Conformed Copy
EX-4.1
AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
METAL MANAGEMENT, INC.
AND
THOSE OF ITS SUBSIDIARIES PARTIES HERETO
AS BORROWERS
THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO
AS LENDERS,
METAL MANAGEMENT, INC.,
AS FUNDS ADMINISTRATOR
AND
LASALLE BANK NATIONAL ASSOCIATION
AS AGENT
WITH
CHARTER ONE BANK, N.A. AS CO-SYNDICATION AGENT
SOVEREIGN BANK AS CO-SYNDICATION AGENT
PNC BANK NATIONAL ASSOCIATION AS CO-DOCUMENTATION AGENT
NATIONAL CITY BANK OF THE MIDWEST AS CO-DOCUMENTATION AGENT
DATED AS OF MAY 9, 2006
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.................................................... 1
1.1 General Definitions............................................. 1
1.2 Accounting Terms and Determinations............................. 21
1.3 Other Terms; Headings........................................... 21
ARTICLE II REVOLVING LOANS............................................... 22
2.1 Commitments..................................................... 22
2.2 Borrowing of Revolving Loans.................................... 22
2.3 Notice of Request for Lender Advances........................... 23
2.4 Periodic Settlement of Agent Advances; Interest and
Fees; Statements................................................ 23
2.5 Sharing of Payments............................................. 24
2.6 Defaulting Lenders.............................................. 24
2.7 Allocation of Revolving Loans and Expenses...................... 25
2.8 Increase in Revolving Credit Commitments........................ 26
2.9 Amendment and Restatement....................................... 27
ARTICLE III LETTERS OF CREDIT............................................ 27
3.1 Letters of Credit............................................... 27
3.2 Maximum Letter of Credit Obligations; Final Maturities.......... 28
3.3 Letter of Credit Requests....................................... 28
3.4 Letter of Credit Participations................................. 29
3.5 Agreement to Repay Letter of Credit Drawings.................... 31
3.6 Capital Adequacy................................................ 32
ARTICLE IV COMPENSATION, REPAYMENT AND REDUCTION OF COMMITMENTS.......... 33
4.1 Interest on Revolving Loans..................................... 33
4.2 Unused Line Fee................................................. 34
4.3 Letter of Credit Fees........................................... 34
4.4 Interest and Letter of Credit Fees After Event of Default....... 34
4.5 [This Section Intentionally Left Blank]......................... 35
4.6 [This Section Intentionally Left Blank]......................... 35
4.7 Expenses........................................................ 35
4.8 Mandatory Payment of Revolving Loans; Reductions of
Commitments..................................................... 35
4.9 Maintenance of Loan Account, Statements of Account.............. 35
4.10 Payment Procedures.............................................. 35
4.11 Collection of Accounts.......................................... 36
4.12 Distribution and Application of Collections and Other Amounts... 36
4.13 Calculations.................................................... 36
4.14 Special Provisions Relating to LIBOR Rate Loans................. 37
4.15 Indemnification in Certain Events............................... 39
4.16 Substitution of Lenders......................................... 40
4.17 Taxes........................................................... 41
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ARTICLE V CONDITIONS PRECEDENT........................................... 43
5.1 Effective Date.................................................. 43
5.2 Conditions Precedent to All Revolving Loans and Letters
of Credit....................................................... 45
ARTICLE VI REPRESENTATIONS AND WARRANTIES................................ 45
6.1 Organization and Qualification.................................. 46
6.2 Authority....................................................... 46
6.3 Enforceability.................................................. 46
6.4 No Conflicts.................................................... 46
6.5 Consents And Filings............................................ 46
6.6 Government Regulation........................................... 46
6.7 Solvency........................................................ 47
6.8 Rights in Collateral; Priority of Liens......................... 47
6.9 Financial Data.................................................. 47
6.10 Locations of Offices, Records and Inventory..................... 47
6.11 Subsidiaries; Ownership of Equity............................... 48
6.12 No Judgments or Litigation...................................... 48
6.13 No Defaults..................................................... 48
6.14 Labor Matters................................................... 48
6.15 Compliance With Law............................................. 49
6.16 ERISA........................................................... 49
6.17 Compliance with Environmental Laws.............................. 49
6.18 Intellectual Property........................................... 49
6.19 Licenses and Permits............................................ 50
6.20 Taxes and Tax Returns........................................... 50
6.21 Material Contracts.............................................. 50
6.22 Accuracy and Completeness of Information........................ 50
6.23 No Change....................................................... 51
ARTICLE VII AFFIRMATIVE COVENANTS........................................ 51
7.1 Financial Reporting............................................. 51
7.2 Collateral Reporting............................................ 52
7.3 Notification Requirements....................................... 52
7.4 Corporate Existence............................................. 54
7.5 Books and Records; Inspections.................................. 54
7.6 Insurance....................................................... 54
7.7 Taxes........................................................... 55
7.8 Compliance with Laws............................................ 55
7.9 Use of Proceeds................................................. 55
7.10 Fiscal Year..................................................... 56
7.11 Maintenance of Property......................................... 56
7.12 ERISA Documents................................................. 56
7.13 Environmental and Other Matters................................. 56
7.14 Further Actions................................................. 56
7.15 Deposit of Collections and Other Proceeds of Collateral......... 57
7.16 OFAC; BSA....................................................... 57
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ARTICLE VIII NEGATIVE COVENANTS.......................................... 57
8.1 Financial Covenants............................................. 57
8.2 Capital Expenditures............................................ 57
8.3 Additional Indebtedness......................................... 57
8.4 Liens........................................................... 58
8.5 Contingent Obligations.......................................... 60
8.6 Sale of Assets.................................................. 60
8.7 Restricted Payments............................................. 60
8.8 Investments and Acquisitions.................................... 61
8.9 Affiliate Transactions.......................................... 62
8.10 Bank Accounts................................................... 62
8.11 Additional Negative Pledges..................................... 62
8.12 Merger.......................................................... 63
8.13 Sale and Leaseback Transactions and Other Off-Balance
Sheet Liabilities............................................... 63
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES................................ 63
9.1 Events of Default............................................... 63
9.2 Acceleration, Termination of Commitments and Cash
Collateralization............................................... 64
9.3 Rescission of Acceleration...................................... 65
9.4 Remedies........................................................ 65
9.5 Right of Setoff................................................. 65
9.6 License of Use of Software and Other Intellectual Property...... 66
9.7 Application of Proceeds; Surplus, Deficiencies.................. 66
ARTICLE X THE AGENT...................................................... 66
10.1 Appointment of Agent............................................ 66
10.2 Nature of Duties of Agent....................................... 66
10.3 Lack of Reliance on Agent....................................... 67
10.4 Certain Rights of the Agent..................................... 67
10.5 Reliance by Agent............................................... 67
10.6 Indemnification of Agent........................................ 68
10.7 The Agent in its Individual Capacity............................ 68
10.8 Holders of Revolving Notes...................................... 68
10.9 Successor Agent................................................. 68
10.10 Collateral Matters.............................................. 69
10.11 Actions with Respect to Defaults................................ 70
10.12 Delivery of Information......................................... 70
10.13 Designation of Co-Syndication Agents and
Co-Documentation Agents......................................... 70
ARTICLE XI MISCELLANEOUS................................................. 70
11.1 Governing Law................................................... 70
11.2 Submission to Jurisdiction...................................... 70
11.3 Service of Process.............................................. 71
11.4 Jury Trial...................................................... 71
11.5 Limitation of Liability......................................... 72
11.6 Delays.......................................................... 72
11.7 Notices......................................................... 72
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11.8 Assignments and Participations.................................. 72
11.9 Confidentiality................................................. 73
11.10 Indemnification................................................. 74
11.11 Amendments and Waivers.......................................... 75
11.12 Counterparts and Effectiveness.................................. 76
11.13 Severability.................................................... 76
11.14 Maximum Rate.................................................... 76
11.15 Entire Agreement; Successors and Assigns........................ 76
11.16 Joint and Several Liability of Borrowers........................ 77
11.17 Customer Identification - USA Patriot Act Notice................ 79
ANNEXES
Annex I List of Lenders; Commitment Amounts; Applicable Lending Offices
Annex II Pricing Schedule
SCHEDULES
Schedule A Closing Document List
Schedule B Disclosure Schedules
Schedule B, Part 1.1 Existing Letters of Credit
Schedule B, Part 6.1 Jurisdictions In Which Qualified
Schedule B, Part 6.9 Contingent Obligations And Other Liabilities
Schedule B, Part 6.10(a) Chief Executive Offices
Schedule B, Part 6.10(b) Locations Of Collateral
Schedule B, Part 6.11 Subsidiaries
Schedule B, Part 6.12 Litigation
Schedule B, Part 6.14 Labor Matters
Schedule B, Part 6.15 Compliance With Laws Matters
Schedule B, Part 6.16 Benefit Plans
Schedule B, Part 6.17 Environmental Matters
Schedule B, Part 6.20 Tax Matters; Tax Sharing Agreements
Schedule B, Part 6.21 Material Contracts
Schedule B, Part 8.3 Certain Existing Indebtedness
Schedule B, Part 8.4 Certain Existing Liens
Schedule B, Part 8.8(g) Certain Existing Investments
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EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Revolving Note
Exhibit C Form of Letter of Credit Request
Exhibit D Form of Notice of Continuation
Exhibit D-1 Form of Notice of Conversion
Exhibit E Form of Compliance Certificate
Exhibit F Form of Assignment and Assumption Agreement
Exhibit G Form of Commitment Amount Increase Request
Exhibit H Form of Joinder
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of May 9,
2006, among each of the Borrowers; each financial institution identified on
Annex I (together with its successors and permitted assigns, hereinafter
referred to individually as a "Lender" and collectively as the "Lenders"); METAL
MANAGEMENT, INC., a Delaware corporation, acting in its capacity as borrowing
agent and funds administrator for the Borrowers (in such capacity, the "Funds
Administrator"); and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association (in its individual capacity, hereinafter referred to as "LaSalle
Bank"), acting in its capacity as agent for the Lenders pursuant to Article X
hereof.
RECITALS
A. The Borrowers, the Funds Administrator, the Agent and the financial
institutions identified as lenders therein are party to that certain Credit
Agreement dated as of June 28, 2004, as amended by the First Amendment thereto
dated as of March 1, 2005, the Second Amendment thereto dated as of May 9, 2005,
the Third Amendment thereto dated as of December 31, 2005, and the Fourth
Amendment thereto dated as of February 9, 2006, pursuant to which such lenders
have provided certain loans and other financial accommodations to and on behalf
of the Borrowers and the Funds Administrator (the "Existing Credit Agreement").
B. The Borrowers and the Funds Administrator have requested the Agent and
the Lenders, and the Agent and the Lender have agreed, to amend and restate the
Existing Credit Agreement, subject to the terms and conditions of this
Agreement.
C. Now, therefore, in consideration of the mutual covenants and agreements
herein contained and of the loans, extensions of credit and commitments
hereinafter referred to, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 General Definitions.
"Account" has the meaning set forth in the Security Agreement.
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the Effective Date, by which any of the Borrowers or any
of their Subsidiaries (i) acquires or becomes the owner of any going business or
all or substantially all of the assets of any firm, corporation or limited
liability company, or division thereof, whether through purchase of assets,
merger or otherwise or (ii) directly or indirectly acquires or becomes the owner
of (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage of voting power) of the outstanding
ownership interests of a partnership, limited liability company, joint venture
or other entity (including, for
the avoidance of doubt, any transaction by which a Borrower which owns a
minority interest in a corporation, partnership, limited liability company,
joint venture or other entity acquires additional interests therein and thereby
becomes a majority owner of such entity).
"Affiliate" of a Person means another Person who directly or indirectly
controls, is controlled by, is under common control with or is a director or
officer of, such Person. For purposes of this definition, "control" means the
possession, directly or indirectly, of the power to vote ten percent (10%) or
more of the securities having ordinary voting power for the election of
directors or the direct or indirect power to direct the management and policies
of a business.
"Agent" means LaSalle Bank in its capacity as contractual representative of
the Lenders pursuant to Article X, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article X.
"Agent Advances" has the meaning set forth in Section 2.2.
"Allocation Account" has the meaning set forth in Section 2.7(b).
"Applicable Lending Office" means, with respect to each Lender, such
Lender's LIBOR Lending Office in the case of a LIBOR Rate Loan, and such
Lender's Domestic Lending Office in the case of a Base Rate Loan.
"Applicable Margin" means, with respect to a Revolving Loan of any Type at
any time, the percentage rate per annum which is applicable at such time with
respect to Revolving Loans of such Type as set forth in the Pricing Schedule.
"Arizona LLC" means Metal Management Arizona, L.L.C., an Arizona limited
liability company.
"Assignment and Assumption Agreement" has the meaning set forth in Section
11.8.2.
"Auditors" means a nationally recognized firm of independent public
accountants selected by the Borrowers and reasonably satisfactory to the Agent.
"Base Rate" means, for any day, a fluctuating rate of interest per annum
equal to the higher of (a) the Prime Rate for such day, and (b) the sum of (i)
the Federal Funds Rate for such day and (ii) one-half of one percent (0.5%) per
annum.
"Base Rate Loan" means a Revolving Loan that bears interest as provided in
Section 4.1(a) hereof.
"Benefit Plan" means a "defined benefit plan" (as defined in Section 3(35)
of ERISA) for which any Borrower, any Subsidiary of any Borrower or any ERISA
Affiliate has been an "employer" (as defined in Section 3(5) of ERISA) within
the past six years.
"Borrowers" means, collectively, (1) MTLM, (2) CIM, (3) MTLM Arizona, (4)
MTLM Aerospace, (5) MTLM Alabama, (6) Arizona LLC, (7) MTLM Connecticut, (8)
MTLM Indiana, (9) MTLM Xxxxxxx, (10) MTLM Memphis, (11) MTLM Midwest, (12) MTLM
Mississippi,
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(13) MTLM New Haven, (14) MTLM Northeast, (15) MTLM Ohio, (16) MTLM Pittsburgh,
(17) MTLM Proler Southwest, (18) S&A Holdings, (19) MTLM West, (20) MTLM West
Coast Holdings, (21) Naporano, (22) Proler Southwest GP, (23) Proler Southwest
LP and (24) Reserve.
"Borrowing" means a borrowing of Revolving Loans by the Funds Administrator
for the joint and several account of the Borrowers from each of the Lenders (or,
in the case of Agent Advances, Agent on behalf of each of the Lenders) on a pro
rata basis on a given date (whether pursuant to Section 2.2 or resulting from
continuations or conversions of Revolving Loans on a given date pursuant to
Sections 4.14.1 and 4.14.2, respectively) having, in the case of LIBOR Rate
Loans, the same Interest Period.
"Business Day" means any day that is neither a Saturday nor a Sunday nor a
day on which commercial banks in Chicago, Illinois or New York, New York are
required or permitted by law to be closed. When used in connection with any
Letter of Credit, the term "Business Day" means any day other than a Saturday,
Sunday or legal holiday on which commercial banks in the domicile of the
applicable Issuing Bank are generally closed or authorized to close.
"Capital Expenditures" means, for any Person for any period, the sum of all
expenditures which have been, or should have been, capitalized by such Person
for financial statement purposes in accordance with GAAP during such period
(whether payable in cash or other property or accrued as a liability), including
the capitalized portion of capital leases. Capital Expenditures shall exclude
proceeds of a casualty loss applied to the repair or replacement of the property
affected by such casualty loss.
"Casualty Loss" as used herein, means, for any Person, (i) the loss,
damage, or destruction of any asset or property owned or used by such Person,
(ii) the condemnation, confiscation, or other taking, in whole or in part, of
any such asset or property, or (iii) the diminishment of the use of any such
asset or property so as to render impracticable or unreasonable the use thereof
for its intended purpose.
"Cash Equivalents" means either of the following: (i) securities issued,
guarantied or insured by the United States, or any of its agencies and having
maturities of not more than one year; (ii) time deposits or certificates of
deposit having maturities of not more than one year issued by any Lender or a
United States national or state chartered commercial bank of recognized standing
whose combined capital and unimpaired surplus is in excess of $250,000,000 and
whose short-term commercial paper rating, or that of its parent holding company,
is at least "A-1" or the equivalent by S&P and at least "Prime-1" or the
equivalent by Xxxxx'x; (iii) shares of money market or similar funds which
comply with Rule 2a-7 or any successor rule of the SEC; (iv) repurchase
agreements with any Lender or any commercial bank satisfying the requirements of
clause (ii) of this definition with respect to securities described in clause
(i) of this definition.
"CIM" means CIM Trucking, Inc., an Illinois corporation.
"Change of Control" shall mean one or more of the following events:
(a) less than a majority of the members of the Board of Directors of
MTLM shall be persons who either (i) were serving as directors on the
Effective Date or (ii) were
3
nominated as directors and approved by the vote of the majority of the
directors who are directors referred to in clause (i) above or this clause
(ii); or
(b) the stockholders of any Credit Party shall approve any plan or
proposal for the liquidation or dissolution of such Credit Party (other
than a dissolution of a direct or indirect Subsidiary of MTLM permitted
under the terms of this Credit Agreement); or
(c) a Person or group of Persons acting in concert (other than the
direct or indirect beneficial owners of the equity Securities of MTLM as of
the Effective Date) shall, as a result of a tender or exchange offer, open
market purchases, privately negotiated purchases or otherwise, have become
the direct or indirect beneficial owner (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended from time to time) of
equity Securities of MTLM representing more than thirty-five percent (35%)
of the combined voting power of the outstanding voting equity Securities or
other ownership interests for the election of directors or shall have the
right to elect a majority of the Board of Directors of MTLM; or
(d) MTLM shall cease to be the direct or indirect legal and beneficial
owner of one hundred percent (100%) of the equity securities, membership
interests, partnership interests or ownership interests, as applicable, of
each of the other Borrowers (other than by reason of a dissolution of a
direct or indirect Subsidiary of MTLM or a merger of a direct or indirect
Subsidiary of MTLM into another Borrower, in either case to the extent
permitted under the terms of this Credit Agreement).
"Closing Document List" has the meaning set forth in Section 5.1.1.
"Code" has the meaning set forth in Section 1.3.
"Collateral" means all Accounts, Inventory and other property and assets of
any kind, whether now owned or hereafter acquired by any of the Borrowers;
provided, however, that the Collateral shall not include any Equipment, Fixtures
or Real Property or any other Excluded Property as defined in the Security
Agreement.
"Collateral Access Agreement" means an agreement in form and substance
reasonably satisfactory to the Agent pursuant to which a mortgagee or lessor of
real property on which Collateral is stored or otherwise located, or a
warehouseman, processor or other bailee of Inventory, or a consignee of
Inventory, acknowledges the Liens of the Agent and, in the case of any such
agreement with a mortgagee or lessor, permits the Agent access to and use of
such real property for a reasonable amount of time following the occurrence and
during the continuance of an Event of Default to assemble, complete and sell any
Collateral stored or otherwise located thereon.
"Collateral Documents" means, collectively, the Security Agreement and all
other agreements, instruments and documents executed in connection with this
Agreement that are intended to create or evidence Liens to secure the
Obligations and the Rate Management Obligations, including, without limitation,
all security agreements, mortgages, deeds of trust, loan agreements, notes,
guarantees, subordination agreements, pledges, powers of attorney, consents,
assignments, contracts, fee letters, notices, leases, financing statements and
all other
4
written matter whether heretofore, now, or hereafter executed by or on behalf of
any of the Borrowers or other Credit Parties and delivered to the Agent or any
of the Lenders, together with all agreements and documents referred to therein
or contemplated thereby.
"Collection Account" has the meaning set forth in Section 4.11.
"Collection Banks" has the meaning set forth in Section 4.11.
"Collections" means all cash, funds, checks, notes, instruments and any
other form of remittance tendered by account debtors in payment of Accounts of
any Borrower.
"Commitment" of a Lender means such Lender's commitment, on the terms and
subject to the conditions set forth herein, to make Revolving Loans and to
participate in Letters of Credit, up to the amount set forth below its name on
Annex I (as amended from time to time pursuant to Section 2.8 or Section
11.8.2), as such amount may be reduced from time to time in accordance with the
terms and provisions of this Credit Agreement.
"Commitment Amount Increase" has the meaning set forth in Section 2.8.
"Commitment Amount Increase Request" means a Commitment Amount Increase
Request in the form of Exhibit G hereto.
"Consolidated EBIT" means, for any fiscal period of the Consolidated
Entity, Consolidated Net Income (excluding extraordinary and non-recurring
items) for such period, plus (a) all Interest Expense (net of interest income),
amortization or writeoff of debt discount and issuance costs and other fees and
charges associated with Indebtedness, and income tax expense; plus or minus
(without double counting) (b) any other non-cash charges or gains (including,
without limitation, stock based compensation and joint venture income) which
have been subtracted or added in calculating such Consolidated Net Income.
"Consolidated EBITDA" means, for any fiscal period of the Consolidated
Entity, Consolidated Net Income (excluding extraordinary and non-recurring
items) for such period, plus (a) all Interest Expense (net of interest income),
amortization or writeoff of debt discount and issuance costs and other fees and
charges associated with Indebtedness, income tax expense, depreciation and
amortization (including amortization of any goodwill or other intangibles) for
such period; plus or minus (without double counting) (b) gains and losses
attributable to any fixed asset sales; plus or minus (c) any other non-cash
charges or gains (including, without limitation, stock based compensation and
joint venture income) which have been subtracted or added in calculating such
Consolidated Net Income.
"Consolidated Entity" means MTLM and each of its consolidated Subsidiaries
and shall include in any event each Borrower.
"Consolidated Interest Coverage Ratio" means, as determined as of any date
for any period ending on such date, the ratio of (a) Consolidated EBIT for such
period minus dividends and distributions paid during such period by any Borrower
with respect to its capital stock and other payments made during such period by
any Borrower to redeem, repurchase or otherwise acquire or retire its capital
stock, in each case to any Person other than a member of the
5
Consolidated Entity (and in each case to the extent permitted pursuant to
Section 8.7), to (b) the sum of the following, in each case of the Consolidated
Entity, as determined without duplication in accordance with GAAP for such
period, (i) Interest Expense paid or payable in cash, and (ii) regularly
scheduled payments of principal on Indebtedness (other than repayments in the
ordinary course of the Revolving Loans which do not permanently reduce the
aggregate Commitments).
"Consolidated Net Income" means, with reference to any period, the
consolidated net income of the Consolidated Entity for such period, as
determined in accordance with GAAP applied on a basis consistent with the
audited Financial Statements as of March 31, 2005.
"Contingent Obligation" means, with respect to any Person, any direct or
indirect guaranty or obligation of such Person for the Indebtedness of another
Person, except for endorsements in the ordinary course of business.
"Credit Agreement" means this Amended and Restated Credit Agreement, as
amended, restated, supplemented, extended or otherwise modified and in effect
from time to time.
"Credit Documents" means, collectively, this Credit Agreement, the
Revolving Notes, the Letters of Credit, each of the Collateral Documents,
documents evidencing Rate Management Transactions, and all other documents,
agreements and instruments now or hereafter executed in connection herewith or
therewith, in each case as amended, restated, supplemented, extended or
otherwise modified from time to time.
"Credit Party Information" has the meaning set forth in Section 11.9(a).
"Credit Parties" means, collectively, the Borrowers, the Funds
Administrator, any Subsidiary of any Borrower and each other party to any of the
Credit Documents (other than the Lenders, the Agent or any Issuing Bank).
"Default" means an event, condition or default which with the giving of
notice, the passage of time or both would be an Event of Default.
"Defaulting Lender" has the meaning set forth in Section 2.6(a).
"Depositary Account Agreements" has the meaning set forth in Section 4.11.
"Disbursement Account" means the operating account of the Funds
Administrator maintained with the Disbursement Account Bank.
"Disbursement Account Bank" means LaSalle Bank or any other financial
institution selected from time to time by the Agent and reasonably acceptable to
the Funds Administrator.
"Dollar" and "$" means the lawful currency of the United States of America.
"Domestic Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" on Annex I, as such annex
may be amended from
6
time to time pursuant to Section 11.8.2, which office shall in any event be
located in the United States.
"Drawing" has the meaning set forth in Section 3.5(b).
"Effective Date" means the date on which the conditions specified in
Section 5.1 are satisfied (or waived in accordance with Section 11.11 hereof).
"Equipment" has the meaning set forth in the Security Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C. Sections 1000 et seq., amendments thereto, successor statutes, and
regulations or guidance promulgated thereunder.
"ERISA Affiliate" means any entity required to be aggregated with any
Borrower or any Subsidiary of any Borrower under Sections 414 (b) or (c) of the
Internal Revenue Code (or, for purposes of Section 412 of the Internal Revenue
Code, Sections 414 (m) or (o) of the Internal Revenue Code).
"Event of Default" has the meaning set forth in Article IX.
"Exchange Act" means the Securities and Exchange Act of 1934, amendments
thereto, successor statutes, and regulations or guidance promulgated thereunder.
