the Swingline Lender and each Lender.

 

“Designated Deposit Account” means a deposit account to be maintained by Borrower with Bank of America, as from time to time designated by Borrower by written notification to Administrative Agent.

 

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“Disposition” means the voluntary sale, transfer, or other disposition of any asset of Borrower or any of its Subsidiaries, including without limitation any sale, assignment, pledge, hypothecation, transfer or other disposal with or without recourse of any notes or accounts receivable or any rights and claims associated therewith.

 

“Distribution” means, with respect to any shares of capital stock or any warrant or option to purchase an equity security or other equity security issued by a Person, (a) the retirement, redemption, purchase, or other acquisition for Cash or for Property by such Person of any such security, (b) the declaration or (without duplication) payment by such Person of any dividend in Cash or in Property on or with respect to any such security, (c) any Investment by such Person in the holder of 5% or more of any such security if a purpose of such Investment is to avoid characterization of the transaction as a Distribution and (d) any other payment in Cash or Property by such Person constituting a distribution under applicable Laws with respect to such security.

 

“Dollars” or “$” means United States dollars.

 

“EBIT” means, with respect to any Person and with respect to any fiscal period, the sum of (a) Net Income of that Person for that period, plus (b) any non-operating non-recurring loss reflected in such Net Income, minus (c) any non-operating non-recurring gain reflected in such Net Income, plus (d) Interest Expense of that Person for that period, plus (e) the aggregate amount of federal and state taxes on or measured by income of that Person for that period (whether or not payable during that period) plus (f) non-recurring non-cash expenses (excluding depreciation and amortization) of that Person,  in the case of each clause (a) through (f) in accordance with GAAP.

 

“EBITDA” means, with respect to any Person and with respect to any fiscal period, the sum  of (a) Net Income of that Person for that period, plus (b) any non-operating non-recurring loss reflected in such Net Income, minus (c) any non-operating non-recurring gain reflected in such Net Income, plus (d) Interest Expense of that Person for that period, plus (e) the aggregate amount of federal and state taxes on or measured by income of that Person for that period (whether or not payable during that period), plus (f) depreciation, amortization and all other non-cash expenses of that Person for that period, plus (g) Acquired Business EBITDA, in each case as determined in accordance with GAAP, and adjusted by subtracting equity in earnings in 50% or less owned companies and joint ventures and, to the extent approved by Administrative Agent (which approval shall not be unreasonably withheld), any other companies not consolidated with Borrower, and by adding Cash dividends received from 50% or less owned companies and joint ventures and, to the extent approved by Administrative Agent (which approval shall not be unreasonably withheld), any other companies not consolidated with Borrower; provided that Acquired Business EBITDA with respect to any Acquired Business shall only be included in EBITDA if financial statements of such Acquired Business, within the preceding twelve months, either were (i) audited by an independent accounting firm, (ii) reviewed by an independent accounting firm as long as such reviewed and unaudited Acquired Business EBITDA does not exceed 10% of the total audited EBITDA of Borrower and its Subsidiaries, or, (iii) subject to consent of the Requisite Lenders, unaudited or reviewed by an independent accounting firm.

 

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“Effective Date” means the time and Business Day on which the conditions set forth in Section 4.1 are satisfied or waived. Administrative Agent shall notify Borrower and Lenders of the date that is the Effective Date.

 

“Eligible Assignee” has the meaning specified in Section 10.6(h).

 

“EMJ” means Earle M. Jorgensen Company, a Delaware corporation.

 

“EMJ COLI” means those certain life insurance policies obtained in 1984, 1985 and 1986 by Kilsby-Roberts Holding Co. (“KR”) from Phoenix Mutual Life Insurance Company covering participants in the KR employee stock ownership plan and certain other KR executives owned by EMJ, each of which policies has EMJ as its sole beneficiary.

 

“Environmental Laws” means all federal, state or local laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authorities, in each case relating to environmental, health, safety and land use matters applicable to any of the Real Property.

 

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of Borrower or any other Borrower Party, or any of their respective Subsidiaries 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.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, and any regulations issued pursuant thereto, as amended or replaced and as in effect from time to time.

 

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

 

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or

 

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4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or any ERISA Affiliate.

 

“Eurodollar Base Rate” has the meaning specified in the definition of Eurodollar Rate.

 

“Eurodollar Rate” means, for any Interest Period with respect to a Eurodollar Rate Loan, and for any interest calculation on any date pursuant to clause (c) of the definition of “Base Rate”,  a rate per annum determined by Administrative Agent pursuant to the following formula:

 

	
Eurodollar   Rate
    	
=
    	
Eurodollar Base Rate
    	
 
    
	
 
    	
 
    	
1.00 – Eurodollar Reserve Percentage
    	
 
    


 

Where “Eurodollar Base Rate” means:

 

(a)           with respect to such Interest Period for a Eurodollar Rate Loan, the rate per annum equal to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or such other commercially available source providing quotations of BBA LIBOR as may be designated by Administrative Agent from time to time) at approximately 11:00 a.m., London time, two London Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period or, (ii) if such rate is not available at such time for any reason, the rate per annum determined by Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two London Banking Days prior to the commencement of such Interest Period; and

 

(b)           with respect to such interest calculation on any date pursuant to clause (c) of the definition of “Base Rate”, the rate per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time determined two London Banking Days prior to such date for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day or (ii) if such published rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of determination in same day funds in the approximate amount of the Base Rate Loan being made or maintained and with a term equal to one month would be offered by Bank of America’s London Branch

 

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to major banks in the London interbank Eurodollar market at their request at the date and time of determination.

 

“Eurodollar Reserve Percentage” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan, or for any interest calculation on any date pursuant to clause (c) of the definition of “Base Rate”, shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.

 

“Eurodollar Rate Loan” means a Committed Loan that bears interest at the Eurodollar Rate based on clause (a) of the definition of Eurodollar Base Rate.

 

“Event of Default” has the meaning specified in Section 8.1.

 

“Existing Credit Agreement” has the meaning specified in Recital A.

 

“Existing Lenders” has the meaning specified in Recital A.

 

“Existing Letters of Credit” has the meaning specified in Section 2.4(o).

 

“Existing Loan Documents” has the meaning specified in clause (iv) of the amendment and restatement provisions located immediately after the Recitals.

 

“Extension of Credit” means (a) the Borrowing of any Loans, (b) the Conversion or Continuation of any Loans or (c) the issuance, renewal, increase continuation, amendment or other credit action with respect to any Letter of Credit, including Lenders acquiring a participation in such Letters of Credit (collectively, the “Extensions of Credit”).

 

“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.

 

“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 Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so

 

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published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by Administrative Agent.

 

“Fee Letters” means, collectively, the fee letters entered into between Borrower and each of the Arrangers with respect to fees payable under this Agreement.

 

“Fiscal Quarter” means the fiscal quarter of Borrower consisting of a three-month fiscal period ending on each March 31, June 30, September 30 and December 31.

 

“Fiscal Year” means the fiscal year of Borrower consisting of a twelve-month period ending on each December 31.

 

“Foreign Lender” has the meaning specified in Section 10.18(a).

 

“Foreign Subsidiary” means, at any time, each Subsidiary of Borrower which is created, organized or domesticated in any jurisdiction other than the United States or any state thereof.

 

“FRB” means the Board of Governors of the Federal Reserve System or any governmental authority succeeding to its functions.

 

“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the Issuing Lender, such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Usage other than Letter of Credit Usage as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Pro Rata Share of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

 

“Fund” has the meaning specified in Section 10.6(h).

 

“Funded Debt” means, as of the date of determination, without duplication, the sum  of (a) all principal Indebtedness of Borrower and its Subsidiaries for borrowed money (including debt securities issued by Borrower or any of its Subsidiaries) on that date plus (b) Guaranty Obligations in connection with Synthetic Leases, plus (c) the aggregate amount of all Capital Lease Obligations of Borrower and its Subsidiaries on that date, plus (d) all Letter of Credit Usage and the face amount of, and reimbursement obligations with respect to, any other letters of credit issued for the account of Borrower and its Subsidiaries.

 

“GAAP” means accounting principles generally accepted in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as

 

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may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

 

“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing (including any supra-national bodies, such as the European Union or the European Central Bank and including any group or body charged with setting financial accounting or regulatory capital rules or standards (including the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).

 

“Granting Lender” has the meaning specified in Section 10.6(i).

 

“Guarantied Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Borrower Party and any Cash Management Bank.

 

“Guarantied Hedge Agreement” means any Swap Contract permitted under Section 7 that is entered into by and between any Borrower Party and any Hedge Bank.

 

“Guarantied Parties” means, collectively, the Administrative Agent, the Lenders, the Issuing Lender, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.5, and the other Persons the Obligations owing to which are or are purported to be guarantied under the terms of the Master Subsidiary Guaranty.

 

“Guarantors” means, collectively, (a) all Material Domestic Subsidiaries; (b) any Subsidiaries that are guarantors or obligors with respect to any of the note purchase agreements described in Schedule 7.3 or with respect to any Indebtedness issued pursuant to Sections 7.3(a), 7.3(f) or 7.3(g); and (c) Subsidiaries that have been identified by Borrower as Guarantors pursuant to Section 6.3(a).

 

“Guaranty Obligation” means, as to any Person, any (a) guarantee by that Person of Indebtedness of, or other obligation performable by, any other Person or (b) assurance, agreement, letter of responsibility, letter of awareness, undertaking or arrangement given by that Person to an obligee of any other Person with respect to the performance of an obligation by, or the financial condition of, such other Person, whether direct, indirect or contingent, including any purchase or repurchase agreement covering such obligation or any collateral security therefor, any agreement to provide funds (by means of loans, capital contributions or otherwise) to such other Person, any agreement to support the solvency or level of any balance sheet item of such other Person or any “keep-well” or other arrangement of whatever nature given for the purpose of assuring or

 

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holding harmless such obligee against loss with respect to any obligation of such other Person; provided, however, that the term Guaranty Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guaranty Obligation shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, covered by such Guaranty Obligation or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the Person in good faith.

 

“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.

 

“Hedge Bank” means any Person that, (a) at the time it enters into a Swap Contract not prohibited under Section 7, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Swap Contract not prohibited under Section 7, in each case, in its capacity as a party to such Swap Contract.

 

“Hostile Acquisition” means the acquisition of the capital stock or other equity interests of a Person through a tender offer or similar solicitation of the owners of such capital stock or other equity interests which has not been approved (which approval shall be obtained prior to such acquisition) by resolutions of the board of directors of such Person or by similar action if such Person is not a corporation.

 

“IFRS” has the meaning specified in Section 1.3

 

“Indebtedness” means, as to any Person (without duplication):

 

(a)                                  all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;

 

(b)                                 any direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, shipside bonds, surety bonds and similar instruments;

 

(c)                                  all obligations of such Person as lessee under leases which have been or should be, in accordance with GAAP, recorded as Capital Lease Obligations;

 

(d)                                 all other items which, in accordance with GAAP, would be included as liabilities on the liability side of the balance sheet of such Person as of the date at which Indebtedness is to be determined;

 

(e)                                  net obligations under any Swap Contract in an amount equal to (i) if such Swap Contract has been closed out, the termination value thereof, or (ii) if such Swap Contract has not been closed out, the mark-to-market value thereof determined on the

 

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basis of readily available quotations provided by any recognized dealer in such Swap Contracts;

 

(f)                                    whether or not so included as liabilities in accordance with GAAP, all obligations of such Person to pay the deferred purchase price of property or services, and indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

 

(g)                                 indebtedness of such Person arising under facilities for the discount of accounts receivable of such Person in an amount equal to the present value of the unpaid amount of all accounts receivable sold, determined by using a discount rate equal to the discount rate used in determining the purchase price of such accounts receivable under such facilities;

 

(h)                                 indebtedness relating to Synthetic Leases; and

 

(i)                                     all Guaranty Obligations of such Person in respect of any of the foregoing.

 

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person (subject only to customary exceptions acceptable to the Requisite Lenders). The amount of any Capital Lease Obligation or Synthetic Lease as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. Notwithstanding the foregoing, Life Insurance Policy Loans shall not constitute Indebtedness so long as (1) such obligations are nonrecourse to Borrower, EMJ and their respective Subsidiaries, (2) each EMJ COLI policy is owned by EMJ and has EMJ as its sole beneficiary, (3) the aggregate amount of such obligations outstanding thereunder at any time does not exceed the cash surrender value of the EMJ COLI policies at such time, and (4) the proceeds of such loans incurred after the Effective Date are not used for any purpose other than to pay the premiums, interest, taxes and expenses related to the EMJ COLI policies.

 

“Indemnitee” has the meaning specified in Section 10.4(b).

 

“Intangible Assets” means assets that are considered intangible assets under GAAP, including customer lists, goodwill, computer software (except for purchased or licensed software), copyrights, trade names, trademarks and patents.

 

“Interest Coverage Ratio” means, as of the last day of any Fiscal Quarter (including the last day of a Fiscal Quarter which is also the last day of a Fiscal Year), the ratio of (a) EBIT of Borrower and its Subsidiaries on a consolidated basis for the fiscal period consisting of that Fiscal Quarter and the three immediately preceding Fiscal Quarters, excluding any portion of EBIT allocable to any Person acquired by Borrower or

 

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any of its Subsidiaries for any fiscal period prior to the Acquisition of such Person to (b) Interest Expense of Borrower and its Subsidiaries on a consolidated basis for such fiscal period.

 

“Interest Expense” means, with respect to any Person and as of the last day of any fiscal period, the sum of (a) all interest, fees, charges and related expenses paid or payable (without duplication) for that fiscal period by that Person to a lender in connection with borrowed money (including any obligations for fees, charges and related expenses payable to the issuer of any letter of credit) or the deferred purchase price of assets that are considered “interest expense” under GAAP plus (b) the portion of rent paid or payable (without duplication) for that fiscal period by that Person under Capital Lease Obligations that should be treated as interest in accordance with FASB ASC 840-10 and 840-20.

 

“Interest Payment Date” means, (a) with respect to any Base Rate Loan, the last Business Day of each calendar quarter and the Maturity Date, and (b) with respect to any other type of Loan (other than a Swing Line Loan), (i) any date that such Loan is prepaid in whole or in part, (ii) the last day of each Interest Period applicable to, or the maturity of, such Loan; provided, however, that if any Interest Period or the maturity of any such Loan exceeds three months, the date that falls three months after the beginning of such Interest Period, shall also be an Interest Payment Date, and (iii) the Maturity Date.

 

“Interest Period” means, as to any Committed Loans other than Base Rate Loans, the period commencing on the date specified by Borrower in its Request for Extension of Credit and ending one, two, three or six months thereafter, as selected by Borrower in the Request for Extension of Credit relating thereto; provided  that:

 

(a)                                  The first day of any Interest Period shall be a Business Day;

 

(b)                                 Any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;

 

(c)                                  No Interest Period shall extend beyond the Maturity Date.

 

“Investment” means, as to any Person, any acquisition (other than an “Acquisition” as defined above) or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, guaranty of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

 

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“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).

 

“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the Issuing Lender and the Borrower (or any Subsidiary) or in favor of the Issuing Lender and relating to such Letter of Credit.

 

“Issuing Lender” means Bank of America, N.A., in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.

 

“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, executive 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.

 

“Lender” means each lender from time to time party hereto.

 

“Lender Taxes” means, in the case of each Lender, Administrative Agent and each Eligible Assignee, and any Affiliate or Lending Office thereof: (a) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts or capital and franchise taxes imposed on it, by (i) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Lending Office or (ii) any jurisdiction (or political subdivision thereof) in which it is “doing business” (unless it would not be doing business in such jurisdiction (or political subdivision thereof) absent the transactions contemplated hereby), (b) any withholding taxes or other taxes based on gross income imposed by the United States of America (other than withholding taxes and taxes based on gross income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Governmental Authority), (c) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 10.18, to the extent such forms are then required by applicable Laws, and (d) any United States of America withholding taxes imposed under FATCA.

 

“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as such Lender may from time to time notify Borrower and Administrative Agent.

 

“Letter of Credit” means any of the letters of credit issued by the Issuing Lender hereunder, including the Existing Letters of Credit, either as originally issued or as the same may be supplemented, amended, renewed or extended.

 

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“Letter of Credit Advance” means, with respect to each Lender, such Lender’s funding of its participation in any Letter of Credit Borrowing in accordance with its Pro Rata Share.

 

“Letter of Credit Application” means an application for issuances of, or amendments to, Letters of Credit as shall at any time be in use at the Issuing Lender.

 

“Letter of Credit Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Committed Borrowing.

 

“Letter of Credit Expiration Date” means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

 

“Letter of Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.

 

“Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate Commitments and (b) $250,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.

 

“Letter of Credit Usage” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate amount of all Unreimbursed Amounts, including all drawings under the Letters of Credit honored by the Issuing Lender and not theretofor reimbursed or converted into Committed Loans.  For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.6.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

“Lien” means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in property to secure payment of a debt or performance of an obligation or other priority or preferential arrangement of any kind or nature whatsoever, including any agreement to grant any of the foregoing, any conditional sale or other title retention agreement, any lease in the nature of a security interest, and/or the filing of or agreement to give any financing statement (other than a precautionary financing statement with respect to a lease that is not in the nature of a security interest) under the Uniform Commercial Code or comparable Laws of any jurisdiction with respect to any Property, including the interest of a purchaser of accounts receivable.

 

“Life Insurance Policy Loans” means obligations in respect of money borrowed by EMJ against the available cash surrender value of any EMJ COLI policy in

 

20











 

accordance with the terms of such policy, which obligations shall be nonrecourse to Borrower and its Subsidiaries.

 

“Loan” means any advance made or to be made by any Lender to Borrower as provided in Section 2, and includes each Committed Loan and Swing Line Loan.

 

“Loan Documents” means, collectively, this Agreement, the Committed Loan Notes, the Letters of Credit, the Master Subsidiary Guaranty, the Swing Line Documents, any Request for Extension of Credit, any Issuer Documents, any Compliance Certificate, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.17 of this Agreement, and any other agreements of any type or nature hereafter executed and delivered by Borrower or any of its Subsidiaries or Affiliates to Administrative Agent, the Issuing Lender or to any Lender in any way relating to or in furtherance of this Agreement, in each case either as originally executed or as the same may from time to time be supplemented, modified, amended, restated, extended or replaced.

 

“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

 

“Margin Stock” means “margin stock” as such term is defined in Regulation U of the FRB as in effect from time to time.

 

“Master Subsidiary Guaranty” means a guaranty of the Obligations, executed by Material Domestic Subsidiaries and certain other Subsidiaries selected by Borrower substantially in the form of Exhibit E.

 

“Material Adverse Effect” means any set of circumstances or events which (a) has or could reasonably be expected to have any material adverse effect whatsoever upon the validity or enforceability of any Loan Document, (b) is or could reasonably be expected to be material and adverse to the condition (financial or otherwise), business, operations or prospects of Borrower and its Subsidiaries, taken as a whole, or (c) materially impairs or could reasonably be expected to materially impair the ability of Borrower and its Subsidiaries, taken as a whole, to perform the Obligations.

 

“Material Domestic Subsidiary” means, at any time, each Subsidiary of Borrower where such Subsidiary is a Wholly-Owned Subsidiary of Borrower which is created, organized or domesticated in the United States or under the laws of the United States or any state thereof and (a) the aggregate amount of such Subsidiary’s Tangible Assets exceeds 5% of the consolidated Tangible Assets of Borrower and its Subsidiaries or (b) the EBITDA of such Subsidiary for the four fiscal quarters most recently ended exceeded 5% of consolidated EBITDA of Borrower and its Subsidiaries for such period.

 

“Maturity Date” means July 26, 2016.

 

“Minimum Amount” means, with respect to each of the following actions, the following amounts set forth opposite such action (a reference to “Minimum Amount” shall also be deemed a reference to the multiples in excess thereof set forth below):

 

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Type of Action
    	
 
    	
Minimum Amount
    	
 
    	
Minimum Multiples
   in excess of
   Minimum Amount
    	
 
    
	
Borrowing of, prepayment of or Conversion into,   Base Rate Loans
    	
 
    	
$
    	
2,000,000
    	
 
    	
$
    	
1,000,000
    	
 
    
	
Borrowing of, prepayment of, Continuation of, or   Conversion into, Eurodollar Rate Loans
    	
 
    	
$
    	
5,000,000
    	
 
    	
$
    	
1,000,000
    	
 
    
	
Borrowing of Committed Loan as a Base Rate Loans   to repay Swing Line Loans
    	
 
    	
Amount of Swing Line Loans being repaid
    	
 
    	
N/A
    	
 
    
	
Reduction in Commitments
    	
 
    	
$
    	
10,000,000
    	
 
    	
$
    	
10,000,000
    	
 
    
	
Assignments
    	
 
    	
$
    	
10,000,000
    	
 
    	
 
    	
 
    


 

“MLPFS” means Merrill Lynch, Pierce, Fenner & Smith Incorporated.

 

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA.

 

“Negative Pledge” means a Contractual Obligation that contains a covenant binding on Borrower or any of its Subsidiaries that prohibits Liens on any of their Property, other than (a) any such covenant contained in a Contractual Obligation granting a Lien permitted under Section 7.1 which affects only the Property that is the subject of such permitted Lien and (b) any such covenant that does not prohibit Liens securing the Obligations.

 

“Net Cash Proceeds” means Net Proceeds to the extent consisting of Cash.

 

“Net Income” means, with respect to any fiscal period, the consolidated net income of Borrower and its Subsidiaries, excluding any consolidated net income not attributable to Borrower and its Subsidiaries for that period, determined in accordance with GAAP, consistently applied.

 

“Net Proceeds” means, with respect to any Disposition, the gross sales proceeds received by Borrower and its Subsidiaries from such Disposition (including Cash, Property and the assumption by the purchaser of any liability of Borrower or its Subsidiaries) net of brokerage commissions, legal expenses and other transactional costs payable by Borrower and its Subsidiaries with respect to such Disposition and net of an amount determined in good faith by Borrower to be the estimated amount of income taxes payable by Borrower attributable to such Disposition.

 

“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all affected Lenders or each Lender affected by the applicable consent, waiver or amendment in accordance with the terms of Section 10.1 and (ii) has been approved by the Requisite Lenders.

 

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“Non-Extension Notice Date” has the meaning specified in Section 2.4(g).

 

“Notes” means, collectively, the Committed Loan Notes and the Swing Line Note.

