[BANK OF AMERICA LOGO]
CREDIT AGREEMENT
Dated as of October 24, 2001
among
RELIANCE STEEL & ALUMINUM CO.
RSAC MANAGEMENT CORP.
BANK OF AMERICA, N.A.,
as Administrative Agent
and
Letter of Credit Issuing Lender
FIRST UNION NATIONAL BANK,
as Syndication Agent
CREDIT SUISSE FIRST BOSTON,
THE CHASE MANHATTAN BANK, AND
U.S. BANK NATIONAL ASSOCIATION
as Managing Agents
and
THE OTHER FINANCIAL
INSTITUTIONS PARTY HERETO
Arranged by
BANC OF AMERICA SECURITIES LLC
TABLE OF CONTENTS
PAGE
Section 1 DEFINITIONS AND ACCOUNTING TERMS......................................1
1.1 Defined Terms.........................................................1
1.2 Use of Defined Terms.................................................25
1.3 Accounting Terms.....................................................25
1.4 Rounding.............................................................25
1.5 Exhibits and Schedules...............................................25
1.6 References to "RSA and its Subsidiaries" or "Borrowers and
their respective Subsidiaries".......................................25
1.7 Miscellaneous Terms..................................................25
Section 2 COMMITMENTS; INTEREST, FEES, PAYMENT PROCEDURES......................26
2.1 Committed Loans......................................................26
2.2 Borrowings, Conversions and Continuations of Committed Loans.........26
2.3 Swing Line...........................................................27
2.4 Letters of Credit....................................................29
2.5 Prepayments..........................................................33
2.6 Voluntary Reduction or Termination of Commitments....................33
2.7 Principal and Interest...............................................33
2.8 Fees.................................................................34
2.9 Computation of Interest and Fees.....................................34
2.10 Manner and Treatment of Payments among Lenders, Borrowers and
Administrative Agent.................................................35
2.11 Funding Sources......................................................36
2.12 Extension of Maturity Date...........................................36
2.13 Automatic Deduction..................................................36
2.14 Increase in Commitments..............................................37
Section 3 TAXES, YIELD PROTECTION AND ILLEGALITY...............................37
3.1 Taxes................................................................37
3.2 Increased Costs......................................................38
3.3 Capital Adequacy.....................................................38
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3.4 Illegality...........................................................38
3.5 Inability to Determine Rates.........................................39
3.6 Breakfunding Costs...................................................39
3.7 Matters Applicable to all Requests for Compensation..................39
Section 4 CONDITIONS...........................................................40
4.1 Initial Loans, Etc...................................................40
4.2 Any Extension of Credit..............................................41
Section 5 REPRESENTATIONS AND WARRANTIES.......................................42
5.1 Existence and Qualification; Power; Compliance With Laws.............42
5.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations...............................................42
5.3 No Governmental Approvals Required...................................43
5.4 Binding Obligations..................................................43
5.5 Litigation...........................................................43
5.6 No Default...........................................................43
5.7 ERISA Compliance.....................................................43
5.8 Use of Proceeds; Margin Regulations..................................44
5.9 Title to Property....................................................44
5.10 Intangible Assets....................................................44
5.11 Tax Liability........................................................44
5.12 Financial Statements.................................................45
5.13 [Intentionally Deleted]..............................................45
5.14 Environmental Compliance.............................................45
5.15 Public Utility Holding Company Act; Investment Company Act...........45
5.16 Subsidiaries.........................................................45
5.17 Insurance............................................................46
5.18 Disclosure...........................................................46
Section 6 AFFIRMATIVE COVENANTS................................................46
6.1 Financial Statements.................................................46
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6.2 Certificates, Notices and Other Information..........................47
6.3 Guaranties of Material Domestic Subsidiaries.........................49
6.4 Preservation of Existence............................................49
6.5 Maintenance of Properties............................................49
6.6 Maintenance of Insurance.............................................49
6.7 Payment of Taxes and Other Potential Liens...........................49
6.8 Compliance With Laws.................................................50
6.9 Environmental Laws...................................................50
6.10 Inspection Rights....................................................50
6.11 Keeping of Records and Books of Account..............................50
6.12 Compliance with ERISA................................................50
6.13 Compliance With Agreements...........................................50
6.14 Use of Proceeds......................................................50
6.15 RSAC Management......................................................51
Section 7 NEGATIVE COVENANTS...................................................51
7.1 Liens, Negative Pledges..............................................51
7.2 Investments..........................................................51
7.3 Indebtedness.........................................................52
7.4 Prepayment of Indebtedness...........................................53
7.5 Dispositions.........................................................53
7.6 Sales and Leasebacks.................................................53
7.7 Mergers..............................................................53
7.8 Hostile Acquisitions.................................................54
7.9 Permitted Acquisitions...............................................54
7.10 ERISA................................................................54
7.11 Net Worth............................................................54
7.12 Interest Coverage Ratio..............................................54
7.13 Leverage Ratio.......................................................54
7.14 Change in Nature of Business.........................................54
7.15 Transactions with Affiliates.........................................54
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7.16 Distributions........................................................55
7.17 Subsidiaries.........................................................55
Section 8 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT.................55
8.1 Events of Default....................................................55
8.2 Remedies Upon Event of Default.......................................57
Section 9 ADMINISTRATIVE AGENT.................................................58
9.1 Appointment and Authorization; "Administrative Agent"................58
9.2 Delegation of Duties.................................................58
9.3 Liability of Administrative Agent....................................58
9.4 Reliance by Administrative Agent.....................................59
9.5 Notice of Default....................................................59
9.6 Credit Decision......................................................60
9.7 Indemnification of Administrative Agent..............................60
9.8 Administrative Agent in Individual Capacity..........................61
9.9 Successor Administrative Agent.......................................61
9.10 Other Agents.........................................................61
Section 10 MISCELLANEOUS........................................................62
10.1 No Waiver; Cumulative Remedies.......................................62
10.2 Amendments; Consents.................................................62
10.3 Attorney Costs, Expenses and Taxes...................................63
10.4 Nature of Lenders' Obligations.......................................63
10.5 Survival of Representations and Warranties...........................64
10.6 Notices..............................................................64
10.7 Binding Effect; Assignment...........................................65
10.8 Set-off..............................................................68
10.9 Sharing of Payments..................................................69
10.10 Indemnification by Borrowers.........................................69
10.11 Nonliability of Lenders..............................................70
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10.12 No Third Parties Benefited...........................................71
10.13 Confidentiality......................................................71
10.14 Payments Set Aside...................................................72
10.15 Interest Rate Limitation.............................................72
10.16 Counterparts.........................................................72
10.17 Integration..........................................................72
10.18 Severability.........................................................73
10.19 Tax Forms............................................................73
10.20 Further Assurances...................................................74
10.21 Failure to Charge Not Subsequent Waiver..............................74
10.22 Governing Law........................................................74
10.23 Waiver of Right to Trial by Jury.....................................75
10.24 Time of the Essence..................................................75
10.25 Purported Oral Amendments............................................75
10.26 Headings.............................................................75
10.27 Suretyship Waivers...................................................75
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EXHIBITS
--------
Form of
A Request for Extension of Credit
B Compliance Certificate
C Committed Loan Note
D Assignment and Assumption
E Master Subsidiary Guaranty
F Opinion of Counsel
SCHEDULES
2.1 Commitments and Pro Rata Shares
5.5 Certain Litigation
5.9 Existing Liens and Negative Pledges
5.16 Subsidiaries
7.2 Investments
7.3 Existing Indebtedness
10.6 Lending Offices and Addresses for Notice
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CREDIT AGREEMENT
This CREDIT AGREEMENT dated as of October 24, 2001, is entered
into by and among Reliance Steel & Aluminum Co., a California corporation
("RSA"), RSAC Management Corp., a California corporation ("RSAC MANAGEMENT" and
together with RSA, jointly and severally, "BORROWERS" and individually, a
"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.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
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:
"ACQUIRED BUSINESS" means the entity or assets acquired by
Borrowers or a Subsidiary of Borrowers 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, N.A., 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 10.6, or such
other address or account as Administrative Agent hereafter may designate by
written notice to Borrowers and Lenders.
"ADMINISTRATIVE AGENT-RELATED PERSONS" means Administrative Agent
(including any successor agent), together with their respective Affiliates, and
the officers, directors, employees, agents and attorneys-in-fact of such Persons
and Affiliates.
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"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.
"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 second quarterly Compliance Certificate after the Closing Date required
under Section 6.2(a), such amounts shall be those indicated for Pricing Level 3:
LETTERS OF CREDIT
PRICING ----------------------
LEVEL LEVERAGE RATIO COMMITMENT FEE EURODOLLAR RATE + BASE RATE +
----------- -------------------------------------------------------- -------------------- ---------------------- --------------
1 (LESS THAN OR EQUAL TO) 1.75:1 17.5 75.0
2 (LESS THAN OR EQUAL TO) 2.25:1 but (GREATER THAN) 1.75:1 20.0 100.0 0.00%
3 (LESS THAN OR EQUAL TO) 2.75:1 but (GREATER THAN) 2.25:1 22.5 125.0 0.00%
4 (GREATER THAN) 2.75:1 25.0 150.0 0.00%
"PRICING LEVEL" means, for each period, the pricing level
set forth above opposite the Leverage Ratio achieved by RSA 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 Borrowers deliver a Compliance Certificate to
Administrative Agent reflecting such changed Pricing Level and
(b) 5 Business Days after the date upon which Borrowers are
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, subject to the other provisions of this Agreement,
commencing on the date such Compliance Certificate was required
until such Compliance Certificate is
2
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
Closing 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.
"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 Borrowers to indemnify or reimburse any
Person for such amounts, excluding Lender Taxes.
"ARRANGER" means Banc of America Securities LLC, in its capacity
as sole lead arranger and sole book manager.
"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.
"ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption
substantially in the form of Exhibit D.
"AVAILABILITY PERIOD" means the period commencing on the Closing
Date and ending on the day before the Maturity Date.
"BANK OF AMERICA" means Bank of America, N.A.
"BASE RATE" means for any day a fluctuating rate per annum equal
to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate." Such 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 pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such 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.
3
"BASE RATE LOAN" means a Loan which bears interest based on the
Base Rate.
"BORROWER" and "BORROWERS" each has the meaning set forth in the
introductory paragraph hereto.
"BORROWERS ACCOUNT" shall have the meaning specified in Section
2.13.
"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.
"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 DATE" means the date that a Loan is made by Lenders,
which shall be a Business Day.
"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 the applicable Business Day
relates to any Eurodollar Rate Loan, means any such day on which dealings are
carried on in the Eurodollar Rate Designated 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. Borrowers
hereby grant 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.
"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
4
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.
"CLOSING 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 Borrowers and Lenders of the date that is the Closing Date.
"CODE" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"COMMITMENT" means, for each Lender, the amount set forth as such
opposite such Lender's name on Schedule 2.1, as such amount may be reduced or
adjusted from time to time pursuant to the terms of this Agreement
(collectively, the "AGGREGATE COMMITMENTS"). The respective Pro Rata Shares of
Lenders as of the date hereof are set forth in Schedule 2.1.
"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 Borrowers by
any Lender in accordance with its Pro Rata Share pursuant to Section 2.1.
"COMMITTED LOAN NOTE" means the promissory note made by Borrowers
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").
"COMMON STOCK" means the common stock of RSA or its successor by
merger.
5
"COMPLIANCE CERTIFICATE" means a certificate in the form of
Exhibit B, properly completed and signed by a Responsible Officer of each
Borrower.
"CONSOLIDATED NET WORTH" means, as of the date of any
determination thereof, the total consolidated assets of RSA and its Subsidiaries
less the total consolidated liabilities of RSA and its Subsidiaries determined
in accordance with GAAP.
"CONSOLIDATED TANGIBLE NET WORTH" means, as of any date of
determination, for RSA and its Subsidiaries on a consolidated basis,
Shareholders' Equity of RSA and its Subsidiaries on that date minus the
Intangible Assets of RSA 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 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 Loans other than Base Rate Loans, Conversions must occur on the
last day of the Interest Period for such Loan.
"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 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.
"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.
"DESIGNATED DEPOSIT ACCOUNT" means a deposit account to be
maintained by RSA with Bank of America, as from time to time designated by
Borrowers by written notification to Administrative Agent.
"DISPOSITION" means the voluntary sale, transfer, or other
disposition of any asset of Borrowers or any of their respective 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.
6
"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.
"ELIGIBLE ASSIGNEE" has the meaning specified in Section 10.7(g).
"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.
"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), 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 by adding Cash dividends received
from 50% or less owned companies and joint ventures.
"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 by adding Cash dividends received from 50% or
less owned companies and joint ventures; provided that Acquired Business EBITDA
with respect to any Acquired Business shall only be included in EBITDA if such
Acquired Business EBITDA is shown on the financial statements of such Acquired
Business either (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 RSA and its
Subsidiaries, or, (iii) subject to consent of the Requisite Lenders, unaudited
or reviewed by an independent accounting firm.
7
"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 Borrowers 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 Plan amendment as a termination under Section 4041 or 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 RATE" means for any Interest Period with respect to any
Eurodollar Rate Loan, 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, for such Interest Period:
(a) the rate per annum equal to the rate determined by
Administrative Agent to be the offered rate that appears on the
page of the Telerate screen (or any successor thereto) that
displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period, or
(b) if the rate referenced in the preceding subsection
(a) does not appear on such page or service or such page or
service shall cease to be available, the rate per annum equal to
the rate determined by Administrative Agent to be the offered
rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits
in Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest
8
Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period,
or
(c) if the rates referenced in the preceding
subsections (a) and (b) are not available, the rate per annum
determined by Administrative Agent as the rate of interest 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 by
Bank of America 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 4:00 p.m. (London time) two Business
Days prior to the first day of such Interest Period.
"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
shall be adjusted automatically as of the effective date of any
change in the Eurodollar Reserve Percentage.
"EURODOLLAR BASE RATE" has the meaning set forth in the
definition of Eurodollar Rate.
"EURODOLLAR RATE LOAN" means a Revolving Loan bearing interest
based on the Eurodollar Rate.
"EVENT OF DEFAULT" shall have the meaning provided in Section
8.1.
"EXISTING CREDIT FACILITY" means the credit facilities extended
to RSA under that certain Credit Agreement, dated as of October 22, 1997, by and
among RSA, Bank of America, N.A. as Administrative Agent and the Banks
identified therein, as amended.
"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").
"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 Lender 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 published on the next succeeding Business
9
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 charged to
Bank of America on such day on such transactions as determined by Administrative
Agent.
"FISCAL QUARTER" means the fiscal quarter of RSA 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 RSA consisting of a
twelve-month period ending on each December 31.
"FRB" means the Board of Governors of the Federal Reserve System
or any governmental authority succeeding to its functions.
"FUNDED DEBT" means, as of the date of determination, without
duplication, the sum of (a) all principal Indebtedness of RSA and its
Subsidiaries for borrowed money (including debt securities issued by RSA 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 RSA 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 RSA or its
Subsidiaries.
"GAAP" means generally accepted accounting principles 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 may be approved by a significant segment of the accounting
profession, 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.
"GRANTING LENDER" has the meaning specified in Section 10.7(i).
"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
10
purpose of assuring or 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.
"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.
"INCREASE EFFECTIVE DATE" shall have the meaning specified in
Section 2.14.
"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),
banker's 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 ▇▇▇▇-to-market value thereof determined on the basis of readily
available quotations provided by any recognized dealer in such Swap
Contracts; and
(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;
11
(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 or
Synthetic Lease as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"INDEMNIFIED LIABILITIES" has the meaning set forth in Section
10.11.
"INDEMNITEES" has the meaning set forth in Section 10.11.
"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 RSA 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 RSA or any of its Subsidiaries for any
fiscal period prior to the Acquisition to (b) Interest Expense 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
Financial Accounting Standards Board Statement No. 13.
"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
12
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 Borrowers in
their Request for Extension of Credit and ending one, two, three or six months
thereafter, as selected by Borrowers 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 an 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 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. Notwithstanding the foregoing, an
Acquisition (as defined herein) shall not constitute an Investment.
"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, 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
13
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) or (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
Borrowers with the appropriate form or forms required by Section 10.19, to the
extent such forms are then required by applicable Laws.
