GERDAU AMERISTEEL SAYREVILLE INC.
GERDAU AMERISTEEL PERTH AMBOY INC.
SHEFFIELD STEEL CORPORATION
CHAPARRAL STEEL COMPANY
CHAPARRAL STEEL TEXAS, LLC
CHAPARRAL (VIRGINIA) INC.
CHAPARRAL STEEL MIDLOTHIAN, LP
AMERICAN MATERIALS TRANSPORT, INC.
ENCO MATERIALS, INC.
as the US Borrowers
as the Canadian Borrower
as a Canadian Credit Party
as the Administrative Agent
as the Canadian Administrative Agent,
WACHOVIA CAPITAL FINANCE CORPORATION (NEW ENGLAND),
as the Joint Lead Arrangers and Joint Book Managers
as the Collateral Agents
NOW OR HEREAFTER PARTIES HERETO
as the Lenders
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DEFINITIONS; CONSTRUCTION
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LIBOR Loan and B/A | Canadian Prime Rate | |||||||||||
Loan Applicable | ABR Loan Applicable | Loan Applicable | ||||||||||
Average Excess Availability | Margin Percentage | Margin Percentage | Margin Percentage | |||||||||
Less than $200,000,000 | 4.00 | % | 3.00 | % | 3.00 | % | ||||||
Greater than or equal to $200,000,000 but less than $400,000,000 | 3.75 | % | 2.75 | % | 2.75 | % | ||||||
Greater than or equal to $400,000,000 | 3.50 | % | 2.50 | % | 2.50 | % |
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(1) | any net income (loss) of any Person if such Person is not the Company or another Credit Party, except that: |
(A) | subject to the limitations contained inclause (3) below, the Company’s equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Company or another Credit Party as a dividend or other distribution (subject, in the case of a dividend or other |
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distribution to another Credit Party, to the limitations contained inclause (2) below); and | |||
(B) | the Company’s equity in a net loss of any such Person (other than another Credit Party) for such period will be included in determining such Consolidated Net Income to the extent such loss has been funded with cash from the Company or another Credit Party; |
(2) | any net income (but not loss) of any Credit Party (other than the Company) if such Credit Party is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Credit Party, directly or indirectly, to the Company, except that the Company’s equity in a net loss of any such Credit Party for such period will be included in determining such Consolidated Net Income; | ||
(3) | any gain (loss) realized upon the sale or other disposition of any property, plant or equipment of the Company or the other consolidated Credit Parties (including pursuant to any sale/leaseback transaction) which is not sold or otherwise disposed of in the ordinary course of business; | ||
(4) | any extraordinary gain or loss; | ||
(5) | the cumulative effect of a change in accounting principles; and | ||
(6) | any one time expenses (including non-cash charges) relating to the write-off of deferred financing costs incurred in connection with the transactions contemplated by this Agreement. |
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LIBOR Rate = | Offshore Base Rate | |||||
1.00 - Eurodollar Reserve Percentage |
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AMOUNT AND TERMS OF LOANS
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(A) | any lack of validity or enforceability of any Letter of Credit; | ||
(B) | the existence of any claim, set-off, defense or other right that any of the Borrowers may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), any Lender or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Account Party and the beneficiary for which the Letter of Credit was procured) other than a defense based on the gross negligence (as opposed to ordinary negligence) or willful misconduct of such Issuing Bank, as determined by a court of competent jurisdiction; | ||
(C) | any draft, demand, certificate or any other document presented under any Letter of Credit is proved to be forged, fraudulent, invalid or insufficient in any respect or any statement therein is untrue or inaccurate in any respect; | ||
(D) | any adverse change in the condition (financial or otherwise) of any Credit Party; | ||
(E) | any breach of this Agreement or any other Financing Document by any of the Borrowers, any Agent, any Collateral Agent, or any Lender (other than the applicable Issuing Bank); | ||
(F) | any other circumstance or happening whatsoever;providedthat such other occurrence or happening is not the result of the gross negligence (as opposed to ordinary negligence) or willful misconduct of such Issuing Bank, as determined by a court of competent jurisdiction; or | ||
(G) | the fact that a Default shall have occurred and be continuing. |
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(1) | The US Borrowers shall jointly and severally pay to the applicable Issuing Bank, with respect to any issuance, amendment, transfer, or cancellation prior to expiration of any US Letter of Credit and for each drawing made thereunder, documentary and processing charges in accordance with such Issuing Bank’s standard schedule for such charges in effect at the time of, and payable at the time of, such issuance, amendment, transfer, cancellation or drawing, as the case may be, as well as a 0.125% fronting fee (or such other amount as may be agreed upon from time to time between the Borrower Agent, on behalf of the US Borrowers and the applicable Issuing Bank). All fees payable pursuant to thisSection 2.13(c)(1) shall be retained by the applicable Issuing Bank. | ||
(2) | The US Borrowers will jointly and severally pay to the Administrative Agent for the account of and pro rata distribution to each US Revolving Lender a fee on the daily average amount available for drawings under each US Letter of Credit, in each case for the period from and including the date of issuance of such US Letter of Credit to and excluding the date of expiration or termination thereof computed at a per annum rate for each day equal to the Applicable Margin for LIBOR Loans. Such fees shall be payable in arrears on the first Business Day of each month. |
(1) | The Canadian Borrower shall pay to the applicable Issuing Bank, with respect to any issuance, amendment, transfer, or cancellation prior to expiration of any Canadian Letter of Credit and for each drawing made thereunder, documentary and processing charges in accordance with such Issuing Bank’s standard schedule for such charges in effect at the time of, and payable at the time of, such issuance, amendment, transfer, cancellation or drawing, as the case may be, as well as a 0.125% fronting fee (or such other amount as may be agreed upon from time to time between the Borrower Agent, on behalf of the Canadian Borrower and the applicable Issuing Bank). All fees payable pursuant to thisSection 2.13(d)(1) shall be retained by the applicable Issuing Bank. |
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(2) | The Canadian Borrower will pay to the Canadian Administrative Agent for the account of and pro rata distribution to each Canadian Revolving Lender a fee on the daily average amount available for drawings under each Canadian Letter of Credit, in each case for the period from and including the date of issuance of such Canadian Letter of Credit to and excluding the date of expiration or termination thereof computed at a per annum rate for each day equal to the Applicable Margin for B/A Loans. Such fees shall be payable in arrears on the first Business Day of each month. |