 

“Obligations” means all present and future obligations of every kind or nature of Borrower or any Borrower Party at any time and from time to time owed to Administrative Agent, any Lender, any Person entitled to indemnification, or any one or more of them, under any one or more of the Loan Documents or otherwise with respect to any Loan, Letter of Credit, Guarantied Cash Management Agreement or Guarantied Hedge Agreement, in each case whether due or to become due, matured or to become mature, liquidated or unliquidated, or contingent or actual, including obligations of performance as well as obligations of payment, and including interest that accrues after the commencement of any proceeding under any Debtor Relief Law by or against Borrower or any Subsidiary or Affiliate of Borrower.

 

“Opinion of Counsel” means the favorable written legal opinion of Kay Rustand, General Counsel of Borrower, who has acted as counsel to Borrower and its Subsidiaries, substantially in the form of Exhibit F, together with copies of all factual certificates and legal opinions upon which such counsel has relied.

 

“Outstanding Amount” means (i) with respect to Committed Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be, occurring on such date; and (ii) with respect to any Letter of Credit Usage on any date, the amount of such Letter of Credit Usage on such date after giving effect to any Letter of Credit Extension occurring on such date and any other changes in the aggregate amount of the Letter of Credit Usage as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.

 

“Outstanding Obligations” means, as of any date, and after giving effect to making any Extensions of Credit requested on such date and all payments, repayments and prepayments made on such date, the sum  of (a) the aggregate outstanding principal of all Loans, and (b) all Letter of Credit Usage.

 

“Participant” has the meaning specified in Section 10.6(d).

 

“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto established under ERISA.

 

“Pension Act” means the Pension Protection Act of 2006.

 

“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior 

 

23











 

to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

 

“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, which is subject to Title IV of ERISA and is maintained by Borrower or its Subsidiaries or to which Borrower or any of its Subsidiaries contributes or has an obligation to contribute, or in the case of a multiple employer plan (as described in Section 4064(a) of ERISA) has made contributions at any time during the immediately preceding five plan years.

 

“Permitted Disposition” means (a) a Disposition of Cash, inventory or other assets sold, leased or otherwise disposed of in the ordinary course of business of Borrower or any of its Subsidiaries, (b) Dispositions of inventory, or used, worn-out or surplus equipment, all in the ordinary course of business, (c) Dispositions of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment or where Borrower or its Subsidiaries determine in good faith that the failure to replace such equipment will not be detrimental to the business of Borrower or any of its Subsidiaries, (d) a Disposition to Borrower or a Guarantor, and (e) a Disposition of the assets of a Subsidiary of Borrower to Borrower or any Guarantor.

 

“Permitted Liens” means:

 

(a)                                  inchoate Liens incident to construction on or maintenance of Real Property; or Liens incident to construction on or maintenance of Real Property now or hereafter filed of record for which adequate reserves have been set aside (or deposits made pursuant to applicable Laws) and which are being contested in good faith by appropriate proceedings and have not proceeded to judgment, provided that, by reason of nonpayment of the obligations secured by such Liens, no such Real Property is subject to a material risk of loss or forfeiture;

 

(b)                                 Liens for taxes and assessments on Real Property which are not past due; or Liens for taxes and assessments on Real Property for which adequate reserves have been set aside and are being contested in good faith by appropriate proceedings and have not proceeded to judgment, provided that, by reason of nonpayment of the obligations secured by such Liens, no such Real Property is subject to a material risk of loss or forfeiture;

 

(c)                                  minor defects and irregularities in title, easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the businesses of Borrower and its Subsidiaries;

 

(d)                                 rights reserved to or vested in any Governmental Authority to control or regulate, or obligations or duties to any Governmental Authority with respect to, the use of any Real Property;

 

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(e)                                  rights reserved to or vested in any Governmental Authority to control or regulate, or obligations or duties to any Governmental Authority with respect to, any right, power, franchise, grant, license, or permit;

 

(f)                                    present or future zoning laws and ordinances or other laws and ordinances restricting the occupancy, use, or enjoyment of Real Property;

 

(g)                                 statutory Liens, other than those described in subsections (a) or (b) above, arising in the ordinary course of business with respect to obligations which are not delinquent or are being contested in good faith, provided that, if delinquent, adequate reserves have been set aside with respect thereto and, by reason of nonpayment, no Property is subject to a material risk of loss or forfeiture;

 

(h)                                 covenants, conditions, and restrictions affecting the use of Real Property which in the aggregate do not materially impair the fair market value or use of the Real Property for the purposes for which it is held;

 

(i)                                     rights of tenants under leases and rental agreements covering Real Property entered into in the ordinary course of business of the Person owning such Real Property;

 

(j)                                     Liens consisting of pledges or deposits to secure obligations under workers’ compensation laws or similar legislation, including Liens of judgments thereunder which are not currently dischargeable;

 

(k)                                  Liens consisting of pledges or deposits of Property to secure performance in connection with operating leases made in the ordinary course of business to which Borrower or any Subsidiary of Borrower is a party as lessee;

 

(l)                                     Liens consisting of any right of offset, or statutory bankers’ lien, on bank deposit accounts maintained in the ordinary course of business so long as such bank deposit accounts are not established or maintained for the purpose of providing such right of offset or bankers’ lien;

 

(m)                               Liens consisting of deposits of Property to secure statutory obligations of Borrower or any Subsidiary of Borrower in the ordinary course of its business;

 

(n)                                 Liens consisting of deposits of Property to secure (or in lieu of) surety, appeal or customs bonds in proceedings to which Borrower or any Subsidiary of Borrower is a party in the ordinary course of its business;

 

(o)                                 Liens (other than judgment Liens resulting in an Event of Default under Section 8.1(h)) created by or resulting from any litigation or legal proceeding involving Borrower or any Subsidiary of Borrower in the ordinary course of its business which is currently being contested in good faith by appropriate proceedings, provided that adequate reserves have been set aside and no Property is subject to a material risk of loss or forfeiture;

 

25












 

(p)                                 other non-consensual Liens incurred in the ordinary course of business but not in connection with an extension of credit, which do not in the aggregate, when taken together with all other Liens, materially impair the value or use of the Property of Borrower and its Subsidiaries, taken as a whole;

 

(q)                                 Liens consisting of (i) an interest (other than a legal or equitable co-ownership interest, an option or right to acquire a legal or equitable co-ownership interest and any interest of a ground lessor under a ground lease), that do not materially impair the value or use of Property for the purposes for which it is or may reasonably be expected to be held, (ii) an option or right to acquire a Lien that would be a Permitted Lien, (iii) the subordination of a lease or sublease in favor of a financing entity and (iv) a license, or similar right, of or to Intangible Assets granted in the ordinary course of business; and

 

(r)                                    Liens and Negative Pledges securing purchase money obligations, capital leases and Synthetic Leases incurred after the Effective Date as provided in Section 7.1(f).

 

“Person” means any individual or entity, including a trustee, corporation, limited liability company, general partnership, limited partnership, joint stock company, trust, estate, unincorporated organization, business association, firm, joint venture, Governmental Authority, or other entity.

 

“Pro Rata Share” means, with respect to each Lender, the percentage of the Aggregate Commitments set forth opposite the name of that Lender on Schedule 2.1, as such share may be adjusted as contemplated herein.

 

“Property” or “Properties” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

 

“Quarterly Payment Date” means the last Business Day of each calendar quarter, commencing September 30, 2011.

 

“Real Property” means, as of any date of determination, all real Property then or theretofore owned, leased or occupied by Borrower or any of its Subsidiaries.

 

“Register” has the meaning specified in Section 10.6(c).

 

“Regulations T, U and X” means Regulations T, U and X, as at any time amended, of the FRB, or any other regulations in substance substituted therefor.

 

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

 

“Reportable Event” means, any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder, other than any such event for which the 30-day notice requirement under ERISA has been waived in regulations issued by the PBGC.

 

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“Request for Extension of Credit” means a written request substantially in the form of Exhibit A or telephonic request followed by such written request, duly completed and signed by a Responsible Officer of Borrower, in each case delivered to Administrative Agent by Requisite Notice.

 

“Requisite Lenders” means, as of any date of determination, Lenders whose Voting Percentages aggregate more than 50%.

 

“Requisite Notice” means, unless otherwise provided herein, (a) irrevocable written notice to the intended recipient or (b) irrevocable telephonic notice to the intended recipient, promptly followed by a written notice to such recipient. Such notices shall be (i) delivered or made to such recipient at the address, telephone number or facsimile number set forth on Schedule 10.2 or in the Administrative Questionnaire or as otherwise designated by such recipient by Requisite Notice to Administrative Agent and (ii) if made by a Borrower Party, given or made by a Responsible Officer. Any written notice shall be in the form, if any, prescribed in the applicable section herein and may be given by facsimile provided such facsimile is promptly confirmed by a telephone call to such recipient.

 

“Requisite Time” means, with respect to any of the actions listed below, the time set forth opposite such action (all times are California time) on or prior to the date (the “relevant date”) of such action:

 

	
Action
    	
 
    	
Time
    	
 
    	
Date
    
	
Borrowing   or prepayment of Base Rate Loans
    	
 
    	
9:00 a.m.
    	
 
    	
Relevant date
    
	
Borrowing   of, continuation of, prepayment of, or conversion into Eurodollar Rate Loans
    	
 
    	
10:00 a.m.
    	
 
    	
3 Business Days prior to relevant date
    
	
Voluntary   Reduction of Commitments
    	
 
    	
10:00 a.m.
    	
 
    	
2 Business Days prior to relevant date
    
	
Letter   of Credit action
    	
 
    	
10:00 a.m.
    	
 
    	
5 Business Days prior to relevant date
    
	
Funds   made available by Lenders or Borrower to Administrative Agent
    	
 
    	
11:00 a.m.
    	
 
    	
Relevant date
    


 

“Responsible Officer” means the chief executive officer, president, chief financial officer or treasurer of a Borrower Party, or any other officer or partner having substantially the same authority and responsibility. Any document or certificate hereunder that is signed or executed by a Responsible Officer of a Borrower Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Borrower Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Borrower Party.

 

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“Shareholders’ Equity” means, as of any date of determination for Borrower and its Subsidiaries on a consolidated basis, shareholders’ equity as of that date determined in accordance with GAAP.

 

“SPC” has the meaning specified in Section 10.6(i).

 

“Subsidiary” means, as of any date of determination and with respect to any Person, any corporation, limited liability company or partnership (whether or not, in either case, characterized as such or as a “joint venture”), whether now existing or hereafter organized or acquired: (a) in the case of a corporation or limited liability company, of which a majority of the securities having ordinary voting power for the election of directors or other governing body (other than securities having such power only by reason of the happening of a contingency) are at the time beneficially owned by such Person and/or one or more Subsidiaries of such Person, or (b) in the case of a partnership, of which a majority of the partnership or other ownership interests are at the time beneficially owned by such Person and/or one or more of its Subsidiaries.

 

“Swap Contract” means (a) 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 or 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 (b) 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 (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

 

“Swing Line” means the revolving line of credit established by the Swing Line Lender in favor of Borrower pursuant to Section 2.3.

 

“Swing Line Documents” means a promissory note, if requested by the Swing Line Lender, and any other documents executed by Borrower in favor of the Swing Line Lender in connection with the Swing Line, each in form and substance satisfactory to Borrower, the Swing Line Lender, and Administrative Agent.

 

“Swing Line Lender” means Bank of America, N.A., in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

 

“Swing Line Loans” means loans made by the Swing Line Lender to Borrower under the Swing Line.

 

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“Swing Line Outstandings” means, as of any date of determination, the aggregate principal Indebtedness of Borrower on all Swing Line Loans then outstanding.

 

“Swing Line Sublimit” means an amount equal to the lesser of (a) the Aggregate Commitments and (b) $20,000,000. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Commitments.

 

“Synthetic Lease” means, with respect to any Person, (a) a so-called synthetic lease, or (b) an agreement for the use or possession of property creating obligations which do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the Indebtedness of such Person (without regard to accounting treatment).

 

“Tangible Assets” means, with respect to any Person, all of such Person’s assets determined in accordance with GAAP other than Intangible Assets.

 

“to the best knowledge of” means, when modifying a representation, warranty or other statement of any Person, that the fact or situation described therein is known by the Person (or, in the case of a Person other than a natural Person, known by a Responsible Officer) making the representation, warranty or other statement, or with the exercise of reasonable due diligence under the circumstances (in accordance with the standard of what a reasonable Person in similar circumstances would have done) would have been known by the Person (or, in the case of a Person other than a natural Person, would have been known by a Responsible Officer).

 

“Total Leverage Ratio”  means, as of the last day of any Fiscal Quarter (including the last day of a Fiscal Quarter which is also the last day of a Fiscal Year), the ratio, calculated on a consolidated basis for Borrower and its Subsidiaries, of (a) Funded Debt to (b) the sum of Funded Debt plus Shareholders’ Equity.

 

“type” of Committed Loan means (a) a Base Rate Loan or (b) an Eurodollar Rate Loan with an Interest Period of one, two, three, or six months thereafter, as selected by Borrower in the Request for Extension of Credit relating thereto. “type” means, in respect of Committed Loans and Swing Line Loans, their character as such.

 

“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to the Pension Funding Rules for the applicable plan year.

 

“Unreimbursed Amount” has the meaning specified in Section 2.4(h).

 

“Unsecured Note Indenture” has the meaning specified in Section 7.3(f).

 

“Voting Percentage” means, as to any Lender, (a) at any time when the Aggregate Commitments are in effect, such Lender’s Pro Rata Share and (b) at any time after the termination of the Aggregate Commitments, the percentage (carried out to the ninth decimal place) which (i) the sum of (A) the Outstanding Amount of such Lender’s 

 

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Committed Loans, plus (B) an amount equal to such Lender’s Pro Rata Share of the outstanding amount of Letter of Credit Usage, plus (C) an amount equal to such Lender’s Pro Rata Share of the Outstanding Amount of Swing Line Loans, then comprises of (ii) the Outstanding Amount of all Loans and Letter of Credit Usage; provided, however, that a Defaulting Lender’s Voting Percentage shall be deemed to be zero, and the respective Pro Rata Shares and Voting Percentages of the other Lenders shall be recomputed for purposes of this definition and the definition of “Requisite Lenders” without regard to such Defaulting Lender’s Commitment or the Outstanding Amount of its Committed Loans, Letter of Credit Usage and funded participations in Swing Line Loans, as the case may be.

 

“Wholly-Owned Subsidiary” means, at any time, any Subsidiary one hundred percent (100%) of all of the equity interests and voting interests of which are owned by any one or more of Borrower and its Wholly-Owned Subsidiaries at such time.

 

“Wholly-Owned Domestic Subsidiary” means a Wholly-Owned Subsidiary of Borrower which is created, organized or domesticated in the United States or under the laws of the United States or any state thereof.

 

1.2                                 Use of Defined Terms.  Any defined term used in the plural shall refer to all members of the relevant class, and any defined term used in the singular shall refer to any one or more of the members of the relevant class.

 

1.3                                 Accounting Terms.

 

(a)                                  All accounting terms not specifically defined in this Agreement shall be construed in conformity with, and all financial data required to be submitted by this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, except as otherwise specifically prescribed herein.

 

(b)                                 If at any time any change in GAAP or the adoption of International Financial Reporting Standards (“IFRS”) (each an “Accounting Change”) would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either Borrower or the Requisite Lenders shall so request, the Administrative Agent, the Lenders and Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such Accounting Change (subject to the approval of the Requisite Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such Accounting Change therein and (ii) Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such Accounting Change. Without limitation of the foregoing, in the event of any change in lease accounting, all calculations pertaining to lease obligations and related requirements of this Agreement shall disregard such change absent any amendment executed in accordance with this Section.

 

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(c)                                  Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

 

1.4                                 Rounding.  Any financial ratios required to be maintained by Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed in this Agreement and rounding the result up or down to the nearest number (with a rounding up if there is no nearest number) to the number of places by which such ratio is expressed in this Agreement.

 

1.5                                 Exhibits and Schedules.  All Exhibits and Schedules to this Agreement, either as originally existing or as the same may from time to time be supplemented, modified or amended, are incorporated herein by this reference. A matter disclosed on any Schedule shall be deemed disclosed on all Schedules.

 

1.6                                 Letter of Credit Amounts.  Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

 

1.7                                 Miscellaneous Terms.  The term “or” is disjunctive; the term “and” is conjunctive. The term “shall” is mandatory; the term “may” is permissive. Masculine terms also apply to females; feminine terms also apply to males. The term “including” is by way of example and not limitation.

 

SECTION 2
 COMMITMENTS; INTEREST, FEES AND PAYMENT PROCEDURES

 

2.1                                 Committed Loans.

 

(a)                                  Subject to the terms and conditions set forth in this Agreement, each Lender severally agrees, to make, Convert and Continue Committed Loans during the Availability Period as Borrower may request; provided, however, that after giving effect to any Committed Borrowing, (i) the aggregate Outstanding Amount of all Loans and Letter of Credit Usage shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Letter of Credit Usage, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment; provided, further, that the Commitments of Lenders shall be adjusted to give effect to any assignments of the Commitments pursuant 

 

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to Section 10.6. Subject to the foregoing and other terms and conditions hereof, Borrower may borrow, Convert, Continue, prepay and reborrow Committed Loans as set forth herein without premium or penalty

 

(b)                                 Loans made by each Lender shall be evidenced by one or more loan accounts or records maintained by such Lender in the ordinary course of business. Upon the request of any Lender made through Administrative Agent, such Lender’s Loans may be evidenced by one or more Committed Loan Notes, instead of or in addition to loan accounts. (Each such Lender may endorse on the schedules annexed to its Committed Loan Note(s) the date, amount and maturity of its Committed Loans and payments with respect thereto.) Such loan accounts, records or Committed Loan Notes shall be conclusive absent manifest error of the amount of such Loans and payments thereon. Any failure so to record or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrower to pay any amount owing with respect to the Loans.

 

2.2                                 Borrowings, Conversions and Continuations of Committed Loans.

 

(a)                                  Borrower may irrevocably request a Borrowing, Conversion or Continuation of Committed Loans in a Minimum Amount therefor by delivering a duly completed Request for Extension of Credit therefor by Requisite Notice to Administrative Agent not later than the Requisite Time therefor. All Borrowings, Conversions or Continuations shall constitute Base Rate Loans unless properly and timely otherwise designated as set forth in the preceding sentence.

 

(b)                                 Promptly following receipt of a Request for Extension of Credit, Administrative Agent shall notify each Lender of its Pro Rata Share thereof by Requisite Notice. In the case of a Borrowing of Loans, each Lender shall make the funds for its Loan available to Administrative Agent at Administrative Agent’s Office not later than the Requisite Time therefor on the Business Day specified in such Request for Extension of Credit. Upon satisfaction or waiver of the applicable conditions set forth in Section 4, all funds so received shall be made available to Borrower in like funds received.

 

(c)                                  Administrative Agent shall promptly notify Borrower and Lenders of the Eurodollar Rate applicable to any Eurodollar Rate Loan upon determination thereof.

 

(d)                                 Unless Administrative Agent and the Requisite Lenders otherwise consent, Loans with no more than ten different Interest Periods shall be outstanding at any one time.

 

(e)                                  Without limiting the requirements of Section 4.2, no Loans other than Base Rate Loans may be requested or continued during the existence of an Event of Default. During the existence of an Event of Default, the Requisite Lenders may determine that any or all of the then outstanding Committed Loans other than Base Rate Loans shall be Converted to Base Rate Loans.  Such Conversion shall be effective upon notice to Borrower from Administrative Agent and shall continue so long as such Event of Default continues to exist.

 

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(f)                                    If a Loan is to be made on the same date that another Loan is due and payable, Borrower or Lenders, as the case may be, shall make available to Administrative Agent the net amount of funds giving effect to both such Loans and the effect for purposes of this Agreement shall be the same as if separate transfers of funds had been made with respect to each such Loan.

 

(g)                                 The failure of any Lender to make any Loan on any date shall not relieve any other Lender of any obligation to make a Loan on such date, but no Lender shall be responsible for the failure of any other Lender to so make its Loan.

 

2.3                                 Swing Line.

 

(a)                                  Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.3, from time to time through the day prior to the Maturity Date to make Swing Line Loans to Borrower in such amounts as Borrower may request, provided that (i) after giving effect to such Swing Line Loan, the Swing Line Outstandings do not exceed the Swing Line Sublimit, (ii) without the consent of all of Lenders, no Swing Line Loan may be made during the continuation of an Event of Default and (iii) the Swing Line Lender has not given at least 24 hours prior notice to Borrower that availability under the Swing Line is suspended or terminated; provided, further, that after giving effect to any Swing Line Loan, (x) the aggregate Outstanding Amount of all Loans and Letter of Credit Usage shall not exceed the Aggregate Commitments, and (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Letter of Credit Usage, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment; and provided, further, that the Swing Line Lender shall not make any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, Borrower may borrow, repay and reborrow under this Section. Unless notified to the contrary by the Swing Line Lender, Borrowings under the Swing Line may be made in amounts which are integral multiples of $500,000 (“integral amount”) upon Requisite Notice made to the Swing Line Lender not later than 1:00 p.m. California time. Promptly after receipt of such a request for Borrowing, the Swing Line Lender shall obtain telephonic verification from Administrative Agent that, giving effect to such request, availability for Loans will exist under Section 2.1 (and such verification shall be promptly confirmed in writing by facsimile). Unless notified to the contrary by the Swing Line Lender, each repayment of a Swing Line Loan shall be in an amount which is an integral multiple of the integral amount. If Borrower instructs the Swing Line Lender to debit their demand deposit account at the Swing Line Lender in the amount of any payment with respect to a Swing Line Loan, or the Swing Line Lender otherwise receives repayment, such payment shall be deemed received on the next Business Day. The Swing Line Lender shall promptly notify Administrative Agent of the Swing Line Outstandings each time there is a change therein.

 

(b)                                 Swing Line Loans shall bear interest at a fluctuating rate per annum equal to the Base Rate plus the Applicable Margin or, if Borrower so requests, a fixed rate of 

 

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interest quoted by Swing Line Lender and agreed to by Borrower, for an interest period quoted by Swing Line Lender and agreed to by Borrower, but for a period not longer than ten Business Days, payable on such dates, as may be specified by the Swing Line Lender and in any event on the Maturity Date. Interest on Swing Line Loans shall be payable upon demand of the Swing Line Lender, and the Swing Line Lender shall be responsible for invoicing Borrower for such interest. The interest payable on Swing Line Loans is solely for the account of the Swing Line Lender.