"LENDING OFFICE" means, as to any Lender, the office or offices
of such Lender specified as its "Lending Office" or "Domestic Lending Office" or
"Eurodollar Lending Office", as the case may be, on Schedule 10.6, or such other
office or offices as such Lender may from time to time notify Borrowers and
Administrative Agent.
"LETTER OF CREDIT" means any of the letters of credit issued by
the Issuing Lender hereunder, either as originally issued or as the same may be
supplemented, amended, renewed or extended.
"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 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) $50,000,000. 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 undrawn face amount of outstanding Letters of Credit plus the aggregate
amount of all drawings under the Letters of Credit honored by the Issuing Lender
and not theretofore reimbursed or converted into Committed Loans.
"LEVERAGE RATIO" means, as at any date of determination, the
ratio of (a) Funded Debt as of that date to (b) EBITDA of RSA and its
Subsidiaries on a consolidated basis for the fiscal period consisting of the
four Fiscal Quarters ended on or immediately prior to such date.
"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
14
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.
"LOAN" means any advance made or to be made by any Lender to
Borrowers 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 Letter of Credit
Application, any Compliance Certificate, and any other agreements of any type or
nature hereafter executed and delivered by Borrowers or any of their respective
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.
"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 RSA's Material Domestic Subsidiaries and certain other Subsidiaries
selected by RSA 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
Borrowers and their respective Subsidiaries, taken as a whole, or (c) materially
impairs or could reasonably be expected to materially impair the ability of
Borrowers and their respective Subsidiaries, taken as a whole, to perform the
Obligations.
"MATERIAL DOMESTIC SUBSIDIARY" means, at any time, each
Subsidiary of RSA which is created, organized or domesticated in the United
States or under the laws of the United States or any state thereof, and either
(i) is a first-tier Subsidiary of RSA or (ii) the aggregate amount of its
Tangible Assets exceeds $10,000,000.
"MATURITY DATE" means the date that in five years after the
Closing Date, but not later than December 31, 2006.
"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):
15
Minimum
Multiples in
excess of
Minimum
Type of Action Minimum Amount Amount
----------------------------------- -------------------- ------------
Borrowing of, prepayment of $ 2,000,000 $ 1,000,000
or Conversion into, Base Rate
Loans
Borrowing of, prepayment of, $ 5,000,000 $ 1,000,000
Continuation of, or
Conversion into, Eurodollar
Rate Loans
Borrowing of Base Rate Amount of Swing Line N/A
Loans to repay Swing Line Loans being repaid
Loans
Reduction in Commitments $10,000,000 $10,000,000
Assignments $ 5,000,000
"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 Borrowers or any of their respective 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 RSA 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 Borrowers and their respective Subsidiaries from such
Disposition (including Cash, Property and the assumption by the purchaser of any
liability of Borrowers or their respective Subsidiaries) net of brokerage
commissions, legal expenses and other transactional costs payable by Borrowers
and their respective Subsidiaries with respect to such Disposition and net of an
16
amount determined in good faith by Borrowers to be the estimated amount of
income taxes payable by Borrowers attributable to such Disposition.
"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 Borrowers 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, 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
Borrowers or any Subsidiary or Affiliate of Borrowers.
"OPINION OF COUNSEL" means the favorable written legal opinion of
▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to Borrowers and their respective 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 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 10.7(d).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto established under 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 RSA or its
Subsidiaries or to which RSA 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.
17
"PERMITTED ACQUISITION" means an Acquisition with respect to
which all of the following conditions shall have been satisfied:
(a) no Default or Event of Default exists or will exist as
a result of the Acquisition;
(b) the Acquisition shall not be a Hostile Acquisition;
(b) immediately after such Acquisition, Borrowers would be
in compliance with the terms and conditions of this Agreement on a pro
forma basis;
(c) the business of the Person to be acquired (the
"TARGET") is substantially similar to the existing business of Borrowers
and their respective Subsidiaries;
(d) immediately after such Acquisition, the sum of
Borrowers' cash and cash equivalents plus unused Commitments under this
Agreement is at least $40,000,000; and
(e) the total cost of the Acquisition (including debt of
the Target assumed by Borrowers or their Subsidiaries and excluding the
value of any capital stock, warrants or options to acquire capital
stock) is less than $150,000,000;
For all other Acquisitions, which shall require the approval of Requisite
Lenders, Borrowers shall provide Administrative Agent and Lenders with the
Requisite Information regarding the Acquisition. Upon receipt of all Requisite
Information, Lenders shall respond within two weeks of receiving such
information. If a Lender does not respond within such time period, then such
Lender shall be deemed to have approved the Acquisition. If Administrative Agent
reasonably requires additional material information regarding the proposed
Acquisition, Borrowers shall promptly provide such information to Administrative
Agent and Lenders and the two week time period to approve the Acquisition shall
be extended until all such information is received (at which time Lenders will
have five Business Days to respond). "REQUISITE INFORMATION" shall include a
brief business description of the Target, financial statements of the Target for
the preceding three years (to the extent available), pro forma financial
statements of Borrowers demonstrating pro forma covenant compliance, a brief
description of the proposed Acquisition (including the sources and uses of
funds), projections, and such other information as Borrowers deem relevant.
"PERMITTED DISPOSITION" means a Disposition of (a) Cash,
inventory or other assets sold, leased or otherwise disposed of in the ordinary
course of business of Borrowers or any of their 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 Borrowers or their
Subsidiaries determine in good faith that the failure to replace such equipment
will not be detrimental to the business of RSA or any of its
18
Subsidiaries, (d) a Disposition to Borrowers or a Subsidiary thereof, and (e)
Dispositions of the assets of a Subsidiary of Borrowers to Borrowers or another
Subsidiary of RSA which is a party to the Master Subsidiary Guaranty.
"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 Borrowers and their respective
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;
(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;
19
(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 Borrowers or any Subsidiary of
Borrowers 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 Borrowers or any Subsidiary of Borrowers 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
Borrowers or any Subsidiary of Borrowers 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 Borrowers or any Subsidiary of
Borrowers 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; and
(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 Borrowers and
their respective Subsidiaries, taken as a whole; and
(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
20
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
Closing Date as provided in Section 7.1(f).
"PERMITTED SWAP OBLIGATIONS" means all obligations (contingent or
otherwise) of Borrowers or any of their respective Subsidiaries existing or
arising under Swap Contracts, provided that each of the following criteria is
satisfied: (a) such obligations are (or were) entered into by such Person in the
ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments or assets held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person in conjunction with a securities repurchase program not otherwise
prohibited hereunder, and not for purposes of speculation or taking a "market
view;" and (b) such Swap Contracts do not contain (i) any provision ("walk-away"
provision) exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party, or (ii) any
provision creating or permitting the declaration of an event of default,
termination event or similar event upon the occurrence of a breach hereof (other
than an Event of Default under Section 8.1).
"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.
"PROPERTY" or "PROPERTIES" means any interest in any kind of
property or asset, whether real, personal or mixed, or tangible or intangible.
"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.
"QUARTERLY PAYMENT DATE" means the last Business Day of each
calendar quarter, commencing December 31, 2001.
"REAL PROPERTY" means, as of any date of determination, all real
Property then or theretofore owned, leased or occupied by Borrowers or any of
their respective Subsidiaries.
"REGISTER" has the meaning set forth in Section 10.7(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.
"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 each
Borrower, in each case delivered to Administrative Agent by Requisite Notice.
"REQUISITE LENDERS" means, as of the 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 10.6 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 9:00 a.m. Relevant date
Base Rate Loans
Borrowing of, continuation of, 10:00 a.m. 3 Business Days
prepayment of or conversion prior to relevant
into Eurodollar Rate Loans date
Voluntary Reduction of 10:00 a.m. 2 Business Days
Commitments prior to relevant
date
Letter of Credit action 10:00 a.m. 5 Business Days
prior to relevant
date
Funds made available by 11:00 a.m. Relevant date
Lenders or Borrowers to
Administrative Agent
22
"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.
"RSA" means Reliance Steel & Aluminum Co., a California
corporation.
"RSAC MANAGEMENT" means RSAC Management Corp., a California
corporation.
"SHAREHOLDERS' EQUITY" means, as of any date of determination for
RSA 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 10.7(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. For
purposes of clarification, American Steel, LLC shall not be deemed to be a
Subsidiary of RSA.
"SWAP CONTRACT" means a written agreement between either Borrower
and one or more financial institutions providing for "swap", "cap", "collar" or
other interest rate protection with respect to any Indebtedness.
"SWING LINE" means the revolving line of credit established by
the Swing Line Lender in favor of Borrowers 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 Borrowers in favor of
the Swing Line Lender in connection with the Swing Line, each in form and
substance satisfactory to Borrowers, 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.
23
"SWING LINE LOANS" means loans made by the Swing Line Lender to
Borrowers under the Swing Line.
"SWING LINE OUTSTANDINGS" means, as of any date of determination,
the aggregate principal Indebtedness of Borrowers on all Swing Line Loans then
outstanding.
"SWING LINE SUBLIMIT" means an amount equal to the lesser of (a)
the Aggregate Commitments and (b) $10,000,000. 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 all assets determined in accordance with
GAAP other than Intangible Assets.
"TARGET" shall have the meaning set forth in the definition of
"Permitted Acquisition".
"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).
"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 Borrowers in the Request for Extension of Credit
relating thereto.
"UNFUNDED PENSION LIABILITY" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Pension Plan pursuant to Section 412 of the Code for the applicable plan
year.
"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 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
24
Letter of Credit Usage; provided, however, that if any Lender has failed to fund
any portion of the Committed Loans, participations in Letter of Credit Usage or
participations in Swing Line Loans required to be funded by it hereunder, such
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 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.
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. 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. In the event that GAAP change during the term of
this Agreement such that the financial covenants would then be calculated in a
different manner or with different components, (a) Borrowers and Lenders agree
to amend this Agreement in such respects as are necessary to conform those
covenants as criteria for evaluating Borrowers' financial condition to
substantially the same criteria as were effective prior to such change in GAAP
and (b) Borrowers shall be deemed to be in compliance with the covenants
contained in the aforesaid Sections during the 90-day period following any such
change in GAAP if and to the extent that Borrowers would have been in compliance
therewith under GAAP as in effect immediately prior to such change.
1.4 ROUNDING. Any financial ratios required to be maintained by
Borrowers 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 REFERENCES TO "RSA AND ITS SUBSIDIARIES" OR "BORROWERS AND
THEIR RESPECTIVE SUBSIDIARIES". Any reference herein to (i) "RSA and its
Subsidiaries" or the like shall refer solely to RSA during such times, if any,
as RSA shall have no Subsidiaries, or (ii) "Borrowers and their respective
Subsidiaries" or the like shall refer solely to Borrowers during such times, if
any, as Borrowers shall have no Subsidiaries.
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
25
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, 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 Borrowers 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 to
Section 10.7. Subject to the foregoing and other terms and conditions hereof,
Borrowers 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
Borrowers to pay any amount owing with respect to the Loans.
2.2 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS
(a) Borrowers 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
26
waiver of the applicable conditions set forth in Section 4, all funds so
received shall be made available to Borrowers in like funds received.
(c) Administrative Agent shall promptly notify Borrowers
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) 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
Borrowers from Administrative Agent and shall continue so long as such Event of
Default continues to exist.
(f) If a Loan is to be made on the same date that another
Loan is due and payable, Borrowers 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) The Swing Line Lender shall from time to time through
the day prior to the Maturity Date make Swing Line Loans to Borrowers in such
amounts as Borrowers may request, provided that (i) 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 Borrowers 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, Borrowers 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 $250,000 ("INTEGRAL AMOUNT") upon Requisite Notice made to
the Swing
27
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 Borrowers
instruct 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, after the Swing
Line Requisite Time therefor, such payment shall be deemed received on the next
Business Day. The Swing Line Lender shall promptly notify Administrative Agent
of the Swing Loan 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
Borrowers so request, a fixed rate of interest quoted by Swing Line Lender and
agreed to by Borrowers, for an interest period quoted by Swing Line Lender and
agreed to by Borrowers, but in an amount not longer than seven 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 Borrowers 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 seventh 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 seven Business Days, then on the next Business Day (unless
Borrowers have made other arrangements acceptable to the Swing Line Lender to
repay the Swing Line Loan), Borrowers shall request a Committed Loan in a
Minimum Amount necessary to repay the Swing Line Loan in full. In the event that
Borrowers fail 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 Borrowers, cause Committed Loans to be made by Lenders in the Minimum
Amount necessary to repay the Swing Line Loan in full 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.
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2.4 LETTERS OF CREDIT.
(a) Subject to the terms and conditions hereof, at any
time and from time to time from the Closing Date through the Maturity Date, the
Issuing Lender shall issue, supplement, modify, amend, renew, or extend such
Letters of Credit for the account of Borrowers, jointly and severally, under the
Commitments as Borrowers may request; provided that the Issuing Lender shall not
be obligated to make any Letter of Credit Extension with respect to any Letter
of Credit, and no Lender shall be obligated to participate in any Letter of
Credit if as of the date of such Letter of Credit Extension, (i) the Outstanding
Amount of all Letter of Credit Usage and all Loans would exceed the Aggregate
Commitments, (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 would exceed such Lender's Commitment, or (iii)
the Outstanding Amount of the Letter of Credit Usage would exceed the Letter of
Credit Sublimit. Each Letter of Credit shall be in a form acceptable to the
Issuing Lender. Unless all Lenders, Administrative Agent, and the Issuing Lender
otherwise consent in a writing delivered to Administrative Agent, the term of
any Letter of Credit shall not exceed the Maturity Date.
(b) Borrowers 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. Administrative Agent shall
promptly notify the Issuing Lender whether such Letter of Credit Application,
and the action requested pursuant thereto, conforms to the requirements of this
Agreement. Upon the issuance, supplement, modification, amendment, renewal, or
extension of a Letter of Credit, the Issuing Lender shall promptly notify
Administrative Agent of such action and the amount and terms thereof. Letters of
Credit may have automatic extension or renewal provisions ("evergreen" Letters
of Credit) so long as the Issuing Lender has the right to terminate such
evergreen Letters of Credit no less frequently than annually within a notice
period (the "LETTER OF CREDIT EVERGREEN NOTICE PERIOD") to be agreed upon at the
time each such Letter of Credit is issued. This Agreement shall control in the
event of any conflict with any Letter of Credit Application.
(c) Upon the issuance of a Letter of Credit, each Lender
shall be deemed to have purchased a pro rata participation in such Letter of
Credit, as from time to time supplemented, amended, renewed, or extended, from
the Issuing Lender in an amount equal to that Lender's Pro Rata Share. Without
limiting the scope and nature of each Lender's participation in any Letter of
Credit, to the extent that the Issuing Lender has not been reimbursed by
Borrowers for any payment required to be made by the Issuing Lender under any
Letter of Credit within the time specified in Section 2.4(d) below, each Lender
shall, pro rata according to its Pro Rata Share, reimburse the Issuing Lender
through Administrative Agent promptly upon demand for the amount of such
payment. The obligation of each Lender to so reimburse the Issuing 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. Any such reimbursement shall
not relieve or otherwise impair the obligation of Borrowers, jointly and
severally, to
29
reimburse the Issuing Lender for the amount of any payment made by the Issuing
Lender under any Letter of Credit together with interest as hereinafter
provided.
(d) Borrowers agree to pay to the Issuing Lender an amount
equal to any payment made by the Issuing Lender with respect to each Letter of
Credit within one Business Day after demand made by the Issuing Lender therefor,
together with interest on such amount from the date of any payment made by the
Issuing Lender at the Default Rate. The principal amount of any such payment
shall be used to reimburse the Issuing Lender for the payment made by it under
the Letter of Credit. Each Lender that has reimbursed the Issuing Lender for its
Pro Rata Share of any payment made by the Issuing Lender under a Letter of
Credit shall thereupon acquire a pro rata participation, to the extent of such
reimbursement, in the claim of the Issuing Lender against Borrowers under this
Section and shall share, in accordance with that pro rata participation, in any
payment made by Borrowers with respect to such claim.