"Excluded Taxes" means, in the case of each Lender or Applicable Lending
Office and the Agent, taxes imposed on its overall net income, and franchise
taxes imposed on it, by (i) the jurisdiction under the laws of which such Lender
or Agent is incorporated or organized or any subdivision or taxing authority
thereof, or (ii) the jurisdiction in which the Agent's or Lender's principal
executive office or such Lender's Applicable Lending Office is located or in
which, other than as a result of the transaction evidenced by this Credit
Agreement, the Agent or Lender otherwise is, or at any time was, engaged in
business.
"Existing Letters of Credit" means those certain Letters of Credit issued
by LaSalle Bank for the account of one or more of the Borrowers and outstanding
on the Effective Date, as set forth on Schedule B, Part 1.1.
"Expenses" means all reasonable costs and expenses of the Agent incurred in
connection with the Credit Documents and the transactions contemplated therein,
including, without limitation, (i) the costs of conducting record searches,
examining collateral, opening bank accounts and lockboxes, depositing checks,
and receiving and transferring funds (including charges for checks for which
there are insufficient funds), (ii) the reasonable fees and expenses of legal
counsel and paralegals (including the allocated cost of internal counsel and
paralegals), accountants, appraisers and other consultants, experts or advisors
retained by the Agent, (iii) reasonable fees and expenses of legal counsel
incurred in connection with the documentation of assignments of or sales of
participations in the Revolving Loans, (iv) fees and taxes in connection with
the filing of financing statements, and (v) the costs of preparing and recording
Collateral Documents, releases of Collateral, and waivers, amendments, and
terminations of any of the Credit Documents. Expenses also means all reasonable
costs and expenses (including the
7
reasonable fees and expenses of legal counsel and other professionals) paid or
incurred in connection with the Credit Documents and the transactions
contemplated therein, (a) by the Agent during the continuance of an Event of
Default and (b) by the Agent and any Lender in (i) enforcing or defending its
respective rights under or in respect of this Credit Agreement, the Credit
Documents or any other document or instrument now or hereafter executed and
delivered in connection herewith or therewith, (ii) collecting the Revolving
Loans, (iii) foreclosing or otherwise collecting upon the Collateral or any part
thereof and (iv) obtaining any legal, accounting or other advice in connection
with any of the foregoing.
"Expiration Date" means the earlier of (i) May 1, 2011 and (ii) the date on
which this Credit Agreement is terminated pursuant to Section 9.2.2.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum for each day during such period 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, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations, at approximately 10:00 a.m.
(Chicago time) for such day on such transactions received by the Agent from
three Federal Funds brokers of recognized standing selected by the Agent in its
sole discretion.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System or any Governmental Authority succeeding to its functions.
"Fee Letter" means the fee letter agreement dated as of May 9, 2006 between
LaSalle Bank and the Borrowers providing for the payment of certain fees in
connection with this Credit Agreement.
"Fees" means, collectively, the Unused Line Fee, the Letter of Credit Fees,
the Issuing Bank Fees and all fees payable by Borrower under the Fee Letter.
"Financial Statements" means the consolidated and consolidating balance
sheets, statements of operations, statements of cash flows and statements of
changes in shareholder's equity of the Consolidated Entity for the period
specified, prepared in accordance with GAAP and consistently with prior
practices.
"Fixtures" has the meaning set forth in the Security Agreement.
"Funds Administrator" has the meaning set forth in the Preamble.
"GAAP" means generally accepted accounting principles in the United States
as in effect from time to time.
"Governing Documents" means certificates or articles of incorporation,
certificates or articles of formation, by-laws, operating agreements and any
other similar organizational or governing documents.
8
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Highest Lawful Rate" means, at any given time during which any Obligations
shall be outstanding hereunder, the maximum nonusurious interest rate that at
any time or from time to time may be contracted for, taken, reserved, charged or
received on such Obligations, under the laws of the State of Illinois (or the
law of any other jurisdiction whose laws may be mandatorily applicable
notwithstanding other provisions of this Credit Agreement and any of the other
Credit Documents), or under applicable federal laws which may presently or
hereafter be in effect and which allow a higher maximum nonusurious interest
rate than under the State of Illinois' (or such other jurisdiction's) law, in
any case after taking into account, to the extent permitted by applicable law,
any and all relevant payments or charges under this Credit Agreement and any
other Credit Documents executed in connection herewith, and any available
exemptions, exceptions and exclusions.
"Indebtedness" of a Person means, without duplication, (a) indebtedness for
borrowed money or for the deferred purchase price of property or services (other
than trade liabilities incurred in the ordinary course of business and payable
in accordance with customary practices), whether on open account or evidenced by
a note, bond, debenture or similar instrument, (b) obligations under capital
leases, (c) reimbursement obligations for letters of credit, banker's
acceptances or other credit accommodations, whether drawn or undrawn, (d)
liabilities, as determined by the Agent, under any Rate Management Transaction,
(e) Contingent Obligations and (f) Indebtedness secured by any Lien on any
property of that Person, even if that Person has not assumed such Indebtedness.
"Insolvency Event" means, with respect to any Person, the occurrence of any
of the following: (a) such Person shall be adjudicated insolvent or bankrupt, or
generally fail to pay, or admit in writing its inability to pay, its debts as
they become due, (b) the voluntary commencement of any proceeding or the filing
of any petition under any bankruptcy, insolvency or similar law, (c) the seeking
of dissolution or reorganization or the appointment of a receiver, trustee,
custodian or liquidator for it or a substantial portion of its property, assets
or business or to effect a plan or other arrangement with its creditors, (d) the
filing of any answer admitting the jurisdiction of the court and the material
allegations of an involuntary petition filed against it in any bankruptcy,
insolvency or similar proceeding, (e) the making by such Person of a general
assignment for the benefit of its creditors, or the consent to, or acquiescence
in the appointment of, a receiver, trustee, custodian or liquidator for a
substantial portion of such Person's property, assets or business. Insolvency
Event shall also mean, with respect to any Person, the occurrence of any of the
following: an involuntary proceeding or involuntary petition shall be commenced
or filed against such Person under any bankruptcy, insolvency or similar law
seeking the dissolution or reorganization of it or the appointment of a
receiver, trustee, custodian or liquidator for it or of a substantial part of
its property, assets or business, or any writ, judgment, warrant of attachment,
execution or similar process shall be issued or levied against a substantial
part of its property, assets or business, and such proceedings or petitions
shall not be dismissed, or such writ, judgment, warrant of attachment, execution
or similar process shall not be released, vacated or fully bonded, within sixty
(60) days after commencement, filing, or levy, as the case may be, or any order
for relief shall be entered in any such proceeding.
9
"Intangible Assets" means all assets properly classified as "intangible
assets" in accordance with GAAP, including, without limitation, all goodwill,
patents, trade names, trade marks, copyrights, franchises, deferred taxes,
experimental expense, organization expense, unamortized debt discount and
expense, deferred assets other than prepaid insurance and prepaid taxes and the
excess of cost of shares acquired over book value of related assets.
"Interest Expense" means, for any period, the aggregate consolidated cash
expense of the Consolidated Entity for interest on Indebtedness for such period,
including, without limitation, (i) amortization of original issue discount, (ii)
incurrence fees (to the extent included in interest expense but excluding in any
event any fees payable by the Borrowers pursuant to the Fee Letter and other
fees paid or payable to the Lenders), (iii) the interest portion of any deferred
payment obligation and (iv) the interest component of any capital lease
obligation.
"Interest Period" means, for any LIBOR Rate Loan, a period of one, two,
three or six months commencing on a Business Day selected by the Funds
Administrator in accordance with this Agreement. Such Interest Period shall end
on but exclude the day which corresponds numerically to such date one, two,
three or six months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month or such other succeeding period, such Interest Period shall end on the
last Business Day of such next, second, third or sixth succeeding month or such
other succeeding period. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Internal Revenue Code" means the Internal Revenue Code of 1986, amendments
thereto, successor statutes, and regulations or guidance promulgated thereunder.
"Inventory" has the meaning set forth in the Security Agreement.
"Investment" means all expenditures made and all liabilities incurred
(contingently or otherwise) for or in connection with the acquisition of stock
or Indebtedness of, or for loans, advances, capital contributions or similar
transfers of property to, or acquisition of substantially all the assets of, a
Person, including, without limitation, all expenditures made and liabilities
incurred (contingently or otherwise) for or in connection with any Acquisition.
In determining the aggregate amount of Investments outstanding at any particular
time, (i) the amount of any Investment represented by a guaranty shall be taken
at not less than the principal amount of the obligations guaranteed and
outstanding; (ii) there shall be deducted in respect of each such Investment
amounts received in cash as a return of capital or as earnings on such
Investment, whether as dividends, interest or otherwise; and (iii) there shall
not be deducted from the aggregate amount of Investments any decrease in the
market value thereof.
"Issuing Bank" means LaSalle Bank, an Affiliate of LaSalle Bank, or any
Lender or other financial institution that is acceptable to the Agent and the
Funds Administrator which may at any time issue or be requested to issue a
Letter of Credit for the account of any Borrower.
"Issuing Bank Fees" has the meaning set forth in Section 4.3(b).
10
"LaSalle Bank" has the meaning set forth in the Preamble.
"LaSalle Bank Account" has the meaning set forth in Section 4.11.
"LC Participant" has the meaning ascribed to that term in Section 3.4.
"LC Supportable Obligations" means (a) obligations of any Borrower or any
Subsidiary of any Borrower with respect to workers' compensation, surety bonds
and other similar statutory obligations, (b) such other obligations of any
Borrower or any Subsidiary of any Borrower as are reasonably acceptable to the
Agent and (c) any obligations supported by an Existing Letter of Credit.
"Lender" and "Lenders" have the respective meanings set forth in the
Preamble.
"Lender Advances" has the meaning set forth in Section 2.2.
"Letter of Credit Fee" has the meaning set forth in Section 4.3(a).
"Letter of Credit Fee Rate" means the percentage rate per annum applicable
to Letters of Credit from time to time as set forth in the Pricing Schedule.
"Letter of Credit Obligations" means, without duplication, the sum of the
aggregate Stated Amount of all Letters of Credit outstanding, plus the aggregate
amount of all Drawings for which the Borrowers have not reimbursed any Issuing
Bank, plus the aggregate amount of all payments made by the Lenders to any
Issuing Bank for their participations in Letters of Credit for which the
Borrowers have not reimbursed the Lenders.
"Letter of Credit Request" has the meaning ascribed to that term in Section
3.3(a).
"Letter of Credit" means all letters of credit issued for the account of
any Borrower under Article III (including, without limitation, Existing Letters
of Credit), and all amendments, renewals, extensions or replacements thereof.
"Leverage Ratio" means, as of any date of determination thereof, the ratio
of (a) Indebtedness of the Consolidated Entity as of such date, to (b)
Consolidated EBITDA for the twelve (12) month period ending on such date.
"LIBOR Base Rate" means, with respect to a LIBOR Rate Loan for the relevant
Interest Period, a rate of interest equal to the per annum rate of interest at
which United States dollar deposits in an amount comparable to the amount of the
relevant LIBOR Rate Loan and for a period equal to the relevant Interest Period
are offered in the London Interbank Eurodollar market at 11:00 A.M. (London
time) two (2) Business Days prior to the commencement of such Interest Period
(or three (3) Business Days prior to the commencement of such Interest Period if
banks in London, England were not open and dealing in offshore United States
dollars on such second preceding Business Day), as displayed in the Bloomberg
Financial Markets system (or other authoritative source selected by the Agent in
its sole discretion) or, if the Bloomberg Financial Markets system or another
authoritative source is not available, as the LIBOR Base
11
Rate is otherwise determined by the Administrative Agent in its sole and
absolute discretion. The Agent's determination of the LIBOR Base Rate shall be
conclusive, absent manifest error.
"LIBOR Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "LIBOR Lending Office" on Annex I, as such annex
may be amended from time to time pursuant to Section 11.8.2 (or, if no such
office is specified, its Domestic Lending Office).
"LIBOR Rate" means, with respect to a LIBOR Advance for the relevant
Interest Period, the sum of (i) the quotient of (a) the LIBOR Base Rate
applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period.
"LIBOR Rate Loan" means a Revolving Loan that bears interest as provided in
Section 4.1(b) hereof.
"Lien" means any lien, claim, charge, pledge, security interest,
assignment, hypothecation, deed of trust, mortgage, lease, conditional sale,
retention of title, or other preferential arrangement having substantially the
same economic effect as any of the foregoing, whether voluntary or imposed by
law.
"Line of Credit" means, at any time, an amount equal to the aggregate
Commitments of all Lenders at such time, which amount shall not exceed
$300,000,000, except as otherwise permitted by Section 2.8.
"Loan Account" has the meaning set forth in Section 4.9.
"Master Letter of Credit Agreement" means the Amended and Restated Master
Letter of Credit Agreement dated as of May 9, 2006 by the Borrowers in favor of
the Issuing Bank.
"Material Adverse Effect" means a material adverse effect on (i) the
business, operations, results of operations, assets, liabilities or condition
(financial or otherwise) of the Credit Parties taken as a whole, or (ii) the
ability of any Credit Party to perform its obligations under the Credit
Documents to which it is a party, or on the ability of the Agent or the Lenders
to enforce the Obligations or realize upon the Collateral.
"Material Contract" means any contract or other arrangement (i) to which a
Credit Party or any Subsidiary of a Credit Party is a party (other than the
Credit Documents) or by which the property or assets of any Credit Party or any
Subsidiary of a Credit Party are bound and (ii) which is material to the
business, assets, properties or prospects of the Consolidated Entity.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor thereto.
"MTLM" means Metal Management, Inc., a Delaware corporation.
"MTLM Aerospace" means Metal Management Aerospace, Inc., a Delaware
corporation.
"MTLM Alabama" means Metal Management Alabama, Inc., a Delaware
corporation.
12
"MTLM Arizona" means MTLM Arizona, Inc., an Arizona corporation.
"MTLM Connecticut" means Metal Management Connecticut, Inc., a Delaware
corporation.
"MTLM Indiana" means Metal Management Indiana, Inc., an Illinois
corporation.
"MTLM Xxxxxxx" means Metal Management Xxxxxxx, L.L.C., f/k/a Metal
Management Mississippi, L.L.C., a Delaware limited liability company.
"MTLM Memphis" means Metal Management Memphis, L.L.C., a Tennessee limited
liability company.
"MTLM Midwest" means Metal Management Midwest, Inc., an Illinois
corporation.
"MTLM Mississippi" means Metal Management Mississippi, Inc., f/k/a Metal
Management Xxxxxx, Inc., f/k/a Metal Management Gulf Coast, Inc., a Delaware
corporation.
"MTLM New Haven" means Metal Management New Haven, Inc., a Delaware
corporation.
"MTLM Northeast" means Metal Management Northeast, Inc., a New Jersey
corporation.
"MTLM Ohio" means Metal Management Ohio, Inc., an Ohio corporation.
"MTLM Pittsburgh" means Metal Management Pittsburgh, Inc., a Delaware
corporation.
"MTLM Proler Southwest" means Metal Management Proler Southwest, Inc., a
Delaware corporation.
"MTLM West" means Metal Management West, Inc., a Colorado corporation.
"MTLM West Coast Holdings" means Metal Management West Coast Holdings,
Inc., a Delaware corporation.
"Multiemployer Plan" means a "multiemployer plan" (as defined in Section
4001(a)(3) of ERISA) to which a Borrower, any Subsidiary of Borrower or any
ERISA Affiliate has contributed within the past six years or with respect to
which a Borrower or any Subsidiary of a Borrower could reasonably be expected to
incur any liability.
"Notice of Borrowing" means an irrevocable and binding notice delivered by
the Funds Administrator to the Agent either by telephone or by facsimile
transmission (and if by telephone, promptly confirmed in writing) of the request
by the Funds Administrator, for and on behalf of the Borrowers, for a Borrowing,
which notice shall be substantially in the form of Exhibit A.
"Naporano" means Naporano Iron & Metal, Inc., a Delaware corporation.
"Non-Wholly Owned Acquisition" has the meaning set forth in clause (vi) of
the definition of Permitted Acquisition.
13
"Notice of Continuation" has the meaning set forth in Section 4.14.1.
"Notice of Conversion" has the meaning set forth in Section 4.14.2.
"Obligations" means unpaid principal and interest hereunder (including
interest accruing on or after the occurrence of an Insolvency Event) in respect
of Revolving Loans, reimbursement obligations in respect of Letters of Credit,
Fees, Expenses and all other obligations and liabilities of any kind whatsoever
of the Borrowers to the Agent, the Issuing Bank or any of the Lenders under this
Credit Agreement, the Revolving Notes and any of the other Credit Documents.
"Off-Balance Sheet Liability" of a Person means (i) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
(ii) any liability under any Sale and Leaseback transaction which is not a
capitalized lease in accordance with GAAP, or (iii) any liability under any
so-called "synthetic lease" transaction entered into by such Person or similar
off-balance sheet financing arrangement.
"Payment Office" means the office of the Agent located at 000 X. XxXxxxx
Xxxxxx, Xxxxxxx Xxxxxxxx 00000 or such other office of the Agent as shall be
specified by the Agent from time to time in a notice to the Funds Administrator
and each of the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation, and any entity
succeeding to any or all of its functions.
"Perfection Certificate" means that certain Perfection Certificate dated as
of June 24, 2004 by MTLM to the Agent, as supplemented and amended by that
certain Perfection Certificate dated as of even date herewith by MTLM to the
Agent.
"Permitted Acquisition" means any Acquisition that satisfies the following
requirements:
(i) MTLM shall have notified Agent in reasonable detail of such
Acquisition not less than ten (10) days (or such lesser
period of time as may be acceptable to Agent) prior to the
consummation thereof and provided Agent with such
information concerning such Acquisition as Agent may
reasonably request;
(ii) no Default or Event of Default shall have occurred and be
continuing or would result from or in connection with such
Acquisition;
(iii) the businesses being acquired shall be substantially
similar or related to the businesses or activities engaged
in by the Borrowers on the Effective Date;
(iv) effective as of the date of such Acquisition (taking into
account the effect of such Acquisition and any Indebtedness
incurred in connection therewith), the Borrowers shall be in
compliance with the financial covenants set forth in
Sections 8.1 and 8.2 hereof, as
14
demonstrated by a certificate and supporting financial
information delivered to the Agent from the chief financial
officer of the Funds Administrator, demonstrating such
compliance to the satisfaction of the Agent on a pro forma
basis using historical audited (if any) or unaudited
financial statements obtained from the seller(s) in respect
of each such Acquisition (or using projected financial
statements prepared by MTLM in good faith if such historical
financial statements are not available, the aggregate amount
of consideration for such Acquisition does not exceed
$50,000,000, and the use of such projected financial
statements in lieu of historical financial statements is
satisfactory to Agent) as if the Acquisition and such
incurrence of Indebtedness had occurred on the first day of
the twelve-month period ending on the last day of the
Borrower's most recently completed fiscal quarter;
(v) such Acquisition shall have been consummated pursuant to a
negotiated acquisition agreement on a non-hostile basis and
approved by the target company's board of directors or
equivalent body (and shareholders or equivalent equity
holders, if necessary) prior to the consummation of such
Acquisition, and the Borrowers shall have delivered or
caused to be delivered to the Agent copies of all underlying
acquisition documents and other instruments pertaining to
such Acquisition as requested by the Agent;
(vi) in the case of an Acquisition of the capital stock or other
equity, ownership or partnership interests of a Person, as
applicable, either (x) such Acquisition shall have resulted
in Borrowers owning 100% of such capital stock or other
equity, ownership or partnership interests, as applicable,
of such Person, or (y) if such Acquisition shall have
resulted in Borrowers owning less than 100% of such capital
stock or other equity, ownership or partnership interests,
as applicable, of such Person (a "Non-Wholly Owned
Acquisition"), the consideration paid and transaction costs
incurred by Borrowers for such Non-Wholly Owned Acquisition,
together with the consideration paid and transaction costs
incurred by Borrowers for all other Non-Wholly Owned
Acquisitions and all Permitted Investments In Non-Majority
Interests during the fiscal year of the Consolidated Entity
in which such Acquisition is consummated, as certified to
Agent and Lenders by the chief financial officer of the
Funds Administrator, shall not exceed $25,000,000;
(vii) if such Acquisition shall have resulted in a new Subsidiary
of any Borrower, such Subsidiary shall have joined and
agreed to be bound by and perform the terms of this Credit
Agreement in the capacity as a "Borrower" hereunder and the
terms of each other Credit Document in a similar capacity
pursuant to the terms of a
15
Joinder in the form set forth as Exhibit H hereto, and in
connection therewith, such Subsidiary and the Borrowers
shall have, and shall have caused, to be delivered to Agent,
in each case in form and substance satisfactory to Agent (1)
evidence that such Uniform Commercial Code Financing
Statements as may be required by the Agent in connection
with Agent's security interest in the assets of such
Subsidiary have been filed in appropriate filing offices,
(2) lien searches from such filing offices and jurisdictions
as the Agent shall specify, evidencing that such security
interests have a first priority over any other Liens
reflected in such lien searches, except for Permitted Liens,
(3) certified resolutions, certificate(s) of good standing
and foreign qualification, incumbency certificates, and
certified copies of the Governing Documents of such
Subsidiary, as the Agent may require (4) a favorable opinion
of counsel pertaining to such matters as the Agent may
require, (5) if such Acquisition results in new leased
locations at which Inventory is located, Collateral Access
Agreements with respect thereto as the Agent may require,
and (6) such other agreements, instruments documents as
requested by the Agent in order to confirm, create, perfect
and protect all rights of the Agent and the Lenders under
this Agreement and the other Credit Documents and in and to
the Collateral, in each case in form and substance
acceptable to the Agent;
(viii) in the event that such Acquisition results in any new or
different certificates or other documents evidencing Capital
Stock, Membership Interests or other Pledged Collateral
under the terms of the Security Agreement, the Borrowers
shall have delivered the originals thereof together with
duly executed stock powers in blank to the Agent and
otherwise complied with Section 4.3 of the Security
Agreement with respect thereto; and
(ix) a Responsible Officer of MTLM shall have delivered a
certificate to Agent promptly, but in any event within ten
(10) Business Days after the consummation of such
Acquisition, certifying that the conditions set forth herein
have been satisfied with respect thereto and that such
Acquisition constitutes a Permitted Acquisition hereunder.
"Permitted Investment In Non-Majority Interest" means an Investment by any
Borrower resulting in the ownership by such Borrower of less than the majority
(in number of votes) of the securities of a corporation which have ordinary
voting power for the election of directors (other than securities having such
power only by reason of the happening of a contingency) or less than a majority
of the voting or equity interests of a partnership, limited liability company or
joint venture, in each case satisfying the following conditions:
16
(i) MTLM shall have notified Agent in reasonable detail of such
Investment not less than ten (10) days (or such lesser
period of time as may be acceptable to Agent) prior to the
consummation thereof and provided Agent with such
information concerning such Investment as Agent may
reasonably request;
(ii) no Default or Event of Default shall have occurred and be
continuing or would result from or in connection with such
Investment;
(iii) the corporation, partnership, limited liability company or
other entity in which such Investment is made engages in
business which is substantially similar or related to the
businesses or activities engaged in by the Borrowers on the
Effective Date;
(iv) effective as of the date of such Investment (taking into
account the effect of such Investment and any Indebtedness
incurred in connection therewith), the Borrowers shall be in
compliance with the financial covenants set forth in
Sections 8.1 and 8.2 hereof, as demonstrated by a
certificate and supporting financial information delivered
to the Agent on behalf of the Lenders from the chief
financial officer of the Funds Administrator, demonstrating
such compliance to the satisfaction of the Agent;
(v) the Investment is consummated on a non-hostile basis and
approved by the target company's board of directors or
equivalent body (and shareholders or equivalent equity
holders, if necessary) prior to the consummation of the
Investment, and the Borrowers shall have delivered or caused
to be delivered to the Agent copies of underlying agreements
and instrument pertaining to such Investment as requested by
the Agent;
(vi) the consideration paid and transaction costs incurred by
Borrowers for such Investment, together with the
consideration paid and transaction costs incurred by
Borrowers for all other such Investments and all Non-Wholly
Owned Acquisitions during the fiscal year of the
Consolidated Entity in which such Investment is consummated,
as certified to Agent and Lenders by the chief financial
officer of the Funds Administrator, does not exceed
$25,000,000; and
(vii) a Responsible Officer of MTLM shall have delivered a
certificate to Agent promptly, but in any event within ten
(10) Business Days after the consummation of such
Investment, certifying that the conditions set forth herein
have been satisfied and that such Investment constitutes a
Permitted Investment In Non-Majority Interest hereunder.
17
"Permitted Liens" means the Liens referred to in clauses (a) through (m) of
Section 8.4.
"Person" means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation, limited
liability company, institution, entity, party or government (including any
division, agency or department thereof), and its successors, heirs and assigns.
"Pricing Schedule" means the Schedule identifying the Applicable Margin,
the Letter of Credit Fee Rate and the Unused Line Fee Rate attached hereto as
Annex II.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by LaSalle Bank or its parent (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
"Proler Southwest GP" means Proler Southwest GP, Inc., a Delaware
corporation.
"Proler Southwest LP" means Proler Southwest LP, a Texas limited
partnership.
"Proportionate Share" of a Lender means a fraction, expressed as a
percentage, obtained by dividing its Commitment by the Line of Credit or, if the
Commitments are terminated, by dividing its then outstanding Revolving Loans and
Letter of Credit participations by the then outstanding aggregate Revolving
Loans and Letter of Credit Obligations.