 

(c)                                  Each Swing Line Loan shall be payable on the earlier of demand made by the Swing Line Lender or the tenth Business Day after the funding of the Swing Line Loan.

 

(d)                                 Upon the making of a Swing Line Loan, each Lender shall be deemed to have purchased from the Swing Line Lender a participation therein in an amount equal to that Lender’s Pro Rata Share times the amount of the Swing Line Loan. Upon demand made by the Swing Line Lender, each Lender shall, according to its Pro Rata Share, promptly provide to the Swing Line Lender its purchase price therefor in an amount equal to its participation therein. The obligation of each Lender to so provide its purchase price to the Swing Line Lender shall be absolute and unconditional and shall not be affected by the occurrence of an Event of Default or any other occurrence or event.

 

(e)                                  In the event that any Swing Line Loan is outstanding for more than ten Business Days, then on the next Business Day (unless Borrower has made other arrangements acceptable to the Swing Line Lender to repay the Swing Line Loan), Borrower shall request a Committed Loan in a Minimum Amount necessary to repay the Swing Line Loan in full. In the event that Borrower fails to request a Committed Loan within the Requisite Time therefor, Administrative Agent may, but is not required to, without notice to or the consent of Borrower, cause Committed Loans to be made by Lenders in the Minimum Amount necessary to repay the Swing Line Loan in full (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan for such purpose) and, for this purpose, the conditions precedent set forth in Section 4 shall not apply. The proceeds of such Committed Loans shall be paid to the Swing Line Lender for application to the applicable Swing Line Loan.

 

2.4                                 Letters of Credit.

 

(a)                                  Subject to the terms and conditions set forth herein, (i) the Issuing Lender agrees, in reliance upon the agreements of Lenders set forth in this Section 2.4, to (x) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with this Section, and (2) to honor drawings under the Letters of Credit; and (ii) the Lenders severally agree to participate in Letters of Credit issued for the account of Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any Letter of Credit Extension with respect to any Letter of Credit (x) the Outstanding Amount of all Letter of Credit Usage and all Loans shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed 

 

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Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Letter of Credit Usage, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the Letter of Credit Usage shall not exceed the Letter of Credit Sublimit.  Each Letter of Credit shall be in a form acceptable to the Issuing Lender. The term of a Letter of Credit shall not exceed the Letter of Credit Expiration Date unless (A) the Lenders and the Issuing Lender have approved the expiry date of such Letter of Credit, which expiry date shall be no later than 180 days after the Letter of Credit Expiration Date, and (B) the Issuing Lender has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Lender (in its sole discretion) with Borrower with respect to such Letter of Credit (it being understood that the obligation of a Lender to participate in any Letter of Credit Usage with respect to any Letter of Credit so issued shall not extend beyond the Letter of Credit Expiration Date absent the express written consent of such Lender to the contrary). Each commercial Letter of Credit will require drafts drawn at sight.

 

(b)                                 Borrower may irrevocably request the issuance, supplement, modification, amendment, renewal, or extension of a Letter of Credit by delivering a duly completed Letter of Credit Application therefor to the Issuing Lender, with a copy to Administrative Agent, by Requisite Notice not later than the Requisite Time therefor; provided, however, that for such requests the Requisite Notice must be in writing.  In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the Issuing Lender: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the Issuing Lender may require.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the Issuing Lender: (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the Issuing Lender may require.  Additionally, Borrower shall furnish to the Issuing Lender and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the Issuing Lender or the Administrative Agent may require. This Agreement shall control in the event of any conflict with any Issuer Document.

 

(c)                                  Promptly after receipt of any Letter of Credit Application, the Issuing Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from Borrower and, if not, the Issuing Lender will provide the Administrative Agent with a copy thereof.  Unless the Issuing Lender has received written notice from any Lender, the Administrative Agent or any Borrower Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Section 4.2 shall not then be satisfied, then,

 

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subject to the terms and conditions hereof, the Issuing Lender shall, on the requested date, issue a Letter of Credit for the account of Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the Issuing Lender’s usual and customary business practices.  Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Issuing Lender a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Letter of Credit.

 

(d)                                 The Issuing Lender shall not be under any obligation to issue any Letter of Credit if:  (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any Law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Issuing Lender in good faith deems material to it;  (ii)                                                 the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;  (iii) the Letter of Credit is to be denominated in a currency other than Dollars; (iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Lender (in its sole discretion) with Borrower or such Lender to eliminate the Issuing Lender’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Letter of Credit Usage as to which the Issuing Lender has actual or potential Fronting Exposure, as it may elect in its sole discretion; or (v) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.

 

(e)                                  The Issuing Lender shall be under no obligation to amend any Letter of Credit if (x) the Issuing Lender would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (y) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.

 

(f)                                    The Issuing Lender shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Lender shall have all of the benefits and immunities (i) provided to the Administrative Agent in Section 9 with respect to any acts taken or omissions suffered by the Issuing Lender in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 9 included the Issuing Lender with respect to such acts or omissions, and (ii) as additionally provided herein with respect to the Issuing Lender.    Without limitation of the foregoing, each Lender and Borrower agree that, in 

 

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paying any drawing under a Letter of Credit, the Issuing Lender shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document.  None of the Issuing Lender, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the Issuing Lender shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Requisite Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document.  Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, that this assumption is not intended to, and shall not, preclude Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.

 

(g)                                 If Borrower so requests in any applicable Letter of Credit Application, the Issuing Lender may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Issuing Lender to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the Issuing Lender, Borrower shall not be required to make a specific request to the Issuing Lender for any such extension.  Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Lender to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the Issuing Lender shall not permit any such extension if (A) the Issuing Lender has determined that it would not be permitted at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof, or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Requisite Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Lender or Borrower that one or more of the applicable conditions specified in Section 4.2 is not then satisfied, and in each such case directing the Issuing Lender not to permit such extension.

 

(h)                                 Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the Issuing Lender shall notify Borrower and the Administrative Agent thereof.  Not later than 11:00 a.m. on the date of any payment by the Issuing Lender under a Letter of Credit (each such date, an “Honor Date”), Borrower shall reimburse the Issuing Lender through the Administrative Agent in an amount equal to the amount of such drawing.  If Borrower fails to so reimburse the Issuing Lender by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the 

 

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amount of such Lender’s Pro Rata Share thereof.  In such event, Borrower shall be deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.2 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.2 (other than the delivery of a Committed Loan Notice).  Any notice given by the Issuing Lender or the Administrative Agent pursuant to this Section 2.4(h) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.  Each Lender shall upon any notice pursuant to this Section 2.4(h) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the Issuing Lender at the Administrative Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.4(i), each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to Borrower in such amount.  The Administrative Agent shall remit the funds so received to the Issuing Bank.   Until each Lender funds its Committed Loan or Letter of Credit Advance pursuant to this Section 2.4(h) to reimburse the Issuing Lender for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall be solely for the account of the Issuing Lender.

 

(i)                                     With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of Base Rate Loans because the conditions set forth in Section 4.2 cannot be satisfied or for any other reason, Borrower shall be deemed to have incurred from the Issuing Lender a Letter of Credit Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which Letter of Credit Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate.  In such event, each Lender’s payment to the Administrative Agent for the account of the Issuing Lender pursuant to Section 2.4(h) shall be deemed payment in respect of its participation in such Letter of Credit Borrowing and shall constitute a Letter of Credit Advance from such Lender in satisfaction of its participation obligation under this Section 2.4.

 

(j)                                     Each Lender’s obligation to make Committed Loans or Letter of Credit Advances to reimburse the Issuing Lender for amounts drawn under Letters of Credit, as contemplated by this Section 2.4, shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Issuing Lender, Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Committed Loans pursuant to this Section 2.4 is subject to the conditions set forth in Section 4.2 (other than delivery by Borrower of a Committed Loan Notice).  No such making of a Letter of Credit Advance shall relieve or otherwise impair the obligation of 

 

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Borrower to reimburse the Issuing Lender for the amount of any payment made by the Issuing Lender under any Letter of Credit, together with interest as provided herein.

 

(k)                                  If any Lender fails to make available to the Administrative Agent for the account of the Issuing Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.4 by the time specified in Section 2.4(h), then, without limiting the other provisions of this Agreement, the Issuing Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Issuing Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Issuing Lender in accordance with banking industry practice on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Issuing Lender in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or Letter of Credit Advance in respect of the relevant Letter of Credit Borrowing, as the case may be.  A certificate of the Issuing Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this Section shall be conclusive absent manifest error.

 

(l)                                     The obligation of Borrower to pay to the Issuing Lender the amount of any payment made by the Issuing Lender under any Letter of Credit shall be absolute, unconditional, and irrevocable. Without limiting the foregoing, Borrower’s obligations shall not be affected by any of the following circumstances:

 

(i)                                     any lack of validity or enforceability of the Letter of Credit, this Agreement, or any other agreement or instrument relating thereto;

 

(ii)                                  any amendment or waiver of or any consent to departure from the Letter of Credit, this Agreement, or any other agreement or instrument relating thereto, with the consent of Borrower;

 

(iii)                               the existence of any claim, set-off, defense, or other rights which Borrower may have at any time against the Issuing Lender, Administrative Agent or any Lender, any beneficiary of the Letter of Credit (or any persons or entities for whom any such beneficiary may be acting) or any other Person, whether in connection with the Letter of Credit, this Agreement, or any other agreement or instrument relating thereto, or any unrelated transactions;

 

(iv)                              any demand, statement, or any other document presented under the Letter of Credit proving to be forged, fraudulent, invalid, or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever so long as any such document appeared to comply with the terms of the Letter of Credit;

 

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(v)                                 payment by the Issuing Lender in good faith under the Letter of Credit against presentation of a draft or any accompanying document which does not strictly comply with the terms of the Letter of Credit;

 

(vi)                              the existence, character, quality, quantity, condition, packing, value or delivery of any Property purported to be represented by documents presented in connection with any Letter of Credit or for any difference between any such Property and the character, quality, quantity, condition, or value of such Property as described in such documents;

 

(vii)                           the time, place, manner, order or contents of shipments or deliveries of Property as described in documents presented in connection with any Letter of Credit or the existence, nature and extent of any insurance relative thereto;

 

(viii)                        the solvency or financial responsibility of any party issuing any documents in connection with a Letter of Credit;

 

(ix)                                any failure or delay in notice of shipments or arrival of any Property;

 

(x)                                   any error in the transmission of any message relating to a Letter of Credit not caused by the Issuing Lender, or any delay or interruption in any such message;

 

(xi)                                any error, neglect or default of any correspondent of the Issuing Lender in connection with a Letter of Credit;

 

(xii)                             any consequence arising from acts of God, wars, insurrections, civil unrest, disturbances, labor disputes, emergency conditions or other causes beyond the control of the Issuing Lender;

 

(xiii)                          so long as the Issuing Lender in good faith determines that the document appears to comply with the terms of the Letter of Credit, the form, accuracy, genuineness or legal effect of any contract or document referred to in any document submitted to the Issuing Lender in connection with a Letter of Credit; and

 

(xiv)                         where the Issuing Lender has acted in good faith and observed general banking usage, any other circumstances whatsoever.

 

(m)                               Unless otherwise expressly agreed by the Issuing Lender and Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit.

 

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(n)                                 Concurrently with the issuance of each Letter of Credit, Borrower shall pay a letter of credit issuance fee to the Issuing Lender, for the sole account of the Issuing Lender, in an amount set forth in the Fee Letter to which MLPFS is a party. Borrower shall also pay to Administrative Agent, for the ratable account of Lenders in accordance with their Pro Rata Share, a Letter of Credit fee in an amount equal to the Applicable Margin times the average daily maximum amount available to be drawn on such outstanding Letter of Credit, computed and payable in arrears on the last day of each calendar quarter, commencing September 30, 2011, through the date upon which the outstanding Letter of Credit shall expire, with the final payment to be made on such expiration date; provided, however, any Letter of Credit fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit shall be payable, to the maximum extent permitted by applicable Law, to the other Lenders in accordance with the upward adjustments in their respective Pro Rata Shares allocable to such Letter of Credit pursuant to Section 2.16(a)(iv). Borrower shall also pay to the Issuing Lender for its own account, from time to time on demand, the Issuing Lender’s standard processing fees, costs and charges with respect to Letters of Credit. The Letter of Credit issuance fee and the Letter of Credit fee are nonrefundable.

 

(o)                                 .As of the Effective Date, Bank of America has issued for the account of Borrower certain existing letters of credit listed on Schedule 2.4 hereto (collectively, the “Existing Letters of Credit”). On the Effective Date, all Existing Letters of Credit shall be deemed to have been issued pursuant hereto and each Lender shall be deemed to have purchased a participation in the Existing Letters of Credit in the same manner as if the Existing Letters of Credit had been a Letter of Credit issued hereunder.   With respect to the Existing Letters of Credit, from and after the Effective Date the letter of credit fee for the ratable account of Lenders will accrue, the undrawn amount thereof shall constitute Letter of Credit Usage and such Existing Letters of Credit shall be subject to and governed by the terms and conditions hereof.

 

(p)                                 Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, Borrower shall be obligated to reimburse the Issuing Lender hereunder for any and all drawings under such Letter of Credit.  Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of Borrower, and that Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

 

2.5                                 Prepayments.

 

(a)                                  Upon Requisite Notice to Administrative Agent not later than the Requisite Time therefor, Borrower may at any time and from time to time voluntarily prepay Committed Loans in the Minimum Amount therefor. Administrative Agent will promptly notify each Lender thereof and of such Lender’s Pro Rata Share of such prepayment.

 

(b)                                 If for any reason the Outstanding Obligations exceed the Aggregate Commitments as in effect or as reduced or because of any limitation set forth in this Agreement or otherwise, Borrower shall immediately prepay Loans and/or deposit Cash 

 

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Collateral to be held by Administrative Agent in an interest-bearing cash collateral account as collateral for Letter of Credit Usage hereunder in an aggregate amount equal to such excess.

 

(c)                                  Any prepayment of a Loan other than a Base Rate Loan shall be accompanied by all accrued interest thereon, together with the costs set forth in Section 3.6.

 

2.6                                 Voluntary Reduction or Termination of Commitments.  Upon Requisite Notice to Administrative Agent not later than the Requisite Time therefor, Borrower shall have the right, at any time and from time to time, without penalty or charge, to permanently and irrevocably reduce the Commitments in a Minimum Amount therefor, or terminate the then unused portion of the Commitments, provided, that Borrower shall not terminate or reduce the Commitments if, after giving effect thereto and any concurrent prepayment hereunder, the Outstanding Obligations would exceed the Aggregate Commitments; provided  further, that any such reduction or termination shall be accompanied by payment of all accrued and unpaid commitment fees with respect to the portion of the Commitments being reduced or terminated. Administrative Agent shall promptly notify Lenders of any request for reduction or termination of the Commitments under this Section. Each Lender’s Commitment shall be reduced by an amount equal to such Lender’s Pro Rata Share times the amount of such reduction.

 

2.7                                 Principal and Interest.

 

(a)                                  If not sooner paid, Borrower shall pay the outstanding principal amount of each Committed Loan on the Maturity Date.

 

(b)                                 Subject to subsection (c) below, Borrower agrees to pay interest on the unpaid principal amount of the Loans (before and after default, before and after maturity, before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law) from the date borrowed until paid in full (whether by acceleration or otherwise) (i) in the case of Committed Loans that are Base Rate Loans, on each Interest Payment Date therefor at a rate per annum equal to the Base Rate plus the Applicable Margin, (ii) in the case of Eurodollar Rate Loans, on each Interest Payment Date therefore at the Eurodollar Rate for the applicable Interest Period plus the Applicable Margin and (iii) in the case of Swing Line Loans, at such times and at such rates as set forth in Section 2.3.

 

(c)                                  If any amount payable by Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), it shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Upon the request of the Requisite Lenders, while any Event of Default exists, Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts including, without limitation, interest on past due 

 

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interest shall be compounded monthly, on the last day of each calendar month, to the fullest extent permitted by applicable Laws and payable upon demand.

 

2.8                                 Fees.

 

(a)                                  Commitment Fee.  Borrower agrees to pay to Administrative Agent for the account of each Lender pro rata according to its Pro Rata Share, a commitment fee equal to the Applicable Margin times the actual daily amount by which the Aggregate Commitments exceed the Outstanding Obligations (excluding Swing Line Loans), subject to adjustment as provided in Section 2.16. The commitment fee shall accrue at all times from the Effective Date until the Maturity Date and shall be payable quarterly in arrears on the last Business Day of each Quarterly Payment Date. The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Margin during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that such Applicable Margin was in effect. The commitment fee shall accrue at all times, including at any time during which one or more conditions in Section 4 are not met.

 

(b)                                 Other Fees.  Borrower shall pay to the Arrangers, Administrative Agent and the Issuing Lender for their own respective accounts (or, to the extent specified in the Fee Letter to which MLPFS is a party, for the account of Lenders) fees in the amounts and at the times specified in the Fee Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

 

2.9                                 Computation of Interest and Fees; Retroactive Adjustments of Applicable Margin.

 

(a)                                  Computation of Interest and Fees.  Computation of interest on Base Rate Loans shall be calculated on the basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed; computation of interest on all other types of Loans and all fees under this Agreement shall be calculated on the basis of a year of 360 days and the actual number of days elapsed, which results in a higher yield to Lenders than a method based on a year of 365 or 366 days. Interest shall accrue on each Loan for the day on which the Loan is made; interest shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid. Any Loan that is repaid on the same day on which it is made shall bear interest for one day. Notwithstanding anything in this Agreement to the contrary, interest in excess of the maximum amount permitted by applicable Laws shall not accrue or be payable hereunder, and any amount paid as interest hereunder which would otherwise be in excess of such maximum permitted amount shall instead be treated as a payment of principal.

 

(b)                                 Retroactive Adjustments of Applicable Margin.  If, as a result of any restatement of or other adjustment to the financial statements of Borrower or for any other reason, Borrower or the Lenders determine that (i) the Total Leverage Ratio as calculated by Borrower as of any applicable date on or after the Effective Date was inaccurate and (ii) a proper calculation of the Total Leverage Ratio would have resulted in higher pricing for such period, Borrower shall immediately and retroactively be 

 

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obligated to pay to the Administrative Agent for the account of the applicable Lenders or the Issuing Lender, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent, any Lender or the Issuing Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period.  This paragraph shall not limit the rights of the Administrative Agent, any Lender or the Issuing Lenders, as the case may be, under Section 2.4(h), 2.4(n) or 2.7(c) or under Section 8.  Borrower’s obligations under this paragraph shall survive the termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.

 

2.10                           Manner and Treatment of Payments among Lenders, Borrower and Administrative Agent.

 

(a)                                  All payments to be made by Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrower or any Lender hereunder shall be made to Administrative Agent at Administrative Agent’s Office not later than the Requisite Time for such type of payment in Dollars in immediately available funds. The Administrative Agent will promptly distribute to each Lender any such payment made by Borrower for the account of Lenders such Lender’s Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received after such Requisite Time shall be deemed received on the next succeeding Business Day. All payments shall be made in immediately available funds in lawful money of the United States of America.

 

(b)                                 Upon satisfaction of any applicable terms and conditions set forth herein, Administrative Agent shall promptly make any amounts received in accordance with the prior subsection available in like funds received as follows: (i) if payable to Borrower, by crediting the Designated Deposit Account, and (ii) if payable to any Lender, by wire transfer to such Lender at the address specified in Schedule 10.2 or the Administrative Questionnaire. Administrative Agent’s determination, or any Lender’s determination not contradictory thereto, of any amount payable hereunder shall be conclusive in the absence of manifest error.

 

(c)                                  Subject to the definition of “Interest Period,” if any payment to be made by Borrower or any other Borrower Party shall come due on a day other than a Business Day, payment shall instead be considered due on the next succeeding Business Day and the extension of time shall be reflected in computing interest and fees.

 

(d)                                 Unless Borrower or any Lender have notified Administrative Agent prior to the time any payment to be made by them is due, that they do not intend to remit such payment, Administrative Agent may, in its discretion, assume that Borrower or Lender, as the case may be, have timely remitted such payment and may, in its discretion and in reliance thereon, make available such payment to the Person entitled thereto. If such payment was not in fact remitted to Administrative Agent, then:

 

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(i)                                     if Borrower failed to make such payment, each Lender shall forthwith on demand repay to Administrative Agent the amount of such assumed payment made available to such Lender, together with interest thereon in respect of each day from and including the date such amount was made available by Administrative Agent to such Lender to the date such amount is repaid to Administrative Agent at the Federal Funds Rate; and

 

(ii)                                  if any Lender failed to make such payment, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent promptly shall notify Borrower, and Borrower shall pay such corresponding amount to Administrative Agent. Administrative Agent also shall be entitled to recover from such Lender interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by Administrative Agent or Borrower to the date such corresponding amount is recovered by Administrative Agent, (A) from such Lender at a rate per annum equal to the daily Federal Funds Rate, and (B) from Borrower, at a rate per annum equal to the interest rate applicable to such Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitments or to prejudice any rights which Administrative Agent or Borrower may have against any Lender as a result of any default by such Lender hereunder.

 

2.11                           Funding Sources.  Nothing in this Agreement shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

 

2.12                           Automatic Deduction.  On each date when the payment of any principal, interest or fees are due hereunder or under any Note, Borrower agrees to maintain on deposit in an ordinary checking account maintained by Borrower with Administrative Agent (as such account shall be designated by Borrower in a written notice to Administrative Agent from time to time, the “Borrower Account”) an amount sufficient to pay such principal, interest or fees in full. Borrower hereby authorizes Administrative Agent (i) to deduct automatically all interest or fees when due hereunder or under the Notes from Borrower Account, and (ii) if and to the extent any payment under this Agreement or any other Loan Document is not made when due, to deduct automatically any such amount from any or all of the accounts of Borrower maintained with Administrative Agent. Administrative Agent agrees to provide timely notice to Borrower of any automatic deduction made pursuant to this Section 2.12.

 

2.13                                                                           Obligations of Lenders Several.  The obligations of Lenders hereunder to make Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.4(c) are several and not joint. The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under Section 10.4(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender

 

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shall be responsible for the failure of any other Lender to so make its Committed Loan, to purchase its participation or to make its payment under Section 10.4(c).