(e) If Borrowers fail to make the payment required by
subsection (d) above within the time period therein set forth, the Issuing
Lender shall notify Administrative Agent of such fact and the amount of such
unreimbursed drawing. Administrative Agent shall promptly notify each Lender of
its Pro Rata Share of such amount by Requisite Notice. Each Lender shall make
funds in an amount equal its Pro Rata Share of such amount available to
Administrative Agent at Administrative Agent's Office not later than the
Requisite Time on the Business Day specified by Administrative Agent. Such funds
shall be paid to the Issuing Lender to reimburse it for the payment made by it
under the Letter of Credit. If the conditions precedent set forth in Section 4
could be satisfied (except for the giving of a Request for Extension of Credit)
on the date such funds are made available by Lenders, such funds shall be deemed
a Borrowing of Base Rate Loans (without regard to the Minimum Amount therefor)
requested by Borrowers. If the conditions precedent set forth in Section 4 could
not be satisfied on the date such funds are made available by Lenders, such
funds shall be deemed a funding of each Lender's participation in such Letter of
Credit, and such funds shall be payable by Borrowers upon demand and shall bear
interest at the Default Rate.
(f) Once an evergreen Letter of Credit is issued,
Borrowers shall not be required to request that the Issuing Lender permit the
renewal thereof. If such Letter of Credit could be issued within the Letter of
Credit Evergreen Notice Period, the Issuing Lender shall permit the renewal of
such evergreen Letter of Credit at such time; provided that the Issuing Lender
shall not permit the renewal of an Evergreen Letter of Credit if such Evergreen
Letter of Credit would expire after the Maturity Date.
(g) The obligation of Borrowers to pay to the Issuing
Lender the amount of any payment made by the Issuing Lender under any Letter of
Credit shall be joint and several, absolute, unconditional, and irrevocable.
Without limiting the foregoing, Borrowers' 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;
30
(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 Borrowers;
(iii) the existence of any claim, set-off, defense,
or other rights which Borrowers 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;
(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;
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(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.
(h) The Uniform Customs and Practice for Documentary
Credits, as published in its most current version by the International Chamber
of Commerce or International Standby Practices ISP98 (ICC Publication No. 590),
as applicable to the relevant Letter of Credit, shall be deemed a part of this
Section and shall apply to such Letter of Credit to the extent permitted by
applicable Laws.
(i) Concurrently with the issuance of each Letter of
Credit, Borrowers 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 a
letter agreement between Borrowers and the Issuing Lender. Borrowers 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 December 31, 2001, through the
date upon which the outstanding Letter of Credit shall expire, with the final
payment to be made on such expiration date (provided that the minimum fee for
each Letter of Credit shall be $500 per annum). Borrowers 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.
(j) As of the Closing Date, Bank of America has issued for
the account of RSA (i) letter of credit No. 214833 in the face amount of
$50,000.00 with an expiration date of April 1, 2002, (ii) letter of credit No.
217917 in the face amount of $2,640,000.00 with an expiration date of April 1,
2002, (iii) letter of credit No. 217918 in the face amount of $1,350,000.00 with
an expiration date of April 1, 2002, (iv) letter of credit No. 1107276 (as
amended) in the face amount of $143,686.62 with an expiration date of November
19, 2001, and (v) letter of credit No. 3038438 in the face amount of
$3,192,333.33 with an expiration date of October 22, 2002 (collectively, the
"EXISTING LETTERS OF CREDIT"). On the Closing Date, each Lender will purchase 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 Closing Date the
letter of credit fee for the ratable account of Lenders will accrue and the
undrawn amount thereof shall constitute Letter of Credit Usage.
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2.5 PREPAYMENTS.
(a) Upon Requisite Notice to Administrative Agent not
later than the Requisite Time therefor, Borrowers 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, Borrowers shall immediately
prepay Loans and/or deposit cash 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, Borrowers 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 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, Borrowers shall pay, and jointly
and severally agree to pay, the outstanding principal amount of each Committed
Loan on the Maturity Date.
(b) Subject to subsection (c), Borrowers jointly and
severally agree 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) on each Interest Payment Date for each type of Loan at a rate per
annum equal to the applicable interest rate determined in accordance with the
definition thereof, plus, if applicable, Applicable Margin.
(c) If any amount payable by Borrowers 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. Accrued and unpaid interest on past due
amounts including, without limitation, interest on past due 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.
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2.8 FEES.
(a) Commitment Fee. Borrowers jointly and severally agree
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). The commitment fee shall accrue at all
times from the Closing 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) Administrative Fee. Borrowers shall pay to
Administrative Agent an administrative fee in such amounts and at such times as
heretofore agreed upon by letter agreement between Borrowers and Administrative
Agent. The administrative fee is for the services to be performed by
Administrative Agent in acting as Administrative Agent and is fully earned on
the date paid. The administrative fee paid to Administrative Agent is solely for
its own account and is nonrefundable.
(c) Structuring and Syndicating Fee. On the Closing Date,
Borrowers shall pay to the Arranger a structuring and syndicating fee in the
amount heretofore agreed upon by letter agreement between Borrowers and the
Arranger. Such structuring and syndicating fee is for the services of the
Arranger in arranging the credit facilities under this Agreement and is fully
earned when paid. The structuring and syndicating fee paid to the Arranger is
solely for its own account and is nonrefundable.
(d) Upfront Fee. On the Closing Date, Borrowers shall pay
to Administrative Agent, for the account of each Lender, upfront fees in the
amounts heretofore agreed upon by letter agreement between Borrowers and the
Arranger.
(e) Letter of Credit Fronting Fee. Borrowers shall pay to
the Issuing Lender, for its own account, a fronting fee on issued Letters of
Credit in the amounts agreed upon by letter agreement between Borrowers and
Issuing Lender.
2.9 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,
34
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.
2.10 MANNER AND TREATMENT OF PAYMENTS AMONG LENDERS, BORROWERS
AND ADMINISTRATIVE AGENT.
(a) Unless otherwise provided herein, all payments by
Borrowers 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. Borrowers shall make all such payments without set-off, counterclaim or
other deduction. 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 Borrowers, 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 10.6. 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 Borrowers 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 Borrowers or any Lender have notified
Administrative Agent prior to the date 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 Borrowers 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:
(i) if Borrowers 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 Borrowers, and
Borrowers
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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 Borrowers 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 Borrowers, 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 it Commitments or to prejudice any rights which
Administrative Agent or Borrowers 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 EXTENSION OF MATURITY DATE. At the request of Borrowers and
with the written consent of all of Lenders (which may be given or withheld in
the sole and absolute discretion of each Lender) pursuant to this Section the
Maturity Date may be extended for one-year periods, provided no Default or Event
of Default has occurred and is continuing at the time of such request. Not
earlier than three months prior to each anniversary of the Closing Date, nor
later than any anniversary of the Closing Date, Borrowers may request by
Requisite Notice made to Administrative Agent (who shall promptly notify
Lenders) a one year extension of the Maturity Date. Such request shall include a
certificate signed by a Responsible Officer stating that (a) the representations
and warranties contained in Section 5 are true and correct on and as of the date
of such certificate and (b) no Default or Event of Default has occurred and is
continuing. Each Lender shall, within 15 Business Days of Administrative Agent
delivering such notice to such Lender, notify in writing Administrative Agent
whether it consents to or declines such request. Administrative Agent shall,
after receiving the notifications from all of Lenders or the expiration of such
period, whichever is earlier, notify Borrowers and Lenders of the results
thereof. If all of Lenders have consented in writing, then the Maturity Date
shall be extended for one year.
2.13 AUTOMATIC DEDUCTION. On each date when the payment of any
principal, interest or fees are due hereunder or under any Note, Borrowers agree
to maintain on deposit in an ordinary checking account maintained by Borrowers
with Administrative Agent (as such account shall be designated by Borrowers in a
written notice to Administrative Agent from time to time, the "BORROWERS
ACCOUNT") an amount sufficient to pay such principal, interest or fees in full.
Borrowers hereby authorize Administrative Agent (i) to deduct automatically all
interest or fees when due hereunder or under the Notes from the Borrowers
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 Borrowers maintained with
Administrative Agent. Administrative Agent agrees to provide timely notice to
Borrowers of any automatic deduction made pursuant to this Section 2.13.
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2.14 INCREASE IN COMMITMENTS.
(a) Provided there exists no Default or Event of Default,
upon notice to Administrative Agent (which shall promptly notify the Lenders),
Borrowers may, from time to time, request an increase in the Aggregate
Commitments up to an aggregate of $400,000,000. At the time of sending such
notice, Borrowers (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). 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
requested increase. Any Lender not responding within such time period shall be
deemed to have declined to increase its Commitment. Administrative Agent shall
notify Borrowers and each Lender of the Lenders' responses to each request made
hereunder. To achieve the full amount of a requested increase, Borrowers may
also invite additional Persons who would qualify as Eligible Assignees to become
Lenders pursuant to a joinder agreement in form and substance satisfactory to
Administrative Agent and its counsel.
(b) If the Aggregate Commitments are increased in
accordance with this Section, Administrative Agent and Borrowers shall determine
the effective date (the "INCREASE EFFECTIVE DATE") and the final allocation of
such increase. Administrative Agent shall promptly notify Borrowers and the
Lenders of the final allocation of such increase and the Increase Effective
Date. As a condition precedent to such increase, Borrowers shall deliver to
Administrative Agent a certificate of each Borrower Party dated as of the
Increase Effective Date (with sufficient copies for each Lender) signed by a
Responsible Officer of such Borrower Party (i) certifying and attaching the
resolutions adopted by such Borrower Party approving or consenting to such
increase, and, (ii) in the case of Borrowers, including a Compliance Certificate
demonstrating pro forma compliance with Sections 7.11, 7.12 and 7.13 after
giving effect to such increase and (iii) certifying that, before and after
giving effect to such increase, the representations and warranties contained in
Section 5 are true and correct on and as of the Increase Effective Date and no
Default or Event of Default exists. Borrowers shall deliver new or amended
Committed Loan Notes reflecting the increased Commitment of any Lender holding
or requesting a Note. Administrative Agent shall distribute an amended Schedule
2.1 (which shall be deemed incorporated into this Agreement), to reflect any
changes therein resulting from such increase. Borrowers 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.
(c) This Section shall supersede any provisions in Section
10.2 to the contrary.
Section 3
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1 TAXES. Each payment of any amount payable by Borrowers or any
other Borrower Party under this Agreement or any other Loan Document shall be
made free and clear
37
of, and without reduction by reason of, any Applicable Taxes. To the extent that
Borrowers are obligated by applicable Laws to make any deduction or withholding
on account of Applicable Taxes from any amount payable to any Lender or the
Issuing Lender under this Agreement, Borrowers 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) 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 Borrowers of any amounts pursuant to this
section, Borrowers 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.
3.2 INCREASED COSTS. If any Lender or the Issuing Lender
reasonably determines that any Laws 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 Borrowers 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 Laws 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 request, guideline or
directive regarding capital adequacy (whether or not 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), Borrowers 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 Laws have 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 Eurodollar Rate Loans, 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 Lender to Borrowers through
Administrative Agent, any obligation of that Lender to make Eurodollar Rate
Loans shall be suspended until Lender notifies Administrative Agent and
Borrowers that the circumstances giving rise to such determination no
38
longer exist. Upon receipt of such notice, Borrowers shall, upon demand from
such Lender (with a copy to Administrative Agent), prepay or Convert all
Eurodollar Rate Loans of that Lender, either on the last day of the Interest
Period thereof, if Lender may lawfully continue to maintain such Eurodollar Rate
Loans to such day, or immediately, if Lender may not lawfully continue to
maintain such Eurodollar Rate Loan. 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 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 (other than the Base 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
Borrowers and each Lender. Thereafter, the obligation of Lenders to make or
maintain Loans based upon such affected interest rate shall be suspended until
Administrative Agent revokes such notice. Upon receipt of such notice, Borrowers
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 in 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 Borrowers (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 Borrowers shall, upon demand made by any
Lender (with a copy to Administrative Agent), reimburse each Lender and hold
each Lender harmless from any loss or expense which 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 Borrowers 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.
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(c) All of Borrowers' obligations under this Section 3
shall survive termination of the Commitments and payment in full of all
Outstanding Obligations.
Section 4
CONDITIONS
4.1 INITIAL LOANS, ETC. The obligation of each Lender to make the
initial Loan to be made by it, or the obligation of the Issuing Lender to issue
the initial Letter of Credit (as applicable), is subject to the following
conditions precedent, each of which shall be satisfied prior to the making of
the initial Loans (unless all of Lenders, in their sole and absolute discretion,
shall agree otherwise):
(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 each Borrower (except in the case
of the Master Subsidiary Guaranty under subsection (iii)), each dated as of the
Closing 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 Lender, 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,
sufficient in number for distribution to Lenders and
Borrowers;
(ii) Committed Loan Notes executed by Borrowers in
favor of each Lender requesting a Committed Loan Note,
each in a principal amount equal to that Lender's Pro Rata
Share;
(iii) the Master Subsidiary Guaranty;
(iv) with respect to Borrowers and each Material
Domestic Subsidiary, such documentation as may be required
to establish the due organization, valid existence and
good standing of Borrowers and each such Material Domestic
Subsidiary, its qualification to engage in business in
each jurisdiction 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;
40
(v) the Opinion of Counsel;
(vi) written evidence that the Existing Credit
Facility has been or will be concurrently terminated and
that any Liens securing such facility have been or will be
concurrently released;
(vii) a certificate signed by a Responsible Officer
certifying that the conditions specified in Sections
4.1(f) and 4.1(g) have been satisfied; and
(viii) such other assurances, certificates,
documents, consents or opinions as Lenders or
Administrative Agent reasonably may require.
(b) The structuring and syndicating fee shall have been
paid.
(c) The administrative fee payable on the Closing Date
shall have been paid.
(d) The upfront fees payable on the Closing Date shall
have been paid.
(e) Attorney Costs of Bank of America to the extent
invoiced prior to or on the Closing 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 Borrowers and Bank of America).
(f) The representations and warranties of Borrowers
contained in Section 5 shall be true and correct.
(g) Borrowers and any 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.
4.2 ANY EXTENSION OF CREDIT. The obligation of each Lender to
make any Extension of Credit is subject to the following conditions precedent:
(a) the representations and warranties of Borrowers
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
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(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.
Section 5
REPRESENTATIONS AND WARRANTIES
Borrowers, jointly and severally, represent and warrant to
Administrative Agent and Lenders that:
5.1 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS.
Each Borrower and each of its respective Subsidiaries is a corporation duly
formed, validly existing and in good standing under the laws of the jurisdiction
of its incorporation. Each Borrower and each of its respective 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. Each Borrower and each of its
respective 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. All
outstanding shares of capital stock of each Borrower and each of its respective
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. Each Borrower and each of its
respective 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 Borrowers
and each of their respective 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; and
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(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;
5.3 NO GOVERNMENTAL APPROVALS REQUIRED. No authorization,
consent, approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Authority is or will be required to
authorize or permit under applicable Laws the execution, delivery and
performance by Borrowers and their respective Subsidiaries of the Loan Documents
to which it is a party.
5.4 BINDING OBLIGATIONS. Each of the Loan Documents to which
Borrowers 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 Borrowers or any Subsidiary thereof
of less than the $5,000,000, (c) matters of an administrative nature not
involving a claim or charge against Borrowers or any of their respective
Subsidiaries and (d) matters set forth in Schedule 5.5, there are no actions,
suits, proceedings or investigations pending as to which Borrowers or any of
their respective Subsidiaries have been served or have received notice or, to
the best knowledge of Borrowers, threatened against or affecting Borrowers or
any of their respective 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 Borrowers, nothing has occurred which would
prevent, or cause the loss of, such qualification. Borrowers and each ERISA
Affiliate has made all required contributions to any Pension Plan subject to
Section 412 of the Code, and no application for a funding waiver or an extension
of any amortization period pursuant to Section 412 of the Code has been made
with respect to any Pension Plan.
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(b) There are no pending or, to the best knowledge of
Borrowers, 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.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither Borrowers 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 Borrowers 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 Borrowers nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 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 RSA and its Subsidiaries and RSA 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. Borrowers and their respective
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 Borrowers and their 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. Borrowers and their respective
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 Borrowers, 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. Borrowers and their respective 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 Borrowers or any of their respective 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 taxes so long as no material item or portion of Property of Borrowers
or any of their respective Subsidiaries is in jeopardy of being seized, levied
upon or forfeited.