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(1) | any Lender (or its applicable Lending Office) shall be subject to any Tax or other charge with respect to its LIBOR Loans or its obligation to make LIBOR Loans, or shall change the basis of taxation of payments to any Lender of the principal of or interest on its LIBOR Loans or its obligation to make LIBOR Loans (except for changes in the rate of tax on the overall net income or gross receipts of such Lender or its applicable Lending Office imposed by the jurisdiction in which such Lender’s principal executive office or applicable Lending Office is located); or | ||
(2) | any reserve (including any imposed by the Board), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or its applicable Lending Office shall be imposed or deemed applicable or any other condition affecting its LIBOR Loans or its obligations to make LIBOR Loans shall be imposed on any Lender or its applicable Lending Office or the interbank LIBOR market or the secondary certificate of deposit market; |
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(1) | the Administrative Agent shall forthwith give notice (by telephone confirmed in writing) to the Borrower Agent and to the Lenders of such advice; and | ||
(2) | the Borrowers’ right to request a Borrowing of LIBOR Loans from such Lender and such Lender’s obligation to make LIBOR Loans shall be immediately suspended, any such Borrowing of LIBOR Loans that is requested (by continuation, conversion or otherwise) shall, as to such Lender only, be deemed to be a request for an ABR Loan, and any such outstanding LIBOR Loan from such Lender shall be converted, on the last day of the then current Interest Period applicable thereto, to an ABR Loan. |
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CONDITIONS TO BORROWINGS
(1) | certified copies of the resolutions of the Board of Directors (or applicable governing authority) of each Credit Party dated as of the Closing Date and approving, as appropriate, the Loans, the Notes, this Agreement and the other Financing Documents, and all other documents, if any, to which each Credit Party is a party and evidencing corporate authorization with respect to such documents; | ||
(2) | a certificate of the Secretary or an Assistant Secretary of each Credit Party dated as of the Closing Date and certifying (A) the name, title and true signature of each officer of such Person authorized to execute the Notes, this Agreement, Applications and the other Financing Documents to which it is a party, (B) the name, title and true signature of each officer of such Person authorized to provide the certifications required pursuant to this Agreement including, but not limited to, certifications required pursuant toSection 6.10, Borrowing Requests, and Borrowing Base Reports, and (C) that attached thereto is a true and complete copy of the certificate of incorporation, certificate of organization, certificate of formation or certificate of limited partnership, as applicable, certified by the appropriate Governmental Authority of the jurisdiction of incorporation or organization of each Credit Party and the bylaws, limited partnership agreement, |
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operating agreement or limited liability company agreement, as applicable, of each Credit Party, each as amended to date, recent good standing certificates and/or certificates of existence for each Credit Party and certificates of foreign qualification for each Credit Party in such jurisdictions as the Administrative Agent shall require; and |
(3) | certain letter agreements certifying to the names and signatures of officers of the Borrower Agent, or any other Borrowers authorized to issue Borrowing Requests, issue Borrowing Base Reports, initiate wire transfers and take other actions with respect to the credit facilities contemplated hereby. |
(1) | An opinion of Torys LLP, US counsel to the Credit Parties dated as of the Closing Date addressed to the Agents, the Issuing Banks, the Lenders and covering such matters as the Agents, the Issuing Banks, or the Lenders may reasonably request; | ||
(2) | An opinion of Torys LLP, Canadian counsel to the Credit Parties dated as of the Closing Date addressed to the Agents, the Issuing Banks, and the Lenders and covering such matters as the Agents, the Issuing Banks, or the Lenders may reasonably request; and | ||
(3) | Opinions of counsel to the Canadian Credit Parties and the US Credit Parties, respectively, in each jurisdiction required to perfect the Agents’ Liens in inventory comprising part of the Collateral is located, dated as of the Closing Date, addressed to the Agents, the Issuing Banks, and the Lenders and covering such matters as the Agents, the Issuing Banks, or the Lenders may reasonably request. |
(1) | duly executed copies of the Security Agreement, the Guarantees, the Securities Pledge Agreement and such other Security Instruments as may be necessary to grant, affirm, continue, preserve, perfect and protect the Liens of the Administrative Agent and the Canadian Administrative Agent in the Collateral in all jurisdictions designated by the Agents; | ||
(2) | the original stock certificates listed inSchedule 3.1(f) and duly executed corresponding stock powers to perfect the Administrative Agent’s and the Canadian Administrative Agent’s Liens in the equity securities represented by such stock certificates; and | ||
(3) | all Property in which the Administrative Agent or the Canadian Administrative Agent shall, at such time, be entitled to have a Lien pursuant to this Agreement or any other Financing Document (including, without limitation, all promissory notes which evidence any intercompany advances permitted to be made by the Credit Parties hereunder) shall have been physically delivered to the possession of the Administrative Agent or the Canadian Administrative Agent to the extent that such possession is necessary or desirable for the purpose of perfecting, or |
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ensuring priority of, the Administrative Agent’s or the Canadian Administrative Agent’s Liens in such Collateral. |
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SECURITY
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REPRESENTATIONS AND WARRANTIES
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AFFIRMATIVE COVENANTS
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NEGATIVE COVENANTS
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(1) | Terminate, or permit the termination of, any Plan in a manner, or take any other action with respect to any Plan, which could reasonably be expected to result in any material liability of such Canadian Credit Party to any Governmental Authority; | ||
(2) | Fail to make, or permit any other Canadian Credit Party to fail to make, full payment when due of all amounts which, under the provisions of any Plan, agreement relating thereto or applicable law, such Canadian Credit Party is required to pay as contributions thereto, except where the failure to make such payments could not reasonably be expected to have Material Adverse Effect or does not result in the creation of any Lien; or | ||