 

2.14                           Sharing of Payments by Lenders.  If any Lender, by exercising any right of setoff or counterclaim or otherwise, obtains payment in respect of any principal of or interest on any of the Committed Loans made by it, or the participations in Letter of Credit Usage or in Swing Line Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of Committed Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Committed Loans and subparticipations in Letter of Credit Usage and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, 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 Committed Loans and other amounts owing to them; provided  that:

 

(i)                                     if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

 

(ii)                                  the provisions of this Section shall not be construed to apply to (x) any payment by Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.17, or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in Letter of Credit Usage or Swing Line Loans to any assignee or participant other than to Borrower or any of its Subsidiaries (as to which the provisions of this Section apply).

 

2.15                           Increase in Commitments.

 

(a)                                  Request for Increase.  Provided there exists no Default or Event of Default, upon notice to Administrative Agent (which shall promptly notify the Lenders), Borrower may from time to time request an increase in the Aggregate Commitments by an amount for all such requests) not exceeding $500,000,000; provided that (i) any such request for an increase shall be in a minimum amount of $50,000,000, and (ii) Borrower may make a maximum of ten such requests. At the time of sending such notice, Borrower (in consultation with Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders).

 

(b)                                 Lender Elections to Increase.  Each Lender shall notify Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such 

 

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requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment.

 

(c)                                  Notification by Administrative Agent; Additional Lenders.  Administrative Agent shall notify Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of Administrative Agent, the Issuing Lender and the Swing Line Lender (which approvals shall not be unreasonably withheld), Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to Administrative Agent and its counsel.

 

(d)                                 Effective Date and Allocations.  If the Aggregate Commitments are increased in accordance with this Section, Administrative Agent and Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. Administrative Agent shall promptly notify Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date.

 

(e)                                  Conditions to Effectiveness of Increase.  As a condition precedent to such increase, Borrower shall deliver to Administrative Agent a certificate of Borrower and each Guarantor dated as of the Increase Effective Date (with sufficient copies for each Lender) signed by a Responsible Officer of such Person (i) certifying and attaching the resolutions adopted by such Person approving or consenting to such increase and (ii) in the case of Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Section 5 and the other Loan Documents are true and correct on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct as of such earlier date, and except that for purposes of this Section 2.15, the representations and warranties contained in clauses (a) and (b) of Section 5.12 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.2, and (B) no Default or Event of Default exists. Borrower shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.6) to the extent necessary to keep the outstanding Committed Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Commitments under this Section.

 

(f)                                    Conflicting Provisions.  This Section shall supersede any provisions in Section 2.14 or 10.1 to the contrary.

 

2.16                           Defaulting Lenders.

 

(a)                                  Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

 

(i)                                     Waivers and Amendments.  That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 10.1.

 

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(ii)                                  Reallocation of Payments.  Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 3 or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 10.8), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the Issuing Lender or Swing Line Lender hereunder; third, if so determined by the Administrative Agent or requested by the Issuing Lender or Swing Line Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Swing Line Loan or Letter of Credit; fourth, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders, the Issuing Lender or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Lender or the Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or in respect of any Letter of Credit Usage in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made or such Letter of Credit Usage incurred at a time when the conditions set forth in Section 4.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and amounts in respect of Letter of Credit Usage owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or amounts in respect of Letter of Credit Usage owed to, that Defaulting Lender.  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.16(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

 

(iii)                               Certain Fees.  That Defaulting Lender (x) shall not be entitled to receive any commitment fee pursuant to Section 2.8(a) for any period during which that Lender is a Defaulting Lender (and Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to 

 

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that Defaulting Lender and (y) shall be limited in its right to receive Letter of Credit Fees as provided in Section 2.4(n).

 

(iv)                              Reallocation of Pro Rata Shares to Reduce Fronting Exposure.  During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Swing Line Loans or Letters of Credit pursuant to Sections 2.3 and 2.4, the “Pro Rata Share” of each non-Defaulting Lender shall be computed without giving effect to the Commitment of that Defaulting Lender; provided, that, (i) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default exists; and (ii) the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Swing Line Loans and Letters of Credit shall not exceed the positive difference, if any, of (1) the Commitment of that non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the Committed Loans of that Lender.

 

(b)                                 Defaulting Lender Cure.  If Borrower, the Administrative Agent, Swing Line Lender and the Issuing Lender agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Committed Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their respective Pro Rata Shares (without giving effect to Section 2.16(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

2.17                           Cash Collateral.

 

(a)                                  Certain Credit Support Events.  (i) Upon the request of Issuing Lender, if Issuing Lender has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in Letter of Credit Usage in respect of such Letter of Credit, Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all Letter of Credit Usage; or (ii) if, as of the Letter of Credit Expiration Date, any Letter of Credit Usage for any reason remains outstanding, Borrower shall, in each case, immediately Cash Collateralize all Letter of Credit Usage.  At any time that there shall exist a Defaulting Lender, immediately upon the request of the Administrative Agent, the Issuing Lender or the Swing Line Lender, Borrower shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting 

 

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Exposure (after giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender).

 

(b)                                 Grant of Security Interest.  All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at the Issuing Lender.  Borrower, and to the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the Issuing Lender and the Lenders (including the Swing Line Lender), and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.17(c).  If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure (after giving effect to Section 2.16(a)(iv)) and other obligations secured thereby (as identified at the time such Cash Collateral is provided), Borrower or the relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.

 

(c)                                  Application.  Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.17 or Sections 2.3, 2.4, or 8.2 or any other provision of this Agreement in respect of Letters of Credit or Swing Line Loans shall be held and applied to the satisfaction of the specific Letter of Credit Usage, Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations (as identified at the time of the provision thereof) for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.(d)                Release.  Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Sections 10.6 and 10.13) or (ii) the Administrative Agent’s good faith determination that there exists excess Cash Collateral; provided, however, (x) that Cash Collateral furnished by or on behalf of a Borrower Party shall not be released during the continuance of a Default or Event of Default (and following application as provided in this Section 2.17 may be otherwise applied in accordance with Section 8.3), and (y) the Person providing Cash Collateral and the Issuing Lender or Swing Line Lender, as applicable, may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

 

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SECTION 3
 TAXES, YIELD PROTECTION AND ILLEGALITY

 

3.1                                 Taxes.

 

(a)                                  Payments Free of Taxes.  Each payment of any amount payable by Borrower or any other Borrower Party under this Agreement or any other Loan Document shall be made free and clear of, and without reduction by reason of, any Applicable Taxes. To the extent that Borrower is obligated by applicable Laws to make any deduction or withholding on account of Applicable Taxes or Lender Taxes from any amount payable to any Lender or the Issuing Lender under this Agreement, Borrower shall promptly notify Administrative Agent of such fact and (a) make such deduction or withholding and pay the same to the relevant Governmental Authority and (b) in case of an Applicable Tax, pay such additional amount directly to that Lender or the Issuing Lender as is necessary to result in that Lender or the Issuing Lender receiving a net after-Applicable Tax amount equal to the amount to which that Lender or the Issuing Lender would have been entitled under this Agreement absent such deduction or withholding. Within 30 days after the date of any payment by Borrower of any amounts pursuant to this section, Borrower shall furnish to Administrative Agent the original or a certified copy of a receipt evidencing payment thereof, or other evidence of payment satisfactory to Administrative Agent.

 

(b)                                 Indemnification by Borrower.  Borrower shall indemnify Administrative Agent and each Lender, within 10 days after demand therefor, for the full amount of any Applicable Taxes (including for the full amount of any Applicable Taxes imposed or asserted on or attributable to amounts payable under this paragraph) paid by Administrative Agent or such Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Applicable 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 Borrower by a Lender (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

 

3.2                                 Increased Costs.  If any Lender or the Issuing Lender reasonably determines that any Law or guidelines (whether or not having the force of law), or compliance therewith, have the effect of increasing its cost of agreeing to make or making, to issue or participating in, funding or maintaining any Loans or Letters of Credit, then Borrower shall, upon demand by such Lender or the Issuing Lender (with a copy of such demand to Administrative Agent), pay to Administrative Agent for the account of such Lender or the Issuing Lender additional amounts sufficient to compensate such Lender or the Issuing Lender for such increased cost.

 

3.3                                 Capital Adequacy.  If any Lender or the Issuing Lender determines that any Law regarding capital adequacy, or compliance by such Lender or the Issuing Lender (or its Lending Office) or any corporation controlling Lender or the Issuing Lender, with any Law, request, guideline or directive regarding capital adequacy (whether or not

 

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having the force of law) of any Governmental Authority not imposed as a result of the Issuing Lender’s, such Lender’s or such corporation’s failure to comply with any other Laws, affects or would affect the amount of capital required or expected to be maintained by such Lender, the Issuing Lender or any corporation controlling such Lender or the Issuing Lender and (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy and such Lender’s and the Issuing Lender’s desired return on capital) determines in good faith that the amount of such capital is increased, or the rate of return on capital is reduced, as a consequence of its obligations under this Agreement, then upon demand of such Lender or the Issuing Lender (with a copy to Administrative Agent), Borrower shall pay to such Lender or the Issuing Lender, from time to time as specified in good faith by such Lender or the Issuing Lender, additional amounts sufficient to compensate such Lender or the Issuing Lender in light of such circumstances, to the extent reasonably allocable to such obligations under this Agreement.

 

3.4                                 Illegality.  If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or materially restricts the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the applicable offshore Dollar market, or to determine or charge interest rates based upon the Eurodollar Rate, then, on notice thereof by such Lender to Borrower through Administrative Agent, any obligation of such Lender to make such Loans shall be suspended until such Lender notifies Administrative Agent and Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, Borrower shall, upon demand from such Lender (with a copy to Administrative Agent), prepay or Convert all Eurodollar Rate Loans of such Lender, either on the last day of the Interest Period thereof, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. If such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate.  Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.

 

3.5                                 Inability to Determine Rates.  If, in connection with any Request for Extension of Credit, Administrative Agent or the Required Lenders determines that (a) Dollar deposits are not being offered to Lenders in the applicable offshore Dollar market for the applicable amount and Interest Period of the requested Loan, (b) adequate and reasonable means do not exist for determining the underlying interest rate for the Loans requested therein, or (c) such underlying interest rates do not adequately and fairly reflect the cost to Lenders of funding such Loan, Administrative Agent will promptly so notify Borrower and each Lender. Thereafter, the obligation of Lenders to (x) make or maintain 

 

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Eurodollar Rate Loans based upon such affected interest rate shall be suspended and (y) in the event of a determination described in this sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (including at the direction of the Required Lenders in the case of such a determination by the Required Lenders) revokes such notice. Upon receipt of such notice, Borrower may revoke any pending Request for Extension of Credit for such type of Loan or, failing that, be deemed to have converted such Request for Extension of Credit into a request for Base Rate Loans in the amount specified therein.

 

3.6                                 Breakfunding Costs.  Upon Continuation, Conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day in the applicable Interest Period (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise and including any such action required under this Section 3), or upon the failure of Borrower (for a reason other than the failure of a Lender to make a Loan) to borrow, Continue or Convert any Loan other than a Base Rate Loan on the date or in the amount specified in any Request for Extension of Credit, then Borrower shall, upon demand made by any Lender (with a copy to Administrative Agent), reimburse each Lender (other than a Defaulting Lender) and hold each such Lender harmless from any loss or expense which any such Lender may sustain or incur as a consequence thereof, including any such loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.

 

3.7                                 Matters Applicable to all Requests for Compensation.

 

(a)                                  Administrative Agent and any Lender shall provide reasonable detail to Borrower regarding the manner in which the amount of any payment to Administrative Agent or that Lender under this Section 3 has been determined, concurrently with demand for such payment. Administrative Agent’s or any Lender’s determination of any amount payable under this Section 3 shall be conclusive in the absence of manifest error.

 

(b)                                 For purposes of calculating amounts payable under this Section 3 any Loan shall be deemed to have been funded at the applicable interest rate set forth in the definition thereof whether or not such Loan was, in fact, so funded.

 

(c)                                  All of Borrower’s obligations under this Section 3 shall survive termination of the Aggregate Commitments and payment in full of all Outstanding Obligations hereunder.

 

SECTION 4
 CONDITIONS

 

4.1                                 Conditions of Amendment and Restatement.  The effectiveness of this Agreement as an amendment and restatement of the Existing Credit Agreement is subject to the following conditions precedent, each of which shall be satisfied (unless all of Lenders, in their sole and absolute discretion, shall agree otherwise):

 

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(a)                                  Administrative Agent shall have received all of the following, each of which shall be originals unless otherwise specified, each properly executed by a Responsible Officer of Borrower, each dated as of the Effective Date or, in the case of the documents required under subsection (iv) below, as of a recent date, and each in form and substance satisfactory to Administrative Agent, each of the Lenders, and their respective legal counsel (unless otherwise specified or, in the case of the date of any of the following, unless Administrative Agent otherwise agrees or directs):

 

(i)                                     at least one executed counterpart of this Agreement, together with arrangements satisfactory to Administrative Agent for additional executed counterparts of this Agreement, sufficient in number for distribution to each Lender and Borrower;

 

(ii)                                  Committed Loan Notes executed by Borrower in favor of each Lender requesting a Committed Loan Note;

 

(iii)                               the Master Subsidiary Guaranty executed by each Guarantor;

 

(iv)                              with respect to Borrower and each Guarantor, such documentation as may be required by the Administrative Agent to establish the due organization, valid existence and good standing (other than, with respect to good standing, under the laws of the States of Nebraska, New Mexico and South Carolina) of Borrower and each such Guarantor under the laws of its jurisdiction of organization, its qualification to engage in business in each jurisdiction (other than the States of Nebraska, New Mexico and South Carolina) in which it is engaged in business or required to be so qualified (where failure to be qualified could reasonably be expected to result in a Material Adverse Effect), its authority to execute, deliver and perform any Loan Documents to which it is a party, the identity, authority and capacity of each Responsible Officer thereof authorized to act on its behalf, including certified copies of articles of incorporation and amendments thereto, bylaws and amendments thereto, certificates of good standing and/or qualification to engage in business, tax clearance certificates, certificates of corporate resolutions, incumbency certificates, certificates of Responsible Officers, and the like;

 

(v)                                 the Opinion of Counsel;

 

(vi)                              a certificate signed by a Responsible Officer of Borrower certifying that (i) the conditions specified in Sections 4.1(d) and 4.1(e) have been satisfied, and (ii) there shall not have occurred a material adverse change since December 31, 2010 in the business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of Borrower and its Subsidiaries taken as a whole or in the facts and information regarding such entities as represented to Administrative Agent or any Lender on or prior to the Effective Date; and

 

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(vii)                           such other assurances, certificates, documents, consents or opinions as Lenders or Administrative Agent reasonably may require.

 

(b)                                 Any fees required to be paid on or before the Effective Date shall have been paid.

 

(c)                                  Attorney Costs of Bank of America to the extent invoiced prior to or on the Effective Date, plus such additional amounts of Attorney Costs as shall constitute Bank of America’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not hereafter preclude final settling of accounts between Borrower and Bank of America) shall have been paid.

 

(d)                                 The representations and warranties of Borrower contained in Section 5 shall be true and correct.

 

(e)                                  Borrower and the other Borrower Parties shall be in compliance with all the terms and provisions of the Loan Documents, and giving effect to the initial Loan (or initial Letter of Credit, as applicable) no Default or Event of Default shall have occurred and be continuing.

 

Without limiting the generality of the provisions of Section 9.4, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.

 

4.2                                 Any Extension of Credit.  In addition to the occurrence of the Effective Date, the obligation of each Lender and any Issuing Lender to make any Extension of Credit, including on the Effective Date, is subject to the following conditions precedent:

 

(a)                                  the representations and warranties of Borrower contained in Section 5 are true and correct in all material respects as though made on and as of the above date;

 

(b)                                 no Default or Event of Default has occurred and is continuing, or would result from such proposed Extension of Credit;

 

(c)                                  Administrative Agent shall have timely received a duly completed Request for Extension of Credit or Letter of Credit Application, as applicable, by Requisite Notice by the Requisite Time therefor; and

 

(d)                                 Administrative Agent shall have received such other assurances, certificates, documents or consents related to the foregoing as Administrative Agent or Requisite Lenders reasonably may require.

 

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SECTION 5
 REPRESENTATIONS AND WARRANTIES

 

Borrower represents and warrants to Administrative Agent and Lenders that:

 

5.1                                 Existence and Qualification; Power; Compliance With Laws.  Borrower and each of its Subsidiaries is a corporation duly formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation. Borrower and each of its Subsidiaries is duly qualified or registered to transact business and is in good standing in each other jurisdiction in which the conduct of its business or the ownership or leasing of its Properties makes such qualification or registration necessary, except where the failure so to qualify or register and to be in good standing would not constitute a Material Adverse Effect. Borrower and each of its Subsidiaries has all requisite corporate power and authority to conduct its business, to own and lease its Properties and to execute and deliver each Loan Document to which it is a party and to perform its Obligations hereunder and thereunder. All outstanding shares of capital stock of Borrower and each of its Subsidiaries are duly authorized, validly issued, fully paid and non-assessable, and no holder thereof has any enforceable right of rescission under any applicable state or federal securities Laws. Borrower and each of its Subsidiaries is in compliance with all Laws and other legal requirements applicable to its business, has obtained all authorizations, consents, approvals, orders, licenses and permits from, and has accomplished all filings, registrations and qualifications with, or obtained exemptions from any of the foregoing from, any Governmental Authority that are necessary for the transaction of its business, except where the failure so to comply, file, register, qualify or  obtain exemptions does not constitute a Material Adverse Effect.

 

5.2                                 Authority; Compliance With Other Agreements and Instruments and Government Regulations.  The execution, delivery and performance by Borrower and each of its Subsidiaries of the Loan Documents to which it is a party have been duly authorized by all necessary corporate action, and do not and will not:

 

(a)                                  Require any consent or approval not heretofore obtained of any partner, director, stockholder, security holder or creditor of such party;

 

(b)                                 Violate or conflict with any provision of such party’s charter, articles of incorporation or bylaws, as applicable;

 

(c)                                  Result in or require the creation or imposition of any Lien upon or with respect to any Property now owned or leased or hereafter acquired by such party;

 

(d)                                 Violate any Laws applicable to such party; or

 

(e)                                  Result in a breach of or constitute a default under, or cause or permit the acceleration of any obligation owed under, any indenture or loan or credit agreement or any other Contractual Obligation to which such party is a party or by which such party or any of its Property is bound or affected;

 

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5.3                                 No Governmental Approvals or Other Consents Required.  No authorization, consent, approval, order, license or permit from, or filing, registration or qualification with, any Governmental Authority or any other Person is or will be necessary or required to authorize or permit under applicable Laws the execution, delivery and performance by, or enforcement against, Borrower and its Subsidiaries of the Loan Documents to which it is a party.

 

5.4                                 Binding Obligations.  Each of the Loan Documents to which Borrower or any Subsidiary thereof is a party will, when executed and delivered by such party, constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, except as enforcement may be limited by Debtor Relief Laws or equitable principles relating to the granting of specific performance and other equitable remedies as a matter of judicial discretion.

 

5.5                                 Litigation.  Except for (a) any matter fully covered as to subject matter and amount (subject to applicable deductibles and retentions) by insurance for which the insurance carrier has not asserted lack of subject matter coverage or reserved its right to do so, (b) any matter, or series of related matters, involving a claim against Borrower or any Subsidiary thereof of less than $20,000,000, (c) matters of an administrative nature not involving a claim or charge against Borrower or any of its Subsidiaries and (d) matters set forth in Schedule 5.5, there are no actions, suits, proceedings or investigations pending as to which Borrower or any of its Subsidiaries have been served or have received notice or, to the best knowledge of Borrower, threatened against or affecting Borrower or any of its Subsidiaries or any Property of any of them before any Governmental Authority, which if adversely determined would have a Material Adverse Effect.

 

5.6                                 No Default.  No event has occurred and is continuing that is a Default or Event of Default.

 

5.7                                 ERISA Compliance.

 

(a)                                  Each Pension Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state law. Each Pension Plan which is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the United States Internal Revenue Service or an application for such a letter is currently being processed by the United States Internal Revenue Service with respect thereto and, to the best knowledge of Borrower, nothing has occurred which would prevent, or cause the loss of, such qualification.

 

(b)                                 Borrower and each ERISA Affiliate have met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan and Multiemployer Plan, and no application for a funding waiver or an extension of any amortization period under the Pension Funding Rules has been made with respect to any Pension Plan or Multiemployer Plan.

 

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(c)                                  There are no pending or, to the best knowledge of Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Pension Plan which has resulted or could reasonably be expected to result in a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Pension Plan which has resulted or could reasonably be expected to result in a Material Adverse Effect.

 

(d)                                 (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability, other than Unfunded Pension Liability which, when aggregated with all Unfunded Pension Liability of all other Pension Plans, does not exceed $35,000,000 in the aggregate at any time; (iii) neither Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.

 

5.8                                 Use of Proceeds; Margin Regulations.  No part of the proceeds of any Loan hereunder will be used to purchase or carry, or to extend credit to others for the purpose of purchasing or carrying, any Margin Stock in violation of Regulations T, U and X. Margin Stock does not constitute more than 5% of the value of the combined assets of Borrower and its Subsidiaries and Borrower does not have any present intention that Margin Stock will constitute more than 5% of the value of such assets.

 

5.9                                 Title to Property.  Borrower and its Subsidiaries have valid title to the Property reflected in the balance sheet described in Section 5.12(a), other than items of Property which are immaterial to Borrower and its Subsidiaries, taken as a whole, and Property subsequently sold or disposed of in the ordinary course of business, free and clear of all Liens, other than Liens described in Schedule 5.9 or permitted by Section 7.1.

 

5.10                           Intangible Assets.  Borrower and its Subsidiaries own, or possess the right to use to the extent necessary in their respective businesses, all material trademarks, trade names, copyrights, patents, patent rights, computer software, licenses and other Intangible Assets that are used in the conduct of their businesses as now operated, and no such Intangible Asset, to the best knowledge of Borrower, conflicts with the valid trademark, trade name, copyright, patent, patent right or Intangible Asset of any other Person to the extent that such conflict constitutes a Material Adverse Effect.

 

5.11                           Tax Liability.  Borrower and its Subsidiaries have filed all tax returns which are required to be filed, and have paid, or made provision for the payment of, all taxes with respect to the periods, Property or transactions covered by said returns, or pursuant to any assessment received by Borrower or any of its Subsidiaries, except (a) such taxes, if any, as are being contested in good faith by appropriate proceedings and as to which adequate reserves have been established and maintained and (b) immaterial 

 

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taxes so long as no material item or portion of Property of Borrower or any of its Subsidiaries is in jeopardy of being seized, levied upon or forfeited.