"Purchase Money Liens" has the meaning set forth in Section 8.3(e).
"Rate Management Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Rate Management Transaction" means any transaction (including an agreement
with respect thereto) now existing or hereafter entered into between MTLM or the
other Borrowers, on one hand, and the Agent or any Lender or Affiliate thereof,
on the other hand, with respect to or in connection with all or any portion of
the Revolving Loans or this Credit Agreement, which is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity
index swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions) or any combination
thereof, whether linked to one or more interest rates, foreign currencies,
commodity prices, equity prices or other financial measures.
"Real Property" means all real property owned by Borrowers as of the date
hereof or hereafter acquired.
"Register" has the meaning set forth in Section 11.8.3.
18
"Regulation D" means Regulation D of the Federal Reserve Board as from time
to time in effect and any successor or other regulation or official
interpretation of said Board.
"Regulation U" means Regulation U of the Federal Reserve Board as from time
to time in effect and any successor or other regulation or official
interpretation of said Board relating to the extension of credit by banks,
non-banks and non-broker lenders for the purpose of purchasing or carrying
margin stocks applicable to member banks of the Federal Reserve Board.
"Regulation X" means Regulation X of the Federal Reserve Board as from time
to time in effect and any successor or other regulation or official
interpretation of said Board relating to the extension of credit by foreign
lenders for the purpose of purchasing or carrying margin stock (as defined
therein).
"Regulation Z" means Regulation Z of the Federal Reserve Board as from time
to time in effect and any successor or other regulation or official
interpretation of said Board.
"Reportable Event" means any of the events described in Section 4043 of
ERISA and the regulations thereunder (other than any such event for which the
notice requirement under ERISA has been waived).
"Required Lenders" means those Lenders holding in the aggregate more than
fifty-one percent (51%) of the total Commitments, or if the Commitments are
terminated, those Lenders owed more than fifty-one percent (51%) of the
Revolving Loans and Letter of Credit Obligations then outstanding.
"Requirement of Law" means, with respect to any Person, (a) the Governing
Documents of such Person, (b) any law, treaty, rule or regulation or
determination of an arbitrator, court or other Governmental Authority binding on
such Person, or (c) any franchise, license, lease, permit, certificate,
authorization, qualification, easement, right of way, right or approval binding
on a Person or any of its property.
"Reserve" means Reserve Iron & Metal Limited Partnership, a Delaware
limited partnership.
"Reserve Requirement" means the maximum aggregate reserve requirement
(including all basic supplemental, marginal and other reserves), stated as a
decimal, as prescribed by the Federal Reserve Board (or any successor) with
respect to "Eurocurrency liabilities" or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
LIBOR Rate Loans is determined or category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
United States residents.
"Responsible Officer" means, with respect to any Person, the president,
chief executive officer, chief financial officer, any vice president or
treasurer of such Person.
"Retiree Health Plan" means an "employee welfare benefit plan" within the
meaning of Section 3(1) of ERISA, and any other plan, program or arrangement,
whether oral or written, that provides benefits to persons after termination of
employment, other than as required by Section 601 of ERISA.
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"Revolving Loan" has the meaning set forth in Section 2.1.
"Revolving Note" has the meaning set forth in Section 2.1.
"S&A Holdings" means Metal Management S&A Holdings, Inc., a Delaware
corporation.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"Sale and Leaseback Transaction" means any sale or other transfer of
Collateral by any Credit Party with the intent to lease such property as lessee.
"SEC" means the Securities and Exchange Commission, and any Governmental
Authority succeeding to any or all of its functions.
"Securities" means any stock, shares, voting trust certificates, bonds,
debentures, notes or other evidences of Indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly
known as "securities," or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Revolving Notes or any other evidence of
the Obligations.
"Security Agreement" means the Amended and Restated Security Agreement of
even date herewith executed by each of the Borrowers in favor of the Agent for
the benefit of the Agent and the Lenders, as amended, restated, supplemented,
extended or otherwise modified and in effect from time to time.
"Settlement Date" has the meaning set forth in Section 2.4.
"Stated Amount" of each Letter of Credit means, at any, time, the maximum
amount available to be drawn thereunder at such time (in each case determined
without regard to whether any conditions to drawing could then be met).
"Subsidiary" of a Person means a corporation or other Person in which that
Person directly or indirectly owns or controls the shares of stock or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or appoint other managers of such corporation or other
entity.
"Taxes" means any present or future stamp or documentary taxes or other
excise or property taxes, charges or similar levies which arise from any payment
made under this Credit Agreement, any Revolving Note or any other Credit
Document, or from the execution or delivery of, or otherwise with respect
thereto, and any other present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, but excluding in any case Excluded Taxes.
"Termination Event" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of any Borrower, any Subsidiary of any
Borrower or any ERISA Affiliate from a Benefit Plan during a plan year in which
it was a "substantial employer" (as defined in Section
20
4001(a) (2) of ERISA); (iii) the providing of notice of intent to terminate a
Benefit Plan in a distress termination (as described in Section 4041 (c) of
ERISA); (iv) the institution by the PBGC of proceedings to terminate a Benefit
Plan or Multiemployer Plan; (v) any event or condition (a) which could
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Benefit Plan
or Multiemployer Plan, or (b) that would result in termination of a
Multiemployer Plan pursuant to Section 4041A of ERISA; or (vi) the partial or
complete withdrawal, within the meaning of Sections 4203 and 4205 of ERISA, of a
Borrower, any Subsidiary of a Borrower or any ERISA Affiliate from a
Multiemployer Plan.
"Type" means a LIBOR Rate Loan or a Base Rate Loan.
"Unused Line Fee" has the meaning set forth in Section 4.2.
"Unused Line Fee Rate" means the percentage rate per annum applicable from
time to time as set forth in the Pricing Schedule.
1.2 Accounting Terms and Determinations. Unless otherwise defined or
specified herein, all accounting terms used in this Credit Agreement shall be
construed in accordance with GAAP, applied on a basis consistent in all material
respects with the Financial Statements referred to in Section 6.9. All
accounting determinations for purposes of determining compliance with the
financial covenants contained in Article VIII shall be made in accordance with
GAAP as in effect on the Effective Date and applied on a basis consistent in all
material respects with the audited Financial Statements delivered to the Agent
on or before the Effective Date. The Financial Statements required to be
delivered hereunder from and after the Effective Date, and all financial
records, shall be prepared or maintained, as the case may be, in accordance with
GAAP. If GAAP shall change from the basis used in preparing the audited
Financial Statements delivered to the Agent on or before the Effective Date, the
certificates required to be delivered pursuant to Section 7.1 demonstrating
compliance with the covenants contained herein shall include, at the election of
the Borrowers or upon the request of the Required Lenders, calculations setting
forth the adjustments necessary to demonstrate that the Borrowers are in
compliance with the financial covenants based upon GAAP as in effect on the
Effective Date.
1.3 Other Terms; Headings. Terms used herein and not otherwise defined in
Article I that are defined in the Uniform Commercial Code in effect from time to
time in the State of Illinois (the "Code") shall have the meanings given in the
Code. Each of the words "hereof," "herein," and "hereunder" refer to this Credit
Agreement as a whole. An Event of Default shall "continue" or be "continuing"
until such Event of Default has been waived in accordance with Section 11.11
hereof. References to Articles, Sections, Annexes, Schedules, and Exhibits are
internal references to this Credit Agreement, and to its attachments, unless
otherwise specified. The headings and the Table of Contents are for convenience
only and shall not affect the meaning or construction of any provision of this
Credit Agreement.
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ARTICLE II
REVOLVING LOANS
2.1 Commitments. Subject to the terms and conditions set forth in this
Credit Agreement, and in reliance on the representations and warranties of the
Borrowers set forth herein, on and after the Effective Date and to but excluding
the Expiration Date, each Lender severally agrees to make loans and advances to
the Borrowers (each a "Revolving Loan") in an amount not to exceed at any time
its Proportionate Share of the Line of Credit, minus the then outstanding Letter
of Credit Obligations. The Revolving Loans shall be evidenced by a Revolving
Note substantially in the form of Exhibit B, dated as of the Effective Date,
issued to each Lender and executed by each of the Borrowers in the amount of
such Lender's Commitment (each a "Revolving Note").
2.2 Borrowing of Revolving Loans. Revolving Loans may be made available to
the Funds Administrator for the account of the Borrowers directly by the Lenders
("Lender Advances") or, in the circumstances described in Section 2.2.2, from
the Agent acting on behalf of the Lenders ("Agent Advances").
2.2.1 Lender Advances. Subject to the determination by the Agent and
the Lenders that the conditions for borrowing contained in Section 5.2 are
satisfied, upon receipt of a Notice of Borrowing from the Funds Administrator
received by the Agent before 12:00 noon Chicago time on a Business Day, Lender
Advances of Revolving Loans shall be made to the extent of each Lender's
Proportionate Share of the requested Borrowing.
2.2.2 Agent Advances. The Agent is authorized by the Lenders, but is
not obligated, to make Agent Advances upon a receipt of any Notice of Borrowing
received by the Agent before 3:00 p.m. Chicago time on a Business Day. Agent
Advances shall be subject to periodic settlement with the Lenders under Section
2.4. Agent Advances may be made only in the following circumstances:
(a) Normal Course Agent Advances. For administrative convenience, the
Agent may, but is not obligated, to make Agent Advances up to the amount
available for borrowing under Section 2.1 in reliance upon the actual or
deemed representations of the Borrowers under Section 5.2 that the
conditions for borrowing are satisfied.
(b) Other Agent Advances. When the conditions for borrowing under
Section 5.2 cannot be fulfilled, the Agent may, but is not obligated to,
continue to make Agent Advances for seven (7) Business Days or until sooner
instructed by the Required Lenders to cease, in an aggregate amount at any
time not to exceed $10,000,000.
2.2.3 Disbursement of Revolving Loans. The proceeds of Revolving Loans
shall be transmitted by the Agent or Lenders, as the case may be, to the
Disbursement Account.
2.2.4 Notices of Borrowing. Notices of Borrowing may be given under
this Section by telephone or facsimile transmission, and, if by telephone,
promptly shall be confirmed in writing. The Funds Administrator shall specify in
each Notice of Borrowing whether the conditions for the requested Borrowing are
satisfied. The Borrowers may request one or more
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Borrowings of Revolving Loans constituting Base Rate Loans on the same Business
Day. Each Notice of Borrowing for LIBOR Rate Loans shall be given not later than
12:00 noon Chicago time on the third Business Day prior to the proposed
Borrowing. Each Notice of Borrowing shall, unless otherwise specifically
provided herein, consist entirely of Revolving Loans of the same Type and, if
such Borrowing is to consist of LIBOR Rate Loans, shall be in an aggregate
amount of not less than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof. The right of the Borrowers to choose LIBOR Rate Loans is subject
to the provisions of Section 4.14. Once given, a Notice of Borrowing is
irrevocable and binding on the Borrowers. The Funds Administrator shall provide
to the Agent a list, with specimen signatures, of officers and other Persons, if
any, authorized to request Revolving Loans. The Agent is entitled to rely upon
such list until it is replaced by the Funds Administrator.
2.3 Notice of Request for Lender Advances. Subject to the last sentence of
this Section, the Agent shall give each Lender prompt notice by telephone or
facsimile transmission of a Notice of Borrowing that is received pursuant to
Section 2.2.1 and is to be satisfied by Lender Advances. No later than 3:00 p.m.
Chicago time on the date of receipt of such notice, each Lender shall make
available for the account of its Applicable Lending Office to an account
specified by the Agent for deposit into the Disbursement Account, its
Proportionate Share of such Borrowing in immediately available funds. Unless the
Agent receives contrary written notice prior to any such Borrowing, it is
entitled to assume that each Lender will make available its Proportionate Share
of the Borrowing and in reliance upon that assumption, but without any
obligation to do so, may advance such Proportionate Share on behalf of the
Lender, without the necessity of giving daily notice to each Lender of the
receipt of a Notice of Borrowing.
2.4 Periodic Settlement of Agent Advances; Interest and Fees; Statements.
2.4.1 The Settlement Date; Allocation of Interest and Fees. The amount
of each Lender's Proportionate Share of Revolving Loans shall be computed weekly
(or more frequently in the Agent's discretion) and shall be adjusted upward or
downward based on all Revolving Loans (including Agent Advances) and repayments
received by the Agent as of 5:00 p.m. Chicago time on the last Business Day of
the period specified by the Agent (such date, the "Settlement Date").
2.4.2 Summary Statements; Settlements. The Agent shall deliver to each
of the Lenders promptly after the Settlement Date a summary statement of the
current account activity, if any, of outstanding Revolving Loans (including
Agent Advances) for the period, the amount of repayments received for the
period, and the amount allocated to each Lender of the interest and Unused Line
Fee for the period. The Agent shall not be required to deliver such summary
statement if no account activity has occurred within a current period. After
application of payments under Section 4.12, as reflected on the summary
statement, (i) the Agent shall transfer to each Lender its allocated share of
interest and Unused Line Fee, and its Proportionate Share of repayments received
by the Agent in respect of the period covered by such summary statement; and
(ii) each Lender shall transfer to the Agent, or the Agent shall transfer to
each Lender, such amounts as are necessary to insure that, after giving effect
to all such transfers, the amount of Revolving Loans made by each Lender shall
be equal to such Lender's Proportionate Share of the aggregate amount of
Revolving Loans outstanding as of such Settlement Date. If the summary statement
requires transfers to be made to the Agent by the Lenders and is received by
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the Lenders prior to 12:00 noon Chicago time on a Business Day, such transfers
shall be made in immediately available funds no later than 3:00 p.m. Chicago
time that day; and, if received after 12:00 noon Chicago time, then no later
than 3:00 p.m. Chicago time on the next Business Day. The obligation of each
Lender to transfer such funds is irrevocable, unconditional and without recourse
to or warranty by the Agent.
2.4.3 Distribution of Interest and Unused Line Fees. Interest on the
Revolving Loans (including Agent Advances) and the Unused Line Fee shall be
allocated by the Agent to each Lender (i) in the case of interest, in accordance
with the Revolving Loans actually advanced by and repaid to such Lender and (ii)
in the case of the Unused Line Fee, in accordance with the Proportionate Share
of such Lender. Interest shall accrue from and including the date Revolving
Loans are advanced and to but excluding the date such Revolving Loans are either
repaid by the Borrowers or, if later, actually settled under this Section.
Promptly after the date of each such scheduled payment, the Agent shall
distribute to each Lender its portion, allocated as provided above, of interest
and Unused Line Fee which has been received by the Agent.
2.5 Sharing of Payments. If any Lender shall obtain any payment (whether
made voluntarily or involuntarily, or through the exercise of any right of
set-off, or otherwise) on account of the Revolving Loans made by it or its
participations in the Letter of Credit Obligations in excess of its
Proportionate Share of payments on account of the Revolving Loans or Letter of
Credit Obligations obtained by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participations in the Revolving Loans made
by them or in their participation in Letters of Credit as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each of
them; provided, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from each other Lender
shall be rescinded and each such other Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery, together with an
amount equal to such other Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect to the total amount so recovered.
The Borrowers agree that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.5, to the fullest extent permitted by law, may
exercise all of its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrowers in the amount of such participation.
2.6 Defaulting Lenders.
(a) A Lender who fails to pay the Agent its Proportionate Share of any
Revolving Loans (including Agent Advances) made available by the Agent on
such Lender's behalf, or who fails to pay any other amounts owing by it
hereunder to the Agent, is a "Defaulting Lender." The Agent is entitled to
recover from such Defaulting Lender all such amounts owing by such
Defaulting Lender on demand. If the Defaulting Lender does not pay such
amounts on the Agent's demand, the Agent shall promptly notify the Funds
Administrator and the Borrowers shall pay such amounts to the Agent (to the
extent the Agent has made such amounts available to or for the account of
the Borrowers) within 5 Business Days of the receipt by the Funds
Administrator of such notice. In addition, the Defaulting Lender or the
Borrowers shall pay to the Agent for its
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own account interest on such amount for each day from the date it was made
available by the Agent to the Borrowers to the date it is recovered by the
Agent at a rate per annum equal to (x) the overnight Federal Funds Rate if
paid by the Defaulting Lender, or (y) the then applicable rate of interest
calculated under Section 4.1, if paid by the Borrowers; plus, in each case,
the Expenses and losses, if any, incurred as a result of the Defaulting
Lender's failure to perform its obligations. Nothing herein shall be deemed
to relieve any Lender of its obligation to fulfill its commitments
hereunder or to prejudice any rights which the Borrowers may have against
any Lender as a result of any default by such Lender hereunder, including,
without limitation, the right of the Borrowers to seek reimbursement from
any Defaulting Lender for any amounts paid by the Borrowers under clause
(y) above on account of such Defaulting Lender's default.
(b) The failure of any Lender to fund its Proportionate Share of a
Revolving Loan shall not relieve any other Lender of its obligation to fund
its Proportionate Share of a Revolving Loan. Conversely, no Lender shall be
responsible for the failure of another Lender to fund its Proportionate
Share of a Revolving Loan.
(c) The Agent shall not be obligated to transfer to a Defaulting
Lender any payment made by the Borrowers to the Agent for the Defaulting
Lender's benefit; nor shall a Defaulting Lender be entitled to the sharing
of any payment hereunder. Amounts payable to a Defaulting Lender shall
instead be paid to or retained by the Agent. The Agent may hold and, in its
discretion, re-lend to the Borrowers the amount of all such payments
received by it for the account of such Lender. For purposes of voting or
consenting to matters with respect to the Credit Documents and determining
Proportionate Shares, such Defaulting Lender shall be deemed not to be a
"Lender" and such Lender's Commitment shall be deemed to be zero (-0-).
This Section shall remain effective with respect to such Lender until (x)
the Obligations shall have been declared or shall have become immediately
due and payable or (y) the Required Lenders, the Agent and the Borrowers
shall have waived such Lender's default in writing. The operation of this
Section shall not be construed to increase or otherwise affect the
Commitment of any Lender, or relieve or excuse the performance by the
Borrowers of their respective duties and obligations hereunder.
2.7 Allocation of Revolving Loans and Expenses.
(a) The Borrowers maintain an integrated cash management system
reflecting their interdependence on one another and the mutual benefits
shared among them as a result of their respective operations. In order to
efficiently fund and operate their respective businesses and minimize the
number of Borrowings which they will make under this Credit Agreement and
thereby reduce the administrative costs and record keeping required in
connection therewith, including the necessity to enter into and maintain
separately identified and monitored borrowing facilities, the Borrowers
have requested, and the Agent and the Lenders have agreed that, subject to
Section 11.16, (i) all Revolving Loans will be advanced to and for the
account of the Borrowers on a joint and several basis to the Disbursement
Account and (ii) all Letters of Credit will be issued pursuant to an
application therefor executed by the Funds Administrator on behalf and for
the account of the Borrower or Borrowers specified by the Funds
Administrator in such
25
application. Each of the Borrowers hereby acknowledges that it will be
receiving a direct benefit from each Revolving Loan made and each Letter of
Credit issued pursuant to this Credit Agreement.
(b) In order to track more precisely the respective recipients of the
proceeds of each Revolving Loan and the Borrower receiving the primary
benefit from the issuance of each Letter of Credit, and to assist the Funds
Administrator, the Borrowers, the Agent and the Lenders in administering
the Revolving Loans and the Letters of Credit, each of the Borrowers has
agreed with the Agent and the Lenders to cause the Funds Administrator to
establish and maintain, and the Funds Administrator hereby agrees to
establish and maintain, accounts with respect to each Borrower (each
Borrower's "Allocation Account") in which the Funds Administrator shall
record its good faith allocation to each of the Borrowers of (w) the
proceeds, if any, of each Revolving Loan received by or for the account of
such Borrower, (x) payments made to the Agent on account of the Obligations
of such Borrower, (y) the aggregate face amount of all outstanding Letters
of Credit covering goods which such Borrower will receive and (z) all
previously unallocated Expenses.
(c) As soon as available, but not later than fifteen (15) Business
Days after the last Business Day of each month ending after the Effective
Date, the Funds Administrator shall deliver to the Agent and each Borrower
a report prepared by or under the supervision of the chief financial
officer of the Funds Administrator, and certified by such officer, setting
forth with respect to each Borrower the balance of the Allocation Account
of such Borrower as of the end of, and all activity occurring in such
Allocation Account during, such month. Absent demonstrable error, each such
monthly statement shall be final, conclusive and binding on the respective
Borrowers.
2.8 Increase in Revolving Credit Commitments. So long as no Default or
Event of Default shall have occurred and be continuing, the Funds Administrator
may, on any Business Day prior to the Expiration Date, with the written consent
of the Agent (which consent shall not be unreasonably withheld or delayed),
increase the aggregate amount of the Commitments by delivering a Commitment
Amount Increase Request at least ten (10) Business Days prior to the desired
effective date of such increase (the "Commitment Amount Increase") identifying
an additional Lender or Lenders (or additional Commitments for existing
Lender(s)) and the amount of its Commitment(s) (or additional amount of its
Commitment(s)); provided, however, that (i) any increase of the aggregate amount
of the Commitments to an amount in excess of $300,000,000 will require the
approval of all the Lenders, and (ii) any increase of the aggregate amount of
the Commitments shall be in an amount not less than $10,000,000. The effective
date of the Commitment Amount Increase shall be agreed upon by the Borrower and
the Agent. Upon the effectiveness thereof, the new Lender(s) (or, if applicable,
existing Lender(s)) shall advance Revolving Loans in an amount sufficient such
that after giving effect to its Revolving Loans each Lender shall have
outstanding its Proportionate Share of Revolving Loans. It shall be a condition
to such effectiveness that (i) either (A) no LIBOR Rate Loans be outstanding on
the date of such effectiveness, (B) such date of effectiveness shall coincide
with the last day of the Interest Period of all LIBOR Rate Loans outstanding, or
(C) any LIBOR Rate Loans outstanding shall be prepaid and reborrowed on such
effective date and the Borrowers shall have paid to the Lenders pursuant to
Section 4.14.4 all costs and expenses associated with such
26
prepayment and reborrowing, and (ii) the Borrower shall not have terminated any
portion of the Commitments pursuant to Section 4.8(c) hereof. The Borrower
agrees to pay any reasonable expenses of the Agent relating to any Commitment
Amount Increase. Upon the effectiveness of any such increase in the Commitments,
the Agent is hereby authorized to issue an amended Annex I to this Agreement
reflecting such revised Commitments. Notwithstanding anything herein to the
contrary, no Lender shall have any obligation to increase its Commitment and no
Lender's Commitment shall be increased without its consent thereto, and each
Lender may at its option, unconditionally and without cause, decline to increase
its Commitment.
2.9 Amendment and Restatement. This Amended and Restated Credit Agreement
amends and restates in its entirety that certain Credit Agreement dated as of
June 28, 2004 by and among MTLM and its Subsidiaries party thereto, the Funds
Administrator, the Agent and the Lenders party thereto. The indebtedness and
obligations of the Borrowers and the Funds Administrator hereunder and under the
Revolving Notes issued in connection herewith and the other Credit Documents are
continuing obligations and indebtedness, and nothing contained herein shall be
deemed to constitute payment, settlement or a novation of such original
obligations, or release or otherwise adversely affect any lien or security
interest securing such indebtedness.
ARTICLE III
LETTERS OF CREDIT
3.1 Letters of Credit.
(a) Subject to and upon the terms and conditions set forth herein, the
Funds Administrator may, for and on behalf of any Borrower, at any time and
from time to time on and after the Effective Date, request the Agent either
to (i) direct an Issuing Bank to issue for the account of the Funds
Administrator and for the benefit of (a) any holder (or any trustee, agent
or other similar representative for any such holders) of LC Supportable
Obligations of any Borrower, an irrevocable standby letter of credit, in a
form customarily used by such Issuing Bank or in such other form as has
been approved by such Issuing Bank, and (b) sellers of goods to any
Borrower, an irrevocable trade letter of credit, or (ii) approve the
issuance by an Issuing Bank of an irrevocable trade letter of credit upon
application made by any Borrower directly to such Issuing Bank pursuant to
an application procedure previously approved by the Agent, in each case in
a form customarily used by such Issuing Bank or in such other form as has
been approved by such Issuing Bank (provided, that, in the event of any
conflict between the terms of this Credit Agreement and such form, the
terms of this Credit Agreement shall govern and control). All Letters of
Credit shall be denominated in United States Dollars and shall be issued on
a sight basis only. Upon the Effective Date, all Existing Letters of
Credit, and any amendments, modifications and extensions thereof, shall be
deemed to be Letters of Credit hereunder.