(3) | contribute to or assume an obligation to contribute to, or permit any Subsidiary to contribute to or assume an obligation to contribute to, any “multi-employer pension plan” as such term is defined in the Pension Benefits Act (Ontario). |
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EVENTS OF DEFAULT
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AGENTS
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MISCELLANEOUS
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US BORROWERS: GERDAU AMERISTEEL US INC. | ||||
By: | /s/ Robert E. Lewis | |||
Name: | Robert E. Lewis | |||
Title: | Vice President, General Counsel and Corporate Secretary | |||
GERDAU AMERISTEEL SAYREVILLE INC. | ||||
By: | /s/ Robert E. Lewis | |||
Name: | Robert E. Lewis | |||
Title: | Vice President, General Counsel and Secretary | |||
GERDAU AMERISTEEL PERTH AMBOY INC. | ||||
By: | /s/ Robert E. Lewis | |||
Name: | Robert E. Lewis | |||
Title: | Vice President, General Counsel and Secretary | |||
SHEFFIELD STEEL CORPORATION | ||||
By: | /s/ Robert E. Lewis | |||
Name: | Robert E. Lewis | |||
Title: | Vice President, General Counsel and Secretary | |||
CHAPARRAL STEEL COMPANY | ||||
By: | /s/ Robert E. Lewis | |||
Name: | Robert E. Lewis | |||
Title: | Vice President, General Counsel and Secretary | |||
CHAPARRAL STEEL TEXAS, LLC | ||||
By: | /s/ Robert E. Lewis | |||
Name: | Robert E. Lewis | |||
Title: | Vice President, General Counsel and Secretary | |||
CHAPARRAL (VIRGINIA) INC. | ||||
By: | /s/ Robert E. Lewis | |||
Name: | Robert E. Lewis | |||
Title: | Vice President, General Counsel and Secretary | |||
CHAPARRAL STEEL MIDLOTHIAN, LP By it general partner, CHAPARRAL STEEL TEXAS, LLC | ||||
By: | /s/ Robert E. Lewis | |||
Name: | Robert E. Lewis | |||
Title: | Vice President, General Counsel and Secretary | |||
AMERICAN MATERIALS TRANSPORT, INC. | ||||
By: | /s/ Robert E. Lewis | |||
Name: | Robert E. Lewis | |||
Title: | Vice President, General Counsel and Secretary | |||
ENCO MATERIALS, INC. | ||||
By: | /s/ Robert E. Lewis | |||
Name: | Robert E. Lewis | |||
Title: | Vice President, General Counsel and Secretary |
CANADIAN BORROWER: GERDAU AMERISTEEL CORPORATION | ||||
By: | /s/ Robert E. Lewis | |||
Name: | Robert E. Lewis | |||
Title: | Vice President, General Counsel, Corporate Secretary | |||
OTHER CANADIAN BORROWING BASE PARTY: CONSOLIDATED RECYCLING INCORPORATED | ||||
By: | /s/ Robert E. Lewis | |||
Name: | Robert E. Lewis | |||
Title: | Vice President, General Counsel, Corporate Secretary | |||
Address for notice for all Credit Parties: | 4221 West Boy Scout Boulevard | |
Suite 600 | ||
Tampa, Florida 33607 | ||
Attention: _______________ | ||
Fax: _______________ |
LENDERS AND AGENTS: | ||
Notice Address: | BANK OF AMERICA, N.A., | |
300 Galleria Parkway, Suite 800 | as the Administrative Agent and a Collateral Agent | |
Atlanta, Georgia 30339 | a US Revolving Lender and the US Swingline Lender | |
Attention: Portfolio Manager | ||
Fax: 404-607-3277 |
By: | /s/ Robert J. Walker | |||
Name: | Robert J. Walker | |||
Title: | Senior Vice President |
BANK OF AMERICA, N.A. | ||
Lending Office Address: | (acting through its Canada branch), as the Canadian Administrative Agent, a Collateral Agent, a Canadian Revolving Lender, and the Canadian Swingline Lender |
200 Front Street West, Suite 2700 Toronto, Ontario M5V 3L2 Attention: Medina Sales DeAndrade | By: | /s/ Medina Sales DeAndrade | ||
Fax: 416-349-4282/4283 | Name: | Medina Sales DeAndrade | ||
Title: | Vice President | |||
Notice Address: |
300 Galleria Parkway, Suite 800 |
Atlanta, Georgia 30339 |
Attention: Portfolio Manager |
Fax: 404-607-3277 |
WACHOVIA CAPITAL FINANCE | ||
Lending Office Address: | CORPORATE (NEW ENGLAND), | |
as a US Revolving Lender |
2450 Colorado Ave #3000W Santa Monica, CA 90404 Attention: Yelena Kravchuk | By: | /s/ Michael P. Baranowski | ||
Fax: 866-615-7803 | Name: | Michael P. Baranowski | ||
Title: | Vice President |
Notice Address: |
2450 Colorado Ave #3000W |
Santa Monica, CA 90404 |
Attention: Yelena Kravchuk |
Fax: 866-615-7803 |
WACHOVIA CAPITAL FINANCE | ||
Lending Office Address: | CORPORATE (CANADA), | |
as a Canadian Revolving Lender |
2450 Colorado Ave #3000W Santa Monica, CA 90404 Attention: Yelena Kravchuk | By: | /s/ Michael P. Baranowski | ||
Fax: 866-615-7803 | Name: | Michael P. Baranowski | ||
Title: | Vice President |
Notice Address: | ||||
2450 Colorado Ave #3000W Santa Monica, CA 90404 Attention: Yelena Kravchuk | ||||
GENERAL ELECTRIC CAPITAL | ||
Lending Office Address: | CORPORATION,as a Collateral Agent | |
and a Collateral Agent and a US Revolving Lender |
201 Merritt 7 P.O. Box 5201 Norwalk, CT 06851 Attention: Gerdau Portfolio Analyst Fax: 203-229-5789 | By: | /s/ Michael R. Todorow | ||
Name: | Michael R. Todorow | |||
Title: | Duly Authorized Signatory | |||
Notice Address: |
500 W. Monroe St. |
12th Floor |
Chicago, IL 60661 |
Attention: Gerdau Acct. Manager |
Fax: 312-463-3840 |
GENERAL ELECTRIC CAPITAL | ||
Lending Office Address: | CORPORATION,as a Collateral Agent | |
and a Canadian Revolving Lender |
201 Merritt 7 P.O. Box 5201 Norwalk, CT 06851 Attention: Gerdau Portfolio Analyst Fax: 203-229-5789 | By: | /s/ Michael R. Todorow | ||
Name: | Michael R. Todorow | |||
Title: | Duly Authorized Signatory | |||
Notice Address: |
500 W. Monroe St. |
12th Floor |
Chicago, IL 60661 |
Attention: Gerdau Acct. Manager |
Fax: 312-463-3840 |
HSBC BANK USA, N.A., | ||||||
Lending Office Address: | as a US Revolving Lender | |||||
424 Fifth Ave, T-5 | ||||||
New York, NY 10018 | ||||||
Attention: Adam Hendley | By: | /s/ Adam Hendley | ||||
Fax: 212-525-6581 | Name: Adam Hendley | |||||
Title: Vice President | ||||||
Notice Address: | ||||||
One HSBC Center, Floor 26 | ||||||
Buffalo, NY 14203 | ||||||
Attention: Donna Riley | ||||||
Fax: 716-841-0269 | ||||||
HSBC BANK USA, N.A., | ||||||
Lending Office Address: | as a Canadian Revolving Lender | |||||
424 Fifth Ave, T-5 | ||||||
New York, NY 10018 | ||||||
Attention: Adam Hendley | By: | /s/ Adam Hendley | ||||
Fax: 212-525-6581 | Name: Adam Hendley | |||||
Title: Vice President | ||||||
Notice Address: | ||||||
One HSBC Center, Floor 26 | ||||||
Buffalo, NY 14203 | ||||||
Attention: Donna Riley | ||||||
Fax: 716-841-0269 |
BANCO SANTANDER, S.A., | ||||||
Lending Office Address: | NEW YORK BRANCH, | |||||
as a US Revolving Lender | ||||||
45 East 53rd Street | ||||||
New York, NY 10022 | ||||||
Attention: | By: | /s/ Ignacio Campillo | ||||
Fax: | Name: Ignacio Campillo | |||||
Title: Managing Director | ||||||
Notice Address: | ||||||
45 East 53rd Street | ||||||
New York, NY 10022 | By: | /s/ Jesus Lopez | ||||
Attention: Javier Diaz | Name: Jesus Lopez | |||||
Fax: 212-350-3690 | Title: Senior Vice President | |||||
THE BANK OF NOVA SCOTIA, | ||||||
Lending Office Address: | as a US Revolving Lender | |||||
720 King Street West | ||||||
2nd Floor | ||||||
Toronto ON M5V 2T3 | ||||||
Canada | ||||||
Attention: Estella Xue | By: | /s/ Todd Meller | ||||