 

5.12                           Financial Statements.

 

(a)                                  The audited consolidated balance sheet dated December 31, 2010, and the quarterly consolidated balance sheets dated March 31, 2011, of Borrower and its Subsidiaries, and the related consolidated statements of income or operations, Shareholders’ Equity and cash flows for the Fiscal Year or Fiscal Quarter, as applicable, ended on those dates (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, (ii) fairly present the financial condition of Borrower and its Subsidiaries as of the date thereof and results of operations for the period covered thereby; and (iii) show all material Indebtedness and other liabilities, direct or contingent, of Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes or other material commitments.

 

(b)                                 Since the date of the audited financial statements referred to in subsection (a) above, there has been no Material Adverse Effect.

 

5.13                           Environmental Compliance.  Borrower and its Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and as a result thereof Borrower has reasonably concluded that compliance with such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

5.14                           Investment Company Act.  Neither Borrower nor any of its Subsidiaries is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

 

5.15                           Subsidiaries.  Schedule 5.15 hereto correctly sets forth the names, form of legal entity, number of shares of capital stock issued and outstanding, number of shares owned by Borrower or any Subsidiary of Borrower (specifying such owner) and jurisdictions of organization of all Subsidiaries of Borrower. Each Material Domestic Subsidiary has executed and delivered the Master Subsidiary Guaranty. Unless otherwise indicated in Schedule 5.15, all of the outstanding shares of capital stock, or all of the units of equity interest, as the case may be, of each Subsidiary are owned of record and beneficially by Borrower, as applicable, there are no outstanding options, warrants or other rights to purchase capital stock of any such Subsidiary, and all such shares or equity interests so owned are duly authorized, validly issued, fully paid and non-assessable, and were issued in compliance with all applicable state and federal securities and other Laws, and are free and clear of all Liens except for Permitted Liens. From time to time, Borrower may update Schedule 5.15 by delivering a revised version to Administrative Agent, whereupon this Agreement  shall be deemed to be amended as set forth in such revised Schedule 5.15.

 

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5.16                           Insurance.  The properties of Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of Borrower, in such amounts, with such deductibles and self-insurance and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where Borrower or such Subsidiary operates.

 

5.17                           Disclosure.  No written statement made by a Responsible Officer to Administrative Agent or any Lender in connection with this Agreement, or in connection with any Loan, as of the date thereof contained any untrue statement of a material fact or omitted a material fact necessary to make the statement made not misleading in light of all the circumstances existing at the date the statement was made.

 

SECTION 6
 AFFIRMATIVE COVENANTS

 

So long as any Loan remains unpaid, or any other Obligation remains unpaid or unperformed under any Loan Document, any Letter of Credit remains outstanding, or any portion of the Commitments remains in force, Borrower shall, and shall cause each of its Subsidiaries to:

 

6.1                                 Financial Statements.  Deliver to Administrative Agent in form and detail reasonably satisfactory to Administrative Agent and the Requisite Lenders, with sufficient copies for each Lender:

 

(a)                                  As soon as practicable, and in any event within 95 days after the end of each Fiscal Year, (i) the consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated statements of operations, Shareholders’ Equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year and (ii) consolidating (in accordance with past consolidating practices of Borrower) balance sheets and statements of operations, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated balance sheet and consolidated statements shall be accompanied by a report of independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards and applicable securities laws as at such date, and shall not be subject to any qualifications or exceptions as to the scope of the audit nor to any “going concern” or like qualification or exception nor to any other qualification or exception that are reasonably determined by the Requisite Lenders in their good faith business judgment to be materially adverse to the interests of Lenders.

 

(b)                                 As soon as practicable, and in any event within 50 days after the end of each Fiscal Quarter (other than the fourth Fiscal Quarter in any Fiscal Year), the consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated statement of operations for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter, all in reasonable detail.

 

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6.2                                 Certificates, Notices and Other Information.  Deliver to Administrative Agent in form and detail satisfactory to Administrative Agent and the Requisite Lenders, with sufficient copies for each Lender:

 

(a)                                  Concurrently with the financial statements required pursuant to Sections 6.1(a) and 6.1(b), a Compliance Certificate signed by a Responsible Officer of Borrower;

 

(b)                                 Promptly after any request by Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower or any of its Subsidiaries, or any audit of any of them;

 

(c)                                  Promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the shareholders of Borrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to Lenders pursuant to other provisions of this Section;

 

(d)                                 Promptly after request by Administrative Agent or any Lender, copies of any other report or other document that was filed by Borrower or any of its Subsidiaries with any Governmental Authority;

 

(e)                                  As soon as practicable, notice of the occurrence of any (i) ERISA Event, other than with respect to the standard termination of a Pension Plan as to which neither any Borrower Party nor any of its ERISA Affiliates has any liability (contingent or otherwise) and to which Borrower Parties have contributed less than $35,000,000 in the aggregate with respect to all such Pension Plans, (ii) “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) in connection with any Pension Plan or any trust created thereunder, (iii) the adoption of, or the commencement of contributions to, any Pension Plan or Multiemployer Plan subject to the Pension Funding Rules by Borrower or any ERISA Affiliate, or (iv) the adoption of any amendment to a Pension Plan subject to the Pension Funding Rules, if such amendment results in a material increase in contributions or Unfunded Pension Liability, telephonic notice specifying the nature thereof, and, no more than five Business Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower or any of its Subsidiaries are taking or propose to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto;

 

(f)                                    With reasonable promptness copies of (a) all notices received by Borrower or any of its ERISA Affiliates of the PBGC’s intent to terminate any Pension Plan or to have a trustee appointed to administer any Pension Plan; (b) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by Borrower or any of its ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan, 

 

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other than a Pension Plan to which Borrower does not contribute or as to which Borrower has no liability (contingent or otherwise); and (c) all notices received by Borrower or any of its ERISA Affiliates from a Multiemployer Plan sponsor concerning the imposition or amount of withdrawal liability pursuant to Section 4202 of ERISA;

 

(g)                                 As soon as practicable, notice of the occurrence of any Default or Event of Default, and of the occurrence or existence of any event or circumstance that foreseeably will become a Default or Event of Default, specifying the nature and period of existence thereof and specifying what action Borrower is taking or propose to take with respect thereto;

 

(h)                                 As soon as practicable, notice of (i) the commencement of a legal proceeding or investigation (which investigation is known to Borrower) with respect to a claim against Borrower or any of its Subsidiaries that is $20,000,000 or more in excess of the amount thereof that is fully covered by insurance, including pursuant to any applicable Environmental Laws, (ii) any creditor or lessor under a written credit agreement or material lease asserting a default thereunder on the part of Borrower or any of its Subsidiaries, (iii) commencement of a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease in excess of $20,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, or (iv) any material development in any litigation or proceeding (as described in clauses (i) and (iii) above) affecting Borrower or its Subsidiaries;

 

(i)                                     Notice of any material change in accounting policies or financial reporting practices by Borrower or any of its Subsidiaries (other than changes required by GAAP or by regulations promulgated by the Securities and Exchange Commission);

 

(j)                                     Promptly, such other data and information as from time to time may be reasonably requested by Administrative Agent, any Lender (through Administrative Agent) or the Requisite Lenders.

 

Documents required to be delivered pursuant to Section 6.1 or this  Section 6.2 may be delivered electronically, and if so delivered shall be deemed to have been delivered on the date (i) on which Borrower posts such documents, or provides a link thereto on Borrower’s website on the Internet at the website address listed on Schedule 10.2; or (ii) on which such documents are posted on Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that (i) Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) Borrower shall notify the Administrative Agent and each lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e. soft copies) of such documents.  The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred 

 

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to above, and in any event shall have no responsibility to monitor compliance by Borrower with any such request for delivery by a Lender and each Lender shall be solely responsible for requesting delivery to it or maintaining it copies of such documents.

 

Borrower hereby acknowledges that (a) Administrative Agent and/or the Arrangers will make available to Lenders and the Issuing Lender materials and/or information provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by posting Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to Borrower or its securities) (each, a “Public Lender”). Borrower hereby agrees that so long as Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” Borrower shall be deemed to have authorized Administrative Agent, the Arrangers, the Issuing Lender and Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.7); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”

 

6.3                                 Guaranties.

 

(a)                                  If, as of the end of any fiscal quarter, the Tangible Assets or EBITDA for the four fiscal quarters most recently ended for Borrower and all Guarantors are less than 80% of the consolidated Tangible Assets as of the last day of such fiscal quarter or consolidated EBITDA for such period, respectively, of Borrower and its Subsidiaries, promptly identify to the Administrative Agent in writing one or more other Subsidiaries who shall become Guarantors such that, when such additional Subsidiaries’ Tangible Assets as of the last day of such fiscal quarter and EBITDA for such period are aggregated with those of Borrower and other Guarantors, the aggregate Tangible Assets and EBITDA would be not less than 80% of such consolidated Tangible Assets as of such date and consolidated EBITDA for such period, respectively, of Borrower and its Subsidiaries.

 

(b)                                 Within 45 days after any Subsidiary becomes a Material Domestic Subsidiary or is designated as a Guarantor pursuant to clause (a) above, deliver to Administrative Agent (i) a Guaranty Joinder Agreement substantially in the form of Exhibit A to the Master Subsidiary Guaranty (with appropriate insertions made and executed by its authorized officer) and (ii) a Certificate of Secretary substantially in the

 

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form of Exhibit B to the Master Subsidiary Guaranty (with appropriate insertions made, the required documents attached and executed by its secretary or other responsible officer).

 

6.4                                 Preservation of Existence.  Preserve and maintain its existences in the jurisdiction of their formation and all material authorizations, rights, franchises, privileges, consents, approvals, orders, licenses, permits, or registrations from any Governmental Authority that are necessary for the transaction of its business, except where the failure to so preserve and maintain the existence of any of Borrower’s Subsidiaries and such authorizations would not constitute a Material Adverse Effect and except that a merger permitted hereunder shall not constitute a violation of this covenant; and qualify and remain qualified to transact business in each jurisdiction in which such qualification is necessary in view of their respective business or the ownership or leasing of their respective Properties except where the failure to so qualify or remain qualified would not constitute a Material Adverse Effect.

 

6.5                                 Maintenance of Properties.  Maintain, preserve and protect all of its depreciable Properties in good order and condition, subject to normal wear and tear in the ordinary course of business, and not permit any waste of its Properties, except that the failure to maintain, preserve and protect a particular item of depreciable Property that is not of significant value, either intrinsically or to the operations of Borrower and its Subsidiaries, taken as a whole, shall not constitute a violation of this covenant.

 

6.6                                 Maintenance of Insurance.  Maintain liability, casualty and other insurance (subject to customary deductibles, self-insurance, and retentions) with responsible insurance companies in such amounts and against such risks as is carried by responsible companies engaged in similar businesses and owning similar assets in the general areas in which Borrower and its Subsidiaries operate.

 

6.7                                 Payment of Obligations.  Pay and discharge as the same shall become due and payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by Borrower or such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.

 

6.8                                 Compliance With Laws.  Comply, within the time period, if any, given for such compliance by the relevant Governmental Authority, with all Laws noncompliance with which constitutes a Material Adverse Effect, except that Borrower and its Subsidiaries need not comply with Laws then being contested by any of them in good faith by appropriate proceedings.

 

6.9                                 Environmental Laws.  Conduct its operations and keep and maintain its property in compliance in all material respects with all Environmental Laws.

 

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6.10                           Inspection Rights.  Subject to the confidentiality provisions of Section 10.7, upon reasonable notice, at any time during regular business hours and as often as requested (but not so as to materially interfere with the business of Borrower or any of its Subsidiaries or the performance by any officer of his or her responsibilities), permit Administrative Agent or any Lender, or any authorized employee, agent or representative thereof, to examine, audit and make copies and abstracts from the records and books of account of, and to visit and inspect the Properties of, Borrower and its Subsidiaries and to discuss the affairs, finances and accounts of Borrower and its Subsidiaries with any of their officers, key employees or accountants and, upon request, furnish promptly to Administrative Agent or any Lender true copies of all financial information made available to the board of directors or audit committee of the board of directors of Borrower.

 

6.11                           Keeping of Records and Books of Account.  Keep adequate records and books of account reflecting all financial transactions in conformity with GAAP, consistently applied, and in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over Borrower or any of its Subsidiaries.

 

6.12                           Compliance with ERISA.  Cause, and cause each of its ERISA Affiliates to: (a) maintain each Pension Plan in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state law; (b) cause each Pension Plan which is qualified under Section 401(a) of the Code to maintain such qualification; and (c) make all required contributions to any Pension Plan subject to Section 412 of the Code.

 

6.13                           Compliance With Agreements.  Promptly and fully comply with all Contractual Obligations under all material agreements, indentures, leases and/or instruments to which Borrower or any of its Subsidiaries is a party, whether such material agreements, indentures, leases or instruments are with a Lender or another Person, except for any such Contractual Obligations (a) the performance of which would cause a Default or (b) then being contested by any of them in good faith by appropriate proceedings or if the failure to comply with such agreements, indentures, leases or instruments does not constitute a Material Adverse Effect.

 

6.14                           Use of Proceeds.  Use the proceeds of all Extensions of Credit for working capital, capital expenditures, Acquisitions, Investments, stock repurchases, and general corporate purposes of Borrower and its Subsidiaries.

 

6.15                           Post-Closing Deliveries.  To the extent (i) any articles of incorporation or similar organizational documents of a Borrower Party delivered pursuant to Section 4.1(a)(iv) was certified more than 30 days prior to the date hereof by the Secretary of State of the jurisdiction of organization of such Borrower Party, or (ii) any certificate of good standing or certificate of foreign qualification delivered pursuant to Section 4.1(a)(iv) was dated more than 30 days prior to the date hereof or not delivered to the Administrative Agent on the date hereof (including with respect to the jurisdictions of the States of Nebraska, New Mexico and South Carolina excluded from delivery pursuant to a

 

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parenthetical set forth therein), the Borrower shall cause all such documents to be delivered within 30 days (or such later date to which the Administrative Agent may agree) of the date hereof and to be dated or certified, as the case may be, as of a date not more than 30 days prior to or 30 days after the date hereof.

 

SECTION 7
 NEGATIVE COVENANTS

 

So long as any Loan remains unpaid, or any other Obligation remains unpaid or unperformed under any Loan Document, any Letter of Credit remains outstanding, or any portion of the Commitments remains in force, Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly:

 

7.1                                 Liens, Negative Pledges.  Create, incur, assume or suffer to exist any Lien, Negative Pledge of any nature upon or with respect to any of their respective Properties, or engage in any sale and leaseback transaction with respect to any of their respective Properties, whether now owned or hereafter acquired, except:

 

(a)                                  Permitted Liens;

 

(b)                                 Liens and Negative Pledges under the Loan Documents;

 

(c)                                  Liens and Negative Pledges existing on the Effective Date and disclosed in Schedule 5.9 and Negative Pledges in documents entered into in connection with the issuance of Indebtedness permitted under Section 7.3(a), Section 7.3(f) or Section 7.3(g) (which Negative Pledges shall be substantially identical to those existing on the Effective Date and disclosed in Schedule 5.9) and any renewals, extensions or amendments thereof; provided that the obligations secured or benefited thereby are not increased;

 

(d)                                 Liens on Property acquired by Borrower or any of its Subsidiaries that were in existence at the time of the acquisition of such Property and were not created in contemplation of such acquisition;

 

(e)                                  any Lien or Negative Pledge created by an agreement or instrument entered into by Borrower or any of its Subsidiaries in the ordinary course of its business which consists of a restriction on the assignability, transfer or hypothecation of such agreement or instrument;

 

(f)                                    Liens and Negative Pledges not described above securing purchase money obligations, capital leases and Synthetic Leases incurred after the Effective Date in an aggregate amount not exceeding $75,000,000 at any time;

 

(g)                                 Liens solely on the assets of Foreign Subsidiaries of Borrower securing Indebtedness of such Foreign Subsidiaries of Borrower not exceeding $75,000,000 in the aggregate at any time; and

 

(h)                                 Liens on the EMJ COLI policies (but on no other assets of Borrower, EMJ or any of their respective Subsidiaries) to the extent granted for the benefit of the holders 

 

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of the Life Insurance Policy Loans that comply with the requirements of clauses (1) through (4) of the last sentence of the definition of the term “Indebtedness” to secure EMJ’s obligations under such Life Insurance Policy Loans.

 

7.2                                 Investments.  Make any Investment, except:

 

(a)                                  Investments, other than those permitted by subsections (b) through (f), that are existing on the date hereof and listed on Schedule 7.2;

 

(b)                                 Investments held by Borrower or any of its Subsidiaries in the form of cash equivalents or short-term marketable securities;

 

(c)                                  advances to officers, directors and employees of Borrower and its Subsidiaries in the aggregate amount not to exceed $10,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;

 

(d)                                 Investments in Borrower or any Wholly-Owned Domestic Subsidiary of Borrower;

 

(e)                                  Investments consisting of extension 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; and

 

(f)                                    other Investments in the aggregate not exceeding 10% of Consolidated Net Worth as of the end of the most recently ended Fiscal Quarter.

 

7.3                                 Indebtedness.  Create, incur, assume, suffer to exist, or otherwise be liable with respect to, any Indebtedness except:

 

(a)                                  Indebtedness existing on the Effective Date and disclosed in Schedule 7.3, and any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing;

 

(b)                                 Indebtedness under the Loan Documents;

 

(c)                                  Indebtedness owed to Borrower or any of its Subsidiaries;

 

(d)                                 Indebtedness owed under Cash Management Agreements entered into by such Person in the ordinary course of business;

 

(e)                                  obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated 

 

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with fluctuations in interest rates, commodity prices or foreign exchange rates and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;

 

(f)                                    unsecured Indebtedness under the senior notes (which may be guaranteed by Subsidiaries of Borrower which are party to the Master Subsidiary Guaranty) issued prior to the Effective Date pursuant to the indenture dated as of November 20, 2006 among Borrower, as issuer, the Subsidiaries from time to time party thereto as guarantors, and Wells Fargo Bank, N.A., as Trustee (the “Unsecured Note Indenture”) in an aggregate principal amount not exceeding $600,000,000; provided, however, that the documentation evidencing such Indebtedness shall contain covenants no more restrictive than in this Agreement and shall be on terms and conditions set forth in the Unsecured Note Indenture (including the maturity date and amortization schedule), as the same may be amended, supplemented or otherwise modified from time to time in a manner acceptable to Administrative Agent;

 

(g)                                 unsecured Indebtedness for borrowed money of Borrower (which may be guaranteed by Subsidiaries of Borrower which are party to the Master Subsidiary Guaranty) issued after the Effective Date in the aggregate principal amount of not more than $500,000,000; provided, however, that the documentation evidencing such Indebtedness shall contain covenants no more restrictive than in this Agreement and shall be on terms and conditions (including the maturity date and amortization schedule) acceptable to Administrative Agent;

 

(h)                                 other Indebtedness in addition to that described in Sections 7.3(a) through 7.3(g) above incurred for business purposes (including, without limitation, capital leases and Synthetic Leases) in an aggregate principal amount at any one time outstanding not to exceed $75,000,000.

 

7.4                                 Prepayment of Indebtedness.  Pay any principal or interest on any Indebtedness of Borrower or any of its Subsidiaries prior to the date when due, or make any payment or deposit with any Person that has the effect of providing for the satisfaction of any Indebtedness of Borrower or any of its Subsidiaries prior to the date when due, in each case if a Default or Event of Default then exists or would result therefrom.

 

7.5                                 Dispositions.  Make any Disposition of its Property, whether now owned or hereafter acquired, except:

 

(a)                                  Permitted Dispositions; and

 

(b)                                 Dispositions not otherwise permitted hereunder which are made for fair market value; provided that (i) at the time of any Disposition, no Event of Default shall exist or shall result from such Disposition, (ii) the aggregate sales price from such Disposition shall be paid in cash, and (iii) the aggregate value of all assets so sold by Borrower and its Subsidiaries, in any Fiscal Year, and the amount of Net Cash Proceeds from sales and leasebacks consummated in such Fiscal Year, does not exceed 15% of 

 

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Consolidated Tangible Net Worth as of the end of the Fiscal Quarter immediately preceding such Disposition of Property; provided, however, that in no event shall the total aggregate amount of Net Cash Proceeds from Dispositions by Borrower and its Subsidiaries from and after the Effective Date exceed 30% of Consolidated Tangible Net Worth as of the Fiscal Quarter most recently ended prior to the Effective Date.

 

7.6                                 Sales and Leasebacks.  Become or remain liable as lessee or as guarantor or other surety with respect to any lease with any Person, whether an Operating Lease or a Capital Lease, of any property (whether real or personal or mixed) whether now owned or hereafter acquired, (i) which Borrower or any of its Subsidiaries have sold or transferred or are to sell or transfer to such Person or such Person’s Affiliate, or (ii) which Borrower or any such Subsidiary thereof intend to use for substantially the same purpose as any other property which has been or is to be sold or transferred by Borrower or any such Subsidiary thereof to such Person or such Person’s Affiliate in connection with such lease; provided that Borrower may enter into any sale and leaseback of real property, improvements thereon and equipment of Borrower entered into to finance or refinance the purchase price or construction of such real property, improvements and equipment; provided that the Net Cash Proceeds of each such transaction during any Fiscal Year together with aggregate Net Cash Proceeds from other sales and leasebacks consummated during such Fiscal Year do not exceed 15% of Consolidated Tangible Net Worth as of the end of the Fiscal Quarter immediately preceding such transaction.

 

7.7                                 Mergers.  Merge or consolidate with or into any Person, except:

 

(a)                                  mergers and consolidations of any Subsidiary of Borrower into Borrower or a Subsidiary of Borrower (with Borrower or such Subsidiary as the surviving entity) or of Borrower or any Guarantor with each other, provided that, (i) with respect to any such merger including Borrower, Borrower is the surviving entity, and (ii) any Guarantor will only be merged into or consolidated with Borrower or a Guarantor and provided further that Borrower and its Subsidiaries have executed such amendments to the Loan Documents as Administrative Agent may reasonably determine are appropriate as a result of such merger; and

 

(b)                                 a merger or consolidation of Borrower or any of its Subsidiaries with any other Person, provided that (i) either (A) Borrower or a Guarantor is the surviving entity, or (B) the surviving entity is a corporation organized under the Laws of a State of the United States of America or the District of Columbia and, as of the date of such merger or consolidation, expressly assumes or becomes a Guarantor of, by appropriate agreements and instruments satisfactory to the Requisite Lenders, the Obligations of Borrower or its Subsidiaries, as the case may be, and (ii) giving effect thereto on a pro-forma basis, no Default or Event of Default exists or would result therefrom.