(b) Subject to and upon the terms and conditions set forth herein, the
Agent agrees that it will, at any time and from time to time on and after
the Effective Date, following its receipt of the respective Letter of
Credit Request, direct the applicable
27
Issuing Bank to issue (or approve the issuance for the account of Borrowers
of), one or more Letters of Credit as are permitted to remain outstanding
hereunder without giving rise to a Default or an Event of Default,
provided, that the Agent shall not be under any obligation to direct any
Issuing Bank to issue (or to approve the issuance by any Issuing Bank of)
any Letter of Credit if at the time of such issuance any order, judgment or
decree of any Governmental Authority or arbitrator shall purport by its
terms to enjoin or restrain such Issuing Bank from issuing such Letter of
Credit or any Requirement of Law applicable to such Issuing Bank or any
request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuing Bank shall
prohibit, or request that such Issuing Bank refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon such Issuing Bank with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which such Issuing Bank
is not otherwise compensated hereunder) not in effect with respect to such
Issuing Bank on the date hereof, or any unreimbursed loss, cost or expense
which was not applicable or in effect with respect to such Issuing Bank as
of the date hereof and which such Issuing Bank reasonably and in good xxxxx
xxxxx material to it. The transmittal by the Funds Administrator on behalf
of any Borrower or Borrowers of any Letter of Credit Request shall be
deemed to be a representation and warranty made by all Borrowers, both at
the time of such transmittal and at the time of the issuance of the
requested Letter of Credit, that the Letter of Credit may be issued in
accordance with and will not violate any of the requirements of this Credit
Agreement, including, without limitation, this Article III.
3.2 Maximum Letter of Credit Obligations; Final Maturities. Notwithstanding
anything to the contrary contained in this Credit Agreement, (a) no Letter of
Credit shall be issued if (x) the Stated Amount thereof, when added to the
Letter of Credit Obligations outstanding at such time, would exceed $20,000,000,
or (y) after giving effect to such issuance, the sum of the Revolving Loans plus
the Letter of Credit Obligations, in each case outstanding at such time, would
exceed the Line of Credit at such time; and (b) each Letter of Credit shall by
its terms terminate on or before (A) in the case of standby Letters of Credit,
the date which occurs 12 months after the date of the issuance thereof (although
any such standby Letter of Credit may be extendible for successive periods of up
to 12 months on terms acceptable to the Agent and the Issuing Bank) but in no
event later than 25 Business Days prior to the Expiration Date, and (B) in the
case of trade Letters of Credit, on or before the date which occurs 120 days
after the date of issuance thereof but in no event later than 25 Business Days
prior to the Expiration Date.
3.3 Letter of Credit Requests.
(a) Whenever the Funds Administrator, for and on behalf of any
Borrower, desires the Agent to direct or approve the issuance of a Letter
of Credit for the account of the Funds Administrator (or to amend or modify
any existing Letter of Credit), the Funds Administrator shall give the
Agent at least five Business Days' (or such shorter period as is acceptable
to the Agent) written notice thereof (including by way of facsimile). Each
such notice shall be given to Agent in the form of Exhibit C hereto (each a
"Letter of Credit Request").
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(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by Borrowers to Agent and the Lenders that
such Letter of Credit may be issued in accordance with, and will not
violate the requirements of, this Credit Agreement, including, without
limitation, this Article III. Upon receipt by the Agent of a Letter of
Credit Request, then the Agent shall, subject to the terms and conditions
of this Credit Agreement, either direct an Issuing Bank to issue (or amend
or modify, as the case may be), or, approve the issuance of (or the
amendment or modification of, as the case may be), the requested Letter of
Credit for the account of the Funds Administrator in accordance with such
Issuing Bank's usual and customary practices. The issuance or modification
of any Letter of Credit by the applicable Issuing Bank shall, in addition
to the conditions precedent set forth in this Agreement (the satisfaction
of which the applicable Issuing Bank shall have no duty to ascertain), be
subject to the conditions precedent that such Letter of Credit shall be
satisfactory to the applicable Issuing Bank and that the Borrowers shall
have executed and delivered such application agreement and/or such other
instruments and agreements relating to such Letter of Credit as the
applicable Issuing Bank shall have reasonably requested (including, with
respect to any Letter of Credit issued by LaSalle Bank or its Affiliates,
in its capacity as an Issuing Bank, the Master Letter of Credit Agreement).
Upon the issuance or modification of, or amendment to, any standby Letter
of Credit, the Issuing Bank shall promptly provide written confirmation of
such issuance, amendment or modification, as the case may be, to the Funds
Administrator and the Agent, and such notice shall be accompanied by a copy
of such issuance, modification or amendment, as the case may be. Upon
receipt of such notice, the Agent shall promptly provide written notice to
the LC Participants of such issuance, modification or amendment, and if
requested, the Agent shall provide such LC Participant, with copies of any
such issuance, modification or amendment. Notwithstanding anything to the
contrary contained in this Credit Agreement, in the event that any Lender
is a Defaulting Lender, no Issuing Bank shall be required to issue any
Letter of Credit unless such Issuing Bank has entered into arrangements
satisfactory to it and the Borrowers to eliminate such Issuing Bank's risk
with respect to the participation in Letters of Credit by such Defaulting
Lender, including by cash collateralizing such Defaulting Lender's
Proportionate Share of the Letter of Credit Obligations.
3.4 Letter of Credit Participations.
(a) Immediately upon the issuance by an Issuing Bank of any Letter of
Credit, such Issuing Bank shall be deemed to have sold and transferred to
each Lender (other than such Issuing Bank in its capacity (if any) as a
Lender) and each such Lender (in its capacity under this Section 3.4, an
"LC Participant"), shall be deemed irrevocably and unconditionally to have
purchased and received from such Issuing Bank, without recourse or
warranty, an undivided interest and participation, to the extent of such LC
Participant's Proportionate Share, in such Letter of Credit, each Drawing
or payment made thereunder and the joint and several obligations of the
respective Borrowers under this Credit Agreement with respect thereto, and
any security therefor or guaranty pertaining thereto. Upon any change in
the Commitments or Proportionate Shares of the respective Lenders pursuant
to the terms of this Credit Agreement, it is hereby agreed that, with
respect to all Letter of Credit Obligations, there shall be an automatic
29
adjustment to the participations pursuant to this Section 3.4 to reflect
the new Proportionate Shares of the assignor and assignee Lender, as the
case may be.
(b) In determining whether to pay under any Letter of Credit, no
Issuing Bank shall have any obligation relative to the Lenders other than
to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any
action taken or omitted to be taken by an Issuing Bank under or in
connection with any Letter of Credit issued by it shall not create for such
Issuing Bank any resulting liability to any Borrower, any other Credit
Party, any Lender or any other Person unless such action is taken or
omitted to be taken with gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and
non-appealable decision).
(c) In the event that any Issuing Bank makes any payment under any
Letter of Credit issued by it, such Issuing Bank shall promptly notify the
Agent, which shall promptly notify each LC Participant of such failure, and
each LC Participant shall promptly and unconditionally pay to such Issuing
Bank the amount of such LC Participant's Proportionate Share of such
unreimbursed payment in United States Dollars and in same day funds. If the
Agent so notifies, prior to 12:00 Noon (Chicago time) on any Business Day,
any LC Participant required to fund a payment under a Letter of Credit,
such LC Participant shall make available to such Issuing Bank in United
States Dollars such LC Participant's Proportionate Share of the amount of
such payment on such Business Day in same day funds. If and to the extent
such LC Participant shall not have so made its Proportionate Share of the
amount of such payment available to the Issuing Bank, such LC Participant
agrees to pay to such Issuing Bank, forthwith on demand such amount,
together with interest thereon, for each day from such date until the date
such amount is paid to such Issuing Bank at the overnight Federal Funds
Rate for the first 3 days and at the interest rate applicable to Revolving
Loans for each day thereafter. The failure of any LC Participant to make
available to an Issuing Bank its Proportionate Share of any payment under
any Letter of Credit shall not relieve any other LC Participant of its
obligation hereunder to make available to such Issuing Bank its
Proportionate Share of any payment under any Letter of Credit on the date
required, as specified above, but no LC Participant shall be responsible
for the failure of any other LC Participant to make available to such
Issuing Bank such other LC Participant's Proportionate Share of any such
payment.
(d) Whenever an Issuing Bank receives a payment of a reimbursement
obligation as to which it has received any payments from the LC
Participants pursuant to clause (c) above, such Issuing Bank shall pay to
each such LC Participant which has paid its Proportionate Share thereof, in
United States Dollars and in same day funds, an amount equal to such LC
Participant's share (based upon the proportionate aggregate amount
originally funded by such LC Participant to the aggregate amount funded by
all LC Participants) of the principal amount of such reimbursement
obligation and interest thereon accruing after the purchase of the
respective participations.
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(e) Upon the request of any LC Participant, each Issuing Bank shall
furnish to such LC Participant such documentation as may reasonably be
requested by such LC Participant.
(f) The obligations of the LC Participants to make payments to any
Issuing Bank with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever
and shall be made in accordance with the terms and conditions of this
Credit Agreement under all circumstances, including, without limitation,
any of the following circumstances:
(i) any lack of validity or enforceability of this Credit
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which any Credit Party or any Subsidiary of any Credit Party
may have at any time against a beneficiary named in a Letter
of Credit, any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), the
Agent, any LC Participant, or any other Person, whether in
connection with this Credit Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between
any Credit Party or any Subsidiary of any Credit Party and
the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented
under any 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;
(iv) surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
3.5 Agreement to Repay Letter of Credit Drawings.
(a) Borrowers jointly and severally agree to reimburse each Issuing
Bank, by making payment to the Agent in immediately available funds, for
any payment or disbursement made by such Issuing Bank under any Letter of
Credit issued by it, not later than one Business Day following receipt by
the Funds Administrator of notice from the Agent of such payment or
disbursement, with interest on the amount so paid or disbursed by such
Issuing Bank, to the extent not reimbursed prior to 12:00 Noon on the date
of such payment or disbursement, from and including the date paid or
disbursed to but excluding the date such Issuing Bank is reimbursed
therefor at a rate per annum equal to the Base Rate in effect from time to
time plus the Applicable Margin for Base Rate Loans; provided, that, to the
extent such amounts are not reimbursed prior to 12:00 Noon on the third
Business Day following the receipt by the Funds Administrator of notice of
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such payment or disbursement or following the occurrence and during the
continuance of a Default or an Event of Default, interest shall thereafter
accrue on the amounts so paid or disbursed by the Issuing Bank (and until
reimbursed by Borrowers) at a rate per annum equal to the Base Rate in
effect from time to time plus the Applicable Margin for Base Rate Loans
plus two percent (2.00%), with such interest to be payable on demand. The
Issuing Bank shall give the Funds Administrator prompt written notice of
each Drawing under any Letter of Credit issued by it; provided, that the
failure to give any such notice shall in no way affect, impair or diminish
any Borrower's obligations hereunder.
(b) The joint and several obligations of the Borrowers under this
Section 3.5 to reimburse the Issuing Bank with respect to drawings under
Letters of Credit issued by it (each a "Drawing") (including, in each case,
interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which any Borrower or any Subsidiary of any Borrower may have or
have had against any Lender (including in its capacity as an Issuing Bank
or as a LC Participant), including, without limitation, any defense based
upon the failure of any Drawing under a Letter of Credit to conform to the
terms of the Letter of Credit or any nonapplication or misapplication by
the beneficiary of the proceeds of such Drawing; provided, that Borrowers
shall not be obligated to reimburse any Issuing Bank for any wrongful
payment made by such Issuing Bank under a Letter of Credit issued by it as
a result of acts or omissions constituting willful misconduct or gross
negligence on the part of such Issuing Bank (as determined by a court of
competent jurisdiction in a final and non-appealable decision).
3.6 Capital Adequacy. If, at any time after the Effective Date, the
introduction of or any change in any applicable law, rule, regulation, order,
guideline or request or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration
thereof, or compliance by any Issuing Bank or any LC Participant with any
request or directive by any such Governmental Authority (whether or not having
the force of law), shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against letters of
credit issued by such Issuing Bank or participated in by such LC Participant, or
(ii) impose on such Issuing Bank or such LC Participant any other conditions
relating, directly or indirectly, to this Credit Agreement or any Letter of
Credit; and the result of any of the foregoing is to increase the cost to such
Issuing Bank or such LC Participant of issuing, maintaining or participating in
any Letter of Credit, or reduce the amount of any sum received or receivable by
such Issuing Bank or such LC Participant hereunder or reduce the rate of return
on its capital with respect to Letters of Credit (except for changes in the rate
of tax on, or determined by reference to, the net income or profits of such
Issuing Bank or such LC Participant pursuant to the laws of the jurisdiction in
which it is organized or in which its principal office or applicable lending
office is located or any subdivision thereof or therein), then, upon the
delivery at any time within 180 days after the date on which an officer of the
Issuing Bank or LC Participant, as the case may be, responsible for overseeing
this Credit Agreement knows or has reason to know of its right to additional
compensation under this Section 3.6, of the certificate referred to below to the
Funds Administrator by such Issuing Bank or such LC Participant, as the case may
be (a copy of which certificate shall be sent by such Issuing Bank or such LC
Participant to the Agent), Borrowers jointly and severally agree to pay to such
Issuing Bank or such LC Participant such additional
32
amount or amounts as will compensate such Issuing Bank or such LC Participant
for such increased cost or reduction in the amount receivable or reduction on
the rate of return on its capital; provided, that if such Issuing Bank or such
LC Participant, as the case may be, fails to deliver such demand within such
180-day period, such entity shall only be entitled to additional compensation
for any such costs incurred from and after the date that is 180 days prior to
the date the Borrowers received such demand. Any Issuing Bank or any LC
Participant, upon determining that any additional amounts will be payable
pursuant to this Section 3.6, will give prompt written notice thereof to the
Funds Administrator, which notice shall include a certificate submitted to the
Funds Administrator by the Issuing Bank or such LC Participant (a copy of which
certificate shall be sent by such Issuing Bank or such LC Participant to the
Agent), setting forth in reasonable detail the basis for the calculation of such
additional amount or amounts necessary to compensate such Issuing Bank or such
LC Participant. Any certificate required to be delivered pursuant to this
Section 3.6 shall, absent demonstrable error, be final and conclusive and
binding on Borrowers.
ARTICLE IV
COMPENSATION, REPAYMENT AND REDUCTION OF COMMITMENTS
4.1 Interest on Revolving Loans.
(a) Interest on the unpaid principal amount of Revolving Loans which
are Base Rate Loans shall be payable monthly in arrears on the first
Business Day of each month, at an interest rate per annum equal to the Base
Rate in effect from time to time plus the Applicable Margin, in effect from
time to time, for such Loans.
(b) Interest on the unpaid principal amount of Revolving Loans which
are LIBOR Rate Loans shall be payable on the earliest to occur of (i) the
last day of each Interest Period with respect to such LIBOR Rate Loans,
(ii) the three-month anniversary of the first day of the applicable
Interest Period for such LIBOR Rate Loans, (iii) the date of conversion of
such LIBOR Rate Loans (or a portion thereof) to a Base Rate Loan (on the
portion so converted) and (iv) the maturity of such LIBOR Rate Loans, at an
interest rate per annum equal during the Interest Period for such LIBOR
Rate Loans to the LIBOR Rate for the Interest Period in effect for such
LIBOR Rate Loans plus the Applicable Margin, in effect from time to time,
with respect to such Loans. After maturity of such LIBOR Rate Loans
(whether by acceleration or otherwise), interest shall be immediately due
and payable. The Agent upon determining the LIBOR Rate for any Interest
Period shall promptly notify the Funds Administrator and the Lenders by
telephone (confirmed promptly in writing) or in writing thereof.
(c) Each determination by the Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent demonstrable
error.
(d) Notwithstanding the provisions of Section 4.1(b), the Borrowers
shall pay to each Lender, so long as and to the extent such Lender shall be
required under regulations of the Federal Reserve Board to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency liabilities (as defined in Regulation D),
33
additional interest on the unpaid principal amount of each Revolving Loan
comprised of LIBOR Rate Loans of such Lender, from the date of such LIBOR
Rate Loan until such principal amount is paid in full, at an interest rate
per annum equal at all times to the remainder obtained by subtracting (i)
the LIBOR Rate for the applicable Interest Period for such LIBOR Rate Loan
from (ii) the rate obtained by dividing such LIBOR Rate by a percentage
equal to 1 minus the stated maximum rate (stated as a decimal) applicable
two (2) Business Days before the first day of such Interest Period of all
reserves, if any, required to be maintained against Eurocurrency
liabilities as specified in Regulation D (or against any other category of
liabilities which includes deposits by reference to which the interest rate
on LIBOR Rate Loans is determined or any category of extensions of credit
or other assets which includes loans by a non-United States office of any
Lender to United States residents) having a term equal to the Interest
Period applicable to such LIBOR Rate Loan. Such Lender shall as soon as
practicable provide notice to the Agent and the Funds Administrator of any
such additional interest arising in connection with such LIBOR Rate Loan,
which notice shall be conclusive and binding, absent demonstrable error.
4.2 Unused Line Fee. The Borrowers shall pay to the Agent, for the ratable
benefit of the Lenders, a non-refundable fee (the "Unused Line Fee") equal to
the Unused Line Fee Rate in effect from time to time multiplied by the unused
portion of the aggregate Commitments of all Lenders (with any outstanding
Letters of Credit constituting usage of the Line of Credit). The Unused Line Fee
shall accrue daily from the Effective Date until the Expiration Date, and shall
be due and payable quarterly in arrears, on the first Business Day of each
calendar quarter and on the Expiration Date.
4.3 Letter of Credit Fees.
(a) The Agent, for the ratable benefit of the LC Participants, shall
be entitled to charge to the account of the Funds Administrator on the
first Business Day of each month, a fee (the "Letter of Credit Fee") in an
amount equal to the Letter of Credit Fee Rate in effect from time to time
multiplied by the Stated Amount of Letters of Credit outstanding during the
immediately preceding month.
(b) In addition to the above described fees, the Borrowers agree to
pay to the Issuing Bank, for the account of the Issuing Bank, such bank's
charges, fees, costs and expenses in connection with the issuance,
transfer, amendment and payment of any Letter of Credit (the "Issuing Bank
Fees"). Each Issuing Bank shall be entitled to request the Agent to charge
the account of the Borrowers for Issuing Bank Fees incurred by such Issuing
Bank. Such charges, fees, costs and expenses shall be payable as and when
incurred by the Issuing Bank. Each determination by the Agent or the
Issuing Bank, as the case may be, of the Letter of Credit Fees, Issuing
Bank Fees and other fees, costs and expenses charged under this Section
shall be conclusive and binding for all purposes, absent demonstrable
error.
4.4 Interest and Letter of Credit Fees After Event of Default. From the
date of occurrence of an Event of Default (after giving effect to any applicable
grace period) until the earlier of the date upon which (i) all Obligations shall
have been paid and satisfied in full or (ii)
34
such Event of Default shall have been cured or waived, interest on the Revolving
Loans and Letter of Credit Fees on Letter of Credit Obligations shall each be
payable on demand at a rate per annum equal to, with respect to the Revolving
Loans, the rate in effect under Section 4.1, plus two percent (2%), and with
respect to the Letter of Credit Obligations, the rate at which Letter of Credit
Fees are charged pursuant to the first sentence of Section 4.3(a), plus two
percent (2%).
4.5 [This Section Intentionally Left Blank]
4.6 [This Section Intentionally Left Blank]
4.7 Expenses. The Borrowers shall reimburse the Expenses of the Agent or
any Lender, as the case may be, promptly upon demand.
4.8 Mandatory Payment of Revolving Loans; Reductions of Commitments.
(a) The aggregate outstanding principal amount of Revolving Loans plus
Letter of Credit Obligations at any time in excess of the aggregate
Commitments of the Lenders shall be immediately due and payable without the
necessity of any demand.
(b) On the Expiration Date, the Commitment of each Lender shall
automatically reduce to zero (-0-).
(c) The Borrowers may reduce or terminate the Line of Credit in whole,
or in part at any time and from time to time; provided, that each such
reduction must be in an amount not less than $5,000,000 (and in increments
of $1,000,000 in excess thereof). Once reduced, no portion of the Line of
Credit may be reinstated. If the Borrowers seek to reduce the Line of
Credit to less than $25,000,000, then the Line of Credit shall be
automatically and permanently reduced to zero ($0).
4.9 Maintenance of Loan Account, Statements of Account. The Agent shall
maintain an account on its books in the name of the Borrowers (the "Loan
Account") in which the Borrowers will be charged with all loans and advances
made by the Lenders to the Borrowers or for the account of the Borrowers,
including the Revolving Loans and all Letter of Credit Obligations, the Fees,
the Expenses and any other Obligations, as and when such payments become due.
The Loan Account will be credited with all payments received by the Agent from
the Borrowers or for the account of the Borrowers, including all amounts
received in the LaSalle Bank Account from the Collection Banks. After the end of
each month, the Agent shall send the Funds Administrator a monthly statement
accounting for the charges, loans, advances and other transactions occurring
among and between the Agent, the Lenders and the Borrowers during that month,
provided, that the failure of the Agent to send such statement to the Funds
Administrator shall not relieve the Borrowers of any Obligations. Absent
demonstrable error, each monthly statement shall be an account stated and shall
be final, conclusive and binding on the Borrowers.
4.10 Payment Procedures. Payments of Fees, principal of and interest on the
Revolving Loans and Expenses payable to the Agent or any Lender shall be made in
each case not later than 2:00 p.m. Chicago time on the day when due, in
immediately available United States Dollars, to the Payment Office. If any such
payment becomes due and payable on a day
35
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day, and with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. The
Borrowers hereby authorize the Agent to charge the Loan Account with the amount
of all payments to be made hereunder and under the other Credit Documents,
including all Fees and Expenses, as and when such payments become due. The joint
and several obligations of the Borrowers to the Lenders with respect to such
payments shall be discharged by making such payments to the Agent pursuant to
this Section or, at the Agent's option, by the charging of the Loan Account by
the Agent.
4.11 Collection of Accounts. Each Borrower shall be entitled to receive
Collections directly from account debtors in accordance with its historical
practices. Borrowers shall from time to time establish accounts for the deposit
of Collections (each, a "Collection Account") at financial institutions selected
by such Borrowers and reasonably acceptable to the Agent (the "Collection
Banks") and shall enter into, and cause the Collection Banks to enter into,
agreements in form and substance satisfactory to Agent (the "Depositary Account
Agreements"), in each case (i) within 60 days of the date such Collection
Account is established for Collection Accounts established after the Effective
Date, and (ii) within 60 days of the Effective Date for Collection Accounts in
existence as of the Effective Date and maintained for more than 60 days
thereafter. All Collections and other amounts received by each Borrower from any
account debtor, in addition to all other cash received by any Borrower in
respect of any other Collateral, shall upon receipt be deposited into a
Collection Account. Termination of such arrangements shall also be subject to
prior written approval by the Agent. The Agent may by notice to the applicable
Collection Bank given in the Agent's sole and absolute discretion at any time
following the occurrence of an Event of Default, require that thereafter all
available amounts held in each Collection Account shall be wired each Business
Day into an account (the "LaSalle Bank Account") maintained by the Agent at
LaSalle Bank. Amounts received in the LaSalle Bank Account from the Collection
Banks shall be credited to the Loan Account and distributed and applied as set
forth in Section 4.12.
4.12 Distribution and Application of Collections and Other Amounts. All
Collections received by the Agent, and all other amounts received by the
Borrowers and delivered to the Agent, shall be credited to the Loan Account;
provided, that if an Event of Default has occurred and is continuing, all
Collections and other amounts received by Agent shall be distributed and applied
in the following order: first, to the payment of any Fees, Expenses or other
Obligations due and payable to the Agent under any of the Credit Documents,
including Agent Advances and any other amounts advanced by the Agent on behalf
of the Lenders; second, to the payment of any Fees, Expenses or other
Obligations due and payable to any Issuing Bank under any of the Credit
Documents; third, to the ratable payment of any Fees, Expenses or other
Obligations due and payable to the Lenders under any of the Credit Documents
other than those Obligations specifically referred to in this Section; fourth,
to the ratable payment of interest due on the Revolving Loans; and, fifth, to
the ratable payment of principal due on the Revolving Loans.
4.13 Calculations. All calculations of (i) interest hereunder and (ii)
Fees, including, without limitation, Unused Line Fees and Letter of Credit Fees,
shall be made by the Agent, on the basis of a year of 360 days, in each case for
the actual number of days elapsed (including the first day but excluding the
last day) occurring in the period for which such interest or Fees are
36
payable. Each determination by the Agent of an interest rate, Fee or other
payment hereunder shall be conclusive and binding for all purposes, absent
demonstrable error.
4.14 Special Provisions Relating to LIBOR Rate Loans.
4.14.1 Continuation. With respect to any Borrowing consisting of LIBOR
Rate Loans, the Borrowers may, subject to the provisions of Section 4.14.3,
elect to maintain such Borrowing or any portion thereof as consisting of LIBOR
Rate Loans by selecting a new Interest Period for such Borrowing, which new
Interest Period shall commence on the last day of the immediately preceding
Interest Period. Each selection of a new Interest Period shall be made by notice
given not later than noon Chicago time on the third Business Day prior to the
date of any such continuation relating to LIBOR Rate Loans, by the Funds
Administrator to the Agent. Such notice by the Funds Administrator of a
continuation (a "Notice of Continuation") shall be by telephone or facsimile
transmission, and if by telephone, promptly confirmed in writing, substantially
in the form of Exhibit D, in each case specifying (i) the date of such
continuation, (ii) the aggregate amount of Revolving Loans subject to such
continuation and (iii) the duration of the selected Interest Period. The
Borrowers may elect to maintain more than one Borrowing consisting of LIBOR Rate
Loans by combining such Borrowings into one Borrowing and selecting a new
Interest Period pursuant to this Section 4.14.1. If the Borrowers shall fail to
select a new Interest Period for any Borrowing consisting of LIBOR Rate Loans in
accordance with this Section 4.14.1, such Revolving Loans will automatically, on
the last day of the then existing Interest Period therefor, convert into Base
Rate Loans. The Agent shall give each Lender prompt notice by telephone or
facsimile transmission of each Notice of Continuation.