Fax: 212-225-5709 | Name: Todd Meller | |||||
Title: Managing Director | ||||||
Notice Address: | ||||||
One Libery Plaza | ||||||
26th Floor | ||||||
New York, NY 10006 | ||||||
Attention: Frans Braniotis | ||||||
Fax: 212-225-52554 |
THE BANK OF NOVA SCOTIA, | ||||||
Lending Office Address: | as a Canadian Revolving Lender | |||||
Loan Admin Office | ||||||
720 King Street West | ||||||
2nd Floor | By: | /s/ Stephen H. Corey | ||||
Toronto ON M5V 2T3 | Name: Stephen H. Corey | |||||
Canada | Title: Director | |||||
Attention: | ||||||
Fax: | ||||||
By: | /s/ Donna Shaln | |||||
Name: Donna Shaln | ||||||
Title: Director | ||||||
Notice Address: | ||||||
GWS Loan & Derivative | ||||||
Operations | ||||||
720 King Street West | ||||||
2nd Floor | ||||||
Toronto ON M5V 2T3 | ||||||
Canada | ||||||
Attention: | ||||||
Fax: | ||||||
JPMORGAN CHASE BANK, N.A., | ||||||
Lending Office Address: | as a US Revolving Lender | |||||
270 Park Avenue, 4th Floor | ||||||
New York, NY 10017 | ||||||
Attention: Pablo Ogarrio | By: | /s/ Pablo Ogarrio | ||||
Fax: 212-270-5100 | Name: Pablo Ogarrio | |||||
Title: Vice President | ||||||
Notice Address: | ||||||
270 Park Avenue, 4th Floor | ||||||
New York, NY 10017 | ||||||
Attention: Pablo Ogarrio | ||||||
Fax: 212-270-5100 |
JPMORGAN CHASE BANK, N.A., | ||||||
Lending Office Address: | TORONTO BRANCH, | |||||
as a Canadian Revolving Lender | ||||||
270 Park Avenue, 4th Floor | ||||||
New York, NY 10017 | ||||||
Attention: Pablo Ogarrio | By: | /s/ Pablo Ogarrio | ||||
Fax: 212-270-5100 | Name: Pablo Ogarrio | |||||
Title: Vice President | ||||||
Notice Address: | ||||||
270 Park Avenue, 4th Floor | ||||||
New York, NY 10017 | ||||||
Attention: Pablo Ogarrio | ||||||
Fax: 212-270-5100 | ||||||
BNP PARIBAS, | ||||||
Lending Office Address: | as a US Revolving Lender | |||||
787 7th Avenue | ||||||
New York, NY 10019 | ||||||
Attention: Jeff Stufsky | By: | /s/ Jeff Stufsky | ||||
Fax: 212-841-2052 | Name: Jeff Stufsky | |||||
Title: Managing Director | ||||||
Notice Address: | ||||||
787 7th Avenue | By: | /s/ Laureline de Lichana | ||||
New York, NY 10019 | Name: Laureline de Lichana | |||||
Attention: Anna Seghini | Title: Vice President | |||||
Fax: 212-841-2537 |
BNP PARIBAS (CANADA), | ||||||
Lending Office Address: 1981 McGill College Ave. | as a Canadian Revolving Lender | |||||
Montreal, PQ | ||||||
H3A 2W8 | ||||||
By: | /s/ Christopher Rice | |||||
Name: Christopher Rice | ||||||
Title: Vice President | ||||||
Notice Address: | ||||||
1981 McGill College Ave. | By: | /s/ Jean-Philippe Cadot | ||||
Montreal, PQ | Name: Jean-Philippe Cadot | |||||
H3A 2W8 | Title: Director | |||||
CALYON NEW YORK BRANCH, | ||||||
Lending Office Address: | as a US Revolving Lender | |||||
1301 Ave of the Americas | ||||||
New York, NY 10019 | ||||||
Attention: Elvis Grgurovic | ||||||
Fax: 212-261-3375 | By: | /s/ Elvis Grgurovic | ||||
Name: Elvis Grgurovic | ||||||
Title: Director | ||||||
Notice Address: | ||||||
1301 Ave of the Americas | By: | /s/ Mischa Zabotin | ||||
New York, NY 10019 | Name: Mischa Zabotin | |||||
Attention: Elvis Grgurovic | Title: Managing Director | |||||
Fax: 212-261-3375 |
Lending Office Address: | CITIBANK, N.A., as a US Revolving Lender | |||||||
1615 Brett Road | ||||||||
Newcastle, DE 19720 | ||||||||
Attention: Dureyea Garnett | ||||||||
Fax: 212-994-0847 | By: | /s/ Brendan Mackay | ||||||
Name: | Brendan Mackay | |||||||
Title: | Vice President | |||||||
Notice Address: | ||||||||
388 Greenwich St. | ||||||||
New York, NY 10013 | ||||||||
Attention: Brendan Mackay | ||||||||
Fax: 646-291-3363 | ||||||||
Lending Office Address: | CITIBANK, N.A., as a Canadian Revolving Lender | |||||||
123 Front Street West | ||||||||
Toronto, Ontario | ||||||||
M5J 2M3 | ||||||||
Attention: Virginia Sevilla | ||||||||
Fax: 416-915-6347 | By: | /s/ Niyousha Zarinpour | ||||||
Name: | Niyousha Zarinpour | |||||||
Title: | Authorised Signer | |||||||
Notice Address: | ||||||||
123 Front Street West | ||||||||
Toronto, Ontario | ||||||||
M5J 2M3 | ||||||||
Attention: Virginia Sevilla | ||||||||
Fax: 416-915-6347 |
Lending Office Address: | CANADIAN IMPERIAL BANK OF COMMERCE, as a US Revolving Lender | |||||||
595 Bay Street | ||||||||
5th Floor | ||||||||
Attention: Betty Scheubel | By: | /s/ Caroline Adams | ||||||
Fax: 905-948-1934 | Name: | Caroline Adams | ||||||
Title: | Authorized Signatory |
Notice Address: | ||||||||
595 Bay Street | ||||||||
5th Floor | ||||||||
Toronto, ON M5G 2C2 | ||||||||
Attention: Angela Tom | ||||||||
Fax: 905-415-9484 | ||||||||
Lending Office Address: | CANADIAN IMPERIAL BANK OF COMMERCE, as a Canadian Revolving Lender | |||||||
40 Dundas Street | ||||||||
5th Floor | ||||||||
Toronto, ON M5G 1A2 | ||||||||
Attention: Robert Lo Faso | By: | /s/ Caroline Adams | ||||||
Fax: 416-980-5855 | Name: | Caroline Adams | ||||||
Title: | Authorized Signatory | |||||||
Notice Address: | ||||||||
40 Dundas Street | ||||||||
5th Floor | ||||||||
Toronto, ON M5G 1A2 | ||||||||
Attention: Julia Ballantyne Thomas Lasko | ||||||||
Fax: 416-980-5855 |
Lending Office Address: | U.S. BANK NATIONAL ASSOCIATION, as a US Revolving Lender | |||||||
120 Adelaide St. West Suite 2300 | ||||||||
Toronto, ON M5H 1T1 | ||||||||
Attention: Paul Rodgers | ||||||||
Fax: 416-306-3567 | ||||||||
By: | /s/ Marcelle Dadoun | |||||||
Name: | Marcelle Dadoun On behalf of Paul Rodgers — Principal Officer | |||||||
Title: | Compliance Officer |
Lending Office Address: | U.S. BANK NATIONAL ASSOCIATION CANADA BRANCH, as a Canadian Revolving Lender | |||||||
120 Adelaide St. West Suite 2300 | ||||||||
Toronto, ON M5H 1T1 | ||||||||
Attention: Paul Rodgers | By: | /s/ Matthew Kasper | ||||||
Fax: 416-306-3567 | Name: | Matthew Kasper On behalf of Paul Rodgers — Principal Officer | ||||||
Title: | Relationship Manager |
Lending Office Address: | COMERICA BANK, a Texas banking association as a US Revolving Lender | |||||||
Comerica Bank | ||||||||
910 Louisiana Street, Suite 400 | ||||||||
Houston, Texas 77002 | ||||||||
Attention: Laerte Barros | By: | /s/ Laerte Barros | ||||||
Fax: | Name: | Laerte Barros | ||||||
Title: | Vice President | |||||||
Notice Address: | ||||||||
Comerica Bank | ||||||||
910 Louisiana Street, Suite 400 | ||||||||
Houston, Texas 77002 | ||||||||
Attention: Laerte Barros | ||||||||
Fax: |
Lending Office Address: | COMERICA BANK, CANADIAN BRANCH as a Canadian Revolving Lender | |||||||
Suite 2210, South Tower | ||||||||
Royal Bank Plaza | ||||||||
200 Bay Street, | ||||||||
Toronto, Canada M5J 2U2 | ||||||||
Attention: | By: | /s/ Omer Ahmed | ||||||
Fax: | Name: | Omer Ahmed | ||||||
Title: | Portfolio Manager | |||||||
Notice Address: | ||||||||
Suite 2210, South Tower | ||||||||
Royal Bank Plaza | ||||||||
200 Bay Street, | ||||||||
Toronto, Canada M5J 2U2 | ||||||||
Attention: | ||||||||
Fax: |
Lending Office Address: | BANK OF MONTREAL as a US Revolving Lender | |||||||
115 South LaSalle Street | ||||||||
Chicago, IL 60603 | ||||||||
Attention: Thad Rasche | By: | /s/ Thad Rasche | ||||||
Fax: 312-461-2591 | Name: | Thad Rasche | ||||||
Title: | Director | |||||||
Notice Address: | ||||||||
115 South LaSalle Street | ||||||||
Chicago, IL 60603 | ||||||||
Attention: Thad Rasche | ||||||||