 

7.8                                 Acquisitions.

 

(a)                                  Make or agree to make any Acquisition as of any date if, after giving effect thereto, Borrower would not be in compliance with the terms and conditions of this Agreement on a pro forma basis; or

 

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(b)                                 Directly or indirectly use the proceeds of any Committed Loan in connection with any Hostile Acquisition.

 

7.9                                 ERISA.  (a) At any time, permit any Pension 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 applicable Laws; (iii) fail to satisfy the minimum funding standard under the Pension Funding Rules; or (iv) terminate in any manner, which, in each case, could reasonably be expected to result in a Material Adverse Effect, or (b) withdraw, completely or partially, from any Multiemployer Plan if to do so could reasonably be expected to result in a Material Adverse Effect.

 

7.10                           Interest Coverage Ratio.  Permit the Interest Coverage Ratio, as of the last day of any Fiscal Quarter, to be less than 3.00 to 1.00.

 

7.11                           Total Leverage Ratio.  Permit the Total Leverage Ratio, as of the last day of any Fiscal Quarter, to be greater than 0.60 to 1.00.

 

7.12                           Change in Nature of Business.  Make any material change in the nature of the business of Borrower and its Subsidiaries, taken as a whole.

 

7.13                           Transactions with Affiliates.  Enter into any transaction of any kind with any Affiliate of Borrower other than (a) salary, bonus, employee stock option, restricted stock, stock appreciation rights, phantom stock and other compensation arrangements with directors or officers in the ordinary course of business, (b) transactions that are fully disclosed to the board of directors of Borrower and expressly authorized by a resolution of the board of directors of Borrower which is approved by a majority of the directors not having an interest in the transaction, (c) transactions between or among Borrower and the Guarantors, (d) Distributions made by any Subsidiary to Borrower, a Guarantor and any other Person that owns any equity securities in such Subsidiary, ratably according to their respective holdings of the type of equity securities in respect of which such Distribution is being made, (e) transactions between or among Borrower or any Guarantor, on the one hand, and any Subsidiary of Borrower (other than any Guarantor), on the other hand, so long as such transactions individually or in the aggregate are not materially adverse to the interest of the Lenders and the aggregate amount of consideration for all such transactions during the term of this Agreement does not exceed $35,000,000, and (f) transactions on overall terms at least as favorable to Borrower or its Subsidiaries as would be the case in an arm’s-length transaction between unrelated parties of equal bargaining power.

 

7.14                           Distributions.  Make any Distribution at any time, whether from capital, income or otherwise, and whether in Cash or other Property if, after giving effect thereto, Borrower would not be in compliance with the terms and conditions of this Agreement on a pro forma basis.

 

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SECTION 8
 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT

 

8.1                                 Events of Default.  The existence or occurrence of any one or more of the following events, whatever the reason therefor and under any circumstances whatsoever, shall constitute an Event of Default:

 

(a)                                  Borrower fails to pay any principal on any of the Loans, or any portion thereof, or any reimbursement obligations with respect to any Letter of Credit, on the date when due; or

 

(b)                                 Borrower fails to pay any interest on any of the Committed Loans or Swing Line Loans, or any reimbursement obligations with respect to any Letter of Credit, or any fees due hereunder, or any portion thereof, within five Business Days after the date when due; or

 

(c)                                  Borrower fails to comply with any of the covenants contained in Section 7; or

 

(d)                                 Borrower, any of its Subsidiaries or any other Borrower Party fails to perform or observe any other covenant or agreement (not specified above) contained in any Loan Document on its part to be performed or observed and such failure continues for a period of 30 days; or

 

(e)                                  Any representation or warranty of Borrower or any of its Subsidiaries made in any Loan Document, or in any certificate or other writing delivered by Borrower or such Subsidiary pursuant to any Loan Document, proves to have been incorrect when made or reaffirmed in any respect that is materially adverse to the interests of Lenders; or

 

(f)                                    Borrower or any of its Subsidiaries (i) fails to make any payment in respect of any Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount of more than $20,000,000 when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) and such failure continues after the applicable grace or notice period, if any, specified in the relevant document on the date of such failure; or (ii) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness, and such failure continues after the applicable grace or notice period, if any, specified in the relevant document on the date of such failure, if the effect of such failure, event or condition is to cause or to permit (A) the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to declare such Indebtedness to be due and payable prior to its stated maturity, or (B) any Guaranty Obligation to become payable or cash collateral in respect thereof to be demanded; or (iii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which a Borrower Party or any Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any 

 

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Termination Event (as so defined) under such Swap Contract as to which a Borrower Party or any Subsidiary thereof is an Affected Party (as so defined) and, in either event, the termination value owed by such Borrower Party or such Subsidiary as a result thereof is greater than $20,000,000; or

 

(g)                                 Any Loan Document, at any time after its execution and delivery and for any reason other than the agreement or action (or omission to act) of Lenders or satisfaction in full of all the Obligations hereunder and thereunder, ceases to be in full force and effect or is declared by a court of competent jurisdiction to be null and void, invalid or unenforceable in any respect which, in any such event in the reasonable opinion of the Requisite Lenders, is materially adverse to the interests of Lenders; or any Borrower Party thereto denies in writing that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind same; or

 

(h)                                 A final judgment against Borrower or any of its Subsidiaries is entered for the payment of money in excess of $20,000,000 and, absent procurement of a stay of execution, such judgment remains unsatisfied for 30 calendar days after the date of entry of judgment, or in any event later than five days prior to the date of any proposed sale thereunder; or any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the Property of any such Person and is not released, vacated or fully bonded within 30 calendar days after its issue or levy; or

 

(i)                                     Borrower or any of its Subsidiaries institutes or consents to the institution of any proceeding under a Debtor Relief Law relating to it or to all or any material part of its Property, or is unable or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its Property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of that Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under a Debtor Relief Law relating to any such Person or to all or any part of its Property is instituted without the consent of that Person and continues undismissed or unstayed for 60 calendar days; or

 

(j)                                     An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $35,000,000; (ii) the aggregate amount of Unfunded Pension Liability among all Pension Plans at any time exceeds $35,000,000; or (iii) Borrower or any ERISA Affiliate shall fail to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $35,000,000; or

 

(k)                                  There occurs any Change of Control of Borrower.

 

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8.2                                 Remedies Upon Event of Default.  If any Event of Default occurs, Administrative Agent shall, at the request of, or may, with the consent of, the Requisite Lenders,

 

(a)                                  declare the commitment of each Lender to make Loans and any obligation of the Issuing Lender to make Letter of Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;

 

(b)                                 declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by Borrower;

 

(c)                                  require that Borrower Cash Collateralize the Letter of Credit Usage (in an amount equal to the then Outstanding Amount thereof); and

 

(d)                                 exercise on behalf of itself and Lenders all rights and remedies available to it and Lenders under the Loan Documents or applicable law;

 

provided, however, that upon the occurrence of any event specified in subsection (i) of Section 8.1, the obligation of each Lender to make Loans and any obligation of the Issuing Lender to make Letter of Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of Borrower to Cash Collateralize the Letter of Credit Usage as aforesaid shall automatically become effective, in each case without further act of Administrative Agent or any Lender.

 

8.3                                 Application of Funds.  After the exercise of remedies provided for in Section 8.2 (or after the Loans have automatically become immediately due and payable and the Letter of Credit Usage has automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.2), any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.16 and 2.17, be applied by the Administrative Agent in the following order:

 

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to Administrative Agent and amounts payable under Section 3) payable to Administrative Agent in its capacity as such;

 

Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit fees calculated based on the Applicable Margin and payable to or for the account of the Lenders pursuant to Section 2.4(n)) payable to the Lenders and the Issuing Lender (including fees, charges and disbursements of counsel to the respective Lenders and the Issuing Lender and amounts payable under Section 3), ratably among them in proportion to the respective amounts described in this clause Second payable to them;

 

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Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit fees calculated based on the Applicable Margin and payable to or for the account of the Lenders pursuant to Section 2.4(n), interest on the Loans, and the aggregate amount of all drawings under Letters of Credit honored by the Issuing Lender and not theretofor reimbursed or converted into Committed Loans and other Obligations, ratably among the Lenders and the Issuing Lender in proportion to the respective amounts described in this clause Third payable to them;

 

Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, the aggregate amount of all drawings under Letters of Credit honored by the Issuing Lender and not theretofor reimbursed or converted into Committed Loans and Obligations then owing under Guarantied Hedge Agreements and Guarantied Cash Management Agreements, ratably among the Lenders, the Hedge Banks, the Cash Management Banks and the Issuing Lender in proportion to the respective amounts described in this clause Fourth held by them;

 

Fifth, to the Administrative Agent for the account of the Issuing Lender, to Cash Collateralize that portion of Letter of Credit Usage comprised of the aggregate undrawn amount of Letters of Credit; and

 

Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to Borrower or as otherwise required by Law.

 

Subject to Sections 2.17 and 2.5(b), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.

 

Notwithstanding the foregoing, Obligations arising under Guarantied Cash Management Agreements and Guarantied Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.  Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Section 9 for itself and its Affiliates as if a “Lender” party hereto.

 

SECTION 9
 ADMINISTRATIVE AGENT

 

9.1                                 Appointment and Authority.

 

(a)                                  Each of the Lenders and the Issuing Lender (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) hereby irrevocably 

 

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appoints Bank of America to act on its behalf as Administrative Agent hereunder and under the other Loan Documents and authorizes Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Section 9 are solely for the benefit of Administrative Agent, Lenders and the Issuing Lender, and neither Borrower nor any other Borrower Party shall have rights as a third party beneficiary of any of such provisions.

 

(b)                                 The Issuing Lender shall act on behalf of Lenders with respect to any Letters of Credit issued by it and the documents associated therewith until such time and except for so long as Administrative Agent may agree at the request of the Requisite Lenders to act for such Issuing Lender with respect thereto; provided, however, that the Issuing Lender shall have all of the benefits and immunities (i) provided to Administrative Agent in this Section 9 with respect to any acts taken or omissions suffered by the Issuing Lender in connection with Letters of Credit issued by it or proposed to be issued by it and the application and agreements for letters of credit pertaining to the Letters of Credit as fully as if the term “Administrative Agent”, as used in this Section 9, included the Issuing Lender with respect to such acts or omissions, and (ii) as additionally provided in this Agreement with respect to the Issuing Lender.

 

9.2                                 Rights as a Lender.  The Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Borrower or any of its Subsidiaries or other Affiliate thereof as if such Person were not Administrative Agent hereunder and without any duty to account therefor to Lenders.

 

9.3                                 Exculpatory Provisions.  Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, Administrative Agent:

 

(a)                                  shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

 

(b)                                 shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that Administrative Agent is required to exercise as directed in writing by the Requisite Lenders (or such other number or percentage of Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and

 

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(c)                                  shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity.

 

Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Requisite Lenders (or such other number or percentage of Lenders as shall be necessary, or as Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.1 and 8.2) or (ii) in the absence of its own gross negligence or willful misconduct. Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to Administrative Agent by Borrower, a Lender or the Issuing Lender.

 

Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Section 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Administrative Agent.

 

9.4                                 Reliance by Administrative Agent.  Administrative 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, sent or otherwise authenticated by the proper Person. Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been 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 the Issuing Lender, Administrative Agent may presume that such condition is satisfactory to such Lender or the Issuing Lender unless Administrative Agent shall have received notice to the contrary from such Lender or the Issuing Lender prior to the making of such Loan or the issuance of such Letter of Credit. Administrative Agent may consult with legal counsel (who may be counsel for Borrower), 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.

 

9.5                                 Delegation of Duties.  Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by Administrative Agent. 

 

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Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Section 9 shall apply to any such sub-agent and to the Related Parties of Administrative 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.

 

9.6                                 Resignation of Administrative Agent.  Administrative Agent may at any time give notice of its resignation to Lenders, the Issuing Lender and Borrower. Upon receipt of any such notice of resignation, the Requisite Lenders shall have the right, in consultation with Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of Lenders and the Issuing Lender, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if Administrative Agent shall notify Borrower and Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all payments, communications and determinations provided to be made by, to or through Administrative Agent shall instead be made by or to each Lender and the Issuing Lender directly, until such time as the Requisite Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Section 9 and Section 10.4 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 the retiring Administrative Agent was acting as Administrative Agent.

 

Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as Issuing Lender and Swing Line Lender. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Lender and Swing Line Lender, (b) the retiring Issuing Lender and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Lender shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements 

 

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satisfactory to the retiring Issuing Lender to effectively assume the obligations of the retiring Issuing Lender with respect to such Letters of Credit.

 

9.7                                 Non-Reliance on Administrative Agent and Other Lenders.  Each Lender and the Issuing Lender acknowledges that it has, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties 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 and the Issuing Lender also acknowledges that it will, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties 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.

 

9.8                                 No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of the Arrangers or other agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as Administrative Agent, a Lender or the Issuing Lender hereunder.

 

9.9                                 Administrative Agent May File Proofs of Claim.  In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Borrower Party, Administrative Agent (irrespective of whether the principal of any Loan or Letter of Credit Usage shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall have made any demand on Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise

 

(a)                                  to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Letter of Credit Usage and all other Obligations that are owing and unpaid under the Loan Documents and to file such other documents as may be necessary or advisable in order to have the claims of Lenders, the Issuing Lender and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of Lenders, the Issuing Lender and Administrative Agent and their respective agents and counsel and all other amounts due Lenders, the Issuing Lender and Administrative Agent under Sections 2.4(n), 2.8 and 10.4) allowed in such judicial proceeding; and

 

(b)                                 to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

 

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the Issuing Lender to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to Lenders 

 

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and the Issuing Lender, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under Sections 2.8 and 10.4.

 

Nothing contained herein shall be deemed to authorize Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the Issuing Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

 

9.10                           Master Subsidiary Guaranty Matters.  Each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank)  and the Issuing Lender irrevocably authorize Administrative Agent, at its option and in its discretion, to release any Guarantor from its obligations under the Master Subsidiary Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder. Upon request by Administrative Agent at any time, the Requisite Lenders will confirm in writing the Administrative Agent’s authority to release any Guarantor from its obligations  under the Master Subsidiary Guaranty pursuant to this Section 9.10.

 

9.11                           Guarantied Cash Management Agreements and Guarantied Hedge Agreements.  Except as otherwise expressly set forth herein, no Cash Management Bank or Hedge Bank that obtains the benefit of the provisions of Section 8.3 or  the Master Subsidiary Guaranty by virtue of the provisions hereof or of the Master Subsidiary Guaranty shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Master Subsidiary Guaranty) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents.  Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Guarantied Cash Management Agreements and Guarantied Hedge Agreements unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.

 

SECTION 10
 MISCELLANEOUS

 

10.1                           Amendments, Etc.  No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by Borrower or any other Borrower Party therefrom, shall be effective unless in writing signed by the Requisite Lenders and Borrower or the applicable Borrower Party, as the case may be, and acknowledged by Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:

 

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(a)                                  waive any condition set forth in Section 4.1(a) without the written consent of each Lender;

 

(b)                                 extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.2), without the written consent of such Lender;

 

(c)                                  postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly adversely affected thereby;

 

(d)                                 reduce the principal of, or the rate of interest specified herein on, any Loan or Letter of Credit Usage, or (subject to clause (v) of the second proviso to this Section 10.1) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly adversely affected thereby; provided, however, that only the consent of the Requisite Lenders shall be necessary to (i) amend or change the manner of computation of any financial ratio (including any change in any applicable defined term) used in determining the Applicable Margin even if that amendment or change would result in a reduction of any interest rate on any Loan or any fee payable hereunder after the effective date thereof or (ii) amend or change the definition of “Default Rate” or to waive any obligation of Borrower to pay interest or Letter of Credit fees at the Default Rate;

 

(e)                                  change any provision of this Section, the order in which funds are applied pursuant to Section 8.3 or the definition of “Requisite Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender; or

 

(f)                                    release all or substantially all of the value of the Master Subsidiary Guaranty without the written consent of each Lender;

 

and, provided  further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the Issuing Lender in addition to Lenders required above, affect the rights or duties of the Issuing Lender under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by Administrative Agent in addition to Lenders required above, affect the rights or duties of Administrative Agent under this Agreement or any other Loan Document; (iv) Section 10.6(i) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification; and (v) the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender 

 

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shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.

 

10.2                           Notices; Effectiveness; Electronic Communication.

 

(a)                                  Notices Generally.  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (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 telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

 

(i)                                     if to Borrower, Administrative Agent, the Issuing Lender or the Swing Line Lender, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 10.2; and

 

(ii)                                  if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to Borrower).

 

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).

 

(b)                                 Electronic Communications.  Notices and other communications to Lenders and the Issuing Lender hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the Issuing Lender pursuant to Section 2 if such Lender or the Issuing Lender, as applicable, has notified Administrative Agent that it is incapable of receiving notices under such Section by electronic communication. Administrative Agent or Borrower 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. Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the 

 

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sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the web site address therefor.

 

(c)                                  The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to Borrower, any Lender, the Issuing Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to Borrower, any Lender, the Issuing Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).

 

(d)                                 Change of Address, Etc.  Each of Borrower, Administrative Agent, the Issuing Lender and the Swing Line Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to Borrower, Administrative Agent, the Issuing Lender and the Swing Line Lender. In addition, each Lender agrees to notify Administrative Agent from time to time to ensure that Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.   Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are 

 

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not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to Borrower or its securities for purposes of United States Federal or state securities laws.

 

(e)                                  Reliance by Administrative Agent, Issuing Lender and Lenders.  Administrative Agent, the Issuing Lender and Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf of Borrower which are reasonably believed to be genuine and correct even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. Borrower shall indemnify Administrative Agent, the Issuing Lender, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of Borrower. All telephonic notices to and other telephonic communications with Administrative Agent may be recorded by Administrative Agent, and each of the parties hereto hereby consents to such recording.

 

10.3                           No Waiver; Cumulative Remedies.  No failure by any Lender, the Issuing Lender or Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

 

Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents  against the Borrower Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.2 for the benefit of all the Lenders and the Issuing Lender; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the Issuing Lender or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as Issuing Lender or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.8 (subject to the terms of Section 2.14), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Borrower Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Requisite Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.2 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.14, any Lender may, with the 

 

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consent of the Requisite Lenders, enforce any rights and remedies available to it and as authorized by the Requisite Lenders.

 

10.4                           Expenses; Indemnity; Damage Waiver.

 

(a)                                  Costs and Expenses.  Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery 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 Lender 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 Administrative Agent, any Lender or the Issuing Lender (including the fees, charges and disbursements of any counsel for Administrative Agent, any Lender or the Issuing Lender), and shall pay all fees and time charges for attorneys who may be employees of Administrative Agent, any Lender or the Issuing Lender, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) 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.

 

(b)                                 Indemnification by Borrower.  Borrower shall indemnify Administrative Agent (and any sub-agent thereof), each Lender and the Issuing 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, penalties, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by Borrower or any other Borrower Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the Issuing Lender 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 Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or 

 

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proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Borrower or any other Borrower Party, and regardless of whether any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by any Borrower Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if any such Borrower Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.

 

(c)                                  Reimbursement by Lenders.  To the extent that Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to Administrative Agent (or any sub-agent thereof), the Issuing Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to Administrative Agent (or any such sub-agent), the Issuing Lender or such Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, 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 Administrative Agent (or any such sub-agent) or the Issuing Lender in its capacity as such, or against any Related Party of any of the foregoing acting for Administrative Agent (or any such sub-agent) or Issuing Lender in connection with such capacity. The obligations of Lenders under this subsection (c) are subject to the provisions of Section 2.14.

 

(d)                                 Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable law, neither Borrower nor any other Borrower Party shall assert, and hereby waives, any claim against any Indemnitee, 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, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

 

(e)                                  Payments.  All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.

 

(f)                                    Survival.  The agreements in this Section shall survive the resignation of Administrative Agent and the Issuing Lender, the replacement of any Lender, the

 

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termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.

 

10.5                           Payments Set Aside.  To the extent that any payment by or on behalf of Borrower is made to Administrative Agent, the Issuing Lender or any Lender, or Administrative Agent, the Issuing Lender or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Administrative Agent, the Issuing Lender or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the Issuing Lender severally agrees to pay to Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of Lenders and the Issuing Lender under clause (b) of the preceding sentence shall survive the payment in full of the Obligations  and the termination of this Agreement.

 

10.6                           Successors and Assigns.

 

(a)                                  Successors and Assigns Generally.  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, except that neither Borrower nor any other Borrower Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC in accordance with the provisions of subsection (i) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). 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, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of Administrative Agent, the Issuing Lender and Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

(b)                                 Assignments by Lenders.  Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for 

 

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purposes of this subsection (b), participations in Letter of Credit Usage and in Swing Line Loans) at the time owing to it); provided that:

 

(i)                                     except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the 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 Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than the Minimum Amount unless each of Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met;

 

(ii)                                  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 with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to rights in respect of Swing Line Loans;

 

(iii)                               any assignment of a Commitment must be approved by Administrative Agent (which approval will not be unreasonably withheld), the Issuing Lender and the Swing Line Lender unless the Person that is the proposed assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and

 

(iv)                              the parties to each assignment shall execute and deliver to Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it shall not be a Lender, shall deliver to Administrative Agent an Administrative Questionnaire.

 

Subject to acceptance and recording thereof by Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement 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, 

 

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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 3.1 through 3.3, 3.6 and 10.4 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, Borrower (at its expense) shall execute and deliver new or replacement Notes to the assigning Lender and the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection 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 subsection (d) of this Section.

 

(c)                                  Register.  Administrative Agent, acting solely for this purpose as an agent of Borrower, shall maintain at Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of Lenders, and the Commitments of, and principal amounts of the Loans and Letter of Credit Usage owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Eligible Assignee, the Eligible Assignee’s completed administrative questionnaire (unless such Eligible Assignee shall already be a Lender hereunder), any processing and recordation fee and any written consent to such assignment required hereunder, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register.  No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this clause (c).  The entries in the Register shall be conclusive, and Borrower, Administrative Agent and Lenders may 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 Borrower and the Issuing Lender at any reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent for a material or substantive change to the Loan Documents is pending, any Lender may request and receive from Administrative Agent a copy of the Register.