4.14.2 Conversion. The Borrowers may on any Business Day (so long as
no Default or Event of Default has occurred and is continuing), upon notice
(each such notice, a "Notice of Conversion") given to the Agent, and subject to
the provisions of Section 4.14.3, convert the entire amount of or a portion of
all Revolving Loans of one Type comprising the same Borrowing into Revolving
Loans of the other Type; provided, that any conversion of any LIBOR Rate Loans
into Base Rate Loans shall be made on, and only on, the last day of an Interest
Period for such LIBOR Rate Loans and, upon conversion of any Base Rate Loans
into LIBOR Rate Loans, the Borrowers shall pay accrued interest to the date of
conversion on the principal amount converted. Each such Notice of Conversion
shall be given not later than noon Chicago time on the Business Day prior to the
date of any proposed conversion into Base Rate Loans and on the third Business
Day prior to the date of any proposed conversion into LIBOR Rate Loans. Subject
to the restrictions specified above, each Notice of Conversion shall be by
telephone or facsimile transmission, and if by telephone, promptly confirmed in
writing, substantially in the form of Exhibit D-1, in each case specifying (i)
the requested date of such conversion, (ii) the Type of Revolving Loans to be
converted, (iii) the portion of such Type of Revolving Loan to be converted,
(iv) the Type of Revolving Loans such Revolving Loans are to be converted into
and (v) if such conversion is into LIBOR Rate Loans, the duration of the
Interest Period of such Revolving Loan. Each conversion shall be in an aggregate
amount of not less than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof. The Borrowers may elect to convert the entire amount of or a
portion of all Revolving Loans of one Type comprising more than one Borrowing
into Revolving Loans of another Type by combining such Borrowings into one
Borrowing; provided, that if the Borrowings so combined consist of LIBOR Rate
Loans, such Loans shall have Interest Periods ending on the same date.
37
4.14.3 Certain Limitations on LIBOR Rate Loans. The right of the
Borrowers to maintain, select, continue or convert LIBOR Rate Loans shall be
limited as follows:
(a) If the Agent is not offering United States Dollar deposits (in the
applicable amounts) in the London interbank market, or the Agent determines
that adequate and fair means do not otherwise exist for ascertaining the
LIBOR Rate or LIBOR Rate Loans comprising any requested Borrowing,
continuation or conversion, the right of the Borrowers to select or
maintain LIBOR Rate Loans for such Borrowing or any subsequent Borrowing
shall be suspended until the Agent shall notify the Funds Administrator and
the Lenders that the circumstances causing such suspension no longer exist,
and each Revolving Loan shall be made as a Base Rate Loan.
(b) If the Required Lenders shall, at least two (2) Business Days
before the date of any requested Borrowing, continuation or conversion,
notify the Agent that the LIBOR Rate for Revolving Loans comprising such
Borrowing will not adequately reflect the cost to such Lenders of making or
funding their respective Revolving Loans for such Borrowing, the right of
the Borrowers to select LIBOR Rate Loans for such Borrowing shall be
suspended until the Agent shall notify the Funds Administrator and the
Lenders that the circumstances causing such suspension no longer exist, and
each Revolving Loan comprising such Borrowing and each other Borrowing
requested during such period of suspension shall be made as a Base Rate
Loan.
(c) If at any time any Lender determines (which determination shall,
absent demonstrable error, be conclusive and binding on all parties) that
the making, continuation or conversion of any Revolving Loan as a LIBOR
Rate Loan by such Lender has become unlawful or impermissible by reason of
compliance by that Lender with any law, governmental rule, regulation or
order of any Governmental Authority (whether or not having the force of
law), then, and in any such event, such Lender may give notice of that
determination in writing, to the Agent and the Funds Administrator and the
Agent shall promptly transmit the notice to each other Lender. Until such
Lender gives notice otherwise, the right of the Borrowers to select LIBOR
Rate Loans from that Lender shall be suspended and each Revolving Loan made
by that Lender, notwithstanding the Type of Revolving Loan made by the
other Lenders, shall be a Base Rate Loan and each LIBOR Rate Loan
outstanding from that Lender shall automatically, on the last day of the
existing Interest Period therefor (or earlier, if so required under such
law, rule, regulation or order), convert to a Base Rate Loan.
(d) No Agent Advance shall be made as a LIBOR Rate Loan.
(e) No more than eight (8) Interest Periods with respect to LIBOR Rate
Loans may be in effect at any time.
(f) No Revolving Loans may be made, continued or converted as or to
LIBOR Rate Loans at any time that a Default or Event of Default shall have
occurred and be continuing.
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4.14.4 Compensation.
(a) Each Notice of Continuation and Notice of Conversion shall be
irrevocable by and binding on the Borrowers. In the case of any Borrowing,
continuation or conversion that the related Notice of Borrowing, Notice of
Continuation or Notice of Conversion specifies is to be comprised of LIBOR
Rate Loans, the Borrowers shall indemnify each Lender against any loss,
cost or expense incurred by such Person as a result of any failure to
fulfill, on or before the date for such Borrowing, continuation or
conversion specified in such Notice of Borrowing, Notice of Continuation or
Notice of Conversion, the applicable conditions set forth in Article V,
including, without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
re-employment of deposits or other funds acquired by such Lender to fund
the Revolving Loan to be made by such Lender as part of such Borrowing,
continuation or conversion.
(b) If any payment of principal of, or conversion or continuation of,
any LIBOR Rate Loan is made other than on the last day of the Interest
Period for such Loan as a result of a payment, prepayment, conversion or
continuation of such Loan or acceleration of the maturity of the Revolving
Notes or for any other reason, the Borrowers shall, upon demand by any
Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender for
any additional losses, costs or expenses which it may reasonably incur as a
result of such payment, including, without limitation, any loss (excluding
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or re-employment of deposits or other funds acquired by any
Lender to fund or maintain such Loan.
(c) Calculation of all amounts payable to a Lender under this Section
4.14.4 shall be made as though such Lender elected to fund all LIBOR Rate
Loans by purchasing United States Dollar deposits in its LIBOR Lending
Office's interbank eurodollar market.
4.15 Indemnification in Certain Events.
4.15.1 Increased Costs. If after the Effective Date, either (i) any
change in or in the interpretation of any law or regulation is introduced,
including, without limitation, with respect to reserve requirements applicable
to the Agent, to any of the Lenders or any other affiliated banking or financial
institution from whom any of the Lenders borrows funds or obtains credit (a
"Funding Bank"), or (ii) the Agent, a Funding Bank or any of the Lenders
complies with any future guideline or request from any central bank or other
Governmental Authority proposed or promulgated after the date of the Agreement
or (iii) the Agent, a Funding Bank or any of the Lenders reasonably determines
that the adoption of any applicable law, rule or regulation regarding capital
adequacy or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof announced after
the date of this Credit Agreement has or would have the effect described below,
or the Agent, a Funding Bank or any of the Lenders complies with any request or
directive regarding capital
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adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency announced after the date of this Credit Agreement and
in the case of any event set forth in this clause (iii), such adoption, change
or compliance has or would have the effect of reducing the rate of return on any
of such Person's capital as a consequence of its obligations hereunder to a
level below that which such Person could have achieved but for such adoption,
change or compliance (taking into consideration such Person's policies with
respect to capital adequacy) by an amount reasonably deemed by such Person to be
material, and any of the foregoing events described in clauses (i), (ii) or
(iii) increases the cost to the Agent, or any of the Lenders of (A) funding or
maintaining any Commitment or (B) issuing, causing the issuance of making or
maintaining any Letter of Credit or of purchasing or maintaining any
participation therein, or reduces the amount receivable in respect thereof by
the Agent or any Lender, then the Borrowers shall upon demand by the Agent at
any time within 180 days after the date on which an officer of the Agent, such
Funding Bank or such Lender, as the case may be, responsible for overseeing this
Credit Agreement knows or has reason to know of its right to additional
compensation under this Section 4.15.1, pay to the Agent, for the account of
such Lender or, as applicable, the Agent or a Funding Bank, additional amounts
sufficient to reimburse the Agent, such Funding Bank and such Lender against
such increase in cost or reduction in amount receivable; provided, however, that
if the Agent or any such Lender or Funding Bank, as the case may be, fails to
deliver such demand within such 180-day period, such entity shall only be
entitled to additional compensation for any such costs incurred from and after
the date that is 180 days prior to the date the Borrowers received such demand;
and provided further, however, that before making any such demand, the Agent and
each Lender agree to use reasonable efforts (consistent with such Person's
internal policy and legal and regulatory restrictions) to mitigate or avoid such
increased costs, including, without limitation, designating a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost and so long as such
efforts would not, in the reasonable judgment of such Person, be otherwise
disadvantageous to such Person. A certificate as to the amount of such increased
cost, and setting forth in reasonable detail the calculation thereof, shall be
submitted to the Funds Administrator by the Agent, or the applicable Lender or
Funding Bank, and shall be conclusive absent demonstrable error.
4.15.2 Notification of Increased Costs. Each Lender will promptly
notify the Agent, and the Agent will promptly notify the Funds Administrator, of
any event of which it has knowledge that would entitle such entity to additional
compensation under this Section 4.15. Neither the Agent nor any Lender shall
request any additional compensation under this Section 4.15 unless it is
generally making similar requests of other borrowers similarly situated, and the
Agent and each Lender agrees to use a reasonable basis for calculating amounts
allocable to its commitment to lend or its Revolving Loans and Letter of Credit
Obligations, if any, hereunder.
4.16 Substitution of Lenders. In the event the Borrowers become obligated
to pay additional amounts to any Lender pursuant to Section 4.15, or any Lender
is a Defaulting Lender, the Funds Administrator may designate another Lender
(with such other Lender's consent) reasonably acceptable to the Agent (such
other Lender herein called a "Replacement Lender") to purchase the Loans and
other Obligations of such Lender and such Lender's rights hereunder, without
recourse to or warranty by, or expense to, such Lender for a purchase price
equal to the outstanding principal amount of the Loans owing to such Lender plus
any accrued but unpaid
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interest on such Loans and other Obligations and accrued but unpaid Unused Line
Fees in respect of such Lender's Commitment and any other amounts payable to
such Lender under this Credit Agreement, and to assume all the obligations of
such Lender hereunder and, upon such purchase, such Lender shall no longer be a
party hereto or have any rights hereunder (other than indemnities and other
similar rights applicable to such Lender prior to the date of such assignment
and assumption) and shall be relieved from all obligations to the Borrowers
hereunder, and the Replacement Lender shall succeed to the rights and
obligations of such Lender hereunder.
4.17 Taxes.
(a) All payments by the Borrowers to or for the account of any Lender,
any Issuing Bank or the Agent hereunder or under any other Credit Document
shall be made free and clear of and without deduction for any and all
Taxes. If the Borrowers shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder to any Lender, any Issuing Bank
or the Agent, (a) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 4.17), such Lender, such Issuing
Bank or the Agent (as the case may be) receives an amount equal to the sum
it would have received had no such deductions been made, (b) the Borrowers
shall make all required deductions, (c) the Borrowers shall pay the full
amount deducted to the relevant authority in accordance with applicable
law, and (d) the Borrowers shall furnish to the Agent the original or
certified copy of a receipt evidencing payment thereof, or, if such receipt
is not obtainable, other evidence of payment reasonably satisfactory to the
applicable Lender, Issuing Bank or Agent, within thirty (30) days after
such payment is made. The Borrowers hereby agree to indemnify the Agent,
each Issuing Bank and each Lender for the full amount of any Taxes
(including, without limitation, any Taxes imposed on amounts payable under
this Section 4.17) paid by the Agent, such Issuing Bank or such Lender and
any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto (without duplication of such amounts to
which such Person is entitled to indemnification under any other provisions
of this Agreement and except to the extent it is finally and judicially
determined to have resulted from such Person's own willful misconduct).
Payments due under this indemnification shall be made within thirty (30)
days of the date the Agent, such Issuing Bank or such Lender makes written
demand therefor. The obligations of the Borrowers under this Section 4.17
shall survive payment of the Obligations and termination of this Agreement.
(b) Each Lender, Agent or Issuing Bank that is not a United States
person (as such term is defined in Section 7701(a)(30) of the Internal
Revenue Code) (a "Non-U.S. Lender") shall submit to the Funds Administrator
and the Agent on or before the date the initial Borrowing is made hereunder
or, if later, the date such Non-U.S. Lender becomes a party to this
Agreement (or in the case of an assignment, including any assignment to a
new Applicable Lending Office, on or before the date of such assignment),
two duly completed and signed copies of (i) either Internal Revenue Service
Form W-8 BEN or W-8 ECI (or successor applicable form), as the case may be,
certifying in each case that such Non-U.S. Lender is entitled to a complete
exemption from withholding under the Internal Revenue Code on all amounts
to be received by such Non-U.S. Lender, including fees,
41
pursuant to the Credit Documents) or (ii) solely if such Non-U.S. Lender is
claiming exemption from United States withholding tax under Section 871(h)
or 881(c) of the Internal Revenue Code with respect to payments of
"portfolio interest," a Form W-8 BEN, or any successor form prescribed by
the Internal Revenue Service, and a certificate representing that such Non
U.S. Lender is not a bank for purposes of Section 881(c) of the Internal
Revenue Code, is not a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Internal Revenue Code) of any of the Borrowers
and is not a controlled foreign corporation related to the Borrowers
(within the meaning of Section 864(d)(4) of the Internal Revenue Code).
Thereafter and from time to time, each Non U.S. Lender shall submit to the
Funds Administrator and the Agent such additional duly completed and signed
copies of one or the other of such Forms (or such successor forms as shall
be adopted from time to time by the relevant United States taxing
authorities) and such other certificates as may be (i) requested by the
Funds Administrator in a written notice, directly or through the Agent, to
such Non U.S. Lender and (ii) required under then-current United States law
or regulations to avoid or reduce United States withholding taxes on
payments in respect of all amounts to be received by such Non U.S. Lender,
including fees, pursuant to the Credit Documents. Upon the request of the
Funds Administrator or the Agent, each Lender that is a United States
person (as such term is defined in Section 7701(a)(30) of the Internal
Revenue Code) shall submit to the Funds Administrator and the Agent a
certificate to the effect that it is such a United States person. For any
period during which a Non-U.S. Lender has failed to provide the Funds
Administrator with an appropriate form or certificate pursuant to this
subsection (unless such failure is due to a change in treaty, law or
regulation, or any change in the interpretation or administration thereof
by any governmental authority, occurring subsequent to the date on which a
form originally was required to be provided), then notwithstanding anything
to the contrary in this Section 4.17, such Non-U.S. Lender shall not be
entitled to additional amounts or indemnification under this Section 4.17
with respect to Taxes imposed by the United States; provided that, should a
Non-U.S. Lender which is otherwise exempt from or subject to a reduced rate
of withholding tax become subject to Taxes because of its failure to
deliver a form required under this subsection, the Borrowers shall take
such steps as such Non-U.S. Lender shall reasonably request to assist such
Non-U.S. Lender to recover such Taxes.
(c) To the extent reasonably possible, each Lender, Issuing Bank or
Agent claiming any additional amounts payable pursuant to this Section 4.17
shall use reasonable efforts (consistent with such Person's internal
policies and legal and regulatory restrictions) to file any certificate or
document reasonably requested by Borrowers or to designate a different
Applicable Lending Office, if the making of such a filing or change in
designation would avoid the need for or reduce the amount of any amounts
which would be payable by Borrowers under the terms of this Section 4.17
and would not, in the reasonable determination of such Lender, Issuing Bank
or Agent, as applicable, be otherwise disadvantageous to such Person.
(d) If a Lender, Agent or Issuing Bank determines, in its sole
discretion, that it has received a refund in respect of any Taxes as to
which it has been indemnified by any Borrower or with respect to which any
Borrower has paid additional amounts pursuant to this Section 4.17, it
shall pay over such refund to such Borrower (but only to the extent of
42
the indemnity payments made, or additional amounts paid, by such Borrower
under this Section 4.17 with respect to the Taxes giving rise to such
refund), net of all out-of-pocket expenses of such Person and without
interest (other than interest paid by the relevant Governmental Authority
with respect to such refund); provided, however, that such Borrower, upon
the request of such Lender, Agent or Issuing Bank, agrees to repay the
amount paid over to such Borrower (plus penalties, interest or other
charges) to such Person in the event such Person is required to repay such
refund to such Governmental Authority. Nothing contained in this Section
4.17 shall require any Lender, Agent or Issuing Bank to make available any
of its tax returns (or any other information that it deems to be
confidential or proprietary).
(e) If the U.S. Internal Revenue Service or any other Governmental
Authority of the United States or any other country or any political
subdivision thereof asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because
the appropriate form was not delivered or properly completed, because such
Lender failed to notify the Agent of a change in circumstances which
rendered its exemption from withholding ineffective, or for any other
reason), such Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax, withholding therefor, or
otherwise, including penalties and interest, and including taxes imposed by
any jurisdiction on amounts payable to the Agent under this subsection,
together with all costs and expenses related thereto (including reasonable
attorneys' fees). The obligations of the Lenders under this subsection
shall survive the payment of the Obligations and termination of this
Agreement.
(f) Each Lender that is not a Non-U.S. Lender (other than any such
Lender which is taxed as a corporation for U.S. federal income tax
purposes) shall provide two properly completed and duly executed copies of
IRS Form W-9 (or any successor or other applicable form) to the Funds
Administrator and Agent certifying that such Lender is exempt from United
States backup withholding tax. To the extent that a form provided pursuant
to this Section 4.17(f) is rendered obsolete or inaccurate in any material
respects as result of change in circumstances with respect to the status of
a Lender, such Lender shall, to the extent permitted by applicable law,
deliver to the Funds Administrator and the Agent revised forms necessary to
confirm or establish the entitlement to such Lender's exemption from United
States backup withholding tax.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Effective Date. The obligation of each Lender to fund its Proportionate
Share of the Borrowings hereunder and the obligation of the Agent to cause the
issuance by the Issuing Bank of Letters of Credit hereunder and of each Lender
to purchase a participation therein shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance
with Section 11.11 hereof):
5.1.1 Closing Documents. The Agent and the Lenders shall have executed
and delivered this Credit Agreement and received each of the agreements,
opinions, reports,
43
approvals, consents, certificates and other documents set forth on the List of
Closing Documents attached hereto as Schedule A (the "Closing Document List"),
including, without limitation, the following:
(i) Charter Documents; Borrowing Resolutions; Etc. Certified
resolutions (corporate or otherwise) of each Borrower,
certificate(s) of good standing and foreign qualification
for each Borrower from such Borrower's state of
incorporation, organization or formation and each other
state in which such Borrower is qualified to do business,
incumbency certificates for each Borrower, and certified
copies of the Governing Documents of each Borrower;
(ii) Financing Statements. Evidence that such Uniform Commercial
Code Financing Statements as may be required by the Agent in
connection with Agent's security interest in the Collateral
have been filed in the appropriate filing offices and
jurisdictions;
(iii) Lien Searches. As required by Agent, lien searches
(including such tax and judgment lien searches as required
by Agent) from such filing offices and jurisdictions as the
Agent shall specify, evidencing that on the Effective Date,
the Liens granted to the Agent in connection herewith shall
have a first priority over any other Liens reflected in such
lien searches, except for Permitted Liens, and that there
are no other Liens on the assets or properties of any of the
Borrowers, except for Permitted Liens;
(iv) Evidence of Insurance. As required by Agent, evidence of the
insurance as required under this Agreement naming the Agent
as a lender's loss payee or additional insured, as the case
may be, in form and substance satisfactory to the Agent;
(v) Opinion Letters. Opinions of counsel in form and substance
satisfactory to the Agent and the Lenders;
(vi) Closing Certificate. A certificate dated as of the Effective
Date by a Responsible Officer of each of the Borrowers
stating that (i) no Default or Event of Default has occurred
and is continuing as of such date, (ii) all of the
representations and warranties in Article VI hereof and in
the other Credit Documents are true and correct as of such
date, and (iii) all of the conditions set forth in Sections
5.1 and 5.2 have been satisfied on and as of such date; and
(vii) Compliance Certificate. A certificate from the chief
financial officer of the Funds Administrator on behalf of
the Borrowers with attached schedule of calculations
demonstrating compliance with
44
the financial covenants set forth in Article VIII as of
March 31, 2006, which calculations shall be based on
unaudited financial statements as of such date.
5.1.2 Fees and Expenses. All Fees and Expenses payable by the
Borrowers hereunder and under the Fee Letter on or before the Effective Date
shall have been paid in full.
5.1.3 Material Consents and Approvals. All governmental and material
third party approvals necessary or, in the sole discretion of the Agent,
advisable in connection with this Credit Agreement and other Credit Documents
shall have been obtained and shall be in full force and effect.
5.1.4 Other Documents. Such other documents as any Lender or its
counsel may have reasonably requested.
The Agent shall notify the Borrowers and the Lenders of the Effective
Date, and such notice shall be conclusive and binding.
5.2 Conditions Precedent to All Revolving Loans and Letters of Credit. The
obligation of each Lender to fund its Proportionate Share of any requested
Revolving Loan (or of the Agent to cause the Issuing Bank to issue any requested
Letter of Credit and of each LC Participant to purchase a participation therein)
is in each case subject to the satisfaction of the conditions precedent set
forth below. Each Notice of Borrowing, each Letter of Credit Request and each
issuance by any Borrower of a check drawn against, or request for transfer from,
the Disbursement Account shall constitute a representation and warranty to the
Agent and each Lender by the Borrowers that such conditions are satisfied.
(a) All representations and warranties contained in this Credit
Agreement and the other Credit Documents are true and correct in all
material respects on and as of the date of such Notice of Borrowing, Letter
of Credit Request, or issuance of a check drawn against, or request for
transfer from, the Disbursement Account both before and after giving effect
thereto and to the application of the proceeds thereof, in each case as if
then made, other than representations and warranties that expressly relate
solely to an earlier date (in which case such representations and
warranties shall have been true and accurate in all material respects on
and as of such earlier date); and
(b) No Default or Event of Default shall have occurred and be
continuing or could reasonably be expected to result from the making of the
requested Revolving Loan or the issuance of the requested Letter of Credit.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Credit Agreement and
to induce the Lenders to make the Loans and other financial accommodations
described herein, each of the Borrowers hereby represents and warrants to the
Agent and the Lenders that the representations and warranties contained in this
Article VI are true and correct. Such representations and
45
warranties, and all other representations and warranties made by the Borrowers
in any other Credit Documents, shall survive the execution and delivery of this
Credit Agreement and such other Credit Documents.
6.1 Organization and Qualification. Each Credit Party and each Subsidiary
of each Credit Party (i) are corporations, limited partnerships or limited
liability companies, as the case may be, duly organized, validly existing and in
good standing under the laws of the respective states or other jurisdictions of
their formation, (ii) have the power and authority to own their respective
properties and assets and to transact their respective businesses in which they
presently are, or propose to be, engaged and (iii) are duly qualified and are
authorized to do business and are in good standing in each of the respective
jurisdictions where they presently are, or propose to be, engaged in business,
in each case, except where any failures to be so qualified, authorized and in
good standing could not reasonably be expected singly or in the aggregate to
have a Material Adverse Effect. Schedule B, Part 6.1 lists all jurisdictions in
which each Credit Party and each Subsidiary of each Credit Party are qualified
to do business as foreign corporations, limited partnerships or limited
liability companies, as the case may be.
6.2 Authority. Each Credit Party and each Subsidiary of each Credit Party
has the requisite power and authority to execute, deliver and perform the
respective Credit Documents to which they are parties. All corporate,
partnership, limited liability company, or similar action necessary for the
execution, delivery and performance of any of the Credit Documents by each
Credit Party and each Subsidiary of each Credit Party which is a party thereto
has been taken.
6.3 Enforceability. This Credit Agreement and each of the other Credit
Documents are the legal, valid and binding obligations of each Credit Party and
each Subsidiary of each Credit Party which are parties thereto, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency or similar laws affecting creditors'
rights generally, and (ii) general principles of equity.
6.4 No Conflicts. The execution, delivery and performance of each Credit
Document by each Credit Party and each Subsidiary of each Credit Party which are
parties thereto are not in contravention of (i) the Governing Documents of such
Persons, or (ii) any Requirement of Law, or (iii) any indenture, contract,
agreement or instrument or other commitment to which any or all of such Persons
are parties or by which any of such Persons or any of its properties are bound,
and will not result in the imposition of any Liens upon any of the properties of
any of such Persons.
6.5 Consents And Filings. No consent, authorization, permit or filing is
required in connection with the execution, delivery and performance of this
Credit Agreement or any other Credit Document by any Credit Party or any
Subsidiary of any Credit Party which are parties thereto, or in connection with
the continuing operations of such Persons, except (i) those that have been
obtained or made and (ii) filings necessary to create, perfect or retain the
perfection of Liens granted by the respective Credit Parties in favor of the
Agent on the Collateral.