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5.12 FINANCIAL STATEMENTS.
(a) The audited consolidated balance sheet dated December
31, 2000, the quarterly consolidated balance sheets dated March 31, 2001, and
June 30, 2001, of RSA 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 RSA 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 RSA
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 [INTENTIONALLY DELETED].
5.14 ENVIRONMENTAL COMPLIANCE. Each 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 each 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.
5.15 PUBLIC UTILITY HOLDING COMPANY ACT; INVESTMENT COMPANY ACT.
Neither Borrowers nor any of their respective Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
Neither Borrowers nor any of their respective Subsidiaries is or is required to
be registered as an "investment company" under the Investment Company Act of
1940.
5.16 SUBSIDIARIES.
(a) Schedule 5.16 hereto correctly sets forth the names,
form of legal entity, number of shares of capital stock issued and outstanding,
number of shares owned by Borrowers or any Subsidiary of Borrowers (specifying
such owner) and jurisdictions of organization of all Subsidiaries of Borrowers
(other than Borrowers). Unless otherwise indicated in Schedule 5.16, 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
Borrowers, 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, Borrowers may update Schedule 5.16 by
delivering a
45
revised version to Administrative Agent, whereupon the Credit Agreement shall be
deemed to be amended as set forth in such revised Schedule 5.16.
(b) Each of Borrowers' Subsidiaries is a corporation duly
formed, validly existing and in good standing under the Laws of its jurisdiction
of organization, is duly qualified to do business as a foreign organization and
is in good standing as such in each jurisdiction in which the conduct of its
business or the ownership or leasing of its Properties makes such qualification
necessary (except where the failure to be so duly qualified and in good standing
does not constitute a Material Adverse Effect), and has all requisite power and
authority to conduct its business and to own and lease its Properties.
(c) Each of Borrowers' Subsidiaries is in compliance with
all Laws and other requirements applicable to its business and has obtained all
authorizations, consents, approvals, orders, licenses, and permits from, and
each such Subsidiary 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 to be in such compliance, obtain such authorizations,
consents, approvals, orders, licenses, and permits, accomplish such filings,
registrations, and qualifications, or obtain such exemptions, does not
constitute a Material Adverse Effect.
5.17 INSURANCE. The properties of Borrowers and their respective
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of Borrowers, 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 Borrowers or such Subsidiary operates.
5.18 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, or any portion of the Commitments remains in
force, Borrowers shall, and shall cause each of their respective 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
RSA and its Subsidiaries as at the end of such Fiscal Year and the consolidated
statements of operations, Shareholders' Equity and cash
46
flows, in each case of RSA and its Subsidiaries for such Fiscal Year and (ii)
consolidating (in accordance with past consolidating practices of RSA) 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 RSA and
reasonably satisfactory to the Requisite Lenders, which report shall be prepared
in accordance with generally accepted auditing standards as at such date, and
shall not be subject to any qualifications or exceptions as to the scope of the
audit nor to any other qualification or exception determined by the Requisite
Lenders in their good faith business judgment to be adverse to the interests of
Lenders. Such accountants' report shall be accompanied by a certificate stating
that they have read this Agreement and, in making the examination pursuant to
generally accepted auditing standards necessary for the certification of such
financial statements and such report, such accountants have obtained no
knowledge of any Default;
(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 RSA 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.
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 each Borrower;
(b) Promptly after 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 either Borrower by independent accountants in
connection with the accounts or books of RSA 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 stockholders of RSA, and copies of all annual, regular, periodic and
special reports and registration statements which RSA 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 each
Borrower or any of its Subsidiaries with any Governmental Authority;
47
(e) As soon as practicable, notice of the occurrence of
any (i) ERISA Event, (ii) a Reportable Event, (iii) "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, (iv) the
adoption of, or the commencement of contributions to, any Pension Plan subject
to Section 412 of the Code by Borrowers or any ERISA Affiliate, or (v) the
adoption of any amendment to a Plan subject to Section 412 of the Code, 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 Borrowers or any of their
respective 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 Borrowers or any of their 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 Borrowers or any of their ERISA Affiliates with the
Internal Revenue Service with respect to each Pension Plan; and (c) all notices
received by Borrowers or any of their 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
Borrowers are taking or propose to take with respect thereto;
(h) As soon as practicable, notice of (i) the commencement
of a legal proceeding with respect to a claim against Borrowers or any of their
respective Subsidiaries that is $5,000,000 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 Borrowers or any
of their respective Subsidiaries, (iii) commencement of a legal proceeding with
respect to a claim against Borrowers or any of their respective Subsidiaries
under a contract that is not a credit agreement or material lease in excess of
$5,000,000 or which otherwise may reasonably be expected to result in a Material
Adverse Effect, or (iv) any labor union notifying Borrowers of its intent to
strike Borrowers or any of their respective Subsidiaries on a date certain and
such strike would involve more than 250 employees of Borrowers and their
respective Subsidiaries, a written notice describing the pertinent facts
relating thereto and what action Borrowers or their respective Subsidiaries are
taking or propose to take with respect thereto; or (v) any material development
in any litigation or proceeding (as described in clauses (i) and (iii) above)
affecting Borrowers or their respective Subsidiaries;
(i) Notice of any material change in accounting policies
or financial reporting practices by RSA or any of its Subsidiaries (other than
changes required by GAAP or by regulations promulgated by the Securities and
Exchange Commission);
48
(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.
6.3 GUARANTIES OF MATERIAL DOMESTIC SUBSIDIARIES. Cause any of
their respective Material Domestic Subsidiaries, within 45 days after becoming a
Material Domestic Subsidiary, to become a Guarantor under the Master Subsidiary
Guaranty and to deliver to Administrative Agent (i) a Certificate Regarding
Additional Guarantors 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
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 their
respective 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 their respective business, except where the
failure to so preserve and maintain the existence of any of each 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 their respective 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 their respective 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 each Borrower
and its respective 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 each Borrower and its
respective Subsidiaries operate.
6.7 PAYMENT OF TAXES AND OTHER POTENTIAL LIENS. Pay and discharge
promptly all taxes, assessments and governmental charges or levies imposed upon
any of them, upon their respective Property or any part thereof and upon their
respective income or profits or any part thereof, except that each Borrower and
its respective Subsidiaries shall not be required to pay or cause to be paid (a)
any tax, assessment, charge or levy that is not yet past due, or is being
contested in good faith by appropriate proceedings so long as the relevant
entity has established and maintains adequate reserves for the payment of the
same or (b) any immaterial tax so long as no material item or portion of
Property of each Borrower or any of its respective Subsidiaries is in jeopardy
of being seized, levied upon or forfeited.
49
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 each
Borrower and its respective 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 with all Environmental Laws.
6.10 INSPECTION RIGHTS. Subject to the confidentiality provisions
of Section 10.13, 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 each Borrower or any of its respective 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,
each Borrower and its respective Subsidiaries and to discuss the affairs,
finances and accounts of each Borrower and its respective 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 each 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
each Borrower or any of its respective 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 any one or more of them 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 Loans for repayment in
full of Borrowers' obligations under the Existing Credit Facility and for
working capital, capital expenditures, Acquisitions, Investments, stock
repurchases, and general corporate purposes of each Borrower and its respective
Subsidiaries.
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6.15 RSAC MANAGEMENT. Cause RSAC Management to remain at all
times a wholly-owned Subsidiary of RSA.
Section 7
NEGATIVE COVENANTS
So long as any Loan remains unpaid, or any other Obligation
remains unpaid or unperformed, or any portion of the Commitments remains in
force, Borrowers shall not, and shall not permit any of their respective
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 Closing
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 Borrowers or any of
their respective 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 Borrowers or any of their respective Subsidiaries in
the ordinary course of its business which consists of a restriction on the
assignability, transfer or hypothecation of such agreement or instrument; and
(f) Liens and Negative Pledges not described above
securing purchase money obligations, capital leases and Synthetic Leases
incurred after the Closing Date in an aggregate amount not exceeding $10,000,000
at any time.
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 Borrowers or any of their
respective Subsidiaries in the form of cash equivalents or short-term marketable
securities;
(c) Advances to officers, directors and employees of
Borrowers and their respective Subsidiaries in the aggregate amount not to
exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation
and analogous ordinary business purposes;
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(d) Investments in any Subsidiary of RSA;
(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 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 Closing 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 Borrowers or any of their
respective Subsidiaries;
(d) Permitted Swap Obligations;
(e) Obligations (contingent or otherwise) of Borrowers or
any Subsidiary thereof 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 with liabilities, commitments, investments, assets or property held
or reasonably anticipated by such Person, or changes in the value of securities
issued by such Person and not for purposes of speculation or taking in a "market
view;" 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; and
(f) Unsecured promissory notes of Borrowers (which may be
guaranteed by Subsidiaries of RSA which are party to the Master Subsidiary
Guaranty) issued after the Closing Date having in the aggregate a principal
amount of not more than $150,000,000 at any time; 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; and
(g) Indebtedness in addition to that described in Section
7.3(a)-(f) above incurred for business purposes, including without limitation
capital leases and Synthetic Leases,
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provided that the aggregate principal amount of such Indebtedness outstanding at
any one time does not exceed $10,000,0000.
7.4 PREPAYMENT OF INDEBTEDNESS. Pay any principal or interest on
any Indebtedness of Borrowers or any of their respective 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 Borrowers or any
of their respective 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 Borrowers and
their Subsidiaries, in any Fiscal Year, and the amount of Net Cash Proceeds from
sales and leasebacks consummated in such Fiscal Year, does not exceed 10% of
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
Borrowers and their Subsidiaries from and after the Closing Date exceed 25% of
Consolidated Tangible Net Worth as of the most recently ended Fiscal Quarter.
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 Borrowers or any of
their respective Subsidiaries have sold or transferred or are to sell or
transfer to such Person or such Person's Affiliate, or (ii) which Borrowers 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 Borrowers
or any such Subsidiary thereof to such Person or such Person's Affiliate in
connection with such lease; provided that Borrowers may enter into any sale and
leaseback of real property, improvements thereon and equipment of Borrowers
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 10% 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 RSA
into RSA or a Subsidiary thereof (with RSA or its Subsidiary as the surviving
entity) or of RSA or any Subsidiary of RSA with each other, provided that RSA
and its Subsidiaries have executed such
53
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 RSA or any of its
Subsidiaries with any other Person, provided that (i) either (A) RSA or its
Subsidiary 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, by an appropriate instrument, the Obligations of Borrowers or
their respective 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 HOSTILE ACQUISITIONS. Directly or indirectly use the proceeds
of any Committed Loan in connection with any Hostile Acquisition.
7.9 PERMITTED ACQUISITIONS. Make any Acquisition without the
prior written consent of Requisite Lenders unless such Acquisition is a
Permitted Acquisition.
7.10 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)
incur any material "accumulated funding deficiency" (as defined in Section 302
of ERISA); or (iv) terminate in any manner, which, with respect to each event
listed above, 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.
7.11 NET WORTH. Permit Consolidated Net Worth, as of the last day
of any Fiscal Quarter ending after the Closing Date, to be less than the sum of
(a) $500,000,000 plus (b) an amount equal to 50% of the Net Income earned in
each Fiscal Quarter ending after September 30, 2001 (with no deduction for a net
loss in any such Fiscal Quarter) plus (c) an amount equal to 100% of the
aggregate increases in Shareholders' Equity of RSA and its Subsidiaries after
the Closing Date by reason of the issuance and sale of capital stock of RSA or
any Subsidiary thereof (including upon any conversion of debt securities of RSA
or any Subsidiary thereof into such capital stock).
7.12 INTEREST COVERAGE RATIO. Permit the Interest Coverage Ratio,
as of the last day of any Fiscal Quarter ending after the Closing Date, to be
less than 3.00 to 1.00.
7.13 LEVERAGE RATIO. Permit the Leverage Ratio at any time to be
greater than 3.25 to 1.00.
7.14 CHANGE IN NATURE OF BUSINESS. Make any material change in
the nature of the business of Borrowers and their respective Subsidiaries, taken
as a whole.
7.15 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of each Borrower other than (a) salary, bonus,
employee stock option and other compensation arrangements with directors or
officers in the ordinary course of business, (b)
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transactions that are fully disclosed to the board of directors of each Borrower
and expressly authorized by a resolution of the board of directors of each
Borrower which is approved by a majority of the directors not having an interest
in the transaction, (c) transactions between or among each Borrower and its
Subsidiaries, and (d) transactions on overall terms at least as favorable to
each Borrower or its Subsidiaries as would be the case in an arm's-length
transaction between unrelated parties of equal bargaining power.
7.16 DISTRIBUTIONS. Make any Distribution, whether from capital,
income or otherwise, and whether in Cash or other Property, except:
(a) Distributions by Subsidiaries of RSA to Borrowers or
another Subsidiary of RSA;
(b) dividends payable solely in Common Stock or rights to
purchase Common Stock; and
(c) cash dividends payable to RSA stockholders and
purchases, redemptions or other acquisitions of shares of RSA capital stock or
warrants, rights or options to acquire any such shares, for cash not exceeding
an amount equal to (i) in any Fiscal Year, 25% of Net Income earned in the
immediately preceding Fiscal Year, but no more than $3,000,000 in any Fiscal
Quarter, or (ii) in any Fiscal Quarter, so long as (x) EBITDA of RSA and its
Subsidiaries on a consolidated basis for the immediately preceding Fiscal
Quarter was at least $30,000,000 and (y) the Leverage Ratio as of the last day
of the immediately preceding Fiscal Quarter was less than 3.00 to 1.00,
$3,000,000; provided that if a dividend permitted by this Section 7.16(c) to be
paid in any Fiscal Quarter is declared but not paid in such Fiscal Quarter, such
dividend may be paid in the immediately following Fiscal Quarter without
reducing the amount otherwise permitted by this Section 7.16(c) to be paid in
such following Fiscal Quarter; provided further that immediately after giving
effect to any such proposed action, no Default or Event of Default would exist.
7.17 SUBSIDIARIES. Permit at any time the amount of Tangible
Assets owned by any Subsidiaries that are not party to the Master Subsidiary
Guaranty to exceed $30,000,000.
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) Borrowers fail to pay any principal on any of the
Loans, or any portion thereof, on the date when due; or
(b) Borrowers fail to pay any interest on any of the
Committed Loans or Swing Line Loans, or any fees due hereunder, or any portion
thereof, within five Business Days after the date when due;
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(c) Borrowers fail to comply with any of the covenants
contained in Section 7; or
(d) Borrowers, any of their respective 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 Borrowers or any of
their respective Subsidiaries made in any Loan Document, or in any certificate
or other writing delivered by Borrowers 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) Borrowers or any of their respective Subsidiaries (i)
fail to make any payment in respect of any Indebtedness having an aggregate
principal amount of more than $5,000,000 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) fail 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
(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, 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 either Borrower or any of
their respective Subsidiaries is entered for the payment of money in excess of
$5,000,000 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) Either Borrower or any of their respective
Subsidiaries institutes or consents to the institution of any proceeding under a
Debtor Relief Law relating to it or to all or
56
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 $5,000,000;
(ii) the aggregate amount of Unfunded Pension Liability among all Pension Plans
at any time exceeds $5,000,000; or (iii) Borrowers 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
$5,000,000; or
(k) There occurs any Change of Control.
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 Borrowers;
(c) require that Borrowers 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 the Lenders all
rights and remedies available to it and the 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 Borrowers 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.
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Section 9
ADMINISTRATIVE AGENT
9.1 APPOINTMENT AND AUTHORIZATION; "ADMINISTRATIVE AGENT".
(a) Each Lender hereby irrevocably (subject to Section
9.9) appoints, designates and authorizes Administrative Agent to take such
action on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, Administrative Agent shall not have any duties or
responsibilities except those expressly set forth herein, nor shall
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against Administrative Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" in this
Agreement with reference to Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(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 DELEGATION OF DUTIES. Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Administrative Agent shall not
be responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
9.3 LIABILITY OF ADMINISTRATIVE AGENT. None of the Administrative
Agent-Related Persons shall (i) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (ii) be responsible in any manner to any
of Lenders for any recital, statement, representation or warranty made by
Borrowers or any Subsidiary or Affiliate of Borrowers, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report,
58
statement or other document referred to or provided for in, or received by
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
Borrowers or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Administrative Agent-Related Person shall be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of each Borrower or any of such Borrowers' Subsidiaries or Affiliates.