Fax: 312-461-2591 |
Lending Office Address: | BANK OF MONTREAL as a Canadian Revolving Lender | |||||||
234 Simcoe Street, 3rd Floor | ||||||||
Toronto, ON M5T 1T4 | ||||||||
Attention: Jinnie Chan | By: | /s/ Thad Rasche | ||||||
Fax: 416-598-6230 | Name: | Thad Rasche | ||||||
Title: | Director | |||||||
Notice Address: | ||||||||
234 Simcoe Street, 3rd Floor | ||||||||
Toronto, ON M5T 1T4 | ||||||||
Attention: Jinnie Chan | ||||||||
Fax: 416-598-6230 |
Lending Office Address: | SUNTRUST BANK as a US Revolving Lender | |||||||
303 Peachtree Street, N.E. | ||||||||
23rd Floor | ||||||||
Atlanta, GA 30308 | ||||||||
Attention: Patrick Wiggins | By: | /s/ Patrick Wiggins | ||||||
Fax: 404-813-5890 | Name: | Patrick Wiggins | ||||||
Title: | Vice President | |||||||
Notice Address: | ||||||||
303 Peachtree Street, N.E. | ||||||||
23rd Floor | ||||||||
Atlanta, GA 30308 | ||||||||
Attention: Patrick Wiggins | ||||||||
Fax: 404-813-5890 |
Lending Office Address: | REGIONS BANK as a US Revolving Lender | |||||||
Regions Bank | ||||||||
191 Peachtree Street, Suite 3800 | ||||||||
Atlanta, Georgia 30303 | ||||||||
Attention: Credit Manager | By: | /s/ Elizabeth L. Waller | ||||||
Fax: 404-221-4361 | Name: | Elizabeth L. Waller | ||||||
Title: | Senior Vice President | |||||||
Notice Address: | ||||||||
Regions Bank | ||||||||
191 Peachtree Street, Suite 3800 | ||||||||
Atlanta, Georgia 30303 | ||||||||
Attention: Credit Manager | ||||||||
Fax: 404-221-4361 |
US Revolving | Canadian | Total Revolving | ||||||||||
Credit | Revolving Credit | Credit | ||||||||||
Lender | Commitments | Commitments | Commitments | |||||||||
Bank of America, N.A. | $ | 56,274,509.80 | $ | 56,274,509.80 | ||||||||
Bank of America, N.A. (acting through its Canada branch) | $ | 13,725,490.20 | $ | 13,725,490.20 | ||||||||
Wachovia Capital Finance Corporation (New England) | $ | 56,274,509.80 | $ | 56,274,509.80 | ||||||||
Wachovia Capital Finance Corporation (Canada) | $ | 13,725,490.20 | $ | 13,725,490.20 | ||||||||
General Electric Capital Corporation | $ | 52,254,901.96 | $ | 12,745,098.04 | $ | 65,000,000.00 | ||||||
HSBC Bank USA, N.A. | $ | 48,235,294.12 | $ | 11,764,705.88 | $ | 60,000,000.00 | ||||||
Banco Santander, S.A., New York Branch | $ | 60,000,000.00 | $ | 60,000,000.00 | ||||||||
Bank of Nova Scotia | $ | 36,176,470.59 | $ | 8,823,529.41 | $ | 45,000,000.00 | ||||||
JP Morgan Chase Bank, N.A. | $ | 32,156,862.75 | $ | 32,156,862.75 | ||||||||
JP Morgan Chase Bank, N.A. Toronto Branch | $ | 7,843,137.25 | $ | 7,843,137.25 | ||||||||
BNP Paribas | $ | 32,156,862.75 | $ | 32,156,862.75 | ||||||||
BNP Paribas (Canada) | $ | 7,843,137.25 | $ | 7,843,137.25 | ||||||||
Calyon New York Branch | $ | 40,000,000.00 | $ | 40,000,000.00 | ||||||||
Citibank, N.A. | $ | 24,117,647.06 | $ | 24,117,647.06 | ||||||||
Citibank, N.A., Canadian Branch | $ | 5,882,352.94 | $ | 5,882,352.94 | ||||||||
Canadian Imperial Bank of Commerce | $ | 20,098,039.22 | $ | 4,901,960.78 | $ | 25,000,000.00 | ||||||
U.S. Bank National Association | $ | 20,098,039.22 | $ | 20,098,039.22 | ||||||||
U.S. Bank National Association Canada Branch | $ | 4,901,960.78 | $ | 4,901,960.78 | ||||||||
Comerica Bank | $ | 16,078,431.37 | $ | 16,078,431.37 | ||||||||
Comerica Bank, Canadian Branch | $ | 3,921,568.63 | $ | 3,921,568.63 | ||||||||
Bank of Montreal | $ | 16,078,431.37 | $ | 3,921,568.63 | $ | 20,000,00000 |
US Revolving | Canadian | Total Revolving | ||||||||||
Credit | Revolving Credit | Credit | ||||||||||
Lender | Commitments | Commitments | Commitments | |||||||||
SunTrust Bank | $ | 20,000,000.00 | $ | 20,000,000.00 | ||||||||
Regions Bank | $ | 20,000,000.00 | $ | 20,000,000.00 | ||||||||
Total | $ | 550,000,000.00 | $ | 100,000,000.00 | $ | 650,000,000 | ||||||
US Swingline Lender | US Swingline Commitment | |
Bank of America, N.A. | $25,000,000 |
Canadian Swingline Lender | Canadian Swingline Commitment | |
Bank of America, N.A. | $15,000,000 | |
(acting through its Canada branch) |
SCHEDULES | ||
Schedule 1.1(A) | Projections | |
Schedule 2.3 | Existing Letters of Credit | |
Schedule 3.1(f) | List of Stock Certificates | |
Schedule 3.1(g) | List of Regulatory Approvals, Consents and Waivers | |
Schedule 5.7 | Litigation | |
Schedule 5.9 | US Employee Benefits Disclosures | |
Schedule 5.10 | Canadian Employee Benefits Disclosures | |
Schedule 5.15 | Compliance with Laws | |
Schedule 5.19 | Capital Structure | |
Schedule 5.20 | Insurance | |
Schedule 5.21 | Environmental Matters | |
Schedule 5.23 | Employee Matters | |
Schedule 5.24 | Real Property Locations | |
Schedule 5.26 | Indebtedness | |
Schedule 6.5 | Insurance | |
Schedule 7.3 | Permitted Liens | |
Schedule 7.6 | Permitted Investments | |
Schedule 7.18 | Bank Accounts |
EXHIBITS | ||
Exhibit A | Form of Bailee’s Letter | |
Exhibit B-1 | Form of US Borrowing Base Report | |
Exhibit B-2 | Form of Canadian Borrowing Base Report | |
Exhibit C-1 | Form of Borrowing Request (US Revolving Credit Loan) | |
Exhibit C-2 | Form of Borrowing Request (Canadian Revolving Credit Loans) | |
Exhibit C-3 | Form of Request for US Letters of Credit | |
Exhibit C-4 | Form of Request for Canadian Letters of Credit | |
Exhibit C-5 | Form of Borrowing Request (US Swingline Loans) | |
Exhibit D-1 | Form of Canadian Revolving Credit Note (C$) | |
Exhibit D-2 | Form of Canadian Revolving Credit Note (US$) | |
Exhibit E | Form of Perfection Certificate and Perfection Certificate Update | |
Exhibit F | Form of US Revolving Credit Note | |
Exhibit G | Form of No Default/Compliance Certificate | |
Exhibit H | Form of Assignment and Acceptance |
Page | ||||||
ARTICLE 1 DEFINITIONS; CONSTRUCTION | 3 | |||||
Section 1.1 | Definitions | 3 | ||||
Section 1.2 | Terms Generally | 41 | ||||
Section 1.3 | Accounting Terms and Standards | 41 | ||||
ARTICLE 2 AMOUNT AND TERMS OF LOANS | 42 | |||||
Section 2.1 | Loans and Commitments | 42 | ||||
Section 2.2 | Borrowing Requests | 45 | ||||
Section 2.3 | Letters of Credit | 47 | ||||
Section 2.4 | Disbursement of Funds | 52 | ||||
Section 2.5 | Notes and Maturity | 54 | ||||
Section 2.6 | Interest | 55 | ||||
Section 2.7 | Interest Periods | 56 | ||||
Section 2.8 | [Intentionally Deleted.] | 57 | ||||
Section 2.9 | Repayment of Loans | 57 | ||||
Section 2.10 | Voluntary Adjustment, Termination or Reduction of Revolving Credit Commitments; Extensions | 59 | ||||
Section 2.11 | Mandatory Prepayments; Voluntary Prepayments; Order of Application | 60 | ||||
Section 2.12 | Continuation and Conversion Options | 63 | ||||
Section 2.13 | Fees | 64 | ||||
Section 2.14 | Payments, etc. | 66 | ||||
Section 2.15 | Interest Rate Not Ascertainable, etc. | 67 | ||||
Section 2.16 | Illegality | 67 | ||||
Section 2.17 | Increased Costs | 68 | ||||
Section 2.18 | Change of Lending Office | 69 | ||||
Section 2.19 | Funding Losses | 69 | ||||
Section 2.20 | Sharing of Payments, etc. | 70 | ||||
Section 2.21 | Taxes | 71 | ||||
Section 2.22 | Pro Rata Treatment | 72 | ||||
Section 2.23 | Replacement of Lenders | 72 | ||||
Section 2.24 | Bank Charges; Advances of Revolving Credit Loans to Satisfy Lender Indebtedness | 72 | ||||
Section 2.25 | Joint and Several Liability of US Borrowers and of Canadian Borrower; Rights of Contribution among US Borrowers | 73 | ||||