6.6 Government Regulation. No Borrower nor any Subsidiary of any Borrower
is subject to regulation under the Public Utility Holding Company Act of 1935,
the Investment Company Act of 1940, the Federal Power Act or any other similar
Requirement of Law that
46
limits the respective abilities of such Persons to incur indebtedness or
consummate the transactions contemplated in this Credit Agreement and the other
Credit Documents.
6.7 Solvency. The present fair saleable value of the assets of each
Borrower exceeds all its probable liability on its existing debts as they become
absolute and matured, including those to be incurred pursuant to this Credit
Agreement and the other Credit Documents. No Borrower (i) has unreasonably small
capital in relation to the business in which it is or proposes to be engaged and
(ii) has incurred and believes that it will incur, after giving effect to the
transactions contemplated by this Credit Agreement, debts beyond its ability to
pay as such debts become due.
6.8 Rights in Collateral; Priority of Liens. All real and personal property
of any kind of the Borrowers is owned or leased by the respective Borrowers,
free and clear of any and all Liens in favor of third parties, other than
Permitted Liens. The Collateral Documents create, as security for the
Obligations and the Rate Management Obligations, valid and enforceable first,
prior (subject to Permitted Liens) and perfected Liens on the Collateral, to the
extent such Liens can be perfected by the filing of financing statements.
6.9 Financial Data.
(a) The Borrowers have provided or caused to be provided to the Agent
and each of the Lenders complete and accurate copies of the following
Financial Statements: (i) audited Financial Statements as of March 31,
2005, and (ii) unaudited internally prepared Financial Statements as of
February 28, 2006. All such Financial Statements have been prepared in
accordance with GAAP consistently applied throughout the periods involved
and fairly present the respective consolidated financial positions, results
of operations and cash flows of Persons indicated for each of the periods
covered subject, in the case of interim Financial Statements, to normal
year-end audit adjustments and the absence of footnotes.
(b) The Consolidated Entity has no material Contingent Obligation (or
any other material liability which was not incurred in the ordinary course
of business) which is not reflected in such Financial Statements or the
footnotes thereto (or Forms 10-K and 10-Q of which such Financial
Statements form a part), or is not otherwise disclosed on Schedule B, Part
6.9.
6.10 Locations of Offices, Records and Inventory.
(a) The address of the principal place of business and, if there is
more than one principal place of business, the chief executive office, of
each Credit Party is set forth on Schedule B, Part 6.10(a), as the same may
be amended after the Effective Date in accordance with Section 11.11. The
books and records of each Credit Party, and all its chattel paper, if any,
and records of Accounts, are maintained exclusively at one or more of such
locations.
(b) There is no location in which any Borrower has any Collateral
(except for vehicles and Inventory in transit), other than those locations
identified on Schedule B, Part 6.10(a) and on Schedule B, Part 6.10(b), as
the same may be amended after the
47
Effective Date in accordance with Section 11.11. A complete list of the
legal name and address of each warehouse, processor or other bailee
location at which Inventory of any Borrower is stored is set forth on
Schedule B, Part 6.10(b), as the same may be amended after the Effective
Date in accordance with Section 11.11. None of the receipts received and to
be received by any Borrower from any warehouseman state that the Inventory
covered thereby is to be delivered to bearer or to the order of a named
Person or to a named Person and such named Person's assigns, in each case
other than such Borrower.
6.11 Subsidiaries; Ownership of Equity. As of the Effective Date, (i) the
only direct or indirect Subsidiaries of the respective Credit Parties are those
listed on Schedule B, Part 6.11, (ii) each Credit Party is the record and
beneficial owner of all of the respective equity Securities of each of its
Subsidiaries listed on Schedule B, Part 6.11, (iii) there are no proxies,
irrevocable or otherwise, with respect to such equity Securities and, no equity
Securities of any of such equity Subsidiaries are or may become required to be
issued by reason of any options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or equity Securities or
rights convertible into or exchangeable for equity Securities of any such equity
Subsidiary, and (iv) there are no contracts, commitments, understandings or
arrangements by which any such Subsidiary is or may become bound to issue
additional equity Securities or equity Securities convertible into or
exchangeable therefor. All of such equity Securities so owned by any Credit
Party are owned by such Credit Party free and clear of any Liens other than
Liens in favor of the Agent.
6.12 No Judgments or Litigation. No judgments, orders, writs or decrees are
outstanding against any Credit Party or any Subsidiary of any Credit Party, nor
is there now pending or, to any Credit Party's knowledge, threatened, any
litigation, contested claim, investigation, arbitration, or governmental
proceeding by or against any Credit Party or any Subsidiary of any Credit Party
other than (i) as of the Effective Date, as set forth on Schedule B, Part 6.12,
or (ii) with respect to matters arising after the Effective Date, that singly or
in the aggregate could not reasonably be expected to have a Material Adverse
Effect.
6.13 No Defaults. No Credit Party nor any Subsidiary of any Credit Party is
in default under any term of any other indenture, contract, lease, agreement,
instrument or commitment to which any of them is a party or by which any of them
is bound, defaults under which singly or in the aggregate could reasonably be
expected to have a Material Adverse Effect. No Credit Party knows of any
disputes regarding any such indenture, contract, lease, agreement, instrument or
other commitment which singly or in the aggregate could reasonably be expected
to have a Material Adverse Effect.
6.14 Labor Matters. Schedule B, Part 6.14 accurately sets forth all labor
union contracts to which any Borrower or any Subsidiary of any Borrower is a
party as of the Effective Date (including their respective dates of expiration).
There are no existing or, to the knowledge of any Borrower, threatened strikes,
lockouts or other disputes relating to any collective bargaining or similar
agreement to which any Borrower or any Subsidiary of any Borrower is a party
that singly or in the aggregate could reasonably be expected to have a Material
Adverse Effect.
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6.15 Compliance With Law. Except as set forth on Schedule B, Part 6.15, no
Credit Party nor any Subsidiary of any Credit Party has violated or failed to
comply in any material respect with any Requirements of Law, the violation of or
failure to comply with which could singly or in the aggregate reasonably be
expected to have a Material Adverse Effect.
6.16 ERISA. No Borrower, no Subsidiary of any Borrower and no ERISA
Affiliate maintains or contributes to any Benefit Plan other than those listed
on Schedule B Part 6.16. Each Benefit Plan has been and is maintained and funded
in all material respects in accordance with its terms and in compliance with all
applicable provisions of ERISA and the Internal Revenue Code. Each Borrower,
each Subsidiary of a Borrower and each ERISA Affiliate has fulfilled all
contribution obligations for each Benefit Plan (including obligations related to
the minimum funding standards of ERISA and the Internal Revenue Code). No
Termination Events have occurred which singly or in the aggregate could
reasonably be expected to have a Material Adverse Effect. No Borrower, no
Subsidiary of a Borrower and no ERISA Affiliate is required to provide security
to any Benefit Plan under Section 401(a)(29) of the Internal Revenue Code.
6.17 Compliance with Environmental Laws. Except for matters disclosed on
Schedule B, Part 6.17 and for matters arising after the Effective Date, in each
case none of which matters could singly or in the aggregate reasonably be
expected to have a Material Adverse Effect, (i) the operations of each Borrower
and each Subsidiary of each Borrower comply in all material respects with all
applicable federal, state and local environmental, health and safety statutes,
regulations, directions, ordinances, criteria and guidelines; (ii) no Borrower
has received notice that any of the operations of such Borrower or any of its
Subsidiaries is the subject of any judicial or administrative proceeding
alleging the violation of any federal, state or local environmental, health or
safety statute, regulation, direction, ordinance, criteria or guideline; (iii)
none of the operations of such Borrower or any of its Subsidiaries is the
subject of any federal or state investigation evaluating whether such Borrower
or any of its Subsidiaries disposed of any hazardous or toxic waste, substance
or constituent or other substance at any site that may require remedial action,
or any federal or state investigation evaluating whether any remedial action is
needed to respond to a release of any hazardous or toxic waste, substance or
constituent or other substance into the environment; (iv) no Borrower nor any
Subsidiary of any Borrower has filed any notice under any federal or state law
indicating past or present treatment, storage or disposal of a hazardous or
toxic waste, substance or constituent or reporting a spill or release of a
hazardous or toxic waste, substance or constituent or other substance into the
environment; and (v) no Borrower nor any Subsidiary of any Borrower has any
contingent liability of which the Borrower has knowledge, or reasonably should
have knowledge, in connection with any release or potential release of any
hazardous or toxic waste, substance or constituent or other substance into the
environment, nor has the Borrower or any of its Subsidiaries received any
notice, letter or other indication of potential liability arising from the
disposal of any hazardous or toxic waste, substance or constituent or other
substance into the environment.
6.18 Intellectual Property. Each Borrower and each Subsidiary of each
Borrower possesses such assets, licenses, patents, patent applications,
copyrights, service marks, trademarks and trade names as are necessary or
advisable to continue to conduct their respective present and proposed business
activities.
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6.19 Licenses and Permits. Each Borrower and each Subsidiary of each
Borrower has obtained and holds in full force and effect, all franchises,
licenses, leases, permits, certificates, authorizations, qualifications,
easements, rights of way and other rights and approvals which are necessary or
advisable for the operation of its business as presently conducted and as
proposed to be conducted, except for such licenses, permits, authorizations,
qualifications, easements, rights of way and other rights the failure to obtain
or hold in full force and effect could not reasonably be expected singly or in
the aggregate to have a Material Adverse Effect.
6.20 Taxes and Tax Returns.
(a) Except as set forth on Schedule B, Part 6.20, all income tax
returns required to be filed by each Credit Party and each Subsidiary of
each Credit Party have been timely filed (or extensions with respect to
such filings have been timely obtained). The information filed is complete
and accurate in all material respects.
(b) All taxes, assessments, fees and other governmental charges for
periods beginning prior to the date hereof (other than such taxes,
assessments, fees and other governmental charges that are not yet due and
payable and taxes, assessments, fees and charges being contested in good
faith and for which adequate reserves have been made in accordance with
GAAP) have been timely paid and no Credit Party nor any Subsidiary of any
Credit Party has any material liability for taxes in excess of the amounts
so paid or reserves so established.
(c) Except as set forth on Schedule B, Part 6.20, no Credit Party nor
any Subsidiary of any Credit Party has any obligation under any written tax
sharing agreement or agreement regarding payments in lieu of taxes.
6.21 Material Contracts. Schedule B, Part 6.21, contains a true, correct
and complete list of all the Material Contracts in effect on the Effective Date.
Except as described on Schedule B, Part 6.21, and, except to the extent that any
such restrictions singly or in the aggregate could not reasonably be expected to
have a Material Adverse Effect, no Material Contract contains any burdensome
restrictions on any Credit Party or any Subsidiary of any Credit Party or any of
their respective properties that singly or in the aggregate could reasonably be
expected to prevent such Credit Party or Subsidiary from conducting its business
as conducted on the Effective Date. As of the Effective Date, all of the
Material Contracts are in full force and effect, and no defaults currently exist
thereunder by any Credit Party or Subsidiary of a Credit Party that is a party
thereto (except for disputed claims set forth on Schedule B, Part 6.21) or, to
the knowledge of any Credit Party, any other party thereto.
6.22 Accuracy and Completeness of Information. All factual information
(other than financial information or forecasts) furnished by or on behalf of any
Credit Party or any Subsidiary of any Credit Party in writing to the Agent or
any Lender for purposes of or in connection with this Credit Agreement or any
Credit Documents or any transaction contemplated hereby or thereby, is or will
be true and accurate in all material respects on the date as of which such
information is dated or certified and, taken as a whole and in the context in
which so furnished, is not incomplete by omitting to state any material fact
necessary to make such information not misleading at such time.
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6.23 No Change. Since the last day of the fiscal year ended March 31, 2005,
no event has occurred which has had or could reasonably be expected to have a
Material Adverse Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
Until termination of this Credit Agreement and payment and satisfaction of
all Obligations due hereunder:
7.1 Financial Reporting. The Borrowers shall timely deliver or cause to be
timely delivered to the Agent the following information:
7.1.1 Letter to Auditors. No later than the date on which the Auditors
commence work on the preparation of the annual audited Financial Statements, a
copy of a letter delivered by MTLM to the Auditors notifying the Auditors that
(x) such Financial Statements will be delivered by MTLM to the Agent (and
thereafter by the Agent to each of the Lenders) under this Credit Agreement, (y)
it is a primary intention of MTLM in engaging the Auditors' services in
connection with its audit of the Financial Statements for such fiscal year, to
satisfy the financial reporting requirements set forth herein and (z) stating
that the Agent and each of the Lenders intend to rely thereon with respect to
the transactions which are the subject of this Agreement.
7.1.2 Annual Financial Statements. As soon as available, but not later
than 120 days after each fiscal year end: (i) the annual Financial Statements of
the Consolidated Entity; (ii) a comparison in reasonable detail to the prior
year Financial Statements; (iii) the Auditors' unqualified opinion, "Management
Letter" (if any, and only upon receipt by MTLM) and statement indicating whether
the Auditors have obtained knowledge of the existence of any Default or Event of
Default during their audit; (iv) a narrative discussion of the consolidated
financial condition and results of operations and the consolidated liquidity and
capital resources of the Consolidated Entity for such fiscal year, prepared by
the chief financial officer of MTLM; and (v) a compliance certificate
substantially in the form of Exhibit E with an attached schedule of calculations
demonstrating compliance with the financial covenants set forth in Article VIII.
7.1.3 Monthly and Annual Projections. Not later than 15 days prior to
each fiscal year end, beginning with the fiscal year ended March 31, 2007,
quarterly projections of the financial condition and results of operations of
the Consolidated Entity for the next succeeding year and annual projections for
each succeeding fiscal year thereafter, through and including the fiscal year in
which the Expiration Date will occur, in each case containing projected
consolidating balance sheets, statements of operations, statements of cash flows
and statements of changes in shareholders' equity.
7.1.4 Quarterly Financial Statements. As soon as available, but not
later than 45 days after each end of each of the first three fiscal quarters in
any fiscal year (i) Financial Statements of the Consolidated Entity, as of the
fiscal quarter then ended, and for the fiscal year to date; (ii) a comparison in
reasonable detail to the Financial Statements for the corresponding periods of
the prior fiscal year; (iii) the certification of the chief executive officer,
chief financial
51
officer or treasurer of MTLM that such Financial Statements have been prepared
in accordance with GAAP (subject to year-end audit adjustments and the absence
of footnotes); (iv) a narrative discussion of the consolidated financial
condition and results of operations and the consolidated liquidity and capital
resources of the Consolidated Entity for such fiscal quarter and fiscal year to
date, prepared by the chief financial officer of MTLM; and (v) a compliance
certificate substantially in the form of Exhibit E with an attached schedule of
calculations demonstrating compliance with the financial covenants set forth in
Article VIII.
7.1.5 Monthly Financial Statements. As soon as available, but not
later than 30 days after the end of each month (other than the last month in
each fiscal quarter of the Consolidated Entity): (i) a balance sheet for the
Consolidated Entity as at the end of such month and for the fiscal year to date
and statements of operations and cash flows for such month and for the fiscal
year to date; (ii) a comparison to the balance sheet, statement of operations
and statement of cash flows for the same periods in the prior year; and (iii) a
certification by the chief executive officer, chief financial officer or
treasurer or MTLM that such balance sheet, statement of operations and statement
of cash flows have been prepared in accordance with GAAP (subject to year-end
audit adjustments and the absence of footnotes).
7.1.6 Monthly Comparison to Prior Projections. As soon as available,
but not later than 30 days after the end of each month (other than the last
month in each fiscal year of the Consolidated Entity), a quantitative comparison
of actual results of operations, cash flows and capital expenditures for the
Consolidated Entity for such month and for the period from the beginning of the
current fiscal year through the end of such month with amounts previously
projected for those periods in the most recent projections delivered pursuant to
Section 7.1.3.
7.1.7 Public Reporting. As requested by Agent, promptly upon their
becoming available, copies of all regular and periodic reports, proxy statements
and other materials, if any, filed by any Borrower with the SEC, or with any
national securities exchange, or distributed to the public stockholders of MTLM.
7.2 Collateral Reporting. The Borrowers shall timely deliver or cause to be
delivered to the Agent the following certificates and reports:
7.2.1 Collateral Audits. When requested by the Agent, (i) so long as
no Event of Default shall have occurred and be continuing, not more than once in
any fiscal year of the Consolidated Entity and (ii) following the occurrence and
during the continuance of an Event of Default, at any time, a report of
Inventory of each Borrower, prepared on a test or cycle basis, which shall
describe each Borrower's Inventory by category and by item (in reasonable
detail) and report the then appraised value (at lower of cost or market) of such
Inventory.
7.2.2 Further Assurances. When and as reasonably requested by the
Agent, any further information regarding the Collateral, business affairs and
financial condition of any Credit Party or any Subsidiary of any Credit Party.
7.3 Notification Requirements. The Borrowers shall timely give to the Agent
and each of the Lenders the following notices:
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7.3.1 Notice of Defaults. Promptly, and in any event within 5 Business
Days after becoming aware of the occurrence of a Default or Event of Default, a
certificate of the chief executive officer or chief financial officer of the
Funds Administrator specifying the nature thereof and the proposed response of
the Credit Parties with respect thereto, each in reasonable detail.
7.3.2 Proceedings or Adverse Changes. Promptly, and in any event
within 5 Business Days after any Credit Party becomes aware of (i) any
proceedings being instituted or threatened to be instituted by or against such
Credit Party or any of its Subsidiaries in any federal, state, local or foreign
court or before any commission or other regulatory body (federal, state, local
or foreign) which, if adversely determined, singly or in the aggregate could
reasonably be expected to have a Material Adverse Effect, (ii) any order,
judgment or decree in excess of $3,000,000 being entered against such Credit
Party or any of its Subsidiaries or any of their respective properties or assets
or (iii) any actual or prospective change, development or event which has had or
could reasonably be expected to have a Material Adverse Effect, a written
statement describing such proceeding, order, judgment, decree, change,
development or event and any action being taken with respect thereto by such
Credit Party or such Subsidiary.
7.3.3 ERISA Notices. (i) Promptly, and in any event within 10 Business
Days after any Borrower, any Subsidiary of any Borrower or any ERISA Affiliate
knows that a Termination Event has occurred, a written statement of the chief
financial officer of Funds Administrator describing such Termination Event and
any action that is being taken with respect thereto by such Borrower, such
Subsidiary or such ERISA Affiliate, and any action taken or threatened by the
Internal Revenue Service, Department of Labor or PBGC; and (ii) promptly, and in
any event within 3 Business Days after the filing thereof with the Internal
Revenue Service, a copy of each funding waiver request filed with respect to any
Benefit Plan and all communications received by any Borrower, any Subsidiary of
any Borrower or any ERISA Affiliate with respect to such request.
7.3.4 Environmental and Health and Safety Notices. Promptly, and in
any event within 10 Business Days after receipt by any Credit Party or any
Subsidiary of any Credit Party of any written notice, complaint or order
alleging any actual or prospective material violation of any environmental,
health or safety Requirement of Law or alleging responsibility for material
costs of a cleanup, together with a copy of such notice, complaint, or order and
a written statement describing any action being taken with respect thereto by
such Credit Party or Subsidiary.
7.3.5 Material Contracts. Promptly, and in any event within 10
Business Days after any Material Contract of any Credit Party or any Subsidiary
of any Credit Party is terminated or amended or any new Material Contract is
entered into, a written statement describing such event, with copies of
amendments or new contracts, and an explanation of any actions being taken with
respect thereto.
7.3.6 Collateral Matters. At least 15 Business Days' prior written
notice to the Agent of any additional location of any Collateral of any Borrower
or in the location of the chief executive office or places of business of any
Borrower or any Subsidiary of any Borrower from the respective locations
specified in Schedule B, Part 6.10. At least 10 Business Days prior to
53
any such change, the Borrowers shall cause to be executed and delivered to the
Agent any financing statements or other documents reasonably required by the
Agent, all in form and substance reasonably satisfactory to the Agent.
7.4 Corporate Existence. Each Borrower shall, and shall cause each of its
Subsidiaries to, (a) maintain its corporate existence (except that any Borrower
or any wholly-owned Subsidiary of any Borrower may merge with, or be dissolved
into, any other Borrower, provided, that (i) no Default or Event of Default has
occurred and is continuing at the time of such merger or dissolution, (ii) Agent
receives five (5) Business Days' prior written notice thereof, describing the
proposed merger or dissolution and indicating which Borrower will be the
surviving entity or will otherwise succeed to the assets of the entity being
dissolved, (iii) in the event that such merger or dissolution results in any new
or different certificates or other documents evidencing Capital Stock,
Membership Interests or other Pledged Collateral under the terms of the Security
Agreement, the Borrowers shall have promptly, but in any event within five (5)
Business Days, delivered the originals thereof together with duly executed stock
powers to the Agent in form and substance satisfactory to the Agent and
otherwise complied with Section 4.3 of the Security Agreement with respect
thereto, and (iv) a Responsible Officer of MTLM shall have delivered a
certificate to Agent promptly, but in any event within ten (10) Business Days of
such merger or dissolution, certifying that the conditions set forth herein have
been satisfied), (b) except for failures to so maintain which singly or in the
aggregate could not reasonably be expected to have a Material Adverse Effect,
maintain in full force and effect all licenses, bonds, franchises, leases,
trademarks and qualifications to do business, and all patents, contracts and
other similar rights and (c) continue in, and limit their operations to, the
same general lines of business as presently conducted by them and other
businesses in the metals industry and related industries.
7.5 Books and Records; Inspections. Each Borrower agrees to maintain, and
to cause each of its Subsidiaries to maintain, books and records pertaining to
the Collateral in such detail, form and scope as is consistent with good
business practice. Each Borrower agrees that the Agent, or its agents, may enter
upon the premises of such Borrower or any of its Subsidiaries at any time and
from time to time, during normal business hours and upon reasonable advance
notice, and at any time at all upon the occurrence and during the continuance of
an Event of Default, for the purposes of (i) inspecting and verifying the
existence and value of the Collateral, (ii) inspecting and/or copying (at the
expense of such Borrower) any and all records pertaining thereto, and (iii)
discussing the affairs, finances and business of such Borrower with the Auditors
or any Responsible Officer of such Borrower, provided, that a Responsible
Officer of MTLM shall have the right to be present at any such discussions with
the Auditors.
7.6 Insurance.
(a) Each Borrower agrees to maintain, and to cause each of its
Subsidiaries to maintain, public liability insurance, fire and extended
coverage insurance and replacement value insurance on the Collateral under
such policies of insurance, with such insurance companies, in such amounts
and covering such risks as are customarily maintained by Persons engaged in
the same or similar businesses. All policies covering the Collateral are to
name the Agent as an additional insured and/or the loss payee in case of
loss, and are to contain such other provisions as the Agent may reasonably
require to
54
fully protect the Agent's interest in the Collateral and to any payments to
be made under such policies.
(b) UNLESS THE BORROWERS PROVIDE THE AGENT WITH EVIDENCE OF THE
INSURANCE COVERAGE REQUIRED BY THIS CREDIT AGREEMENT, THE AGENT MAY
PURCHASE INSURANCE AT THE BORROWERS' EXPENSE TO PROTECT THE AGENT'S
INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT THE
BORROWERS' INTERESTS. THE COVERAGE THAT THE AGENT PURCHASES MAY NOT PAY ANY
CLAIM THAT THE BORROWERS MAY MAKE OR ANY CLAIM THAT IS MADE AGAINST ANY
BORROWER IN CONNECTION WITH THE COLLATERAL. THE BORROWERS MAY LATER CANCEL
ANY INSURANCE PURCHASED BY THE AGENT, BUT ONLY AFTER PROVIDING THE AGENT
WITH EVIDENCE THAT THE BORROWERS HAVE OBTAINED INSURANCE AS REQUIRED BY
THIS CREDIT AGREEMENT. IF THE AGENT PURCHASES INSURANCE FOR THE COLLATERAL,
THE BORROWERS WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE,
INCLUDING INTEREST AND ANY OTHER CHARGES THAT MAY BE IMPOSED IN CONNECTION
WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE
CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY
BE ADDED TO THE OBLIGATIONS. THE COSTS OF THE INSURANCE MAY BE MORE THAN
THE COST OF INSURANCE THE BORROWERS MAY BE ABLE TO OBTAIN ON THEIR OWN.
7.7 Taxes. Each Borrower agrees to pay, when due, and to cause each of its
Subsidiaries to pay when due, all taxes lawfully levied or assessed against such
Borrower, such Subsidiary or any of the Collateral before any penalty or
interest accrues thereon; provided, that, unless such taxes have become a
federal tax or ERISA Lien on any of the assets of such Credit Party or such
Subsidiary, no such tax need be paid if the same is being contested, in good
faith, by appropriate proceedings promptly instituted and diligently conducted
and if an adequate reserve or other appropriate provision shall have been made
therefor as required in order to be in conformity with GAAP.