9.4 RELIANCE BY ADMINISTRATIVE AGENT.
(a) Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to Borrowers), independent accountants and other experts selected by
Administrative Agent. Administrative Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Requisite
Lenders as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Requisite Lenders and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all of Lenders. Where this Agreement expressly permits or prohibits
an action unless the Requisite Lenders otherwise determine, Administrative Agent
shall, and in all other instances Administrative Agent may, but shall not be
required to, initiate any solicitation for the consent or a vote of Lenders.
(b) For purposes of determining compliance with the
conditions specified in Section 4.1, each Lender that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by Administrative
Agent to such Lender for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to Lender.
9.5 NOTICE OF DEFAULT. Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to Administrative Agent for the account of Lenders,
unless Administrative Agent shall have received written notice from a Lender or
Borrowers referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". Administrative
Agent will notify Lenders of its receipt of any such notice. Administrative
Agent shall take such action with respect to such Default or Event of Default as
may be requested by the Requisite Lenders in accordance with Section 8;
provided, however, that unless and until Administrative Agent has received any
such
59
request, Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interest of Lenders,
except to the extent that this Agreement expressly requires that such action be
taken, or not taken, only with the consent or upon the authorization of the
Requisite Lenders, or all of the Lenders, as the case may be.
9.6 CREDIT DECISION. Each Lender acknowledges that none of the
Administrative Agent-Related Persons has made any representation or warranty to
it, and that no act by Administrative Agent hereinafter taken, including any
review of the affairs of Borrowers and their respective Subsidiaries, shall be
deemed to constitute any representation or warranty by any Administrative
Agent-Related Person to any Lender. Each Lender represents to Administrative
Agent that it has, independently and without reliance upon any Administrative
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of Borrowers and their respective Subsidiaries, and all
applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to Borrowers hereunder. Each Lender also represents that it will,
independently and without reliance upon any Administrative Agent-Related Person
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of Borrowers. Except for notices, reports and other documents
expressly herein required to be furnished to Lenders by Administrative Agent,
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of
Borrowers which may come into the possession of any of Administrative
Agent-Related Persons.
9.7 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, Lenders shall indemnify upon
demand the Administrative Agent-Related Persons (to the extent not reimbursed by
or on behalf of Borrowers and without limiting the obligation of Borrowers to do
so), pro rata, from and against any and all Indemnified Liabilities; provided,
however, that no Lender shall be liable for the payment to the Administrative
Agent-Related Persons of any portion of such Indemnified Liabilities resulting
solely from such Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender shall reimburse Administrative Agent
upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by Administrative Agent in connection with
the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Loan Document, or any document contemplated by or referred to herein,
to the extent that Administrative Agent is not reimbursed for such expenses by
or on behalf of Borrowers. The undertaking in this Section shall survive the
payment of all Obligations hereunder and the resignation or replacement of
Administrative Agent.
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9.8 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. Bank of America
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other business
with Borrowers and their respective Subsidiaries and Affiliates as though Bank
of America were not Administrative Agent or the Issuing Lender hereunder and
without notice to or consent of Lenders. Lenders acknowledge that, pursuant to
such activities, Bank of America or its Affiliates may receive information
regarding Borrowers or their Affiliates (including information that may be
subject to confidentiality obligations in favor of Borrowers or such Subsidiary)
and acknowledge that Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Bank of America
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not Administrative Agent or the
Issuing Lender.
9.9 SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may, and
at the request of the Requisite Lenders shall, resign as Administrative Agent
upon 30 days' notice to Lenders. If Administrative Agent resigns under this
Agreement, the Requisite Lenders shall appoint from among Lenders a successor
administrative agent for Lenders which successor administrative agent shall be
approved by Borrowers. If no successor administrative agent is appointed prior
to the effective date of the resignation of Administrative Agent, Administrative
Agent may appoint, after consulting with Lenders and Borrowers, a successor
administrative agent from among Lenders. Upon the acceptance of its appointment
as successor administrative agent hereunder, such successor administrative agent
shall succeed to all the rights, powers and duties of the retiring
Administrative Agent and the term "Administrative Agent" shall mean such
successor administrative agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 9 and Sections 10.3 and
10.10 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and Lenders shall perform all of the duties of
Administrative Agent hereunder until such time, if any, as the Requisite Lenders
appoint a successor agent as provided for above. Notwithstanding the foregoing,
however, Bank of America may not be removed as Administrative Agent at the
request of the Requisite Lenders unless Bank of America shall also
simultaneously be replaced as "Issuing Lender" hereunder pursuant to
documentation in form and substance reasonably satisfactory to Bank of America.
9.10 OTHER AGENTS. Any Lender identified on the facing page or
signature pages of this Agreement as a "syndication agent" shall not have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
foregoing, any Lender so identified shall not have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any Lender so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
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Section 10
MISCELLANEOUS
10.1 NO WAIVER; CUMULATIVE REMEDIES. No failure by any 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 or therein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.2 AMENDMENTS; CONSENTS. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent to any
departure by Borrowers or any other Borrower Party therefrom, shall be effective
unless in writing signed by the Requisite Lenders and Borrowers 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, unless in writing and
signed by each of Lenders directly affected thereby and by Borrowers, and
acknowledged by Administrative Agent, do any of the following:
(a) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 8.2), except for any
such extension or increase made in accordance with Section 2.12 or Section 2.14,
respectively;
(b) 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;
(c) reduce the principal of, or the rate of interest
specified herein on, any Loan or Letter of Credit borrowing, or any fees or
other amounts payable hereunder or under any other Loan Document, or change the
manner of computation of any financial covenant used in determining the
Applicable Margin that would result in a reduction of any interest rate on any
Loan; provided, however, that only the consent of the Requisite Lenders shall be
necessary to amend the definition of "Default Rate" or to waive any obligation
of Borrowers to pay interest at the Default Rate;
(d) change the percentage of the Aggregate Commitments or
of the aggregate unpaid principal amount of the Loans and Letter of Credit Usage
which is required for Lenders or any of them to take any action hereunder;
(e) change the Pro Rata Share or Voting Percentage of any
Lender (except for any change resulting from Section 2.14 or Section 10.7); or
(f) amend this Section, or any provision herein providing
for consent or other action by all Lenders;
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and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Lender in addition to the Requisite Lenders or
each directly-affected Lender, as the case may be, affect the rights or duties
of the Issuing Lender under this Agreement or any Letter of Credit Application
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 the Requisite Lenders or each directly-affected
Lender, as the case may be, affect the rights or duties of the Swing Line Lender
under this Agreement; and (iii) no amendment, waiver or consent shall, unless in
writing and signed by Administrative Agent in addition to the Requisite Lenders
or each directly-affected Lender, as the case may be, affect the rights or
duties of Administrative Agent under this Agreement or any other Loan Document.
Notwithstanding anything to the contrary herein, any Lender that has a Voting
Percentage of zero shall not have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Pro Rata Share of such
Lender may not be increased (except for any such increase resulting from Section
2.12 or Section 2.14) without the consent of such Lender.
10.3 ATTORNEY COSTS, EXPENSES AND TAXES. Borrowers agree (a) to
pay or reimburse Administrative Agent for all costs and expenses incurred in
connection with the development, preparation, negotiation and execution of this
Agreement and the other Loan Documents and any amendment, waiver, consent or
other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (b) to pay or reimburse
Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any "workout" or restructuring in
respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
out-of-pocket expenses incurred by Administrative Agent and the cost of
independent public accountants and other outside experts retained by
Administrative Agent or any Lender. The agreements in this Section shall survive
the termination of the Aggregate Commitments and repayment of all other
Obligations.
10.4 NATURE OF LENDERS' OBLIGATIONS. The obligations of Lenders
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by Administrative
Agent or Lenders or any of them pursuant hereto or thereto may, or may be deemed
to, make Lenders a partnership, an association, a joint venture or other entity,
either among themselves or with Borrowers or any Affiliate of Borrowers. Each
Lender's obligation to make any Loan pursuant hereto is several and not joint or
joint and several, and in the case of the initial Loan only is conditioned upon
the performance by all other Lenders of their obligations to make initial Loans.
A default by any Lender will not increase the Pro Rata Share attributable to any
other Lender. Any Lender not in default may, if it desires, assume in such
proportion as the nondefaulting Lenders agree the obligations of any Lender in
default, but is not obligated to do so. After the Closing Date of this
Agreement, if any Lender merges or consolidates with another Lender, the
respective
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Commitments of such Lenders shall be aggregated and become the obligation of
surviving Lender.
10.5 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 or Event of 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
shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.
10.6 NOTICES.
(a) General. Unless otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission) and mailed, faxed or delivered, to the
address, facsimile number or (subject to subsection (c) below) electronic mail
address specified for notices on Schedule 10.6; or, in the case of Borrowers,
Administrative Agent, the Issuing Lender or the Swing Line Lender, to such other
address as shall be designated by such party in a notice to the other parties,
and in the case of any other party, to such other address as shall be designated
by such party in a notice to Borrowers, Administrative Agent, the Issuing Lender
and the Swing Line Lender. All such notices and other communications shall be
deemed to be given or made upon the earlier to occur of (i) actual receipt by
the intended recipient and (ii) (A) if delivered by mail, four Business Days
after deposit in the mails, postage prepaid; (B) if delivered by facsimile, when
sent and receipt has been confirmed by telephone; and (C) if delivered by
electronic mail (which form of delivery is subject to the provisions of
subsection (c) below), when delivered; provided, however, that notices and other
communications to Administrative Agent, the Issuing Lender and the Swing Line
Lender pursuant to Section 2 or Section 9 shall not be effective until actually
received by such Person. Any notice or other communication permitted to be
given, made or confirmed by telephone hereunder shall be given, made or
confirmed by means of a telephone call to the intended recipient at the number
specified on Schedule 10.6, it being understood and agreed that a voicemail
message shall in no event be effective as a notice, communication or
confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures.
Loan Documents may be transmitted and/or signed by facsimile. The effectiveness
of any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on all
Borrower Parties, Administrative Agent and Lenders. Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
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(c) Limited Use of Electronic Mail. Electronic mail and
internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Administrative Agent and Lenders.
Administrative Agent and Lenders shall be entitled to rely and act upon any
notices purportedly given by or on behalf of Borrowers, which are 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. Borrowers shall indemnify each
Administrative Agent-Related Person and each Lender from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of Borrowers. All telephonic notices to
and other communications with Administrative Agent may be recorded by
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.7 BINDING EFFECT; ASSIGNMENT.
(a) The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that Borrowers may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by Borrowers
without such consent 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 Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) 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 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) subject to each such assignment,
determined as of the date the Assignment and Assumption (attached hereto as
Exhibit D) 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 $5,000,000 unless each of Administrative
Agent and, so long as no Event of Default has occurred and is continuing,
Borrowers otherwise consent (each such consent not to be unreasonably withheld
or delayed), (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, and
(iii) the parties to each assignment shall execute and deliver to Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee of $3,500.
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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, 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 with respect to facts
and circumstances occurring prior to the effective date of such assignment).
Upon request, Borrowers (at their 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) Administrative Agent, acting solely for this purpose
as an agent of Borrowers, 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"). The entries in
the Register shall be conclusive, and Borrowers, 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 Borrowers and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or
notice to, Borrowers or Administrative Agent, sell participations to any Person
(other than a natural person or Borrowers or any of Borrowers' 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) Borrowers, Administrative Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification that would (i) postpone any date upon
which any payment of money is scheduled to be paid to such Participant, (ii)
reduce the principal, interest, fees or other amounts payable to such
Participant, or (iii) release any Guarantor from the Master Subsidiary Guaranty.
Subject to subsection (e) of this Section, Borrowers agree that each
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Participant shall be entitled to the benefits of Sections 3.1 through 3.3 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.
(e) A Participant shall not be entitled to receive any
greater payment under Sections 3.1 through 3.3 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 Borrowers' 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 Borrowers are notified of the participation sold to such Participant and
such Participant agrees, for the benefit of Borrowers, to comply with Section
10.19 as though it were a Lender.
(f) 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 Notes, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Lender; 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) As used herein, the following terms have the following
meanings:
"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, Borrower (each such approval not to be unreasonably
withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include Borrowers or any
of Borrowers' Affiliates or Subsidiaries; 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 business.
"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.
(h) 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 Borrowers and Lenders, resign as Issuing Lender and/or (ii) upon five
Business Days' notice to Borrowers, terminate the Swing Line. In
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the event of any such resignation as Issuing Lender or termination of the Swing
Line, Borrowers shall be entitled to appoint from among Lenders a successor
Issuing Lender or Swing Line Lender hereunder; provided, however, that no
failure by Borrowers to appoint any such successor shall affect the resignation
of Bank of America as Issuing Lender or the termination of the Swing Line, as
the case may be. Bank of America shall retain all the rights and obligations 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 participations in unreimbursed amounts pursuant to
Sections 2.2 and 2.4). If Bank of America terminates the Swing Line, 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 termination, including the right to require Lenders to make Base Rate
Committed Loans or fund participations in outstanding Swing Line Loans pursuant
to Section 2.3.
(i) Notwithstanding anything to the contrary contained
herein, any Lender (a "GRANTING LENDER") may grant to a special purpose funding
vehicle (a "SPC"), identified as such in writing from time to time by the
Granting Lender to Administrative Agent and Borrowers, the option to provide to
Borrowers all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to Borrowers pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPC to make any Loan, (ii)
if an SPC elects not to exercise such option or otherwise fails to provide all
or any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof. The making of an Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the 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 indebtedness 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 proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 10.7, any SPC
may (i) with notice to, but without the prior written consent of, Borrowers and
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Lender or to any
financial institutions (consented to by Borrowers and Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC. This section may not be amended without the
written consent of the SPC.
10.8 SET-OFF. In addition to any rights and remedies of Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is
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authorized at any time and from time to time, without prior notice to Borrowers
or any other Borrower Party, any such notice being waived by Borrowers (on their
own behalf and on behalf of each Borrower Party) to the fullest extent permitted
by law, to set-off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held by, and other indebtedness at any
time owing by, such Lender to or for the credit or the account of the respective
Borrower Parties against any and all Obligations owing to such Lender, now or
hereafter existing, irrespective of whether or not Administrative Agent or such
Lender shall have made demand under this Agreement or any other Loan Document
and although such Obligations may be contingent or unmatured. Each Lender agrees
promptly to notify Borrowers and Administrative Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
10.9 SHARING OF PAYMENTS. Each Lender severally agrees that if
it, through the exercise of any right of set-off, banker's lien or counterclaim
against Borrowers, or otherwise, receives payment of the Obligations held by it
that is ratably more than any other Lender receives through any means in payment
of the Obligations held by that Lender, then, subject to applicable Laws: (a)
Lender exercising the right of set-off, banker's lien or counterclaim or
otherwise receiving such payment shall purchase, and shall be deemed to have
simultaneously purchased, from the other Lender a participation in the
Obligations held by the other Lender and shall pay to the other Lender a
purchase price in an amount so that the share of the Obligations held by each
Lender after the exercise of the right of set-off, banker's lien or counterclaim
or receipt of payment shall be in the same proportion that existed prior to the
exercise of the right of set-off, banker's lien or counterclaim or receipt of
payment; and (b) such other adjustments and purchases of participations shall be
made from time to time as shall be equitable to ensure that all of Lenders share
any payment obtained in respect of the Obligations ratably in accordance with
each Lender's share of the Obligations immediately prior to, and without taking
into account, the payment; provided that, if all or any portion of a
disproportionate payment obtained as a result of the exercise of the right of
set-off, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by Borrowers or any Person claiming through or succeeding
to the rights of Borrowers, the purchase of a participation shall be rescinded
and the purchase price thereof shall be restored to the extent of the recovery,
but without interest. Each Lender that purchases a participation in the
Obligations pursuant to this Section shall from and after the purchase have the
right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased. Borrowers expressly consent to
the foregoing arrangements and agree that any Lender holding a participation in
an Obligation so purchased may exercise any and all rights of set-off, banker's
lien or counterclaim with respect to the participation as fully as if Lender
were the original owner of the Obligation purchased.