Section 2.26 | Participations in US Swingline Loans | 74 | ||||
Section 2.27 | Participations in Canadian Swingline Loans | 75 | ||||
Section 2.28 | Agent Advances; Participations | 76 | ||||
Section 2.29 | New Appraisals | 77 | ||||
Section 2.30 | Defaulting Lenders | 77 | ||||
ARTICLE 3 CONDITIONS TO BORROWINGS | 78 | |||||
Section 3.1 | Closing | 78 | ||||
Section 3.2 | Conditions Precedent to All Loans and Letters of Credit | 81 |
Page | ||||||
ARTICLE 4 SECURITY | 82 | |||||
Section 4.1 | Security Granted by US Credit Parties | 82 | ||||
Section 4.2 | Security Granted by Canadian Credit Parties | 82 | ||||
Section 4.3 | Establishment of US Lockboxes | 83 | ||||
Section 4.4 | Establishment of Canadian Lockboxes | 83 | ||||
Section 4.5 | Establishment of US Blocked Account; Dominion and Control; Operation of US Blocked Account | 83 | ||||
Section 4.6 | Establishment of Canadian Blocked Account; Dominion and Control | 84 | ||||
ARTICLE 5 REPRESENTATIONS AND WARRANTIES | 85 | |||||
Section 5.1 | Corporate Existence | 85 | ||||
Section 5.2 | Corporate Power and Authorization | 85 | ||||
Section 5.3 | Binding Obligations | 85 | ||||
Section 5.4 | No Legal Bar or Resultant Lien | 85 | ||||
Section 5.5 | No Consent | 86 | ||||
Section 5.6 | Financial Information | 86 | ||||
Section 5.7 | Litigation | 86 | ||||
Section 5.8 | Use of Proceeds; Distribution of Proceeds | 86 | ||||
Section 5.9 | US Employee Benefits | 86 | ||||
Section 5.10 | Canadian Employee Benefits | 87 | ||||
Section 5.11 | Taxes; Governmental Charges | 88 | ||||
Section 5.12 | Titles, etc. | 88 | ||||
Section 5.13 | Defaults | 88 | ||||
Section 5.14 | Casualties; Taking of Properties | 88 | ||||
Section 5.15 | Compliance with the Law | 88 | ||||
Section 5.16 | No Material Misstatements | 88 | ||||
Section 5.17 | Investment Company Act | 88 | ||||
Section 5.18 | Margin Stock | 88 | ||||
Section 5.19 | Capital Structure | 89 | ||||
Section 5.20 | Insurance | 89 | ||||
Section 5.21 | Environmental Matters | 89 | ||||
Section 5.22 | Solvency | 90 | ||||
Section 5.23 | Employee Matters | 90 | ||||
Section 5.24 | Real Property | 90 | ||||
Section 5.25 | Perfection Certificate; Schedules to other Financing Documents | 90 | ||||
Section 5.26 | Existing Indebtedness | 90 | ||||
Section 5.27 | 2008 Term Loan Documents | 91 | ||||
Section 5.28 | Material Contracts | 91 | ||||
Section 5.29 | Accounts | 91 | ||||
Section 5.30 | [Intentionally Deleted.] | 91 | ||||
Section 5.31 | Anti-Terrorism Laws | 91 | ||||
ARTICLE 6 AFFIRMATIVE COVENANTS | 92 | |||||
Section 6.1 | Maintenance and Compliance, etc. | 92 | ||||
Section 6.2 | Payment of Taxes and Claims, etc. | 92 | ||||
Section 6.3 | Further Assurances | 92 | ||||
Section 6.4 | Bank Accounts | 92 |
Page | ||||||
Section 6.5 | Insurance | 93 | ||||
Section 6.6 | Accounts and Records | 93 | ||||
Section 6.7 | Right of Inspection | 93 | ||||
Section 6.8 | [Intentionally Deleted.] | 93 | ||||
Section 6.9 | Collateral Reports | 93 | ||||
Section 6.10 | Reporting Covenants | 94 | ||||
Section 6.11 | [Intentionally Deleted.] | 97 | ||||
Section 6.12 | Fixed Charge Coverage Ratio | 97 | ||||
Section 6.13 | Post Closing Obligations | 97 | ||||
ARTICLE 7 NEGATIVE COVENANTS | 98 | |||||
Section 7.1 | Anti-Terrorism Laws | 98 | ||||
Section 7.2 | Indebtedness | 99 | ||||
Section 7.3 | Liens | 100 | ||||
Section 7.4 | Mergers, Sales, Etc. | 102 | ||||
Section 7.5 | Equity Distributions | 103 | ||||
Section 7.6 | Investments, Loans, etc. | 103 | ||||
Section 7.7 | Sales and Leasebacks | 105 | ||||
Section 7.8 | Nature of Business | 105 | ||||
Section 7.9 | ERISA/Pension Compliance | 105 | ||||
Section 7.10 | Sale or Discount of Receivables | 106 | ||||
Section 7.11 | Negative Pledge Agreements | 106 | ||||
Section 7.12 | Transactions with Affiliates | 106 | ||||
Section 7.13 | [Intentionally Deleted.] | 107 | ||||
Section 7.14 | Equity | 107 | ||||
Section 7.15 | [Intentionally Deleted.] | 107 | ||||
Section 7.16 | [Intentionally Deleted.] | 107 | ||||
Section 7.17 | Acquisitions; Creation of Subsidiaries | 107 | ||||
Section 7.18 | Accounts | 107 | ||||
Section 7.19 | Other Restrictive Agreements | 107 | ||||
Section 7.20 | Modifications and Prepayments of Indebtedness | 108 | ||||
Section 7.21 | Fiscal Year | 108 | ||||
Section 7.22 | Modification of 2008 Term Loan Documents | 108 | ||||
ARTICLE 8 EVENTS OF DEFAULT | 109 | |||||
Section 8.1 | Payments | 109 | ||||
Section 8.2 | Other Covenants | 109 | ||||
Section 8.3 | Other Financing Document Obligations | 109 | ||||
Section 8.4 | Representations | 109 | ||||
Section 8.5 | Non-Payments of Other Indebtedness | 109 | ||||
Section 8.6 | Defaults Under Other Agreements | 109 | ||||
Section 8.7 | Bankruptcy Under US Law | 110 | ||||
Section 8.8 | Bankruptcy Under Canadian Law | 110 | ||||
Section 8.9 | Money Judgment | 111 | ||||
Section 8.10 | Financing Documents | 111 | ||||
Section 8.11 | [Intentionally Deleted] | 111 | ||||
Section 8.12 | Criminal Activity; Forfeiture | 111 | ||||
Section 8.13 | Change of Control | 111 |
Page | ||||||
ARTICLE 9 AGENTS | 112 | |||||
Section 9.1 | Appointment of Agents | 112 | ||||
Section 9.2 | Limitation of Duties of Agents | 113 | ||||
Section 9.3 | Lack of Reliance on the Agents | 113 | ||||
Section 9.4 | Certain Rights of the Agents | 113 | ||||
Section 9.5 | Reliance by Agents | 113 | ||||
Section 9.6 | Notice of Default | 114 | ||||
Section 9.7 | Indemnification of Agents | 114 | ||||
Section 9.8 | Agents in their Individual Capacity | 114 | ||||
Section 9.9 | Treatment of Lenders | 114 | ||||
Section 9.10 | Payments by Agents to Lenders | 115 | ||||
Section 9.11 | Restrictions on Actions by Lenders; Sharing of Payments | 115 | ||||
Section 9.12 | Successor Agent | 116 | ||||
Section 9.13 | Collateral Agents and Arrangers | 116 | ||||
Section 9.14 | Field Audit and Examination Reports | 117 | ||||
Section 9.15 | Agency for Perfection | 117 | ||||
ARTICLE 10 MISCELLANEOUS | 119 | |||||
Section 10.1 | Notices | 119 | ||||
Section 10.2 | Amendments and Waivers | 119 | ||||
Section 10.3 | No Waiver; Remedies Cumulative | 121 | ||||
Section 10.4 | Payment of Expenses, Indemnities, etc. | 121 | ||||
Section 10.5 | Right of Setoff | 123 | ||||
Section 10.6 | Benefit of Agreement | 123 | ||||
Section 10.7 | Successors and Assigns; Participations and Assignments | 124 | ||||
Section 10.8 | Governing Law; Submission to Jurisdiction; etc. | 127 | ||||
Section 10.9 | Independent Nature of Lenders’ Rights | 129 | ||||
Section 10.10 | Invalidity | 129 | ||||
Section 10.11 | Renewal, Extension or Rearrangement | 129 | ||||
Section 10.12 | Confidentiality | 129 | ||||
Section 10.13 | Interest | 130 | ||||
Section 10.14 | Entire Agreement | 130 | ||||
Section 10.15 | Attachments | 130 | ||||
Section 10.16 | Counterparts; Facsimile Signatures | 130 | ||||
Section 10.17 | Survival of Indemnities | 131 | ||||
Section 10.18 | Headings Descriptive | 131 | ||||
Section 10.19 | Exculpation Provisions | 131 | ||||
Section 10.20 | No Fiduciary Relationship | 131 | ||||
Section 10.21 | Secured Affiliates | 131 |
FORM OF BAILEE’S LETTER
[ADDRESS OF BAILEE]
Sincerely, [BAILOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
BANK OF AMERICA, N.A.