 

(d)                                 Participations.  Any Lender may at any time, without the consent of, or notice to, Borrower or Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender, or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a “Participant”); in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in Letter of Credit Usage and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) Borrower, Administrative Agent, Lenders and the Issuing Lender shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.

 

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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, waiver or other modification described in the first proviso to Section 10.1 that affects such Participant. Subject to subsection (e) of this Section, Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.1 through 3.3 and Section 3.6 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.8 as though it were a Lender, provided such Participant agrees to be subject to Section 2.10 as though it were a Lender

 

(e)                                  Limitations upon Participant Rights.  A Participant shall not be entitled to receive any greater payment under Sections 3.1 through 3.3 and Section 3.6 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.1 unless Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of Borrower, to comply with Section 10.18 as though it were a Lender.

 

(f)                                    Certain Pledges.  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

(g)                                 Electronic Execution of Assignments.  The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

(h)                                 As used herein, the following terms have the following meaning:

 

“Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by (i) Administrative Agent, the Issuing Lender and the Swing Line Lender, and (ii) unless (A) such Person is taking delivery of an assignment in connection with physical settlement of a credit derivative transaction or (B) an Event of Default has occurred and is continuing, 

 

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Borrower (each such approval not to be unreasonably withheld or delayed), which approval of any such assignment shall be deemed given by Borrower unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof; provided that notwithstanding the foregoing, “Eligible Assignee” shall not include (x) Borrower or any of its Affiliates or Subsidiaries or (y) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y); provided  further that, unless an Event of Default has occurred and is continuing, an Eligible Assignee under clause (d) above shall have a minimum of $100,000,000 of combined capital and surplus.

 

“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

 

“Approved Fund” means any Fund 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.

 

(i)                                     Special Purpose Funding Vehicles.  Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to Administrative Agent and Borrower (an “SPC”) the option to provide all or any part of any Committed Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Committed Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Committed Loan, the Granting Lender shall be obligated to make such Committed Loan pursuant to the terms hereof or, if it fails to do so, to make such payment to Administrative Agent as is required under Section 2.10(d). Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of Borrower under this Agreement (including its obligations under Section 3.2), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of a Committed Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Committed Loan were made by such Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior debt of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of Borrower or Administrative Agent and with the payment of a processing fee in the 

 

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amount of $3,500, assign all or any portion of its right to receive payment with respect to any Committed Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Committed Loans to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC.

 

(j)                                     Resignation as Issuing Lender or Swing Line Lender after Assignment.  Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30 days’ notice to Borrower and Lenders, resign as Issuing Lender and/or (ii) upon 30 days’ notice to Borrower, resign as Swing Line Lender.  In the event of any such resignation as Issuing Lender or Swing Line Lender, Borrower shall be entitled to appoint from among Lenders a successor Issuing Lender or Swing Line Lender hereunder; provided, however, that no failure by Borrower to appoint any such successor shall affect the resignation of Bank of America as Issuing Lender or Swing Line Lender, as the case may be. If Bank of America resigns as Issuing Lender, it shall retain all the rights, powers, privileges and duties of the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Lender and all Letter of Credit Usage with respect thereto (including the right to require Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.4). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.3. Upon the appointment of a successor Issuing Lender and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Lender or Swing Line Lender, as the case may be, and (b) the successor Issuing Lender shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.

 

(k)                                  Certain Additional Payments.  In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower and the Administrative Agent, the applicable Pro Rata Share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full Pro Rata Share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Pro Rata Share.  Notwithstanding the 

 

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foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

 

10.7                           Treatment of Certain Information; Confidentiality.  Each of Administrative Agent, Lenders and the Issuing Lender agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees agents, trustees, advisors and representatives (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 purporting to have jurisdiction over it or its Affiliates (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 hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any 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 swap or derivative transaction relating to Borrower and its obligations, (g) with the consent of Borrower or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to Administrative Agent, any Lender, the Issuing Lender or any of their respective Affiliates on a nonconfidential basis from a source other than Borrower.

 

For purposes of this Section, “Information” means all information received from Borrower or any of its Subsidiaries relating to Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to Administrative Agent, any Lender or the Issuing Lender on a nonconfidential basis prior to disclosure by Borrower or any Subsidiary thereof, provided that, in the case of information received from Borrower or any Subsidiary thereof 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.

 

Each of Administrative Agent, Lenders and the Issuing Lender acknowledges that (a) the Information may include material non-public information concerning Borrower or a Subsidiary thereof, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including Federal and state securities Laws.

 

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10.8                           Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender, the Issuing Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the Issuing Lender or any such Affiliate to or for the credit or the account of Borrower or any other Borrower Party against any and all of the obligations of Borrower or such other Borrower Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or the Issuing Lender, irrespective of whether or not such Lender or the Issuing Lender shall have made any demand under this Agreement or any other Loan Document and although such obligations of Borrower or such other Borrower Party may be contingent or unmatured or are owed to a branch or office of such Lender, the Issuing Lender or Affiliate different from the branch or office holding such deposit or obligated on such indebtedness; provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.16 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the Issuing Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the Issuing Lender or their respective Affiliates may have. Each Lender and the Issuing Lender agrees to notify Borrower and 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.

 

10.9                           Interest Rate Limitation.  Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to Borrower. In determining whether the interest contracted for, charged, or received by Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

 

10.10                     Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire 

 

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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 4.1, this Agreement shall become effective when it shall have been executed by Administrative Agent and when Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.

 

10.11                     Survival of Representations and Warranties.  All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by Administrative Agent and each Lender, regardless of any investigation made by Administrative Agent or any Lender or on their behalf and notwithstanding that Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Extension of Credit, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.

 

10.12                     Severability.  If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

10.13                     Replacement of Lenders.  If any Lender requests compensation under Section 3.2, or if Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.1, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then Borrower may, at its sole expense and effort, upon notice to such Lender and Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.6), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:

 

(a)                                  Borrower shall have paid to Administrative Agent the assignment fee specified in Section 10.6(b);

 

(b)                                 such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and its Pro Rata Share of Letter of Credit Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and 

 

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under the other Loan Documents (including any amounts under Section 3.6) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrower (in the case of all other amounts);

 

(c)                                  in the case of any such assignment resulting from a claim for compensation under Section 3.2 or payments required to be made pursuant to Section 3.1, such assignment will result in a reduction in such compensation or payments thereafter; and

 

(d)                                 such assignment does not conflict with applicable Laws.

 

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply.

 

10.14                     Governing Law; Jurisdiction; Etc.

 

(a)                                  GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.

 

(b)                                 SUBMISSION TO JURISDICTION.  BORROWER AND EACH OTHER BORROWER PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA SITTING IN LOS ANGELES COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE CENTRAL DISTRICT, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH CALIFORNIA STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE 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 IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ADMINISTRATIVE AGENT, ANY LENDER OR THE ISSUING LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWER OR ANY OTHER BORROWER PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

 

(c)                                  WAIVER OF VENUE.  BORROWER AND EACH OTHER BORROWER PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO 

 

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THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY 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 APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

 

(d)           SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.2. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

 

10.15       Waiver of Jury Trial.

 

(a)           EACH PARTY HERETO HEREBY IRREVOCABLY 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 OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (1) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (2) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

 

(b)           NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT TO THE CONTRARY, IF THE FOREGOING IRREVOCABLE WAIVER OF ALL RIGHT TO TRIAL BY JURY IS RULED INVALID BY A COURT OF LAW, THEN ANY CONTROVERSIES OR CLAIMS BETWEEN THE PARTIES, WHETHER ARISING IN CONTRACT, TORT OR BY STATUTE, INCLUDING BUT NOT LIMITED TO CONTROVERSIES OR CLAIMS THAT ARISE OUT OF OR RELATE TO: (1) THIS AGREEMENT (INCLUDING ANY RENEWALS, EXTENSIONS OR MODIFICATIONS); OR (2) ANY DOCUMENT RELATED TO THIS AGREEMENT (COLLECTIVELY A “CLAIM”) SHALL A REQUEST OF ANY PARTY BE DETERMINED BY BINDING ARBITRATION. FOR THE PURPOSES OF THIS ARBITRATION PROVISION ONLY, THE TERM “PARTIES” SHALL INCLUDE ANY CORPORATION, SUBSIDIARY OR AFFILIATE OF THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVED IN THE SERVICING, MANAGEMENT OR 

 

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ADMINISTRATION OF ANY OBLIGATION DESCRIBED OR EVIDENCED BY THIS AGREEMENT.

 

(c)           AT THE REQUEST OF ANY PARTY TO THIS AGREEMENT, ANY CLAIM SHALL BE RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (TITLE 9, U.S. CODE) (THE “ACT”)THE ACT WILL APPLY EVEN THOUGH THIS AGREEMENT PROVIDES THAT IT IS GOVERNED BY THE LAW OF A SPECIFIED STATE. THE ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION.

 

(d)           ARBITRATION PROCEEDINGS WILL BE DETERMINED IN ACCORDANCE WITH THE ACT, THE THEN-CURRENT RULES AND PROCEDURES FOR THE ARBITRATION OF FINANCIAL SERVICES DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION OR ANY SUCCESSOR THEREOF (“AAA”), AND THE TERMS OF THIS SECTION. IN THE EVENT OF ANY INCONSISTENCY, THE TERM OF THIS SECTION SHALL CONTROL. IF AAA IS UNWILLING OR UNABLE TO (1) SERVE AS THE PROVIDER OF ARBITRATION OR (2) ENFORCE ANY PROVISION OF THIS ARBITRATION CLAUSE, ANY PARTY TO THIS AGREEMENT MAY SUBSTITUTE ANOTHER ARBITRATION ORGANIZATION WITH SIMILAR PROCEDURES TO SERVE AS THE PROVIDER OF ARBITRATION.

 

(e)           THE ARBITRATION SHALL BE ADMINISTERED BY AAA AND CONDUCTED, UNLESS OTHERWISE REQUIRED BY LAW, IN ANY U.S. STATE WHERE REAL OR TANGIBLE PERSONAL PROPERTY COLLATERAL FOR THIS CREDIT IS LOCATED OR IF THERE IS NO SUCH COLLATERAL, IN THE STATE SPECIFIED IN THE GOVERNING LAW SECTION OF THIS AGREEMENT. ALL CLAIMS SHALL BE DETERMINED BY ONE ARBITRATOR; HOWEVER, IF CLAIMS EXCEED FIVE MILLION DOLLARS ($5,000,000), UPON THE REQUEST OF ANY PARTY, THE CLAIMS SHALL BE DECIDED BY THREE ARBITRATORS. ALL ARBITRATION HEARINGS SHALL COMMENCE WITHIN NINETY (90) DAYS OF THE DEMAND FOR ARBITRATION AND CLOSE WITHIN NINETY (90) DAYS OF COMMENCEMENT AND THE AWARD OF THE ARBITRATOR(S) SHALL BE ISSUED WITHIN THIRTY (30) DAYS OF THE CLOSE OF THE HEARING; HOWEVER, THE ARBITRATOR(S), UPON A SHOWING OF GOOD CAUSE, MAY EXTEND THE COMMENCEMENT OF THE HEARING FOR UP TO AN ADDITIONAL SIXTY (60) DAYS. THE ARBITRATOR(S) SHALL PROVIDE A CONCISE WRITTEN STATEMENT OF REASONS FOR THE AWARD. THE ARBITRATION AWARD MAY BE SUBMITTED TO ANY COURT HAVING JURISDICTION TO BE CONFIRMED, JUDGMENT ENTERED AND ENFORCED.

 

(f)            THE ARBITRATOR(S) WILL GIVE EFFECT TO STATUTES OF LIMITATION IN DETERMINING ANY CLAIM AND MAY DISMISS THE ARBITRATION ON THE BASIS THAT THE CLAIM IS BARRED. FOR PURPOSES OF THE APPLICATION OF THE STATUTE OF LIMITATIONS, THE SERVICE ON AAA UNDER APPLICABLE AAA RULES OF A NOTICE OF CLAIM IS THE 

 

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EQUIVALENT OF THE FILING OF A LAWSUIT. ANY DISPUTE CONCERNING THIS ARBITRATION PROVISION OR WHETHER A CLAIM IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR(S). THE ARBITRATOR(S) SHALL HAVE THE POWER TO AWARD LEGAL FEES PURSUANT TO THE TERMS OF THIS AGREEMENT.

 

(g)           THIS SECTION DOES NOT LIMIT THE RIGHT OF ANY PARTY TO: (1) EXERCISE SELF-HELP REMEDIES, SUCH AS BUT NOT LIMITED TO, SETOFF; (2) INITIATE JUDICIAL OR NON-JUDICIAL FORECLOSURE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL (IF ANY); (3) EXERCISE ANY JUDICIAL OR POWER OF SALE RIGHTS, OR (4) ACT IN A COURT OF LAW TO OBTAIN AN INTERIM REMEDY, SUCH AS BUT NOT LIMITED TO, INJUNCTIVE RELIEF, WRIT OF POSSESSION OR APPOINTMENT OF A RECEIVER, OR ADDITIONAL OR SUPPLEMENTARY REMEDIES.

 

(h)           THE PROCEDURE DESCRIBED ABOVE WILL NOT APPLY IF THE CLAIM, AT THE TIME OF THE PROPOSED SUBMISSION TO ARBITRATION, ARISES FROM OR RELATES TO AN OBLIGATION TO THE LENDERS SECURED BY REAL PROPERTY. IN THIS CASE, ALL OF THE PARTIES TO THIS AGREEMENT MUST CONSENT TO SUBMISSION OF THE CLAIM TO ARBITRATION. IF ALL SUCH PARTIES DO NOT CONSENT TO ARBITRATION, THE CLAIM WILL BE RESOLVED AS FOLLOWS: THE PARTIES WILL DESIGNATE A REFEREE (OR A PANEL OF REFEREES) SELECTED UNDER THE AUSPICES OF AAA IN THE SAME MANNER AS ARBITRATORS ARE SELECTED IN AAA ADMINISTERED PROCEEDINGS. THE DESIGNATED REFEREE(S) WILL BE APPOINTED BY A COURT AS PROVIDED IN CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638 AND THE FOLLOWING RELATED SECTIONS. THE REFEREE (OR PRESIDING REFEREE OF THE PANEL) WILL BE AN ACTIVE ATTORNEY OR A RETIRED JUDGE. THE AWARD THAT RESULTS FROM THE DECISION OF THE REFEREE(S) WILL BE ENTERED AS A JUDGMENT IN THE COURT THAT APPOINTED THE REFEREE, IN ACCORDANCE WITH THE PROVISIONS OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 644 AND 645.

 

(i)            THE FILING OF A COURT ACTION IS NOT INTENDED TO CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE SUING PARTY, THEREAFTER TO REQUIRE SUBMITTAL OF THE CLAIM TO ARBITRATION.

 

10.16       USA PATRIOT Act Notice.  Each Lender that is subject to the Act (as hereinafter defined) and Administrative Agent (for itself and not on behalf of any Lender) hereby notifies Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “US Patriot Act”), it is required to obtain, verify and record information that identifies Borrower, which information includes the name and address of Borrower and other information that will allow such Lender or Administrative Agent, as applicable, to identify Borrower in accordance with the US Patriot Act.

 

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10.17       Time of the Essence.  Time is of the essence of the Loan Documents.

 

10.18       Tax Forms.

 

(a)           Each Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code (a “Foreign Lender”) shall deliver to Administrative Agent prior to receipt of any payment subject to withholding under the Code (or upon accepting an assignment of an interest herein), two duly signed completed copies of either IRS Form W-8BEN or any successor thereto (relating to such Person and entitling it to an exemption from, or reduction of, withholding tax on all payments to be made to such Person by Borrower pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto (relating to all payments to be made to such Person by Borrower pursuant to this Agreement) or such other evidence satisfactory to Borrower and Administrative Agent that such Person is entitled to an exemption from, or reduction of, United States withholding tax. Thereafter and from time to time, each such Person shall (i) promptly submit to Administrative Agent such additional duly completed and signed copies of one of such forms (or such successor forms as shall be adopted from time to time by the relevant United States taxing authorities) as may then be available under then current United States laws and regulations to avoid, or such evidence as is satisfactory to Borrower and Administrative Agent of any available exemption from or reduction of, United States withholding taxes in respect of all payments to be made to such Person by Borrower pursuant to this Agreement, (ii) promptly notify Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (iii) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Laws that Borrower makes any deduction or withholding for taxes from amounts payable to such Person. If such Person fails to deliver the above forms or other documentation, then Administrative Agent may withhold from any interest payment to such Person an amount equivalent to the applicable withholding tax imposed by Sections 1441 and 1442 of the Code, without reduction.

 

(b)           Upon the request of Administrative Agent, each Lender that is a “United States person” within the meaning of Section 7701 (a)(30) of the Code shall deliver to Administrative Agent two duly signed completed copies of IRS Form W-9. If such Lender fails to deliver such forms, then Administrative Agent may withhold from any interest payment to such Lender an amount equivalent to the applicable back-up withholding tax imposed by the Code, without reduction.

 

(c)           If any Governmental Authority asserts that Administrative Agent did not properly withhold or backup withhold, as the case may be, any tax or other amount from payments made to or for the account of any Lender, such Lender shall indemnify Administrative Agent therefor, including all penalties and interest, any taxes imposed by any jurisdiction on the amounts payable to Administrative Agent under this Section, and costs and expenses (including Attorney Costs) of Administrative Agent. The obligation of Lenders under this Section shall survive the termination of the Aggregate Commitments, repayment of all Obligations and the resignation of Administrative Agent.

 

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(d)           If a payment made to a Lender under any Loan Document would be subject to United States 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 Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by 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 Borrower or the Administrative Agent as may be necessary for 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.

 

(e)           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 Borrower and the Administrative Agent in writing of its legal inability to do so.

 

10.19       Surety Waivers.  In the event that Borrower is deemed to be a guarantor or a surety with respect to the Obligations under this Agreement, then Borrower shall be deemed to have agreed to the provisions of Sections 7 and 8 of the Master Subsidiary Guaranty.

 

10.20       Electronic Execution of Assignments.  The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, and any similar state laws based on the Uniform Electronic Transactions Act.

 

10.21       No Advisory or Fiduciary Responsibility.  In connection with all aspects of each transaction contemplated hereby, Borrower acknowledges and agrees that: (i) the credit facilities provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Arrangers and the Lenders, on the other hand, and Borrower is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, the Administrative Agent, the Arrangers and the Lenders each is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for Borrower or any of its Affiliates, stockholders, creditors or 

 

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employees or any other Person; (iii) neither the Administrative Agent, the Arrangers nor the Borrower has assumed or will assume an advisory, agency or fiduciary responsibility in favor of Borrower with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether the Administrative Agent, the Arrangers or the Lenders has advised or is currently advising Borrower or any of its Affiliates on other matters) and neither the Administrative Agent, the Arrangers nor the Lenders has any obligation to Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv) the Administrative Agent, the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Borrower and its Affiliates, and neither the Administrative Agent, the Arrangers nor the Lenders has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) neither the Administrative Agent, the Arrangers nor the Lenders has provided nor will any of them provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. Borrower hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against the Administrative Agent, the Arrangers and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Second Amended and Restated Credit Agreement to be duly executed as of the date first above written.

 

	
 
    	
BORROWER:
    
	
 
    	
 
    
	
 
    	
RELIANCE   STEEL & ALUMINUM CO., a California corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    	
 
    
	
 
    	
Name: 
    	
David H. Hannah
    
	
 
    	
Title: 
    	
Chairman and Chief Executive Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    	
 
    
	
 
    	
Name: 
    	
Karla Lewis
    
	
 
    	
Title: 
    	
Executive Vice President and Chief Financial   Officer
    


 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

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BANK   OF AMERICA, N.A., as Administrative Agent
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

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BANK   OF AMERICA, N.A., as Issuing Lender, Swing Line Lender and a   Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
JPMORGAN   CHASE BANK, N.A., as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

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WELLS   FARGO BANK, N.A., as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

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LLOYDS   TSB BANK PLC, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

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MIZUHO   CORPORATE BANK (USA), as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

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


 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

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GOLDMAN   SACHS BANK USA, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

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PNC   BANK, NATIONAL ASSOCIATION, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

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SUMITOMO   MITSUI BANKING CORPORATION, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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SUNTRUST   BANK, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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KEYBANK   NATIONAL ASSOCIATION, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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


 

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COMERICA   BANK, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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


 

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


 

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BANK OF   THE WEST, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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


 

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


 

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UBS   AG, STAMFORD BRANCH, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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CHANG   HWA COMMERCIAL BANK, LTD., LOS ANGELES AGENCY, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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FIRST   COMMERCIAL BANK, LTD., LOS ANGELES BRANCH, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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HUA   NAN COMMERCIAL BANK, LTD., as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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LAND   BANK OF TAIWAN, NEW YORK BRANCH, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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TAIWAN   BUSINESS BANK, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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TAIWAN   COOPERATIVE BANK, LOS ANGELES BRANCH, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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MEGA   INTERNATIONAL COMMERCIAL BANK CO., LTD., LOS ANGELES BRANCH, as a Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

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SCHEDULE 2.1

 

COMMITMENTS

 

	
Lender
    	
 
    	
Commitment
    	
 
    	
Pro Rata Share
    	
 
    
	
Bank of America, N.A. 
    	
 
    	
$
    	
160,000,000
    	
 
    	
10.666666667
    	
%
    
	
JPMorgan Chase Bank, N.A. 
    	
 
    	
160,000,000
    	
 
    	
10.666666667
    	
%
    
	
Wells Fargo Bank, N.A. 
    	
 
    	
160,000,000
    	
 
    	
10.666666667
    	
%
    
	
Lloyds TSB Bank plc 
    	
 
    	
100,000,000
    	
 
    	
6.666666667
    	
%
    
	
Mizuho Corporate Bank (USA) 
    	
 
    	
100,000,000
    	
 
    	
6.666666667
    	
%
    
	
U.S. Bank National Association 
    	
 
    	
100,000,000
    	
 
    	
6.666666667
    	
%
    
	
Goldman Sachs Bank USA 
    	
 
    	
60,000,000
    	
 
    	
4.000000000
    	
%
    
	
PNC Bank, National Association 
    	
 
    	
60,000,000
    	
 
    	
4.000000000
    	
%
    
	
Sumitomo Mitsui Banking Corporation 
    	
 
    	
60,000,000
    	
 
    	
4.000000000
    	
%
    
	
SunTrust Bank 
    	
 
    	
60,000,000
    	
 
    	
4.000000000
    	
%
    
	
KeyBank National Association 
    	
 
    	
52,500,000
    	
 
    	
3.500000000
    	
%
    
	
Union Bank, N.A. 
    	