7.8 Compliance with Laws. Each Borrower agrees to comply, and to cause each
of its Subsidiaries to comply, in all material respects with all Requirements of
Law applicable to the Collateral or any part thereof, or to the operation of its
business or its assets generally, unless such Credit Party contests any such
Requirements of Law in a reasonable manner and in good faith.
7.9 Use of Proceeds. The proceeds of Revolving Loans and other extensions
of credit made hereunder shall be used by the Borrowers solely for ongoing
working capital requirements and other general corporate purposes, including,
without limitation, Permitted Acquisitions and other Investments permitted
pursuant to Section 8.8. No Borrower shall use any portion of the proceeds of
any Revolving Loans for the purpose of purchasing or carrying any "margin stock"
(as defined in Regulation U) in any manner which violates the provisions of
Regulation U or X or of the terms and conditions of this Credit Agreement or any
other Credit Document.
55
7.10 Fiscal Year. Each Borrower agrees to maintain, and to cause each of
its Subsidiaries to maintain, its fiscal year as a year ending March 31st.
7.11 Maintenance of Property. Except to the extent otherwise expressly
permitted pursuant to Section 8.6, each Borrower agrees to keep, and to cause
each of its Subsidiaries to keep, all property useful and necessary to their
respective businesses in good working order and condition (ordinary wear and
tear excepted) in accordance with their past operating practices and not to
commit or suffer any waste with respect to any of their properties.
7.12 ERISA Documents. Each Borrower will cause to be delivered to the
Agent, upon the Agent's request, each of the following: (i) a copy of each
Benefit Plan (or, where any such plan is not in writing, a complete description
thereof) (and if applicable, related trust agreements or other funding
instruments) and all amendments thereto, all written interpretations thereof and
written descriptions thereof that have been distributed to employees or former
employees of such Borrower or any of its Subsidiaries; (ii) the most recent
determination letter issued by the Internal Revenue Service with respect to each
Benefit Plan; (iii) for the three most recent plan years, Annual Reports on Form
5500 Series required to be filed with any governmental agency for each Benefit
Plan; (iv) all actuarial reports prepared for the last three plan years for each
Benefit Plan; (v) a listing of all Multiemployer Plans, with the aggregate
amount of the most recent annual contributions required to be made by such
Borrower or any ERISA Affiliate to each such plan and copies of the collective
bargaining agreements requiring such contributions; (vi) any information that
has been provided to such Borrower or any ERISA Affiliate regarding withdrawal
liability under any Multiemployer Plan; and (vii) the aggregate amount of the
most recent annual payments made to former employees of such Borrower or any
ERISA Affiliate under any Retiree Health Plan.
7.13 Environmental and Other Matters. Each Borrower shall, and shall cause
each of its Subsidiaries to, conduct their businesses so as to comply in all
material respects with all environmental, land use, occupational, safety or
health laws, regulations, directions, ordinances, criteria and guidelines in all
jurisdictions in which any of them is or may at any time be doing business,
except to the extent that such Borrower or such Subsidiary is contesting, in
good faith by appropriate legal proceedings, any such law, regulation,
direction, ordinance, criteria, guideline, or interpretation thereof or
application thereof; provided, that such Borrower and each of its Subsidiaries
shall comply with the order of any court or other Governmental Authority
relating to such laws unless such Borrower or such Subsidiary shall currently be
prosecuting an appeal or proceedings for review and shall have secured a stay of
enforcement or execution or other arrangement postponing enforcement or
execution pending such appeal or proceedings for review.
7.14 Further Actions. Each Borrower shall take, and shall cause each of its
Subsidiaries to take, all such further actions and execute all such further
documents and instruments as the Agent may at any time reasonably determine to
be necessary or desirable to further carry out and consummate the transactions
contemplated by the Credit Documents, to cause the execution, delivery and
performance of the Credit Documents to be duly authorized and to evidence,
perfect or protect the Liens (and the priority status thereof) of the Agent on
the Collateral.
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7.15 Deposit of Collections and Other Proceeds of Collateral. From and
after the Effective Date, Borrowers shall cause all Collections on all Accounts
of Borrowers, and all other cash payments made for Inventory of Borrowers, and
all other payments of any kind constituting proceeds of Collateral received by
or for the account any Borrower from any Person, promptly upon receipt thereof
to be deposited into a Collection Account or the LaSalle Bank Account in the
identical form in which such payment was made, whether by cash or check.
7.16 OFAC; BSA. Each Borrower shall (a) ensure, and cause each other Credit
Party to ensure, that no person who owns a controlling interest in or otherwise
controls a Credit Party is or shall be (i) listed on the Specially Designated
Nationals and Blocked Person List maintained by the Office of Foreign Assets
Control ("OFAC"), Department of the Treasury, and/or any other similar lists
maintained by OFAC pursuant to any authorizing statute, Executive Order or
regulation or (ii) a person designated under Section 1(b), (c) or (d) of
Executive Order No. 13224 (September 23, 2001), any related enabling legislation
or any other similar Executive Orders, and (b) comply, and cause each other
Credit Party to comply, with all applicable Bank Secrecy Act ("BSA") and
anti-money laundering laws and regulations.
ARTICLE VIII
NEGATIVE COVENANTS
Until termination of this Credit Agreement and payment and satisfaction of
all Obligations due hereunder, each Borrower shall comply with, and, where
required, shall cause each of its Subsidiaries to comply with, the following
covenants:
8.1 Financial Covenants.
8.1.1 Leverage Ratio. The Borrowers shall not permit the Leverage
Ratio to be greater than 3.25 to 1.00, as determined as of the last day of each
fiscal quarter of the Consolidated Entity, for the twelve (12) month period
ending on such date.
8.1.2 Consolidated Interest Coverage Ratio. The Borrowers shall not
permit the Consolidated Interest Coverage Ratio to be less than 2.75 to 1.00, as
determined as of the last day of each fiscal quarter of the Consolidated Entity,
for the twelve (12) month period ending on such date.
8.2 Capital Expenditures. The Borrowers shall not permit Capital
Expenditures for the Consolidated Entity to exceed $75,000,000 for the twelve
month period ending March 31, 2007, or to exceed $65,000,000 during any fiscal
year of the Consolidated Entity thereafter.
8.3 Additional Indebtedness. No Borrower and no Subsidiary of any Borrower
shall directly or indirectly incur, create, assume or suffer to exist any
Indebtedness other than:
(a) the Obligations;
(b) unsecured Indebtedness in the ordinary course of business under
Rate Management Transactions, in each case in form and substance reasonably
satisfactory to the Agent;
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(c) Indebtedness of any Borrower to any other Borrower; provided, that
if and to the extent any of such Indebtedness is evidenced by a promissory
note or any other instrument, such note or other instrument shall be
endorsed and delivered to the Agent as additional Collateral;
(d) Indebtedness described on Schedule B, Part 8.3 and any refinancing
of such Indebtedness, so long as the aggregate principal amount of the
Indebtedness so refinanced shall not be increased and the refinancing shall
be on terms and conditions no more restrictive than the terms and
conditions of the Indebtedness to be refinanced;
(e) Indebtedness secured by purchase money Liens on equipment in an
outstanding principal amount not exceeding at any time (when added to the
aggregate imputed amount of all then outstanding capital leases of the
Borrowers and their respective Subsidiaries pursuant to clause (g) below)
$15,000,000 in the aggregate for all of the Credit Parties combined
("Purchase Money Liens"), so long as (i) each Purchase Money Lien shall
attach only to the property to be acquired, (ii) a description shall have
been furnished to the Agent for any item of equipment for which the
purchase price is greater than $500,000 and (iii) the Indebtedness incurred
shall not exceed one hundred percent (100%) of the purchase price of the
item or items of equipment purchased;
(f) Indebtedness consisting of Contingent Obligations permitted
pursuant to Section 8.5;
(g) Indebtedness consisting of obligations under capital leases in an
outstanding principal amount not exceeding at any time (when added to the
aggregate imputed amount of all then outstanding Indebtedness secured by
Purchase Money Liens of the Borrowers and their respective Subsidiaries
pursuant to clause (e) above) $15,000,000 in the aggregate for all of the
Credit Parties combined;
(h) surety bonds and appeal bonds required in the ordinary course of
business in an amount not exceeding at any time $3,500,000 in the aggregate
for all of the Credit Parties combined;
(i) Indebtedness incurred to finance the payment of insurance premiums
in an amount not exceeding at any time the aggregate unpaid amount of all
such premiums at such time for all of the Credit Parties combined;
(j) Unsecured Indebtedness in respect of hedging agreements entered
into by Borrowers in the ordinary course of business; and
(k) additional Indebtedness in an aggregate principal amount (when
added to all then outstanding Indebtedness secured by Purchase Money Liens
and all then outstanding Indebtedness consisting of obligations under
capital leases) not in excess of $40,000,000 at any time outstanding.
8.4 Liens. No Borrower nor any Subsidiary of any Borrower shall directly or
indirectly create, incur, assume, or suffer to exist any Lien on any of its
property now owned or hereafter acquired except:
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(a) Liens on the Collateral granted to the Agent;
(b) Liens on Equipment, Fixtures and Real Property;
(c) Liens existing on the Effective Date and set forth on Schedule B,
Part 8.4;
(d) Purchase Money Liens and the interests of lessors under capital
leases, in each case to the extent permitted under Section 8.3(e);
(e) Liens of warehousemen, mechanics, materialmen, workers, repairmen,
common carriers or landlords and other similar Liens arising by operation
of law, Liens for taxes, assessments or other governmental charges and
other similar Liens arising by operation of law, in each case for amounts
that are not yet due and payable or that are being diligently contested in
good faith by a Borrower or a Subsidiary of a Borrower, so long as adequate
reserves are maintained by such Person for their payment in accordance with
GAAP;
(f) Attachment or judgment Liens not to exceed an aggregate of
$1,000,000 for the Borrowers and their Subsidiaries, excluding amounts (i)
bonded to the reasonable satisfaction of the Agent or (ii) covered by
insurance to the reasonable satisfaction of the Agent;
(g) Deposits or pledges made in the ordinary course of business to
secure obligations under workmen's compensation, social security or similar
laws, under unemployment insurance, or to secure public or statutory
obligations;
(h) Deposits or pledges made to secure bids, tenders, contracts (other
than contracts for the payment of money), leases, statutory obligations,
surety and appeal bonds and other obligations of like nature arising in the
ordinary course of business not to exceed an aggregate of $5,000,000 for
all Credit Parties combined;
(i) Easements, rights-of-way, restrictions and other similar
encumbrances on title to, or restrictions on the use of, real property,
which, in the aggregate, do not materially detract from the value of the
item of property subject thereto or materially interfere with the ordinary
conduct of the business of any Borrower or any of its Subsidiaries;
(j) retained interests of lessors under operating leases;
(k) leases and subleases granted in the ordinary course of business;
(l) Liens arising solely out of any statutory or common law provision
consisting of banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a depository
institution; and
(m) Extensions, replacements and renewals of any of the foregoing so
long as the aggregate amount of Indebtedness secured by such extended,
replaced or renewed
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Liens is not increased and is on terms and conditions no more restrictive
than the terms and conditions of the Indebtedness secured by such extended,
replaced or renewed Liens.
8.5 Contingent Obligations. No Borrower nor any Subsidiary of any Borrower
shall directly or indirectly incur, assume, or suffer to exist any Contingent
Obligation, excluding Contingent Obligations for Indebtedness permitted to be
incurred under Section 8.3, and Investments permitted under Section 8.8.
8.6 Sale of Assets. No Borrower shall, or shall permit any of its
Subsidiaries to, directly or indirectly, sell, lease, assign, transfer or
otherwise dispose of any assets, other than: (a) Inventory in the ordinary
course of business; (b) redundant, obsolete or worn out property disposed of in
the ordinary course of business; (c) in connection with the merger or
dissolution of any Borrower or any wholly-owned Subsidiary of any Borrower into
any other Borrower; (d) assets of a Borrower or any Subsidiary of a Borrower
sold, leased, assigned or otherwise transferred to such or any other Borrower;
and (e) assets the disposition of which is not otherwise permitted under this
Section 8.6, provided, that, as to dispositions referred to in clauses (b)
(except for dispositions of redundant, obsolete or worn out equipment with a
value not exceeding $100,000 in the aggregate) and (e) above, (i) such
dispositions are for fair value, and (ii) the aggregate amount of all such
dispositions does not exceed $20,000,000 in the aggregate for any fiscal year of
the Consolidated Entity.
8.7 Restricted Payments. No Borrower shall, or shall permit any of its
Subsidiaries to, directly or indirectly, (a) declare or pay any dividend (other
than dividends payable solely in capital stock of such Person) on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any shares of any class of capital stock of such Person or any warrants, options
or rights to purchase any such capital stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of such Person or
any of its Subsidiaries; or (b) make any optional or mandatory payment of
principal of or interest on, or any optional or mandatory prepayment of
principal of or interest on, or redemption (including, without limitation, by
making payments to a sinking or analogous fund) or repurchase of, in each case
any Indebtedness subordinated to the Obligations; provided, that,
notwithstanding the foregoing:
(i) any Borrower and any Subsidiary of any Borrower may make
payments or prepayments on account of Indebtedness owing to
such or any other Borrower;
(ii) any Subsidiary of any Borrower may declare and pay dividends
to such Borrower or any other Borrower;
(iii) MTLM may declare and pay dividends so long as (A) before
and after giving effect to all payments in connection
therewith, the Borrowers shall be in compliance with the
financial covenants contained in Sections 8.1 and 8.2
hereof, as demonstrated by a certificate of the chief
executive officer, chief financial officer or treasurer of
MTLM delivered to the Agent and the Lenders prior to
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such payment; (B) no Default or Event of Default shall have
occurred and be continuing or would result from such
payments; and (C) the aggregate amount of all such payments
in any consecutive twelve (12) month period does not exceed
$50,000,000; and
(iv) MTLM may redeem, repurchase or otherwise acquire or retire
any of its capital stock so long as (A) before and after
giving effect to all payments in connection therewith, the
Borrowers shall be in compliance with the financial
covenants contained in Sections 8.1 and 8.2 hereof, as
demonstrated by a certificate of the chief executive
officer, chief financial officer or treasurer of MTLM
delivered to the Agent and the Lenders prior to such
payment; (B) no Default or Event of Default shall have
occurred and be continuing or would result from such
payments; and (C) the aggregate amount of all such payments
during any consecutive twelve (12) month period does not
exceed $50,000,000 and the aggregate amount of all such
payments during the term of this Credit Agreement does not
exceed $100,000,000.
8.8 Investments and Acquisitions. No Borrower shall, or shall permit any of
its Subsidiaries to form or acquire any new Subsidiaries (other than in
connection with a Permitted Acquisition), or to directly or indirectly, make any
Acquisition of any Person or make any Investment in any Person, whether in cash,
Securities, or other property of any kind including, without limitation, any
Subsidiary or Affiliate of any Credit Party, other than:
(a) Permitted Acquisitions and Permitted Investments in Non-Majority
Interests;
(b) advances or loans made in the ordinary course of business not to
exceed $10,000,000 in the aggregate for all Credit Parties combined
outstanding at any one time (provided, that the aggregate amount of all
advances and loans made to officers, directors, employees or other
Affiliates of any Borrower or any Subsidiary of any Borrower outstanding at
any one time shall not exceed $350,000);
(c) loans, investments and advances between a Borrower and any other
Borrower;
(d) Cash Equivalents;
(e) Investments in account debtors received in connection with the
bankruptcy or reorganization, or in settlement of delinquent obligations,
of customers in the ordinary course of business and in accordance with
applicable collection and credit policies established by such Borrower or
such Subsidiary, as the case may be;
(f) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods and services in the
ordinary course of business;
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(g) Investments existing on the Effective Date and set forth on
Schedule 8.8(g); and
(h) such other Investments as the Agent may approve in writing in the
exercise of its sole discretion.
8.9 Affiliate Transactions. No Borrower shall, or shall permit any of its
Subsidiaries to, directly or indirectly, enter into any transaction with
(including, without limitation, the purchase, sale or exchange of property or
the rendering of any service to) any Subsidiary or Affiliate of any Borrower,
except in the ordinary course of and pursuant to the reasonable requirements of
such Borrower's or such Subsidiary's business, as the case may be, and upon fair
and reasonable terms no less favorable in any material respect to such Borrower
or such Subsidiary than could be obtained in a comparable arm's-length
transaction with an unaffiliated Person, except for such transactions otherwise
expressly permitted under Sections 8.7 and 8.8, respectively.
8.10 Bank Accounts. Except for accounts approved by the Agent, no Borrower
shall, or shall permit any of its Subsidiaries to, directly or indirectly, open,
maintain or otherwise have any checking, savings or other accounts at any bank
or other financial institution, or any other account where money is or may be
deposited or maintained with any Person, other than (a) the Disbursement
Account, (b) xxxxx-xxxx accounts, provided, that the aggregate balance of funds
in such accounts shall not exceed at any time $3,000,000, (c) payroll, imprest
or medical insurance disbursement accounts, provided, that the aggregate balance
of funds in each of such accounts shall not exceed at any time that amount which
the Borrower on whose behalf such account is maintained deems reasonably
necessary to satisfy ordinary course disbursements therefrom during the next ten
(10) Business Days, and (d) savings or other accounts at banks or other
financial institutions, so long as Borrowers have no Revolving Loans outstanding
at all times during which such accounts are maintained, and so long as Borrowers
and each such bank or other financial institution shall have entered into
control agreements with the Agent with respect to each such account, in each
case in form and substance satisfactory to the Agent, and taken such other
actions as may be reasonably requested from time to time by the Agent in order
to maintain a first perfected security interest in and Control of such
Collateral. Notwithstanding anything to the contrary in this Credit Agreement or
any other Credit Document, so long as no Event of Default has occurred and is
continuing, the Borrowers shall not be required to maintain control agreements
in effect with respect to (i) disbursement accounts at banks other than LaSalle
Bank so long as the aggregate balance of funds in such disbursement accounts do
not exceed $3,000,000, and (ii) any other account in which the balance of funds
does not at any time exceed $100,000 (so long as the aggregate balance of all
accounts under this clause (ii) does not exceed $1,500,000).
8.11 Additional Negative Pledges. Except as otherwise disclosed on Schedule
B, Parts 8.3 or 8.4, respectively, no Borrower shall, or shall permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective, any prohibition or restriction (including any
agreement to provide equal and ratable security to any other Person in the event
a Lien is granted to or for the benefit of the Agent and the Lenders) on the
creation or existence of any Lien upon the Collateral or any portion thereof,
other than pursuant to this Credit Agreement and the other Credit Documents.
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8.12 Merger. No Borrower shall merge or consolidate with or into any other
Person, except (i) subject to the requirements of Section 7.4 hereof, a
Subsidiary of MTLM may merge into MTLM or a wholly-owned Subsidiary of MTLM, and
(ii) in connection with a Permitted Acquisition, provided however in any such
case, the Borrower or the applicable wholly-owned Subsidiary must be the
surviving entity and after giving effect thereto no Default or Event of Default
shall exist.
8.13 Sale and Leaseback Transactions and Other Off-Balance Sheet
Liabilities. None of the Borrowers will, nor will they permit any Subsidiary to,
enter into or suffer to exist any Sale and Leaseback Transaction or any other
Off-Balance Sheet Liability.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.1 Events of Default. The occurrence of any of the following events shall
constitute an event of default (each an "Event of Default") hereunder:
9.1.1 Failure to Pay. The Borrowers shall fail to pay any Obligations
in respect of principal or interest on the Revolving Loans, in each case when
the same shall become due and payable, or shall fail to pay, within five (5)
days after the same shall become due and payable, any other amount due under
this Credit Agreement or any of the other Credit Documents.
9.1.2 Breach of Certain Covenants. Any Borrower shall fail to comply
with any covenant contained in Article VII (other than Section 7.4(i), 7.8, 7.9,
7.12, 7.13 and 7.14) or Article VIII.
9.1.3 Breach of Representation or Warranty. Any representation or
warranty made or deemed to be made by any Credit Party in this Credit Agreement
or in any other Credit Document (and in any statement or certificate given under
this Credit Agreement or any other Credit Document), shall be false or
misleading in any material respect when made or deemed to be made.
9.1.4 Breach of Other Covenants. Any Credit Party shall fail to comply
with any covenant contained in this Credit Agreement or any other Credit
Document, other than as set forth in Section 9.1.2, and such failure shall
continue for 10 days after the Funds Administrator receives notice of such
failure from Agent.
9.1.5 Dissolution. Any Credit Party shall dissolve, wind up or
otherwise cease its business (other than pursuant to a transaction expressly
permitted hereunder).
9.1.6 Insolvency Event. Any Credit Party shall become the subject of
an Insolvency Event.
9.1.7 Change of Control. A Change of Control shall occur.
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9.1.8 Cross Default. A default or event of default shall occur (and
continue beyond any applicable grace period) under any note, agreement or
instrument evidencing any other Indebtedness of any Credit Party or any
Subsidiary of any Credit Party, which default or event of default permits the
acceleration of its maturity, provided that the aggregate principal amount of
all such other Indebtedness for which the default or event of default has
occurred exceeds $5,000,000.
9.1.9 Rate Management Obligation. Any Borrower or any Subsidiary of
any Borrower shall fail to pay any Rate Management Obligation when due or shall
breach any term, provision or condition contained in any Rate Management
Transaction, and such default shall continue after the applicable grace period,
if any.
9.1.10 Judgments. Any judgment or judgments, writ or writs or warrant
or warrants of attachment, or any similar process or processes, shall be entered
or filed against any Borrower or any other Credit Party or any of their
respective properties in an aggregate amount in excess of $5,000,000 (except to
the extent fully covered by insurance pursuant to which the insurer has accepted
liability therefor in writing), and which remains undischarged, unvacated,
unbonded or unstayed for a period of thirty (30) days.
9.1.11 ERISA. Any Borrower or any of its ERISA Affiliates or any other
Person institutes any steps to terminate or withdraw from a Benefit Plan and, as
a result of such termination or withdrawal, such Borrower or ERISA Affiliate is
or could reasonably be expected to be required to make a contribution to such
Benefit Plan in excess of $5,000,000 or such Borrower or ERISA Affiliate fails
to make a contribution to any Employee Benefit Plan which failure would be
sufficient to give rise to a Lien under Section 302(f) of ERISA in an amount in
excess of $5,000,000.
9.1.12 Failure of Enforceability of Credit Documents; Security. Any
covenant, agreement or obligation of any Credit Party contained in or evidenced
by any of the Credit Documents shall cease to be enforceable, or shall be
determined by a court of competent jurisdiction to be unenforceable, in each
case in accordance with its terms (otherwise than pursuant to its terms or as
expressly permitted hereunder); any Credit Party shall deny or disaffirm its
obligations under any of the Credit Documents or any Liens granted in connection
therewith; or, any Liens granted on any of the Collateral shall be determined to
be void, voidable, invalid or unperfected, are subordinated or not given the
priority contemplated by this Credit Agreement.
9.2 Acceleration, Termination of Commitments and Cash Collateralization.
Upon the occurrence and during a continuance of any Event of Default, without
prejudice, to the rights of the Agent or any Lender to enforce its claims
against the Credit Parties:
9.2.1 Acceleration. Upon the written request of the Required Lenders
and by delivery of written notice to the Funds Administrator from the Agent, all
Obligations shall be immediately due and payable (except with respect to any
Event of Default set forth in Section 9.1.6, in which case all Obligations shall
automatically become immediately due and payable without the necessity of any
request of the Required Lenders or notice or other demand to the
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Funds Administrator or any of the Borrowers) without presentment, demand,
protest or any other action or obligation of the Agent or any Lender.
9.2.2 Termination of Commitments. Upon the written request of the
Required Lenders, and by delivery of written notice to the Funds Administrator
from the Agent (except with respect to any Event of Default set forth in Section
9.1.6, in which case all of the Commitments shall automatically and immediately
terminate without the necessity of any request of the Required Lenders or notice
or other demand to the Funds Administrator or any of the Borrowers) the
Commitments shall be immediately terminated and, at all times thereafter, all
Revolving Loans made by any Lender pursuant to this Credit Agreement shall be at
such Lender's sole discretion, unless such Event of Default is waived in
accordance with Section 11.11, in which case the Commitments shall be
automatically reinstated.
9.2.3 Cash Collateralization. On demand of the Agent or the Required
Lenders, the Borrowers shall immediately deposit with the Agent for each Letter
of Credit then outstanding, cash or Cash Equivalents in an amount equal to 110%
of the greatest amount drawable thereunder. Such deposit shall be held by the
Agent and used to reimburse the Issuing Bank for the amount of each drawing made
under such Letters of Credit, as and when each such drawing is made.
9.3 Rescission of Acceleration. After acceleration of the maturity of all
or any part of the Obligations, if the Borrowers pay all accrued interest and
all principal due (other than by reason of the acceleration) and all Events of
Default are waived in accordance with Section 11.11, the Required Lenders may
elect in their sole discretion, to rescind the acceleration and return to the
Borrowers any cash collateral, if any, deposited with the Agent pursuant to
Section 9.2.3. (This Section is intended only to bind all of the Lenders to a
decision of the Required Lenders and not to confer any right on the Borrowers,
even if the described conditions for the Required Lenders' election may be met.)