(acting through its Canada branch)],
as[Canadian]Administrative Agent | Address for Notice: | |||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
Attention: | ||||||||
[BAILEE] | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
FORM OF BORROWING REQUEST (US REVOLVING CREDIT LOANS)
TO: | BANK OF AMERICA, N.A., in its capacity as Administrative Agent under the Credit Agreement (as defined below) | |
RE: | Credit Agreement dated December ___, 2009, made among each of the undersigned, in its capacity as Borrower Agent, the US Borrowers, you and the lenders from time to time party thereto, among others (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) |
(i) | all representations and warranties contained in the Credit Agreement and in the other Financing Documents executed and delivered on or after the Closing Date are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date hereof (unless such representation and warranty is expressly limited to an earlier date), subject to the limitations set forth inSection 3.2(a) of the Credit Agreement with respect to representations and warranties underSection 5.6(c) of the Credit Agreement; | ||
(ii) | on and as of the date hereof, no Default or Event of Default exists; | ||
(iii) | the Aggregate US Revolving Credit Exposure and the Aggregate Canadian Revolving Credit Exposure, after giving effect to the Loan requested hereby, will not exceed the US Maximum Available Amount and the Canadian Maximum Available Amount, respectively, currently in effect; and |
1 | This sentence is only required in the context of a Borrowing Request for a LIBOR Loan. Select either 1, 2, 3 or 6 months. |
(iv) | both before and after giving effect to the Borrowing of the US Revolving Credit Loan requested hereby, the US Borrowing Base of the undersigned will not be exceeded. |
GERDAU AMERISTEEL CORPORATION, as Borrower Agent on behalf of US Borrowers | ||||
By: | ||||
Name: | ||||
Title: | ||||
FORM OF BORROWING REQUEST
(CANADIAN REVOLVING CREDIT LOANS)
TO: | BANK OF AMERICA, N.A. (acting through its Canada branch), in its capacity as Canadian Administrative Agent under the Credit Agreement (as defined below) |
AND TO: | BANK OF AMERICA, N.A., in its capacity as Administrative Agent under the Credit Agreement |
RE: | Credit Agreement dated December __, 2009, made among the undersigned, in its capacity as Borrower Agent, the Canadian Borrower, certain subsidiaries of the undersigned, you, as agents, and the lenders from time to time party thereto, among others (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”) |
[ ] an ABR Loan | |||
[ ] a LIBOR Loan | |||
[ ] a Canadian Prime Loan | |||
[ ] a B/A Loan |
(i) | all representations and warranties contained in the Credit Agreement and in the other Financing Documents executed and delivered on or after the Closing Date are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date hereof (unless such representation and warranty is expressly limited to an earlier date), subject to the limitations set forth in |
1 | This sentence is only required in the context of a Borrowing Request for a LIBOR Loan. Select either 1, 2, 3 or 6 months. | |
2 | This sentence is only required in the context of a Borrowing Request for a B/A Loan. Select either 30, 60, 90 or 180 days. |
Section 3.2(a) of the Credit Agreement with respect to representations and warranties underSection 5.6(c) of the Credit Agreement; |
(ii) | on and as of the date hereof, no Default or Event of Default exists; |
(iii) | the Aggregate US Revolving Credit Exposure and the Aggregate Canadian Revolving Credit Exposure, after giving effect to the Loan requested hereby, will not exceed the US Maximum Available Amount and the Canadian Maximum Available Amount, respectively, currently in effect; and |
(iv) | both before and after giving effect to the Borrowing of the Canadian Revolving Credit Loan requested hereby, the Canadian Borrowing Base will not be exceeded. |
GERDAU AMERISTEEL CORPORATION, as Borrower Agent on behalf of Canadian Borrower | ||||
By: | ||||
Name: | ||||
Title: | ||||
FORM OF REQUEST FOR US LETTERS OF CREDIT
TO: | BANK OF AMERICA, N.A., in its capacity as Administrative Agent under the Credit Agreement (as defined below) | |
AND TO: Issuing Bank(s) under the Credit Agreement | ||
RE: | Credit Agreement dated December , 2009, made among , (the “Account Party” herein), the undersigned, in its capacity as Borrower Agent, you, as Administrative Agent and Issuing Bank, respectively, and the lenders from time to time party thereto, among others (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) |
1 | At least five (5) Business Days notice is required, unless a shorter period is agreed to by the Administrative Agent and the Issuing Bank hereunder. |
GERDAU AMERISTEEL CORPORATION, as Borrower Agent on behalf of US Borrowers | ||||
By: | ||||
Name: | ||||
Title: |
TO: | BANK OF AMERICA, N.A., in its capacity as Administrative Agent under the Credit Agreement (as defined below) | |
AND TO: Issuing Bank(s) under the Credit Agreement | ||
RE: | Credit Agreement dated December , 2009, made among (a US Borrower and the “Account Party” herein), the undersigned in its capacity as Borrower Agent, you, as Administrative Agent and Issuing Bank, respectively, and the lenders from time to time party thereto, among others (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) |
(i) | all representations and warranties contained in the Credit Agreement and in the other Financing Documents executed and delivered on or after the Closing Date are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date hereof (unless such representation and warranty is expressly limited to an earlier date), subject to the limitations set forth inSection 3.2(a) of the Credit Agreement with respect to representations and warranties underSection 5.6(c) of the Credit Agreement; | ||
(ii) | on and as of the date hereof, no Default or Event of Default exists; | ||
(iii) | after giving effect to the Letter of Credit requested hereby, and as evidenced by the calculations disclosed in the attached worksheet: |
(a) | the Allocated US Revolving Credit Exposure of the Account Party will not exceed the US Borrowing Base of such Account Party minus Availability Reserves applicable to such Account Party; | ||
(b) | the Aggregate US Revolving Credit Exposure will not exceed the US Maximum Available Amount currently in effect; | ||
(c) | the aggregate of all US Letter of Credit Liabilities and the Dollar Equivalent of all Canadian Letter of Credit Liabilities will not exceed $200,000,000; and |
(iv) | all conditions precedent to the issuance of the Letter of Credit requested hereby have been satisfied. |
DATED: | GERDAU AMERISTEEL CORPORATION, as Borrower Agent | |||
By: | ||||
Name: | ||||
Title: |
2
FORM OF REQUEST FOR CANADIAN LETTERS OF CREDIT
TO: | BANK OF AMERICA, N.A. (acting through its Canada branch), in its capacity as Canadian Administrative Agent under the Credit Agreement (as defined below) | |
AND TO: Issuing Bank(s) under the Credit Agreement | ||
RE: | Credit Agreement dated December ___, 2009, made among the Canadian Borrower (the “Account Party” herein), the undersigned, in its capacity as Borrower Agent, you, as Canadian Administrative Agent and Issuing Bank, respectively, and the lenders from time to time party thereto, among others (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) |
2 | At least five (5) Business Days notice is required, unless a shorter period is agreed to by the Canadian Administrative Agent and the Issuing Bank hereunder. |
GERDAU AMERISTEEL CORPORATION, as Borrower Agent on behalf of Canadian Borrower | ||||
By: | ||||
Name: | ||||
Title: |
TO: | BANK OF AMERICA, N.A. (acting through its Canada branch), in its capacity as Canadian Administrative Agent under the Credit Agreement (as defined below) | |
AND TO: Issuing Bank(s) under the Credit Agreement | ||
RE: | Credit Agreement dated December , 2009, made among the (the Canadian Borrower and the “Account Party” herein), the undersigned, in its capacity as Borrower Agent, you, as Canadian Administrative Agent and Issuing Bank respectively, and the lenders from time to time party thereto, among others (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) |
(i) | all representations and warranties contained in the Credit Agreement and in the other Financing Documents executed and delivered on or after the Closing Date are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date hereof (unless such representation and warranty is expressly limited to an earlier date), subject to the limitations set forth inSection 3.2(a) of the Credit Agreement with respect to representations and warranties underSection 5.6(c) of the Credit Agreement; | ||
(ii) | on and as of the date hereof, no Default or Event of Default exists; | ||
(iii) | after giving effect to the Letter of Credit requested hereby, and as evidenced by the calculations disclosed in the attached worksheet: |
(a) | the Aggregate US Revolving Credit Exposure and the Aggregate Canadian Revolving Credit Exposure will not exceed the US Maximum Available Amount and the Canadian Maximum Available Amount, respectively, currently in effect; | ||
(b) | the Dollar Equivalent of the aggregate of the Dollar Equivalent of all Canadian Letter of Credit Liabilities and US Letter of Credit Liabilities will not exceed $200,000,000; | ||
(c) | the Borrowing Base of the Account Party is sufficient to cover the Letter of Credit requested hereby; and |
(iv) | all conditions precedent to the issuance of the Letter of Credit requested hereby have been satisfied. |
DATED: | GERDAU AMERISTEEL CORPORATION, as Borrower Agent | |||
By: | ||||
Name: | ||||
Title: |
2
TO: | BANK OF AMERICA, N.A., in its capacity as Administrative Agent under the Credit Agreement (as defined below) | |
RE: | Credit Agreement dated December , 2009, made among the undersigned, in its capacity as Borrower Agent, the US Borrowers, you and the lenders from time to time party thereto, among others (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) |