10.10 INDEMNIFICATION BY BORROWERS. Whether or not the
transactions contemplated hereby are consummated, Borrowers shall indemnify and
hold harmless each Administrative Agent-Related Person, Arranger, each Lender
and their respective Affiliates, directors, officers, employees, counsel, agents
and attorneys-in-fact (collectively, the
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"INDEMNITEES") from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, expenses
and disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a)
the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Commitment, 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), or (c) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including any investigation
of, preparation for, or defense of any pending or threatened claim,
investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "INDEMNIFIED
LIABILITIES"); provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of any
Indemnitees. The agreements in this Section shall survive the resignation of
Administrative Agent, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other
Obligations. All amounts due under this Section 10.10 shall be payable within
ten Business Days after demand therefor.
10.11 NONLIABILITY OF LENDERS. Borrowers acknowledge and agree
that:
(a) Any inspections of any Property of Borrowers made by
or through Administrative Agent or Lenders are for purposes of administration of
the Loan only and Borrowers are not entitled to rely upon the same (whether or
not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to Administrative Agent or Lenders
pursuant to the Loan Documents, neither Administrative Agent nor Lenders shall
be deemed to have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not constitute
a warranty or representation to anyone with respect thereto by Administrative
Agent or Lenders;
(c) The relationship between Borrowers and Administrative
Agent and Lenders, and shall at all times remain, solely that of borrowers and
lenders; neither Administrative Agent nor Lenders shall under any circumstance
be construed to be partners or joint venturers of Borrowers or their Affiliates;
neither Administrative Agent nor Lenders shall under any circumstance be deemed
to be in a relationship of confidence or trust or a fiduciary relationship with
Borrowers or their Affiliates, or to owe any fiduciary duty to Borrowers or
their Affiliates; neither Administrative Agent nor Lenders undertake or assume
any responsibility or duty to Borrowers or their Affiliates to select, review,
inspect, supervise, pass judgment upon or
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inform Borrowers or their Affiliates of any matter in connection with its
Property or the operations of Borrowers or their Affiliates; Borrowers and their
Affiliates shall rely entirely upon their own judgment with respect to such
matters; and any review, inspection, supervision, exercise of judgment or supply
of information undertaken or assumed by Administrative Agent or Lenders in
connection with such matters is solely for the protection of Administrative
Agent and Lenders and neither Borrowers nor any other Person is entitled to rely
thereon; and
(d) Administrative Agent and Lenders shall not be
responsible or liable to any Person for any loss, damage, liability or claim of
any kind relating to injury or death to Persons or damage to Property caused by
the actions, inaction or negligence of Borrowers and/or their Affiliates and
Borrowers hereby indemnify and hold Administrative Agent and Lenders harmless
from any such loss, damage, liability or claim.
10.12 NO THIRD PARTIES BENEFITED. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrowers, Administrative Agent and Lenders in connection with the Loans, and is
made for the sole benefit of Borrowers, Administrative Agent and Lenders, and
Administrative Agent's and Lenders' successors and assigns. Except as provided
in Sections 10.7 and 10.10, no other Person shall have any rights of any nature
hereunder or by reason hereof.
10.13 CONFIDENTIALITY. Each of Administrative Agent and Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) to the extent requested
by any regulatory authority; (c) to the extent required by applicable Laws or
regulations or by any subpoena or similar legal process; (d) to any other party
to this Agreement; (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any Eligible Assignee of
or Participant in, or any prospective Eligible Assignee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of Borrowers; (g)
with the consent of Borrowers; (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to Administrative Agent or any Lender on a nonconfidential
basis from a source other than Borrowers; or (i) to the National Association of
Insurance Commissioners or any other similar organization or any nationally
recognized rating agency that requires access to information about a Lender's or
its Affiliates' investment portfolio in connection with ratings issued with
respect to such Lender or its Affiliates. In addition, Administrative Agent and
Lenders may disclose the existence of this Agreement and information about this
Agreement to market data collectors, similar service providers to the lending
industry, and service providers to Administrative Agent and Lenders in
connection with the administration and management of this Agreement, the other
Loan Documents, the Commitments, and the Extensions of Credit. For the purposes
of this Section, "INFORMATION" means all information
71
received from or made available by Borrowers relating to Borrowers or their
business, other than any such information that is available to Administrative
Agent or any Lender on a nonconfidential basis prior to disclosure by Borrowers;
provided that, in the case of information received from Borrowers after the date
hereof, such information is clearly identified in writing 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.
10.14 PAYMENTS SET ASIDE. To the extent that Borrowers make a
payment to Administrative Agent or any Lender, or Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off 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 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 set-off had not occurred, and (b)
each Lender severally agrees to pay to Administrative Agent upon demand its
applicable share 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.
10.15 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 Borrowers. 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.
10.16 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.17 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of Administrative Agent or Lenders in
any other Loan Document shall not
72
be deemed a conflict with this Agreement. Each Loan Document was drafted with
the joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
10.18 SEVERABILITY. Any provision of this Agreement and the other
Loan Documents to which Borrowers are a party that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions thereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. All obligations of Borrowers hereunder and under the
other Loan Documents shall be joint and several.
10.19 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 Borrowers pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Person by Borrowers
pursuant to this Agreement) or such other evidence satisfactory to Borrowers 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
Borrowers 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 Borrowers 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 Borrowers make
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.
73
(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.
10.20 FURTHER ASSURANCES. Borrowers and their respective
Subsidiaries shall, at their expense and without expense to Lenders or
Administrative Agent, do such further acts and execute and deliver such further
documents as any Lender or Administrative Agent from time to time reasonably
requires to assure and confirm the rights hereby created or intended to carry
out the intention or to facilitate the performance of the terms of any Loan
Document.
10.21 FAILURE TO CHARGE NOT SUBSEQUENT WAIVER. Any decision by
Administrative Agent or any Lender not to require payment of any interest
(including Default Interest), fee, cost or other amount payable under any Loan
Document, or to calculate any amount payable by a particular method, on any
occasion shall in no way limit or be deemed a waiver of Administrative Agent's
or such Lender's right to require full payment of any interest (including
Default Interest), fee, cost or other amount payable under any Loan Document, or
to calculate an amount payable by another method that is not inconsistent with
this Agreement, on any other or subsequent occasion.
10.22 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT
ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF CALIFORNIA OR OF THE UNITED STATES FOR THE CENTRAL DISTRICT OF SUCH STATE,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWERS, ADMINISTRATIVE AGENT
AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. BORROWERS, ADMINISTRATIVE AGENT AND
EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
BORROWERS, ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL
74
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
10.23 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
10.24 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents.
10.25 PURPORTED ORAL AMENDMENTS. BORROWERS EXPRESSLY ACKNOWLEDGE
THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE AMENDED OR
MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED, BY AN
INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 10.2. BORROWERS AGREE THAT THEY
WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL OR
WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF ADMINISTRATIVE AGENT OR ANY BANK
THAT DOES NOT COMPLY WITH SECTION 10.2 TO EFFECT AN AMENDMENT, MODIFICATION,
WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
10.26 HEADINGS. Section headings in this Agreement and the other
Loan Documents are included for convenience of reference only and are not part
of this Agreement or the other Loan Documents for any other purpose.
10.27 SURETYSHIP WAIVERS. In the event that either Borrower is
deemed to be a guarantor or a surety with respect to the Obligations under this
Agreement, then such Borrower shall be deemed to have agreed to the provisions
of Sections 7 and 8 of the Master Subsidiary Guaranty.
[remainder of page left intentionally blank]
75
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement
to be duly executed as of the date first above written.
RELIANCE STEEL & ALUMINUM CO.,
a California corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
RSAC MANAGEMENT CORP.,
a California corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
S-1
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ ▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇▇▇▇
Title: Vice President
S-2
BANK OF AMERICA, N.A.,
as Issuing Lender and a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
S-3
FIRST UNION NATIONAL BANK,
as Syndication Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Assistant Vice President
----------------------------------
S-4
THE CHASE MANHATTAN BANK,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Managing Director
----------------------------------
S-5
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
S-6
COMERICA WEST INCORPORATED,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Assistant Vice President
----------------------------------
S-7
CREDIT SUISSE FIRST BOSTON,
as a Lender
By: /s/ ▇▇▇▇ ▇'▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇
----------------------------------
Title: Vice President
----------------------------------
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Assistant Vice President
---------------------------------
S-8
THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Title: Vice President
---------------------------------
S-9
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
S-10
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Joint General Manager
----------------------------------
S-11
EXHIBIT A
REQUEST FOR EXTENSION OF CREDIT
Date:___________________
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of October
24, 2001, among Reliance Steel & Aluminum Co., a California corporation ("RSA"),
RSAC Management Corp., a California corporation ("RSAC MANAGEMENT", and together
with RSA, joint and severally, "BORROWERS" and individually, a "BORROWER"), the
lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent and Issuing Lender (as extended, renewed, amended or
restated from time to time, the "AGREEMENT;" the terms defined therein being
used herein as therein defined).
The undersigned hereby request (select one):
_______ A Borrowing of Loans
_______ A Conversion or Continuation of Loans
1. On ____________________,
2. In the amount of $___________________.
3. Comprised of ______________________.
[type of Loan requested]
4. If applicable: with an Interest Period of _____ months/days.
The foregoing request complies with the requirements of Section 2.1 of
the Agreement. The undersigned, jointly and severally, hereby certify that the
following statements are true on the date hereof, and will be true on the above
date, before and after giving effect and to the application of the proceeds
therefrom:
(a) the representations and warranties of each Borrower
contained in Section 5 of the Agreement are true and correct in all
material respects as though made on and as of the above date (except to
the extent such representations and warranties expressly refer to an
earlier date, in which case they are true and correct as of such earlier
date); and
A-1
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed Extension of Credit.
RELIANCE STEEL & ALUMINUM CO.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
RSAC MANAGEMENT CORP.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
A-2
EXHIBIT B
COMPLIANCE CERTIFICATE
Financial
Statement Date:_________________
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of October
24, 2001, among Reliance Steel & Aluminum Co., a California corporation ("RSA"),
RSAC Management Corp., a California corporation ("RSAC MANAGEMENT", and together
with RSA, jointly and severally, "BORROWERS" and individually, a "BORROWER"),
the lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent and Issuing Lender (as extended, renewed, amended or
restated from time to time, the "AGREEMENT;" the terms defined therein being
used herein as therein defined).
The undersigned, a Responsible Officer of each Borrower, hereby certify
as of the date hereof that they are authorized to execute and deliver this
Certificate to Administrative Agent on the behalf of each Borrower, and that:
1. Attached as Schedule 1 hereto are either (a) the financial statements
required under Section 6.1(a) of the Agreement as of the above date, with the
required opinion of an independent auditor or (b) the financial statements
required under Section 6.1(b) of the Agreement as of the above date.
2. The undersigned have reviewed and are familiar with the terms of the
Agreement and have made, or have caused to be made under their supervision, a
detailed review of the transactions and conditions (financial or otherwise) of
each Borrower during the accounting period covered by the attached financial
statements.
3. To the best of each of the undersigned's knowledge, each Borrower,
during such period, has observed, performed or satisfied all of its covenants
and other agreements, and satisfied every condition in the Credit Agreement to
be observed, performed or satisfied by each Borrower, and the undersigned has no
knowledge of any Default or Event of Default.
4. The attached Schedule 2 set forth the calculation of the financial
covenants provided in Sections 7.11 through 7.13, inclusive, of the Agreement.
B-1
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
_________________, _______.
RELIANCE STEEL & ALUMINUM CO.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
RSAC MANAGEMENT CORP.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
B-2
Date:__________________
For the Fiscal Quarter/Year
ended _________________
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
Section 7.11; Net Worth
NET WORTH
Total consolidated assets: $__________
minus
Total consolidated liabilities: $__________
equals $
==========
MINIMUM REQUIRED:
the sum of -
base amount: $ 500,000
plus
0.50 times quarterly Net Income
earned after September 30, 2001 (without
deductions for losses): $__________
plus
increase(s) in Shareholders' Equity
after Closing Date: $__________
equals $
==========
Section 7.12; Interest Coverage Ratio
INTEREST COVERAGE RATIO
EBIT (rolling four quarter basis)
the sum of -
Net Income: $__________
plus
non-operating/non-recurring loss: $__________
minus
non-operating/non-recurring gain: $__________
plus
Interest Expense: $__________
plus
federal/state income taxes: $__________
B-3
plus
Cash dividends received from 50% owned
companies/joint ventures $___________
minus
equity in 50% owned companies/joint venture: $___________
total $___________
divided by
Interest Expense (as of last day of
determination period): $___________
equals (expressed as a ratio) ____ to 1.00
MINIMUM REQUIRED: 3.00 to 1.00
Section 7.13; Leverage Ratio
Funded Debt on the last day
of the Fiscal Quarter: $___________
divided by:
EBITDA (rolling four quarter basis) $___________
-- excluding Acquisition(s)
-- including Acquisition(s) with
audited financials submitted
equals (expressed as a ratio) ____ to 1.00
MAXIMUM PERMITTED: 3.25 to 1.00
B-4
EXHIBIT C
FORM OF COMMITTED LOAN NOTE
$_____________________ October 24, 2001
FOR VALUE RECEIVED, the undersigned ("BORROWERS"), hereby, jointly and
severally, promise to pay to the order of ___________________________("LENDER"),
on the Maturity Date (as defined in the Credit Agreement referred to below) the
principal amount of $[_____], or such lesser principal amount of Loans (as
defined in the Credit Agreement referred to below) payable by Borrowers to
Lender on such Maturity Date under that certain Credit Agreement dated as of
October 24, 2001, among Borrowers, the lenders from time to time party thereto,
and Bank of America, N.A., as Administrative Agent and Issuing Lender (as
extended, renewed, amended or restated from time to time, the "CREDIT
AGREEMENT;" the terms defined therein being used herein as therein defined).
Borrowers, jointly and severally, promise to pay interest on the unpaid
principal amount of each Loan from the date of such Loan until such principal
amount is paid in full, at such interest rates, and payable at such times as are
specified in the Credit Agreement.
All payments of principal and interest shall be made to Administrative
Agent for the account of Lender in United States dollars in immediately
available funds at Administrative Agent's Office.
If any amount is not paid in full when due hereunder, such unpaid amount
shall bear interest, to be paid upon demand, from the due date thereof until the
date of actual payment (and before as well as after judgment) computed at the
per annum rate set forth in the Credit Agreement.
This Note is one of the "Committed Loan Notes" referred to in the Credit
Agreement. Reference is hereby made to the Credit Agreement for rights and
obligations of payment and prepayment, events of default and the right of Lender
to accelerate the maturity hereof upon the occurrence of such events.
Borrowers, for themselves, their successors and assigns, hereby waive
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
Borrowers, jointly and severally, agree to pay all collection expenses,
court costs and Attorney Costs (whether or not litigation is commenced) which
may be incurred by Lender in connection with the collection or enforcement of
this Note.
C-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF CALIFORNIA.
RELIANCE STEEL & ALUMINUM CO.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
RSAC MANAGEMENT CORP.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
C-2
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "ASSIGNMENT AND ASSUMPTION") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "ASSIGNOR") and [Insert name of Assignee]
(the "ASSIGNEE"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "CREDIT
AGREEMENT"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
Administrative Agent as contemplated below, the interest in and to all of the
Assignor's rights and obligations under the Credit Agreement and any other
documents or instruments delivered pursuant thereto that represents the amount
and percentage interest identified below of all of the Assignor's outstanding
rights and obligations under the respective facilities identified below
(including, without limitation, Letters of Credit and Swing Line Loans included
in such facilities and, to the extent permitted to be assigned under applicable
law, all claims (including, without limitation, contract claims, tort claims,
malpractice claims and all other claims at law or in equity, including claims
under any law governing the purchase and sale of securities or governing
indentures pursuant to which securities are issued), suits, causes of action and
any other right of the Assignor against any other Person) (the "ASSIGNED
INTEREST"). Such sale and assignment is without recourse to the Assignor and,
except as expressly provided in this Assignment and Assumption, without
representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an
Affiliate/Approved Fund of [identify Lender]]
3. Borrowers: Reliance Steel & Aluminum Co., a California
corporation and RSAC Management Corp., a California
corporation
4. Administrative Agent: Bank of America, N.A., as administrative agent
under the Credit Agreement
5. Credit Agreement: The Credit Agreement, dated as of October 24, 2001,
among Reliance Steel & Aluminum Co., RSAC
Management Corp., Lenders parties thereto, and Bank
of America, N.A., as Administrative Agent
D-1
6. Assigned Interest:
---------------------------------------------------------------------------------------------------
Aggregate
Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
Facility Assigned For all Lenders* Assigned* Commitment/Loans(1)
---------------------------------------------------------------------------------------------------
$ $ $
---------------------------------------------------------------------------------------------------
$ $ $
---------------------------------------------------------------------------------------------------
$ $ $
---------------------------------------------------------------------------------------------------
[7. Trade Date: __________________](3)
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
-------------------------------------
Name:
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
-------------------------------------
Name:
Title:
Consented to and Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By:
-----------------------------------
Name:
Title:
--------
* Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective
Date.