 
    	
52,500,000
    	
 
    	
3.500000000
    	
%
    
	
Comerica Bank 
    	
 
    	
45,000,000
    	
 
    	
3.000000000
    	
%
    
	
Fifth Third Bank 
    	
 
    	
45,000,000
    	
 
    	
3.000000000
    	
%
    
	
TD Bank, N.A. 
    	
 
    	
45,000,000
    	
 
    	
3.000000000
    	
%
    
	
Bank of the West 
    	
 
    	
35,000,000
    	
 
    	
2.333333333
    	
%
    
	
Branch Banking and Trust Company 
    	
 
    	
35,000,000
    	
 
    	
2.333333333
    	
%
    
	
The Northern Trust Company 
    	
 
    	
35,000,000
    	
 
    	
2.333333333
    	
%
    
	
UBS AG, Stamford Branch 
    	
 
    	
35,000,000
    	
 
    	
2.333333333
    	
%
    
	
Chang Hwa Commercial Bank, Ltd., Los Angeles   Agency 
    	
 
    	
15,000,000
    	
 
    	
1.000000000
    	
%
    
	
First Commercial Bank, Ltd., Los Angeles   Branch 
    	
 
    	
15,000,000
    	
 
    	
1.000000000
    	
%
    
	
Hua Nan Commerical Bank, Ltd. 
    	
 
    	
15,000,000
    	
 
    	
1.000000000
    	
%
    
	
Land Bank of Taiwan, New York Branch 
    	
 
    	
15,000,000
    	
 
    	
1.000000000
    	
%
    
	
Taiwan Business Bank 
    	
 
    	
15,000,000
    	
 
    	
1.000000000
    	
%
    
	
Taiwan Cooperative Bank, Los Angeles Branch 
    	
 
    	
15,000,000
    	
 
    	
1.000000000
    	
%
    
	
Mega International Commercial Bank Co., Ltd.,   Los Angeles Branch 
    	
 
    	
$
    	
10,000,000
    	
 
    	
0.666666667
    	
%
    
	
Total
    	
 
    	
$
    	
1,500,000,000
    	
 
    	
100.000000000
    	
%
    


 











 

SCHEDULE 2.4

 

EXISTING LETTERS OF CREDIT

 

	
LC No.
    	
 
    	
Beneficiary
    	
 
    	
Amount
    	
 
    
	
3038438
    	
 
    	
U.S.   BANK NATIONAL A
    	
 
    	
$
    	
942,000.46
    	
 
    
	
3084640
    	
 
    	
RELIANCE   INSURANCE C
    	
 
    	
$
    	
2,580,887.00
    	
 
    
	
3084756
    	
 
    	
ZURICH   AMERICAN INSU
    	
 
    	
$
    	
24,750,000.00
    	
 
    
	
214833
    	
 
    	
HARFORD   FIRE INSURAN
    	
 
    	
$
    	
50,000.00
    	
 
    
	
217917
    	
 
    	
INSURANCE   COMPANY OF
    	
 
    	
$
    	
5,365,865.00
    	
 
    
	
3086487
    	
 
    	
FIREMAN’S   FUND INSUR
    	
 
    	
$
    	
200,000.00
    	
 
    
	
3087015
    	
 
    	
ROYAL   BANK OF CANADA
    	
 
    	
$
    	
1,820,899.00
    	
 
    
	
3087212
    	
 
    	
CONTINENTAL   CASUALTY
    	
 
    	
$
    	
962,000.00
    	
 
    
	
3013140
    	
 
    	
LUMBERMANS   MUTUAL CA
    	
 
    	
$
    	
26,681.97
    	
 
    
	
3013141
    	
 
    	
LUMBERMENS   MUTUAL CA
    	
 
    	
$
    	
114,001.64
    	
 
    
	
3013149
    	
 
    	
SENTRY   INSURANCE A M
    	
 
    	
$
    	
250,000.00
    	
 
    
	
3014920
    	
 
    	
XL   SPECIALTY INSURAN
    	
 
    	
$
    	
329,000.00
    	
 
    
	
7420494
    	
 
    	
THE   TRAVELERS INDEMN
    	
 
    	
$
    	
1,100,000.00
    	
 
    
	
68017460
    	
 
    	
XL   SPECIALTY INSURAN
    	
 
    	
$
    	
2,893,150.00
    	
 
    
	
3069274
    	
 
    	
BARIVEN   S.A.
    	
 
    	
$
    	
150,356.18
    	
 
    


 











 

SCHEDULE 5.5

 

CERTAIN LITIGATION

 

None.

 











 

SCHEDULE 5.9

 

EXISTING LIENS AND NEGATIVE PLEDGES

 

1.                                       Operating leases entered into from time to time, in the ordinary course of business, by Borrowers or any Subsidiary for equipment or vehicles, which may have Liens on the leased personal property.

 

2.                                      Industrial Revenue Bonds issued by MetalCenter, Inc. and subsequently assumed by RSA in the principal amount of $900,000 at July 1, 2011.

 

3.                                       Short term credit facility entered into by Everest Metals (Suzhou) Co. Ltd., for a maximum of $2,000,000 for operations in China and Singapore.

 

4.                                       Short term credit facility entered into by Reliance Metalcenter Asia Pacific Pte. Ltd. for a maximum of $5,000,000 for operations in Singapore.

 

5.                                       Short term credit facility entered into by Valex China Co. Ltd for a maximum of $5,000,000 for operations in China.

 

6.                                       Short term credit facility entered into by Earle M. Jorgensen (Asia) Sdn. Bhd. for a maximum of $5,000,000 for operations in Malaysia.

 

7.                                       Short term credit facility entered into by Metalweb Limited for a maximum of $4,500,000 GBP for operations in the United Kingdom.

 

8.                                       Capital Lease Obligations in an aggregate amount of approximately $2,400,000 incurred in connection with an Acquisition by one or more Borrower Parties and existing at the time of the respective Acquisition.

 

9.                                       Negative Pledges contained in those Note Purchase Agreements issued pursuant to those Note Purchase Agreements dated July 1, 2003, as amended on or before the date hereof, and the guaranties thereof by the Guarantors.

 

10.                                 Earle M. Jorgensen Company has issued and outstanding 9 3/4% senior secured notes in the aggregate principal amount of $150,000.

 











 

SCHEDULE 5.15

 

SUBSIDIARIES

 

	
Name
    	
 
    	
Jurisdiction 
   of Organization
    	
 
    	
Form of 
   Legal Entity
    	
 
    	
# of Shares 
   Outstanding
    	
 
    	
# of Shares Owned 
   and by Whom
    
	
Allegheny   Steel Distributors, Inc.
    	
 
    	
PA
    	
 
    	
Corporation
    	
 
    	
1,000
    	
 
    	
1,000 

by RSA
    
	
Aluminum   and Stainless, Inc.
    	
 
    	
LA
    	
 
    	
Corporation
    	
 
    	
5,582
    	
 
    	
5,582 

by RSA
    
	
American   Metals Corporation
    	
 
    	
CA
    	
 
    	
Corporation
    	
 
    	
100
    	
 
    	
100 

by RSA
    
	
AMI   Metals, Inc.
    	
 
    	
TN
    	
 
    	
Corporation
    	
 
    	
1,400
    	
 
    	
1,400
   by RSA
    
	
AMI   Metals Europe SPRL(1)
    	
 
    	
Belgium
    	
 
    	
Corporation
    	
 
    	
210,855
    	
 
    	
189,770 by AMI

 

21,085 by RSA
    
	
CCC   Steel, Inc.
    	
 
    	
DE
    	
 
    	
Corporation
    	
 
    	
3,625.8
    	
 
    	
3,625.8
   by RSA
    
	
Chapel   Steel Corp.
    	
 
    	
PA
    	
 
    	
Corporation
    	
 
    	
597
    	
 
    	
597
   by RSA
    
	
Chatham   Steel Corporation
    	
 
    	
GA
    	
 
    	
Corporation
    	
 
    	
9,585.667
    	
 
    	
9,585.667
   by RSA
    
	
Clayton   Metals, Inc.
    	
 
    	
IL
    	
 
    	
Corporation
    	
 
    	
1,000
    	
 
    	
1,000

by RSA
    
	
Crest   Steel Corporation
    	
 
    	
CA
    	
 
    	
Corporation
    	
 
    	
13,140.604465

Voting

 

 

1,314,060.4

Non-Voting
    	
 
    	
13,140.604465

Voting

by RSA

 

1,314,060.4

Non-Voting

by RSA
    
	
Delta   Steel, Inc. 
    	
 
    	
TX
    	
 
    	
Corporation
    	
 
    	
2,000
    	
 
    	
2,000

by RSA
    
	
Diamond   Manufacturing Company
    	
 
    	
PA
    	
 
    	
Corporation
    	
 
    	
750
    	
 
    	
750
   by RSA
    


 











 

	
Name
    	
 
    	
Jurisdiction 
   of Organization
    	
 
    	
Form of 
   Legal Entity
    	
 
    	
# of Shares 
   Outstanding
    	
 
    	
# of Shares Owned 
   and by Whom
    
	
Durrett   Sheppard Steel Co., Inc.
    	
 
    	
CA
    	
 
    	
Corporation
    	
 
    	
100
    	
 
    	
100
   by RSA
    
	
Earle   M. Jorgensen (Asia) SDN. BHD.
    	
 
    	
Malaysia 
    	
 
    	
Corporation
    	
 
    	
100
    	
 
    	
100
   by RAH(2)
    
	
Earle   M. Jorgensen Company 
    	
 
    	
DE
    	
 
    	
Corporation
    	
 
    	
1,000
    	
 
    	
1,000
   by RSA
    
	
Everest   Metals (Suzhou) Co. Ltd.
    	
 
    	
PRC
    	
 
    	
Corporation
    	
 
    	
100% equity interest
    	
 
    	
100% equity interest 
   by RAH(2)
    
	
Feralloy   Corporation
    	
 
    	
DE
    	
 
    	
Corporation
    	
 
    	
40,000
    	
 
    	
40,000
   by RSA
    
	
Infra-Metals   Co.
    	
 
    	
GA
    	
 
    	
Corporation
    	
 
    	
10,000
    	
 
    	
10,000
   by RSA
    
	
Lampros   Steel, Inc.
    	
 
    	
OR
    	
 
    	
Corporation
    	
 
    	
1,286
    	
 
    	
1,286 
   by American Metals
    
	
Lampros   Steel Plate Distribution, LLC(3)
    	
 
    	
OR
    	
 
    	
LLC
    	
 
    	
 
    	
 
    	
100% Membership Interests by Lampros Steel
    
	
LBT, Inc.
    	
 
    	
IL
    	
 
    	
Corporation
    	
 
    	
1,200
    	
 
    	
1,200
   by Liebovich(4)
    
	
Liebovich   Bros., Inc.
    	
 
    	
IL
    	
 
    	
Corporation
    	
 
    	
13,203
    	
 
    	
13,203 
   by RSA
    
	
Metals   Supply Company, Ltd. 
    	
 
    	
TX
    	
 
    	
Corporation
    	
 
    	
10,000
    	
 
    	
10,000

by RSA
    
	
Metalweb   Limited
    	
 
    	
UK
    	
 
    	
Corporation
    	
 
    	
550,701
    	
 
    	
550,701

by RSA
    
	
Pacific   Metal Company
    	
 
    	
OR
    	
 
    	
Corporation
    	
 
    	
100
    	
 
    	
100
   by RSA
    
	
PDM   Steel Service Centers, Inc.
    	
 
    	
CA
    	
 
    	
Corporation
    	
 
    	
1,000
    	
 
    	
1,000
   by RSA
    
	
Phoenix   Corporation
    	
 
    	
GA
    	
 
    	
Corporation
    	
 
    	
6,229
    	
 
    	
6,229
   by RSA
    
	
Precision   Flamecutting and Steel, Inc.
    	
 
    	
TX
    	
 
    	
Corporation
    	
 
    	
1,000
    	
 
    	
1,000
   by RSA
    


 











 

	
Name
    	
 
    	
Jurisdiction 
   of Organization
    	
 
    	
Form of 
   Legal Entity
    	
 
    	
# of Shares 
   Outstanding
    	
 
    	
# of Shares Owned 
   and by Whom
    
	
Precision   Strip, Inc.
    	
 
    	
OH
    	
 
    	
Corporation
    	
 
    	
1,000

Class A Voting

 

 

3,935

Class B Non-Voting
    	
 
    	
1,000

Class A Voting

by RSA

 

3,935

Class B Non-Voting

by RSA
    
	
Precision   Strip de Mexico, S. de R.L. de C.V.
    	
 
    	
Mexico
    	
 
    	
Corporation
    	
 
    	
 
    	
 
    	
99% Precision Strip Mexico Holdings, Inc.(5)

 

1%  Precision Strip, Inc.
    
	
Precision   Strip Transport, Inc.(5)
    	
 
    	
OH
    	
 
    	
Corporation
    	
 
    	
60

Class A Voting

 
    	
 
    	
60
   Class A Voting
   by Precision Strip
    
	
Reliance   Asia Holdings Pte. Ltd. (2)
    	
 
    	
Singapore
    	
 
    	
Corporation
    	
 
    	
3,702,000
    	
 
    	
3,702,000
   by RSA
    
	
Reliance   Metalcenter Asia Pacific Pte. Ltd.
    	
 
    	
Singapore
    	
 
    	
Corporation
    	
 
    	
3,000,000
    	
 
    	
3,000,000
   by RAH(2)
    
	
Reliance   Metals Canada Limited(6)
    	
 
    	
Alberta, Canada
    	
 
    	
Corporation
    	
 
    	
1

 
    	
 
    	
1
   by EMJ
    
	
Service   Steel Aerospace Corp. 
    	
 
    	
DE
    	
 
    	
Corporation
    	
 
    	
100
    	
 
    	
100
   by RSA
    
	
Siskin   Steel & Supply Company, Inc. 
    	
 
    	
TN
    	
 
    	
Corporation
    	
 
    	
88,000
   voting common

 

3,691,116
   non-voting common
    	
 
    	
88,000
   by RSA

 

3,691,116
   by RSA
    
	
Smith   Pipe & Steel Company
    	
 
    	
AZ
    	
 
    	
Corporation
    	
 
    	
396,100 common
   500,000 preferred
    	
 
    	
396,100 common shares by
    Delta Steel, Inc. 
   500,000 preferred shares by
    Delta Steel, Inc.
    


 












 

	
Name
    	
 
    	
Jurisdiction
   of Organization
    	
 
    	
Form of 
   Legal Entity
    	
 
    	
# of Shares
   Outstanding
    	
 
    	
# of Shares Owned 
   and  by Whom
    
	
Sugar   Steel Corporation
    	
 
    	
IL
    	
 
    	
Corporation
    	
 
    	
87,008.60
    	
 
    	
87,008.60
   by RSA
    
	
Toma   Metals, Inc.
    	
 
    	
PA
    	
 
    	
Corporation
    	
 
    	
100
    	
 
    	
100
   by RSA
    
	
Valex   Corp.
    	
 
    	
CA
    	
 
    	
Corporation
    	
 
    	
114,000
    	
 
    	
(a) 3,000 
   by Dan Mangan

 

(b) 111,000 
   by RSA
    
	
Valex   China Co., Ltd.
    	
 
    	
PRC
    	
 
    	
Corporation
    	
 
    	
 
    	
 
    	
100% by Valex Holdings(7)
    
	
Valex   Holdings Limited
    	
 
    	
Hong Kong
    	
 
    	
Corporation
    	
 
    	
59,106
    	
 
    	
54,940 by Valex(7)
    
	
Valex   Korea Co., Ltd.
    	
 
    	
Korea
    	
 
    	
Corporation
    	
 
    	
396,994
    	
 
    	
364,994 
   by Valex(8)
    
	
Viking   Materials, Inc.
    	
 
    	
MN
    	
 
    	
Corporation
    	
 
    	
6,543   
   voting common

 

3,182.1
   non-voting common
    	
 
    	
6,543 
   voting common

by RSA

 

3,182.1
   non-voting common
   by RSA
    
	
Yarde   Metals, Inc.
    	
 
    	
CT
    	
 
    	
Corporation
    	
 
    	
15,000
    	
 
    	
15,000
   by RSA
    


 




(1)  AMI Metals, Inc. owns 90% of the outstanding equity interest of AMI Metals Europe SPRL, a Belgium corporation, and RSA owns the remaining 10%.

 

(2)  Reliance Asia Holding Pte. Ltd. (“RAH”) was formed as a holding company for certain foreign subsidiaries and owns all of the outstanding common shares of Earle M. Jorgensen (Asia) SDN. BHD., Reliance Metalcenter Asia Pacific Pte. Ltd. and Everest Metals (Suzhou) Co. Ltd.

 

(3)  In process of being dissolved or merged out of existence.

 

(4)  Liebovich Bros., Inc. owns 100% of the outstanding common stock of LBT, Inc.

 











 

(5)  Precision Strip, Inc. owns 100% of the outstanding common stock of Precision Strip Transport, Inc. and Precision Strip Mexico Holdings, Inc., an Ohio corporation formed as a holding company for Precision Strip de Mexico, S. de R.L. de C.V.

 

(6)  Reliance Metals Canada Limited (“RMCL”) is owned by Earle M. Jorgensen Company.

 

(7)  Valex Corp. owns approximately 93% of the outstanding shares of Valex Holdings Limited.  The remaining 7% of the shares is owned by a joint venture partner.

 

(8)  Valex Corp. owns 100% of the outstanding common stock of Valex Korea Co. Ltd., a Korean corporation, but employees of Valex Korea Co., Ltd. have options to acquire shares of common stock.

 











 

SCHEDULE 7.2

 

INVESTMENTS

 

As of the date of the Credit Agreement, Borrower, indirectly through its Subsidiaries, owns the following interests in joint ventures:

 

	
NAME OF JOINT VENTURE
    	
 
    	
PERCENTAGE INTEREST
    
	
Acero   Prime S. de R.L. de C.V.
    	
 
    	
40%   Feralloy México, S. de R. L de C.V
    
	
Acero   Prime Servicios S. de R.L. de C.V.
    	
 
    	
50%   Feralloy México, S. de R. L de C.V
    
	
Feralloy   Processing Company
    	
 
    	
51%   Feralloy Midwest Corporation
    
	
FP   Structural Solutions
    	
 
    	
70%   Feralloy Corporation
    
	
Indiana   Pickling and Processing Company
    	
 
    	
56%   Feralloy Indiana Corporation
    
	
Oregon   Feralloy Partners
    	
 
    	
40%   Feralloy Oregon
    
	
Valex   Holdings Limited
    	
 
    	
93%   Valex Corp.
    


 











 

SCHEDULE 7.3

 

EXISTING INDEBTEDNESS

 

1.                                       Indemnification or similar provisions in leases entered into from time to time, in the ordinary course of business, by Borrowers or any Subsidiary for equipment or vehicles.

 

2.                                      Industrial Revenue Bonds issued by MetalCenter, Inc. and subsequently assumed by RSA in the principal amount of $900,000 at July 1, 2011.

 

3.                                       Senior unsecured notes issued pursuant to those Note Purchase Agreements dated July 1, 2003 (with a principal balance of $135 million as of September 30, 2006), all as amended on or before the date hereof. These notes are guaranteed by the Guarantors.

 

4.                                       Short term credit facility entered into by Everest Metals (Suzhou) Co. Ltd. ,  for a maximum of $2,000,000 for operations in China and Singapore.

 

5.                                       Short term credit facility entered into by Reliance Metalcenter Asia Pacific Pte. Ltd. for a maximum of $5,000,000 for operations in Singapore.

 

6.                                       Short term credit facility entered into by Valex China Co. Ltd for a maximum of $5,000,000 for operations in China.

 

7.                                       Short term credit facility entered into by Earle M. Jorgensen (Asia) Sdn. Bhd. for a maximum of $5,000,000 for operations in Malaysia.

 

8.                                       Short term credit facility entered into by Metalweb Limited for a maximum of $4,500,000 GBP for operations in the United Kingdom.

 

9.                                       Capital Lease Obligations in an aggregate amount of approximately $2,400,000 incurred in connection with an Acquisition by one or more Borrower Parties and existing at the time of the respective Acquisition.

 

10.                                 Earle M. Jorgensen Company has issued and outstanding 9 3/4% senior secured notes in the aggregate principal amount of $150,000.

 











 

SCHEDULE 10.2

 

ADMINISTRATIVE AGENT’S OFFICE;

CERTAIN ADDRESSES FOR NOTICES

 

RELIANCE STEELE & ALUMINUM CO., as Borrower

 

Address for Notices:

Reliance Steel & Aluminum Co.

350 S. Grand Avenue, Suite 5100

Los Angeles, California 90071

Attention:                     Karla Lewis

Executive Vice President & Chief Financial Officer

Telephone:               213-576-2472

Facsimile:                    213-687-8792

E-mail:             klewis@rsac.com

 

BANK OF AMERICA, N.A., as Administrative Agent

 

Notices (other than Requests for Extensions of Credit):

BANK OF AMERICA, N.A.

800 Fifth Avenue, Floor 17

Mail Code:  WA1-501-17-32

Seattle, Washington 98104

Attention:      Ken Puro

Telephone:    206-358-0138

Facsimile:     415-343-0559

E-mail:  Ken.Puro@baml.com

 

For Payments and Requests for Extensions of Credit:

BANK OF AMERICA, N.A.

2001 Clayton Road, 2nd Floor

Mail Code:  CA4-702-02-25

Concord, CA 94520

Attention:      Tina Obcena

Telephone:    925-675-8768

Facsimile:     888-969-9246

E-mail:  tina.obcena@baml.com

 

Payments:

BANK OF AMERICA

New York, NY

ABA No. 026009593

Account No: 3750836479

Account Name:  Corporate FTA

Reference:  Reliance Steel & Aluminum

 











 

Letters of  Credit:

BANK OF AMERICA, N.A.

Trade Operations — Los Angeles #226521

1000 West Temple Street, Suite Level 7

Mail Code:  CA9-705-07-05

Los Angeles, CA 90017-1466

Attention:      Tai Lu

Telephone:    213-457-8841

Facsimile:     213-481-7840