(i) | all representations and warranties contained in the Credit Agreement and in the other Financing Documents executed and delivered on or after the Closing Date are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date hereof (unless such representation and warranty is expressly limited to an earlier date), subject to the limitations set forth inSection 3.2(a) of the Credit Agreement with respect to representations and warranties underSection 5.6(c) of the Credit Agreement; | ||
(ii) | on and as of the date hereof, no Default or Event of Default exists; | ||
(iii) | the Aggregate US Revolving Credit Exposure and the Aggregate Canadian Revolving Credit Exposure, after giving effect to the Loan requested hereby, will not exceed the US Maximum Available Amount and the Canadian Maximum Available Amount, respectively; and | ||
(iv) | both before and after giving effect to the Borrowing of the US Swingline Loan requested hereby, the US Borrowing Base of the undersigned will not be exceeded. |
GERDAU AMERISTEEL CORPORATION, as Borrower Agent on behalf of US Borrowers | ||||
By: | ||||
Name: | ||||
Title: |
Canadian Dollar equivalent of U.S.$ | , 200 |
GERDAU AMERISTEEL CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
U.S. $ _______________ | _______________, 200__ |
[CANADIAN BORROWER] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Principal | Date of | |||||||||||||||||||
Amount of | Payment or | Amount Paid | Balance | |||||||||||||||||
Date Made | Loan | Prepayment | or Prepaid | Interest Rate | Outstanding | |||||||||||||||
a. | The following is a mailing address for the Company: | ||
b. | If different from its indicated mailing address, the Company’s principal place of business or, if more than one, its chief executive office, is located at the following address: | ||
c. | The following is the type of organization of the Company: | ||
d. | The following is the sole jurisdiction of the Company’s organization: | ||
e. | The following is the Company’s Federal Tax Identification Number (EIN): The following is the Company’s state-issued organizational identification number: |
a. | The following is a list of all other legal names, and trade names under which inventory has been sold or receivables have been created, used by the Company, or any other business or organization to which the Company became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, now or at any time during the past five years: | ||
b. | Attached hereto as Schedule 3 is the information required in§2above for any other business or organization to which the Company became the successor by merger, consolidation, acquisition of assets, change in form, nature or jurisdiction of organization or otherwise, now or at any time during the past five years. |
a. | The following are all other locations in the United States of America in which the Company maintains any books or records relating to any of the Collateral (street address, City, County and State): | ||
b. | The following are all other places of business of the Company in the United States of America (street address, City, County and State): | ||
c. | The following are all other locations in the United States of America where any Collateral is located (street address, City, County and State): | ||
d. | The following are the names and addresses of all persons or entities other than the Company, such as lessees, consignees, warehousemen or purchasers of chattel paper, which have possession or are intended to have possession of any of the Collateral (name, street address, City, County and State): |
a. | Set forth below is the information required by§§4(a) or(b)with respect to each location or place of business previously maintained by the Company at any time during the past five years in a state in which the Company has previously maintained a location or place of business at any time during the past four months (street address, City, County and State): | ||
b. | Set forth below is the information required by§§4(c) or(d)with respect to each other location at which, or other person or entity with which, any of the Collateral has been previously held at any time during the past twelve months (name, street address, City, County and State): |
a. | Set forth onSchedule 7(a) is a complete list of all the Company’s bank accounts, including without limitation, all demand deposit accounts, Blocked Accounts, Lockboxes, and Deposit Accounts (as such term is defined in the US Security Agreement). | ||
b. | Set forth onSchedule 7(b) is a complete list of all of the Company’s Intellectual Property Rights (as such term is defined in the US Security Agreement), including without limitation, all patents, patent applications, trademarks, trademark applications, service marks, copyrights, and copyright applications. | ||
c. | Set forth onSchedule 7(c) is a complete list of all the certificated securities owned by the Company, including without limitation, all Pledged Securities (as such term is defined in the US Securities Pledge Agreement), together with all certificate numbers and numbers of shares owned. |
d. | Set forth onSchedule 7(d) is a complete list of all intercompany notes held by the Company and due and payable to the Company. | ||
e. | Set forth onSchedule 7(e) is a complete list of all securities accounts. |
By: | ||||
Name: | ||||
Title: | ||||
Organizations Succeeded
Unusual Transactions
Bank Accounts
Intellectual Property Rights
Securities
Intercompany Notes
Securities Accounts
U.S.$ | , 200 |
GERDAU AMERISTEEL US INC. | ||
GERDAU AMERISTEEL SAYREVILLE INC. | ||
GERDAU AMERISTEEL PERTH AMBOY INC. | ||
CHAPARRAL STEEL COMPANY | ||
ENCO MATERIALS, INC. | ||
SHEFFIELD STEEL CORPORATION | ||
CHAPARRAL (VIRGINIA) INC. | ||
AMERICAN MATERIALS TRANSPORT, INC. | ||
CHAPARRAL STEEL TEXAS, LLC | ||
CHAPARRAL STEEL MIDLOTHIAN, LP |
By: | ||||||
Name: | ||||||
Title: | ||||||
Principal | Date of | |||||||||
Amount of | Payment or | Amount Paid | Balance | |||||||
Date Made | Loan | Prepayment | or Prepaid | Interest Rate | Outstanding | |||||
A. | Financial Statements. The financial statements required by Sections 6.10(a) and 6.10(b) of the Credit Agreement, and the activities of the Company and its Subsidiaries during the period covered thereby, have been reviewed under the supervision of the undersigned with a view to determining whether the Company and its Subsidiaries have fulfilled in all material respects all of their obligations under the Credit Agreement and the other Financing Documents. |
B. | Defaults. No Default exists and the Company and its Subsidiaries have fulfilled in all respects their obligations under the instruments described in clause A above. |
C. | Worksheet. Attached hereto is a worksheet demonstrating in reasonable detail compliance (including, but not limited to, showing all material calculations), as at the end of the fiscal year, fiscal quarter or month, as applicable, ended on ______, with Section 6.12 of the Credit Agreement;providedthat, such calculations shall not be required more frequently than quarterly unless a Trigger Event has occurred. |
D. | Other Information. Attached hereto are such financial or other details, information and material as the Administrative Agent has reasonably requested to evidence compliance with the requirements described in clause C above. |
E. | Pensions. The Company and its Subsidiaries have complied in all respects with Section 7.9 of the Credit Agreement, and have complied with the minimum funding requirements with respect to each Plan maintained by the Company, its Subsidiaries, or both, or to which the Company or any of its Subsidiaries is a member. |
DATED: | GERDAU AMERISTEEL CORPORATION, | |||
as Borrower Agent on behalf of Borrowers |
By: | ||||
Name: | ||||
Title: |
1. Assignor: | ||||||
1(a). Related Affiliate (if applicable) | ||||||
2. Assignee: | ||||||
2(a). Related Affiliate (if applicable) | ||||||
3. Borrowers: | Gerdau Ameristeel US Inc., Gerdau Ameristeel Sayreville Inc., Gerdau Ameristeel Perth Amboy Inc., Chaparral Steel Company, Enco Materials, Inc., Sheffield Steel Corporation, Chaparral (Virginia) Inc., American Materials Transport, Inc., Chaparral Steel Texas, LLC, Chaparral Steel Midlothian, LP (collectively, the “Borrowers”) | |||||
4. Administrative Agent: | Bank of America, N.A. |
5. Canadian Administrative Agent | Bank of America, N.A. (acting through its Canada branch) | |||||
6. Credit Agreement | The U.S. $600,000,000 Credit Agreement dated December __, 2009, among the Borrowers, the Lenders parties thereto, Bank of America, N.A., as Administrative Agent, Bank of America, N.A. (acting through its Canada branch), as the Canadian Administrative Agent, and the other parties thereto | |||||
7. Assigned Interests: |
Facility Assigned | Aggregate Amount of | Amount of | Percentage Assigned | |||||||||
by Assignor1 | Commitment/Loans | Commitment/Loans | of | |||||||||
$ | $ | % | ||||||||||
$ | $ | % | ||||||||||
$ | $ | % |
ASSIGNOR [NAME OF ASSIGNOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
1 | Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g. “US Revolving Credit Commitment”, “US Revolving Credit Loans”, “US Swingline Commitment”, “Canadian Revolving Credit Commitment”, “Canadian Revolving Credit Loans”, “Canadian Swingline Commitment”). | |
2 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. |
ASSIGNEE | ||||||
[NAME OF ASSIGNEE] | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
Consent to and Accepted:3 | ||||
BANK OF AMERICA, N.A., | ||||
as Administrative Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
Consented to:4 | ||||
, on behalf of the Borrowers | ||||
By: | ||||
Name: | ||||
Title: | ||||
3 | Not required if assignment is to a Lender or an Affiliate of a Lender, except as described in Section 10.7(b) of the Credit Agreement. | |
4 | Not required if assignment is to a Lender or an Affiliate of a Lender, except as described in Section 10.7(b) of the Credit Agreement. Not required if a Default under the Credit Agreement has occurred and is continuing. |
Consented to:5 | ||||
[NAME OF ISSUING BANK] | ||||
By: | ||||
Name: | ||||
Title: | ||||
5 | Required from any Issuing Bank which has an outstanding Letter of Credit, in the case of an assignment of all or a portion of a Revolving Credit Commitment or any Lender’s obligations in respect of its Revolving Credit Exposure. Not required if assignment is to a Lender or an Affiliate of a Lender, except as described in Section 10.7(b) of the Credit Agreement. |
ASSIGNMENT AND ACCEPTANCE