(1) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
(2) Fill in the appropriate terminology for the types of facilities under
the Credit Agreement that are being assigned under this Assignment (e.g.
"Revolving Credit Commitment", "Term Loan Commitment", etc.).
(3) To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
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ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. REPRESENTATIONS AND WARRANTIES.
1.1. ASSIGNOR. The Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Documents or any collateral thereunder, (iii) the financial condition of
Borrowers, any of their respective Subsidiaries or Affiliates or any other
Person obligated in respect of any Loan Document or (iv) the performance or
observance by Borrowers, any of their respective Subsidiaries or Affiliates or
any other Person of any of their respective obligations under any Loan Document.
1.2. ASSIGNEE. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.1 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on Administrative Agent or any other Lender, and (v) if it is a Foreign Lender,
attached hereto is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Assignee;
and (b) agrees that (i) it will, independently and without reliance on
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
1.3 ASSIGNEE'S ADDRESS FOR NOTICES, ETC. Attached hereto as Schedule 1
is all contact information, address, account and other administrative
information relating to the Assignee.
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2. PAYMENTS. From and after the Effective Date, Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to or on or after the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments in payments by
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
3. GENERAL PROVISIONS. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of California.
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SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and facsimile
numbers, electronic mail addresses and account and payment information)
D-5
EXHIBIT E
MASTER SUBSIDIARY GUARANTY
This MASTER SUBSIDIARY GUARANTY (this "GUARANTY"), dated as of October
24, 2001 is made by the undersigned entities identified as "GUARANTORS" on
Schedule 5.16 of the Credit Agreement referred to below, the entities becoming a
party hereto pursuant to Section 16 below, in favor of BANK OF AMERICA, N.A., in
its capacity as Administrative Agent for Lenders ("ADMINISTRATIVE AGENT").
RECITALS
A. Pursuant to that certain Credit Agreement dated as of October 24,
2001 (as from time to time amended, extended, further restated, modified or
supplemented, the "CREDIT AGREEMENT"; capitalized terms used herein shall have
the meanings assigned to them in the Credit Agreement), among Reliance Steel &
Aluminum Co. ("RSA"), RSAC Management Corp., a California corporation ("RSAC
MANAGEMENT", and together with RSA, jointly and severally, "BORROWERS" and
individually, a "BORROWER"), the lenders named therein ("LENDERS"), and Bank of
America, N.A., as Administrative Agent, Lenders agreed to extend credit
facilities to Borrowers on the terms and conditions set forth therein.
B. The Credit Agreement provides, as a condition precedent to Lenders'
obligations to continue extending credit facilities to Borrowers, that the
Guarantors shall each execute and deliver this Guaranty in favor of
Administrative Agent for the ratable benefit of Lenders.
C. Guarantors expect to realize direct and indirect benefits as the
result of the availability of the aforementioned credit facilities, and as the
result of the execution of this Guaranty.
AGREEMENT
NOW, THEREFORE, in order to induce Lenders to continue extending credit
facilities to Borrowers, and for other good and valuable consideration, the
receipt and adequacy of which hereby is acknowledged, Guarantors hereby
represent, warrant, covenant, agree and guaranty as follows:
1. DEFINITIONS.
"CREDIT AGREEMENT" means that certain Credit Agreement referred to in
Recital A above. This Guaranty is the Guaranty referred to in the Credit
Agreement and is one of the Loan Documents. The following terms, as used herein,
shall have the meanings respectively set forth after each:
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"GUARANTIED OBLIGATIONS" means all obligations of Borrowers, and either
of them, under the Loan Documents, whether due or to become due, matured or
unmatured, liquidated or unliquidated, or contingent or absolute, including
obligations of performance as well as obligations of payment, and including
interest that accrues after the commencement of any bankruptcy or insolvency
proceeding by or against Borrowers, a Guarantor or any other Person.
2. GUARANTY OF GUARANTIED OBLIGATIONS. (a) Guarantors, jointly and
severally, irrevocably and unconditionally guaranty, as primary obligors and not
merely as sureties, the due and punctual payment in full of all Guarantied
Obligations when the same shall become due (after giving effect to any
applicable grace periods), whether at stated maturity, by acceleration, demand
or otherwise (including amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
Section 362(a)).
Each Guarantor acknowledges that a portion of the Loans may be advanced
to it, that Letters of Credit may be issued for the benefit of its business and
that the Guarantied Obligations are being incurred for and will inure to its
benefit.
Any interest on any portion of the Guarantied Obligations that accrues
after the commencement of any proceeding, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of Borrowers (or, if interest on any portion of the Guarantied
Obligations ceases to accrue by operation of law by reason of the commencement
of said proceeding, such interest as would have accrued on such portion of the
Guarantied Obligations if said proceeding had not been commenced) shall be
included in the Guarantied Obligations because it is the intention of each
Guarantor and Administrative Agent that the Guarantied Obligations should be
determined without regard to any rule of law or order that may relieve Borrowers
of any portion of such Guarantied Obligations.
In the event that all or any portion of the Guarantied Obligations is
paid by Borrowers, the obligations of each Guarantor hereunder shall continue
and remain in full force and effect or be reinstated, as the case may be, in the
event that all or any part of such payment(s) is rescinded or recovered directly
or indirectly from Administrative Agent or any other Lender as a preference,
fraudulent transfer or otherwise, and any such payments that are so rescinded or
recovered shall constitute Guarantied Obligations.
Subject to the other provisions of this Section 2, upon the failure of
Borrowers to pay any of the Guarantied Obligations when and as the same shall
become due (after giving effect to any applicable grace periods), each Guarantor
will upon demand pay, or cause to be paid, in cash, to Administrative Agent for
the ratable benefit of Lenders, an amount equal to the aggregate of the unpaid
Guarantied Obligations.
(b) Anything contained in this Guaranty to the contrary notwithstanding,
the obligations of each Guarantor under this Guaranty and the other Loan
Documents shall be limited to a maximum aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under Section
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548 of Title 11 of the United States Code or any applicable provisions of
comparable state law (collectively, the "FRAUDULENT TRANSFER LAWS"), in each
case after giving effect to all other liabilities of such Guarantor, contingent
or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of such Guarantor (x) in respect of
intercompany indebtedness to Borrowers or other affiliates of Borrowers to the
extent that such indebtedness would be discharged in an amount equal to the
amount paid by such Guarantor hereunder and (y) under any guaranty of
subordinated indebtedness which guaranty contains a limitation as to maximum
amount similar to that set forth in this Section 2(b), pursuant to which the
liability of such Guarantor hereunder is included in the liabilities taken into
account in determining such maximum amount) and after giving effect as assets to
the value (as determined under the applicable provisions of the Fraudulent
Transfer Laws) of any rights to subrogation, reimbursement, indemnification or
contribution of such Guarantor pursuant to applicable law or pursuant to the
terms of any agreement.
(c) Each Guarantor under this Guaranty, and each guarantor under other
guaranties, if any, relating to the Credit Agreement (the "RELATED GUARANTIES")
that contain a contribution provision similar to that set forth in this Section
2(c), together desire to allocate among themselves (collectively, the
"CONTRIBUTING GUARANTORS"), in a fair and equitable manner, their obligations
arising under this Guaranty and the Related Guaranties. Accordingly, in the
event any payment or distribution is made on any date by a Guarantor under this
Guaranty or a guarantor under a Related Guaranty, each such Guarantor or such
other guarantor shall be entitled to a contribution from each of the other
Contributing Guarantors in the maximum amount permitted by law so as to maximize
the aggregate amount of the Guarantied Obligations paid to Administrative Agent
for the ratable benefit of Lenders.
3. NATURE OF GUARANTY. This Guaranty is irrevocable and continuing in
nature and relates to any Guarantied Obligations now existing or hereafter
arising. This Guaranty is a guaranty of prompt and punctual payment and
performance and is not a guaranty of collection.
4. RELATIONSHIP TO OTHER AGREEMENTS. Nothing herein shall in any way
modify or limit the effect of terms or conditions set forth in any other
document, instrument or agreement executed by any Guarantor or in connection
with the Guarantied Obligations, but each and every term and condition hereof
shall be in addition thereto. All provisions contained in the Credit Agreement
or any other Loan Document that apply to Loan Documents generally are fully
applicable to this Guaranty and are incorporated herein by this reference.
5. SUBORDINATION OF INDEBTEDNESS OF BORROWERS TO A GUARANTOR TO THE
GUARANTIED OBLIGATIONS. Each Guarantor agrees that:
(a) Any indebtedness of Borrowers now or hereafter owed to any
Guarantor hereby is subordinated to the Guarantied Obligations.
(b) If any Lender so requests, any such indebtedness of
Borrowers now or hereafter owed to any Guarantor shall be collected,
enforced and received
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by Guarantor as trustee for Lenders and shall be paid over to
Administrative Agent in kind on account of the Guarantied Obligations.
6. STATUTE OF LIMITATIONS AND OTHER LAWS. Until the Guarantied
Obligations shall have been paid and performed in full, all of the rights,
privileges, powers and remedies granted to Lenders hereunder shall continue to
exist and may be exercised by Lenders at any time and from time to time
irrespective of the fact that any of the Guarantied Obligations may become
barred by any statute of limitations. Each Guarantor expressly waives the
benefit of any and all statutes of limitation, and any and all laws providing
for exemption of property from execution or for valuation and appraisal upon
foreclosure, to the maximum extent permitted by applicable law.
7. WAIVERS AND CONSENTS. Each Guarantor acknowledges that the
obligations undertaken herein involve the guaranty of obligations of Persons
other than such Guarantor and, in full recognition of that fact, consents and
agrees that Administrative Agent may, at any time and from time to time, without
notice or demand, and without affecting the enforceability or continuing
effectiveness hereof: (a) supplement, modify, amend, extend, renew, accelerate
or otherwise change the time for payment or the terms of the Guarantied
Obligations or any part thereof, including any increase or decrease of the
rate(s) of interest thereon; (b) supplement, modify, amend or waive, or enter
into or give any agreement, approval or consent with respect to, the Guarantied
Obligations or any part thereof, or any of the Loan Documents or any additional
security or guaranties, or any condition, covenant, default, remedy, right,
representation or term thereof or thereunder; (c) accept new or additional
instruments, documents or agreements in exchange for or relative to any of the
Loan Documents or the Guarantied Obligations or any part thereof; (d) accept
partial payments on the Guarantied Obligations; (e) receive and hold security or
additional security or guaranties for the Guarantied Obligations or any part
thereof; (f) release, reconvey, terminate, waive, abandon, fail to perfect,
subordinate, exchange, substitute, transfer and/or enforce any security or
guaranties, and apply any security and direct the order or manner of sale
thereof as Lenders in their sole and absolute discretion may determine; (g)
release any Person from any liability with respect to the Guarantied Obligations
or any part thereof; (h) settle, release on terms satisfactory to Lenders or by
operation of applicable laws or otherwise liquidate or enforce any Guarantied
Obligations and any security or guaranty therefor in any manner, consent to the
transfer of any security and bid and purchase at any sale; and/or (i) consent to
the merger, change or any other restructuring or termination of the corporate
existence of Borrowers, any Guarantor or any other Person, and correspondingly
restructure the Guarantied Obligations, and any such merger, change,
restructuring or termination shall not affect the liability of any Guarantor or
the continuing effectiveness hereof, or the enforceability hereof with respect
to all or any part of the Guarantied Obligations.
Upon the occurrence and during the continuance of any Event of Default,
Lenders may enforce this Guaranty independently of any other remedy or security
Lenders at any time may have or hold in connection with the Guarantied
Obligations, and it shall not be necessary for Lenders to marshal assets in
favor of Borrowers, any Guarantor or any other Person or to proceed upon or
against and/or exhaust any security or remedy before proceeding to enforce this
Guaranty. Each Guarantor expressly waives any right to require Lenders to
marshal assets in
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favor of Borrowers, any Guarantor or any other Person or to proceed against
Borrowers, any Guarantor or any collateral provided by any Person, and agrees
that Lenders may proceed against Borrowers, any Guarantor and/or any collateral
in such order as Lenders shall determine in their sole and absolute discretion.
Lenders may file a separate action or actions against Borrowers and/or any
Guarantor without respect to whether action is brought or prosecuted with
respect to any security or against any other Person, or whether any other Person
is joined in any action or actions. Each Guarantor agrees that Lenders and any
Borrower Party may deal with each other in connection with the Guarantied
Obligations or otherwise, or alter any contracts or agreements now or hereafter
existing between any of them, in any manner whatsoever, all without in any way
altering or affecting the enforceability of this Guaranty. Lenders' rights
hereunder shall be reinstated and revived, and the enforceability of this
Guaranty shall continue, with respect to any amount at any time paid on account
of the Guarantied Obligations which thereafter shall be required to be restored
or returned by Lenders upon the bankruptcy, insolvency or reorganization of
Borrowers or any other Person, or otherwise, all as though such amount had not
been paid. The rights of Lenders created or granted herein and the
enforceability of this Guaranty with respect to each Guarantor at all times
shall remain effective to guaranty the full amount of all the Guarantied
Obligations even though the Guarantied Obligations, or any part thereof, or any
security or guaranty therefor, may be or hereafter may become invalid or
otherwise unenforceable as against Borrowers or any other guarantor or surety
and whether or not Borrowers shall have any personal liability with respect
thereto. Each Guarantor expressly waives any and all defenses now or hereafter
arising or asserted by reason of (a) any disability or other defense of
Borrowers with respect to the Guarantied Obligations, (b) the unenforceability
or invalidity of any security or guaranty for the Guarantied Obligations or the
lack of perfection or continuing perfection or failure of priority of any
security for the Guarantied Obligations, (c) the cessation for any cause
whatsoever of the liability of Borrowers or any other guarantor (other than by
reason of the full payment and performance of all Guarantied Obligations), (d)
any failure of Lenders to marshal assets in favor of Borrowers or any other
Person, (e) any failure of Lenders to give notice of sale or other disposition
of any collateral to Borrowers, any Guarantor or any other Person or any defect
in any notice that may be given in connection with any sale or disposition of
any collateral, (f) any failure of Lenders to comply with applicable laws in
connection with the sale or other disposition of any collateral or other
security for any Guarantied Obligations, including, without limitation, any
failure of Lenders to conduct a commercially reasonable sale or other
disposition of any collateral or other security for any Guarantied Obligation,
(g) any act or omission of Lenders or others that directly or indirectly results
in or aids the discharge or release of Borrowers or the Guarantied Obligations
or any security or guaranty therefor by operation of law or otherwise, (h) any
law which provides that the obligation of a surety or guarantor must neither be
large in amount nor in other respects more burdensome than that of the principal
or which reduces a surety's or guarantor's obligation in proportion to the
principal obligation, (i) any failure of Lenders to file or enforce a claim in
any bankruptcy or other proceeding with respect to any Person, (j) the election
by Lenders, in any bankruptcy proceeding of any Person, of the application or
non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (k)
any extension of credit or the grant of any lien under ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Bankruptcy Code, (l) any use of cash collateral under Section 363 of the
United States Bankruptcy Code, (m) any agreement or stipulation with respect to
the provision of adequate protection in any bankruptcy proceeding of any Person,
(n) the avoidance
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of any lien in favor of Lenders for any reason, (o) any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, liquidation or dissolution
proceeding commenced by or against any Person, including any discharge of, or
bar or stay against collecting, all or any of the Guarantied Obligations (or any
interest thereof) in or as a result of any such proceeding, (p) any rights and
defenses that are or may become available to any Guarantor by reason of Sections
2787 to 2855, inclusive, of the California Civil Code, or (q) any action taken
by Lenders that is authorized by this Section 7 or any other provision of any
Loan Document. Until such time, if any, as all of the Guarantied Obligations
have been paid and performed in full and no commitment to advance funds to
Borrowers remains in effect, no Guarantor shall have any rights of subrogation,
contribution, reimbursement or indemnity with respect to Borrowers, any other
Guarantor or any other Person liable for any portion of the Guarantied
Obligations, and until such time, each Guarantor expressly waives any right to
enforce any remedy that Lenders now have or hereafter may have against any other
Person and waives the benefit of, or any right to participate in, any collateral
now or hereafter held by Lenders. Each Guarantor expressly waives all set-offs
and counterclaims and all presentments, demands for payment or performance,
notices of nonpayment or nonperformance, protests, notices of protest, notices
of dishonor and all other notices or demands of any kind or nature whatsoever
with respect to the Guarantied Obligations, and all notices of acceptance of
this Guaranty or of the existence, creation or incurring of new or additional
Guarantied Obligations.
8. CONDITION OF BORROWER PARTIES. Each Guarantor represents and warrants
to Lenders that it has established adequate means of obtaining financial and
other information pertaining to the businesses, operations and condition
(financial and otherwise) of Borrowers and their properties on a continuing
basis, and that such Guarantor now is and hereafter will be completely familiar
with the businesses, operations and condition (financial and otherwise) of
Borrowers and their properties. Each Guarantor hereby expressly waives and
relinquishes any duty on the part of Lenders (should any such duty exist) to
disclose to any Guarantor any matter, fact or thing related to the businesses,
operations or condition (financial or otherwise) of Borrowers or their
properties, whether now known or hereafter known by Lenders during the life of
this Guaranty. With respect to any of the Guarantied Obligations, Lenders need
not inquire into the powers of Borrowers or the officers or employees acting or
purporting to act on their behalf, and all Guarantied Obligations made or
created in good faith reliance upon the professed exercise of such powers shall
be guarantied hereby.
9. LIENS ON REAL PROPERTY. In the event that all or any part of the
Guarantied Obligations at any time are secured by any one or more deeds of trust
or mortgages or other instruments creating or granting liens on any interests in
real property, each Guarantor authorizes Lenders, upon the occurrence of and
during the continuance of any Event of Default, at their sole option, without
notice or demand and without affecting any Guarantied Obligations of any
Guarantor, the enforceability of this Guaranty, or the validity or
enforceability of any liens of Lenders on any collateral, to foreclose any or
all of such deeds of trust or mortgages or other instruments by judicial or
nonjudicial sale. Each Guarantor understands and acknowledges that if
Administrative Agent forecloses, either by judicial foreclosure or by exercise
of power of sale, any deed of trust securing the indebtedness, that foreclosure
could impair or destroy any ability that any Guarantor may have to seek
reimbursement, contribution or indemnification from
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Borrowers or others based on any right any Guarantor may have of subrogation,
reimbursement, contribution or indemnification for any amounts paid by any
Guarantor under this Guaranty. Each Guarantor further understands and
acknowledges that in the absence of this paragraph, such potential impairment or
destruction of any Guarantor's rights, if any, may entitle Guarantor to assert a
defense to this Guaranty based on Section 580d of the California Code of Civil
Procedure as interpreted in Union Bank ▇. ▇▇▇▇▇▇▇, 265 Cal. App. 2d. 40 (1968).
By executing this Guaranty, each Guarantor freely, irrevocably and
unconditionally: (i) waives and relinquishes that defense and agrees that each
Guarantor will be fully liable under this Guaranty even though Administrative
Agent may foreclose, either by judicial foreclosure or by exercise of power of
sale, any deed of trust securing the indebtedness; (ii) agrees that each
Guarantor will not assert that defense in any action or proceeding which any
Lender may commence to enforce this Guaranty; (iii) acknowledges and agrees that
the rights and defenses waived by each Guarantor in this Guaranty include any
right or defense that any Guarantor may have or be entitled to assert based upon
or arising out of any one or more of Sections 580a, 580b, 580d or 726 of the
California Code of Civil Procedure or Section 2848 of the California Civil Code;
and (iv) acknowledges and agrees that Lenders are relying on this waiver in
creating the indebtedness, and that this waiver is a material part of the
consideration which Lenders are receiving for creating the indebtedness.
10. COSTS AND EXPENSES. Each Guarantor agrees to pay to Administrative
Agent all costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements, and costs allocated to in-house counsel)
incurred by Lenders in the enforcement or attempted enforcement of this
Guaranty, whether or not an action is filed in connection therewith, and in
connection with any waiver or amendment of any term or provision hereof. All
advances, charges, costs and expenses, including reasonable attorneys' fees and
disbursements, incurred or paid by Lenders in exercising any right, privilege,
power or remedy conferred by this Guaranty, or in the enforcement or attempted
enforcement thereof, shall be subject hereto and shall become a part of the
Guarantied Obligations and shall be paid to Administrative Agent by each
Guarantor, immediately upon demand, together with interest thereon at the
rate(s) provided for under the Credit Agreement.
11. CONSTRUCTION OF THIS GUARANTY. This Guaranty is intended to give
rise to absolute and unconditional obligations on the part of each Guarantor;
hence, in any construction hereof, notwithstanding any provision of any Loan
Document to the contrary, this Guaranty shall be construed strictly in favor of
Lenders in order to accomplish its stated purpose.
12. LIABILITY. The liability of each Guarantor hereunder is several and
is independent of any other guaranties at any time in effect with respect to all
or any part of the Guarantied Obligations, and each Guarantor's liability
hereunder may be enforced regardless of the existence of any such guaranties.
Any termination by or release of any Guarantor in whole or in part (whether it
be another Guarantor under this instrument or not) shall not affect the
continuing liability of any Guarantor hereunder, and no notice of any such
termination or release shall be required. The execution hereof by each Guarantor
is not founded upon an expectation or understanding that there will be any other
guarantor of the Guarantied Obligations.
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13. ADDITIONAL GUARANTORS. From time to time entities which become
Material Domestic Subsidiaries of Borrowers may become a Guarantor by executing
and delivering (i) a Certificate Regarding Additional Guarantors substantially
in the form of Exhibit A attached hereto (the "GUARANTOR CERTIFICATE") and (ii)
a Certificate of Secretary substantially in the form of Exhibit B attached
hereto (the "SECRETARY'S CERTIFICATE FOR GUARANTOR" and together with the
Guarantor Certificate, the "ADDITIONAL GUARANTOR DOCUMENTS"). Upon
Administrative Agent's receipt of the Additional Guarantor Documents, this
Guaranty shall be deemed amended to include such additional Person as a
Guarantor and such Person shall become a party hereto as though a signatory
hereto, with no amendment or further action required hereunder and, thereafter,
all references to Guarantor shall include such additional Person.
14. AMENDMENT OR WAIVER OF GUARANTY; INCORPORATED TERMS. No amendment or
waiver of any provision of this Guaranty, and no consent with respect to any
departure by Guarantors shall be effective unless the same shall be in writing
and signed by Administrative Agent at the written request of Lenders and
Guarantors and acknowledged by Administrative Agent, and then any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. Sections 10.12, 10.13, 10.16, 10.17, 10.20, 10.21 and
10.22 of the Credit Agreement are hereby incorporated herein by reference as
though fully set forth fully herein.
[Remainder of page left intentionally blank]
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IN WITNESS WHEREOF, each Guarantor has executed this Guaranty by
its duly authorized officer as of the date first written above.
MATERIAL DOMESTIC SUBSIDIARIES:
ALLEGHENY STEEL DISTRIBUTORS, INC.
ALUMINUM AND STAINLESS, INC.
AMI METALS, INC.
CCC STEEL, INC.
CHATHAM STEEL CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ STEEL CO., INC.
PHOENIX CORPORATION
UNITED ALLOYS AIRCRAFT METALS, INC.
PDM STEEL SERVICE CENTERS, INC.
TOMA METALS, INC.
VIKING MATERIALS, INC.
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
of each of the foregoing
AMERICAN METALS CORPORATION
LIEBOVICH BROS., INC.
▇▇▇▇▇▇▇ STEEL & ALUMINUM COMPANY
LIEBOVICH STEEL & ALUMINUM COMPANY
GENERAL STEEL CORPORATION
SISKIN STEEL & SUPPLY COMPANY, INC.
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
of each of the foregoing
▇▇▇▇ METALS
SERVICE STEEL AEROSPACE CORP.
VALEX CORP.
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
of each of the foregoing
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ACKNOWLEDGED:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
E-10
EXHIBIT A TO MASTER SUBSIDIARY GUARANTY
CERTIFICATE REGARDING ADDITIONAL GUARANTORS
Dated: ____________, ____
Reference is made to that certain Master Subsidiary Guaranty dated as of
October 24, 2001, as amended (the "GUARANTY"), by and among the Guarantors from
time to time party thereto in favor of Bank of America, N.A., as Administrative
Agent for Lenders. Unless otherwise defined herein, capitalized terms used
herein have the respective meanings assigned to them in the Guaranty and the
Credit Agreement referred to therein.
______________, a Material Domestic Subsidiary of
_______________________, ("MATERIAL DOMESTIC SUBSIDIARY") hereby elects to
become a Guarantor under the Guaranty, and agrees to be bound by all the terms
and conditions applicable to a Guarantor thereunder as of the date hereof.
The undersigned Material Domestic Subsidiary hereby represents and
warrants that the execution, delivery and performance of any Loan Documents to
which it is to be a party will not violate any law, decree or judgment
applicable to the undersigned, except as will not have a Material Adverse
Effect.
This Certificate Regarding Additional Guarantors is executed by the
parties hereto as of the date first written above.
[______________], as a Material Domestic
Subsidiary and a Guarantor
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ACKNOWLEDGED:
BANK OF AMERICA, N.A., as
Administrative Agent
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
E-11
EXHIBIT B TO MASTER SUBSIDIARY GUARANTY
CERTIFICATE OF SECRETARY
OF
[NAME OF MATERIAL DOMESTIC SUBSIDIARY]
The undersigned does hereby certify as of [Date] that he/she is the duly
elected and acting Secretary of [Name of Material Domestic Subsidiary], a
[State] corporation (the "COMPANY"), and that:
1. Attached hereto as Exhibit A is a true, correct and complete
copy of the Articles of Incorporation of the Company, certified
by the Secretary of State of the State of [State] (the
"SECRETARY OF STATE") on the date indicated on such
certification, and all amendments to such Articles of
Incorporation on file with the Secretary of State as of the date
hereof.
2. Attached hereto as Exhibit B is a true, correct and complete
copy of the duly adopted Bylaws of the Company, and any
amendments thereto, and such Bylaws are in full force and effect
on the date hereof.
3. Attached hereto as Exhibit C is a true, correct and complete
copy of resolutions duly adopted as of [Date] by the Board of
Directors of the Company authorizing the execution and delivery
of the Master Subsidiary Guaranty to which it is a party. Said
resolutions have not been amended, rescinded or modified since
their adoption and remain in full force and effect on the date
hereto.
4. The authorized officers listed in Exhibit D are duly elected,
qualified and acting officers of the Company holding the
office(s) listed opposite their respective names, and set forth
opposite each person's name is such person's genuine signature.
Such persons are authorized to sign, on behalf of the Company,
all documents referred to in the resolutions attached hereto as
Exhibit D.
IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand as of
the date first written above.
----------------------------------------
Secretary
E-12
EXHIBIT F
OPINION OF COUNSEL
F-1
SCHEDULE 2.1
COMMITMENTS
AND PRO RATA SHARES
LENDER COMMITMENT PRO RATA SHARE
------ ----------- --------------
Bank of America, N.A. $75,000,000 22.388059701%
First Union National Bank $65,000,000 19.402985075%
Credit Suisse First Boston $40,000,000 11.940298507%
U.S. Bank National Association $40,000,000 11.940298507%
The Chase Manhattan Bank $40,000,000 11.940298507%
Union Bank of California, N.A. $30,000,000 8.955223881%
Comerica West Incorporated $20,000,000 5.970149254%
The Northern Trust Company $15,000,000 4.477611940%
The Industrial Bank of Japan, $10,000,000 2.985074627%
Limited
---------------------------------------------------------------------------------------
TOTAL $335,000,000 100.00%
Schedule 2.1-1
SCHEDULE 5.5
CERTAIN LITIGATION
Schedule 5.5-1
SCHEDULE 5.9
EXISTING LIENS AND NEGATIVE PLEDGES
Schedule 5.9-1
SCHEDULE 5.16
SUBSIDIARIES
# of Shares
Jurisdiction Form of # of Shares Owned and
Name of Organization Legal Entity Outstanding By Whom
---- --------------- ------------ ----------- -----------
Schedule 5.16-1
SCHEDULE 7.2
INVESTMENTS
Schedule 7.2-1
SCHEDULE 7.3
EXISTING INDEBTEDNESS
Schedule 7.3-1
SCHEDULE 10.6
EURODOLLAR AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
RELIANCE STEEL & ALUMINUM CO.,
AS BORROWER
Address for Notices:
Reliance Steel & Aluminum Co.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Vice President & Chief Financial Officer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
RSAC MANAGEMENT CORP.,
AS BORROWER
Address for Notices:
RSAC Management Corp.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Vice President & General Counsel
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
Notices (other than Requests for Extensions of Credit):
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mail Code: WA1-501-37-20
Attention: ▇▇▇ ▇▇▇▇
Schedule 10.6-1
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Requests for Extensions of Credit:
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mail Code: CA4-706-05-09
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Payments:
Bank of America, N.A.
Dallas, TX
ABA No. ▇▇▇▇▇▇▇▇▇
Acct No: 3750836479
Acct Name: Credit Services
Reference: Reliance Steel
BANK OF AMERICA, N.A., AS ISSUING LENDER
Address for Notices:
Bank of America, N.A.
Trade Operations-Los Angeles #226521
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
Mail Code: CA9-703-19-23
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Schedule 10.6-2
FIRST UNION NATIONAL BANK, AS SYNDICATION AGENT
AND AS A LENDER
Domestic and Eurodollar Lending Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Notices (other than Requests for Extensions of Credit):
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
BANK OF AMERICA, N.A., AS A LENDER
Domestic and Eurodollar Lending Office:
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mail Code: CA4-706-05-09
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Notices (other than Requests for Extensions of Credit):
Bank of America, N.A.
c/o Los Angeles Regional Commercial
Banking Office #1459
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule 10.6-3
E-mail: ▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
THE CHASE MANHATTAN BANK, AS A LENDER
Domestic Office and Eurodollar Lending Office:
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Sek Chan
Assistant Treasurer
Loan Servicing Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Requests for Extensions of Credit):
▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
Mining & Metals Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
CREDIT SUISSE FIRST BOSTON, AS A LENDER
Domestic Office and Eurodollar Lending Office:
Eleven Madison Avenue
New York, New York 10010
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Notices (other than Requests for Extensions of Credit):
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇'▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇.▇'▇▇▇▇@▇▇▇▇.▇▇▇
Schedule 10.6-4
UNION BANK OF CALIFORNIA, N.A., AS A LENDER
Domestic Office and Eurodollar Lending Office:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Requests for Extensions of Credit):
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
COMERICA WEST INCORPORATED, AS A LENDER
Domestic Office and Eurodollar Lending Office:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Corporate Relationship Administrator
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇_▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Notices (other than Requests for Extensions of Credit):
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Corporate Banking Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: elise m ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Schedule 10.6-5
THE NORTHERN TRUST COMPANY, AS A LENDER
Domestic Office and Eurodollar Lending Office:
▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Loan Servicing
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇@▇▇▇▇.▇▇▇
Notices (other than Requests for Extensions of Credit):
▇▇ ▇. ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇@▇▇▇▇.▇▇▇
U.S BANK NATIONAL ASSOCIATION, AS A LENDER
Domestic Office and Eurodollar Lending Office:
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇-▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Participation Specialist
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Notices (other than Requests for Extensions of Credit):
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Schedule 10.6-6
THE INDUSTRIAL BANK OF JAPAN, LIMITED, AS A LENDER
Domestic Office and Eurodollar Lending Office:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Requests for Extensions of Credit):
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Schedule 10.6-7