9.4 Remedies. Upon the occurrence and during the continuance of an Event of
Default, upon the written request and at the direction of the Required Lenders,
the Agent may exercise any rights and remedies available to it under applicable
law (including under the Code) and under the Collateral Documents. The foregoing
rights and remedies are not intended to be exhaustive and the full or partial
exercise of any right or remedy shall not preclude the full or partial exercise
of any other right or remedy available under this Credit Agreement, any other
Credit Document, at equity or at law.
9.5 Right of Setoff. In addition to and not in limitation of all rights of
offset that any Lender may have under applicable law, upon the occurrence and
during the continuance of any Event of Default, and regardless of whether any
Lender has made any demand or the Obligations of any Borrower have matured, each
Lender shall have the right to appropriate and apply to the payment of the
Obligations of such Borrower all deposits and other obligations then or
thereafter owing by such Lender to such Borrower. Each Lender exercising such
rights shall notify the Agent thereof and any amount received as a result of the
exercise of such rights shall be shared by the Lenders in accordance with
Section 2.5.
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9.6 License of Use of Software and Other Intellectual Property. Unless
expressly prohibited by the licensor thereof, if any, the Agent is hereby
granted a license to use all computer software programs, data bases, processes
and materials used by the Borrowers in connection with their respective
businesses or in connection with any Collateral. The Agent agrees not to use any
such license other than after the occurrence and during the continuance of an
Event of Default.
9.7 Application of Proceeds; Surplus, Deficiencies. The net cash proceeds
resulting from the Agent's exercise of any of the foregoing rights against any
Collateral (after deducting all of the Agent's Expenses related thereto) shall
be applied by the Agent to the payment of the Obligations, whether due or to
become due, in the order set forth in Section 4.12. The Borrowers shall remain
jointly and severally liable to the Agent and the Lenders for any deficiencies,
and the Agent and the Lenders in turn agree to remit to the Borrowers or their
successors or assigns, any surplus resulting therefrom.
ARTICLE X
THE AGENT
10.1 Appointment of Agent. Each Lender hereby designates LaSalle Bank as
Agent to act as herein specified. Each Lender hereby irrevocably authorizes, and
each holder of any Revolving Note, by the acceptance of such Note, shall be
deemed irrevocably to authorize the Agent to take such action on its behalf
under the provisions of this Credit Agreement and the other Credit Documents and
any other instruments and agreements referred to herein and therein and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The Agent
shall hold all Collateral and all payments of principal, interest, Fees (other
than Fees that are exclusively for the account of the Agent), charges and
Expenses received pursuant to this Credit Agreement or any other Credit Document
for the ratable benefit of the Lenders. The Agent may perform any of its duties
hereunder by or through its agents or employees.
Other than rights of the Credit Parties under Section 10.9, the provisions
of this Article X are for the benefit of the Agent and the Lenders only and none
of the Credit Parties or any other Persons shall have any rights as a third
party beneficiary of any of the provisions hereof. In performing its functions
and duties under this Credit Agreement and the other Credit Documents, the Agent
shall act only for the Lenders and does not assume and shall not be deemed to
have assumed any obligation toward or relationship of agency or trust with or
for any Credit Party.
10.2 Nature of Duties of Agent. The Agent has no duties or responsibilities
except those expressly set forth in the Credit Documents. Neither the Agent nor
any of its officers, directors, employees or agents shall be liable for any
action taken or omitted hereunder or in connection herewith, unless caused by
its or their gross negligence or willful misconduct. The duties of the Agent
shall be mechanical and administrative in nature; the Agent shall not have by
reason of this Credit Agreement or any of the other Credit Documents a fiduciary
relationship in respect of any Lender or any participant of any Lender; and
nothing in this Credit Agreement or any other Credit Document, expressed or
implied, is intended to or shall be so construed as to
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impose upon the Agent any obligations in respect of this Credit Agreement or any
other Credit Document, except as expressly set forth herein or therein.
10.3 Lack of Reliance on Agent.
(a) Independently and without reliance upon the Agent, each Lender, to
the extent it deems appropriate, has made and shall continue to make (i)
its own independent investigation of the financial or other condition and
affairs of each Credit Party in connection with the taking or not taking of
any action in connection herewith and (ii) its own appraisal of the
creditworthiness of each Credit Party, and, except as expressly provided in
this Credit Agreement, the Agent shall have no duty or responsibility,
either initially or on a continuing basis, to provide any Lender with any
credit or other information with respect thereto, whether coming into its
possession before the making of the Revolving Loans or at any time or times
thereafter.
(b) The Agent shall not be responsible to any Lender for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this Credit Agreement or any of
the other Credit Documents or the financial or other condition of any
Credit Party. The Agent shall not be required to make any inquiry
concerning either the performance or observance of any other terms,
provisions or conditions of this Credit Agreement or any of the other
Credit Documents, or the financial condition of any Credit Party, or the
existence or possible existence of any Default or Event of Default, unless
specifically requested to do so in writing by any Lender.
10.4 Certain Rights of the Agent. The Agent shall have the right to request
instructions from the Lenders by notice to each of such Lenders. If the Agent
shall request instructions from the Lenders with respect to any act or action
(including the failure to act) in connection with this Credit Agreement, the
Agent shall be entitled to refrain from such act or taking such action unless
and until the Agent shall have received instructions from such Lenders, and the
Agent shall not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting hereunder in accordance with the instructions of the requisite Lenders
required to give such instructions hereunder. The Agent may give any notice
required under Article IX hereof without the consent of any of the Lenders
unless otherwise directed by the Required Lenders in writing and will, at the
direction of the Required Lenders, give any such notice required under Article
IX.
10.5 Reliance by Agent. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other documentary, facsimile or telephone message believed
by it to be genuine and correct and to have been signed, sent or made by the
proper person. The Agent may consult with legal counsel (including counsel for
the Credit Parties with respect to matters concerning the Credit Parties),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or
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omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
10.6 Indemnification of Agent. To the extent the Agent is not reimbursed
and indemnified by the Borrowers, each Lender will reimburse and indemnify the
Agent, in proportion to its respective Commitment, for and against all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Agent in performing its duties hereunder, in any way relating to or
arising out of this Credit Agreement; provided, that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Agent's gross negligence or willful misconduct.
10.7 The Agent in its Individual Capacity. With respect to its obligation
to lend under this Credit Agreement, the Revolving Loans made by it and the
Revolving Note issued to it and its participation in Letters of Credit issued
hereunder, the Agent shall have the same rights and powers hereunder as any
other Lender or holder of a Revolving Note or participation interests and may
exercise the same as though it was not performing the duties specified herein;
and the terms "Lenders," "Required Lenders," "holders of Revolving Notes," or
any similar terms shall, unless the context clearly otherwise indicates, include
the Agent in its individual capacity. The Agent may accept deposits from, lend
money to, acquire equity interests in, and generally engage in any kind of
banking, financial advisory or other business with any Credit Party or any
Affiliate of any Credit Party as if it were not performing the duties specified
herein, and may accept fees and other consideration from any Credit Party for
services in connection with this Credit Agreement and otherwise without having
to account for the same to the Lenders.
10.8 Holders of Revolving Notes. The Agent may deem and treat the payee of
any Revolving Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment or transfer thereof shall have been filed
with the Agent. Any request, authority or consent of any Person who, at the time
of making such request or giving such authority or consent, is the holder of any
Revolving Note, shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Revolving Note or of any Revolving Note or
Revolving Notes issued in exchange therefor.
10.9 Successor Agent.
(a) The Agent may, upon 15 Business Days' notice to the Lenders and
the Funds Administrator, resign at any time (effective upon the appointment
of a successor Agent pursuant to the provisions of this Section 10.9) by
giving written notice thereof to the Lenders and the Funds Administrator.
Upon any such resignation, the Required Lenders shall have the right, upon
5 days' notice and approval by the Credit Parties (which approval shall not
be unreasonably withheld or delayed) to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and
accepted such appointment, within 30 days after the retiring Agent's giving
of notice of resignation, then the retiring Agent may, on behalf of the
Lenders (and with the approval of the Funds Administrator, which approval
shall not be unreasonably withheld or delayed), appoint a successor Agent,
which shall be a bank or a trust company or other
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financial institution which maintains an office in the United States, or a
commercial bank organized under the laws of the United States of America or
of any State thereof, or any Affiliate of such bank or trust company or
other financial institution which is engaged in the banking business,
having a combined capital and surplus of at least $500,000,000.
(b) Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Credit Agreement and the other Credit Documents.
After any retiring Agent's resignation hereunder as Agent, the provisions
of this Article X shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under or in connection with
this Credit Agreement.
10.10 Collateral Matters.
(a) Each Lender authorizes and directs the Agent to enter into the
Collateral Documents for the benefit of the Lenders. Each Lender hereby
agrees, and each holder of any Revolving Note by the acceptance thereof
will be deemed to agree, that, except as otherwise set forth herein or in
the other Credit Documents, any action taken by the Required Lenders in
accordance with the provisions of this Credit Agreement and the other
Credit Documents, and the exercise by the Required Lenders of the powers
set forth herein or therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all of
the Lenders. The Agent is hereby authorized on behalf of all of the
Lenders, without the necessity of any notice to or further consent from any
Lender, from time to time so long as an Event of Default shall not then
exist, to take any action with respect to any Collateral or Collateral
Documents which may be necessary to perfect and maintain the perfection of
the Liens upon the Collateral granted pursuant to the Collateral Documents.
(b) The Lenders hereby authorize the Agent, at its option and in its
discretion, to release any Lien granted to or held by the Agent upon any
Collateral (i) upon termination of the Commitments and payment and
satisfaction of all of the Obligations at any time arising under or in
respect of this Credit Agreement or the other Credit Documents or the
transactions contemplated hereby or thereby, (ii) if approved, authorized
or ratified in writing by the Required Lenders, unless such release is
required to be approved by all of the Lenders pursuant to Section 11.11; or
(iii) constituting property sold or to be sold or disposed of as part of or
in connection with any disposition thereof permitted hereunder. Upon
request by the Agent at any time, the Lenders will confirm in writing the
Agent's authority to release particular types or items of Collateral
pursuant to this Section 10.10.
(c) The Agent shall have no obligation whatsoever to the Lenders or to
any other Person to assure that the Collateral exists or is owned by any
Borrower or is cared for, protected or insured or that the Liens granted to
the Agent in or pursuant to any of the Collateral Documents have been
properly or sufficiently or lawfully created, perfected, protected or
enforced or are entitled to any particular priority, or to exercise or to
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continue exercising at all or in any manner or under any duty of care,
disclosure or fidelity any of the rights, authorities and powers granted or
available to the Agent in this Section 10.10 or in any of the Collateral
Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, the Agent may
act in any manner it may deem appropriate, in its sole discretion, given
the Agent's own interest in the Collateral as one of the Lenders and that
the Agent shall have no duty or liability whatsoever to the Lenders, except
for its gross negligence or willful misconduct.
10.11 Actions with Respect to Defaults. In addition to the Agent's right to
take actions on its own accord as permitted under this Credit Agreement, the
Agent shall take such action with respect to a Default or Event of Default as
shall be directed by the Required Lenders; provided, that until the Agent shall
have received such directions, the 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 and in the best interests
of the Lenders.
10.12 Delivery of Information. The Agent shall not be required to deliver
to any Lender originals or copies of any documents, instruments, notices,
communications or other information received by the Agent from any of the Credit
Parties or any Subsidiary of any of the Credit Parties, any Lender or any other
Person under or in connection with this Credit Agreement or any other Credit
Document, except (i) as specifically provided in this Credit Agreement or any
other Credit Document and (ii) as specifically requested from time to time in
writing by any Lender with respect to a specific document, instrument, notice or
other written communication received by and in the possession of the Agent at
the time of receipt of such request and then only in accordance with such
specific request.
10.13 Designation of Co-Syndication Agents and Co-Documentation Agents.
Charter One Bank, N.A. and Sovereign Bank are hereby designated as
co-syndication agents ("Co-Syndication Agents") hereunder. PNC Bank National
Association and National City Bank of the Midwest are hereby designated as
co-documentation agents ("Co-Documentation Agents") hereunder. The
Co-Syndication Agents and the Co-Documentation Agents shall not have any rights,
powers or obligations of the Agent hereunder or under any other Credit Document,
nor shall the Co-Syndication Agents or the Co-Documentation Agents have any
right or claim to any funds, fees or payments due to the account of the Agent
hereunder or under any other Credit Document.
ARTICLE XI
MISCELLANEOUS
11.1 Governing Law. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
CREDIT AGREEMENT AND EACH OF THE REVOLVING NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF
ILLINOIS.
11.2 Submission to Jurisdiction. ALL DISPUTES AMONG THE LENDERS AND THE
CREDIT PARTIES (OR THE AGENT OR FUNDS ADMINISTRATOR, RESPECTIVELY, ACTING ON
THEIR BEHALF), WHETHER SOUNDING IN CONTRACT,
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TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE AND FEDERAL COURTS
LOCATED IN XXXX COUNTY, ILLINOIS AND THE COURTS TO WHICH AN APPEAL THEREFROM MAY
BE TAKEN; PROVIDED, HOWEVER, THAT THE AGENT ON BEHALF OF THE LENDERS, SHALL HAVE
THE RIGHT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE
FUNDS ADMINISTRATOR OR ANY CREDIT PARTY OR THEIR RESPECTIVE PROPERTIES IN ANY
LOCATION REASONABLY SELECTED BY THE AGENT IN GOOD FAITH TO ENABLE THE AGENT TO
REALIZE ON SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR
OF THE AGENT. THE FUNDS ADMINISTRATOR AND EACH OF THE OTHER CREDIT PARTIES WAIVE
ANY OBJECTION THAT ANY OF SUCH PERSONS MAY HAVE TO THE LOCATION OF THE COURT IN
WHICH THE AGENT OR ANY LENDER HAS COMMENCED A PROCEEDING, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON FORUM NON
CONVENIENS.
11.3 Service of Process. EACH OF THE FUNDS ADMINISTRATOR AND THE OTHER
CREDIT PARTIES HEREBY WAIVES PERSONAL SERVICE UPON IT AND, AS ADDITIONAL
SECURITY FOR THE OBLIGATIONS, HEREBY IRREVOCABLY DESIGNATES AND APPOINTS XXXXXX
X. XXXXX, WITH AN OFFICE ON THE DATE HEREOF AT C/O METAL MANAGEMENT, INC., 000
XXXXX XXXXXXX XXXXXX, XXXXX 000, XXXXXXX, XXXXXXXX 00000, AND SUCH OTHER PERSONS
AS MAY HEREAFTER BE SELECTED BY SUCH PERSON WHICH IRREVOCABLY AGREE IN WRITING
TO SO SERVE AS ITS AGENT, TO RECEIVE ON ITS BEHALF SERVICE OF ALL PROCESS ISSUED
BY ANY COURT IN ANY LEGAL ACTION OR OTHER PROCEEDING WITH RESPECT TO THIS CREDIT
AGREEMENT OR ANY OTHER CREDIT DOCUMENT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED
BY SUCH PERSON TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. A COPY OF
ANY SUCH PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL TO THE FUNDS
ADMINISTRATOR AT ITS ADDRESS PROVIDED HEREIN EXCEPT THAT, UNLESS OTHERWISE
PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE
VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY THE FUNDS
ADMINISTRATOR OR ANY OTHER CREDIT PARTIES REFUSES TO ACCEPT SERVICE, EACH SUCH
PERSON HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT
NOTICE AND EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF AGENT OR ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW OR SHALL LIMIT THE RIGHT OF AGENT OR ANY LENDER TO
BRING PROCEEDINGS AGAINST THE FUNDS ADMINISTRATOR OR ANY OTHER CREDIT PARTY IN
THE COURTS OF ANY OTHER JURISDICTION.
11.4 Jury Trial. THE FUNDS ADMINISTRATOR, EACH OF THE OTHER CREDIT PARTIES,
THE AGENT AND THE LENDERS HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY. INSTEAD,
ANY DISPUTES WILL BE RESOLVED IN A BENCH TRIAL.
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11.5 Limitation of Liability. NEITHER THE AGENT NOR ANY LENDER SHALL HAVE
ANY LIABILITY TO THE FUNDS ADMINISTRATOR OR ANY OTHER CREDIT PARTY (WHETHER
SOUNDING IN TORT, CONTRACT, OR OTHERWISE) FOR LOSSES SUFFERED BY ANY SUCH PERSON
IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO THE TRANSACTIONS OR
RELATIONSHIPS CONTEMPLATED BY THIS CREDIT AGREEMENT, OR ANY OF THE OTHER CREDIT
DOCUMENTS, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH,
UNLESS IT IS DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT OR COURT ORDER
BINDING ON THE AGENT OR ANY SUCH LENDER, THAT THE LOSSES WERE THE RESULT OF ACTS
OR OMISSIONS CONSTITUTING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
11.6 Delays. No delay or omission of the Agent or the Lenders in exercising
any right or remedy hereunder shall impair any such right or operate as a waiver
thereof.
11.7 Notices. Except as otherwise provided herein, all notices and
correspondences hereunder shall be in writing and sent by certified or
registered mail, return receipt requested, or by overnight delivery service,
with all charges prepaid, if to the Agent or any of the Lenders, then to LaSalle
Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000
Attention: Xxxxxxx X. Xxxxxxx, if to the Funds Administrator or any other Credit
Party, then to Metal Management, Inc., 000 X. XxXxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Chief Financial Officer, or by facsimile
transmission, promptly confirmed in writing sent by first class mail, if to the
Agent, or any of the Lenders, at (000) 000-0000 and if to the Funds
Administrator or any other Credit Party at (000) 000-0000. All such notices and
correspondence shall be deemed given (i) if sent by certified or registered
mail, 3 Business Days after being postmarked, (ii) if sent by overnight delivery
service, when received at the above stated addresses or when delivery is refused
and (iii) if sent by telex or facsimile transmission, when receipt of such
transmission is acknowledged; provided, that failure or delay in delivering
copies of any notices to any persons designated above to receive copies thereof
shall in no way adversely affect the effectiveness of such notice.
11.8 Assignments and Participations.
11.8.1 Borrower Assignment. Neither the Funds Administrator nor any of
the other Credit Parties shall have any right to assign this Credit Agreement or
any of the other Credit Documents, or any rights or obligations hereunder or
thereunder, without the prior written consent of the Agent and the Lenders.
11.8.2 Lender Assignments. Each Lender may assign to one or more banks
or other financial institutions all or a portion of its rights and obligations
under this Credit Agreement, the Revolving Notes and the other Credit Documents
(which shall be of a constant and not a varying percentage of the Loans and
Commitment assigned), with the consent of the Agent (such consent not to be
unreasonably withheld or delayed) and upon execution and delivery to the Agent,
for its acceptance and recording in the Register, of an agreement in
substantially the form of Exhibit F (an "Assignment And Assumption Agreement"),
together with surrender of any Revolving Note or Revolving Notes subject to such
assignment and a processing and recordation fee of $5,000, such assignment shall
be effective and Annex I hereto
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shall be deemed to be modified accordingly. No such assignment shall be for less
than $5,000,000 of the Commitments unless it is to another Lender or is an
assignment of all of such Lender's rights and obligations under this Credit
Agreement. (This Section does not apply to branches and Affiliates of a Lender,
it being understood that a Lender may make, carry or transfer Revolving Loans at
or for the account of any of its branch offices or Affiliates without consent of
the Borrowers, the Agent or any other Lender.)
11.8.3 Agent's Register. The Agent shall maintain a register of the
names and addresses of the Lenders, their Commitments, and the principal amount
of their Revolving Loans (the "Register") at the address specified for the Agent
in Section 11.7. The Agent shall also maintain a copy of each Assignment and
Assumption Agreement delivered to and accepted by it, and modify the Register to
give effect to each Assignment and Assumption Agreement. Upon its receipt of
each Assignment and Assumption Agreement and surrender of the affected Revolving
Note or Revolving Notes, the Agent will give prompt notice thereof to the Funds
Administrator and deliver to the Funds Administrator a copy of the Assignment
and Assumption Agreement. Within 5 Business Days after its receipt of such
notice, the Borrowers shall execute and deliver to the Agent a substitute
Revolving Note or Revolving Notes to the order of the assignee in the amount of
the Commitment or Commitments assumed by it and to the assignor in the amount of
the Commitment or Commitments retained by it, if any. Such substitute Revolving
Note or Revolving Notes shall re-evidence the Indebtedness outstanding under the
surrendered Revolving Note or Revolving Notes and shall be dated as of the date
hereof. Upon receipt of such substitute Revolving Note or Revolving Notes, the
Agent shall deliver the surrendered Revolving Note or Revolving Notes to the
Funds Administrator. The Agent shall be entitled to rely upon the Register
exclusively for purposes of identifying the Lenders hereunder. The Register
shall be available for inspection by the Credit Parties and the Lenders (or any
of them) at any reasonable time and from time to time upon reasonable notice to
the Agent.
11.8.4 Participations. Each Lender may sell participations (without
the consent of the Agent, any Credit Party or any other Lender) to one or more
parties in or to all or a portion of its rights and obligations under this
Credit Agreement, the Revolving Notes and the other Credit Documents.
Notwithstanding a Lender's sale of a participation interest, its obligations
hereunder shall remain unchanged. The Credit Parties, the Agent, and the other
Lenders shall continue to deal solely and directly with such Lender. No
participant shall have rights to approve any amendment or waiver of this Credit
Agreement or any of the other Credit Documents except to the extent such
amendment or waiver would (i) increase the participant's obligation in respect
of the Commitment of the Lender from whom the participant purchased its
participation interest, (ii) reduce the principal of, or stated rate or amount
of interest on, the Revolving Loans subject to such participation, (iii)
postpone any maturity date fixed for final payment of principal of the Revolving
Loans subject to the participation interest and (iv) release any guarantor of
the Obligations or all or a substantial portion of the Collateral, other than
when otherwise permitted hereunder.
11.9 Confidentiality.
(a) Each Lender agrees that it will use its best efforts not to
disclose to any Person, without the prior consent of the Funds
Administrator, any information with respect to any of the Credit Parties or
any Subsidiary of any of the Credit Parties which is
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furnished pursuant to this Credit Agreement and which is designated by the
respective Credit Parties to the Lenders in writing as confidential (the
"Credit Party Information"), provided, that, each Lender may disclose any
such information (i) to its employees, auditors, or counsel, or to another
Lender if the disclosing Lender or such disclosing Lender's holding or
parent company in its sole discretion determines that any such party should
have access to such information, (ii) to its Affiliates on a need to know
basis, (iii) as has become generally available to the public, other than by
disclosure thereof by such Lender, (iv) as may be required in any report,
statement or testimony submitted to any Governmental Authority having or
claiming to have jurisdiction over such Lender, (v) as may be required in
response to any summons or subpoena or in connection with any litigation,
(vi) in order to comply with any Requirement of Law, and (vii) to any
actual or prospective transferee or participant in connection with any
contemplated transfer or participation of any of the Revolving Notes or
Commitments or any interest therein by such Lender, so long as prior to
such disclosure such prospective or actual transferee or participant has
agreed to preserve the confidentiality of such information on terms
substantially similar to those set forth in this Section 11.9 or on terms
otherwise satisfactory to the Funds Administrator.
(b) In the event that the Agent or any Lender is requested or becomes
legally compelled (by interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process) to
disclose any of the Credit Party Information, such Person will (i) provide
the Funds Administrator with prompt written notice so that the Credit
Parties may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this Section 11.9; (ii) unless the
Credit Parties waive compliance by such Person with the provisions of this
Section 11.9, make a timely objection to the request or compulsion to
provide such Credit Party Information on the basis that such Credit Party
Information is confidential and subject to the agreements contained in this
Section 11.9; and (iii) take action as is necessary to preserve such
confidentiality, such as seeking a protective order or other appropriate
remedy.
In the event that a protective order or other remedy is not obtained, or
the Credit Parties waive compliance with the provisions of this Section 11.9,
such Person will furnish only that portion of the Credit Party Information which
is legally required to be furnished and will exercise such Person's best efforts
to obtain reliable assurance that confidential treatment will be accorded to the
Credit Party Information.
11.10 Indemnification. The Borrowers hereby jointly and severally indemnify
and agree to defend and hold harmless the Agent and each of the Lenders and
their respective directors, officers, agents, employees and counsel from and
against any and all losses, claims, damages, liabilities, deficiencies,
judgments or expenses incurred by any of them (except to the extent that it is
finally judicially determined to have resulted from their own gross negligence
or willful misconduct) arising out of or by reason of (a) any litigation,
investigations, claims or proceedings which arise out of (i) this Credit
Agreement or the transactions contemplated hereby, (ii) the issuance of the
Letters of Credit, (iii) the failure of the Issuing Bank to honor a Drawing
under any Letter of Credit, as a result of any act or omission, whether rightful
or wrongful, of any present or future de jure or de facto government or
Governmental Authority, (iv) any actual or proposed use by any Borrower of the
proceeds of the Revolving Loans or (v)
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the Agent's or the Lenders' entering into this Credit Agreement, the other
Credit Documents or any other agreements and documents relating hereto,
including, without limitation, amounts paid in settlement, court costs and the
fees and disbursements of counsel incurred in connection with any such
litigation, investigation, claim or proceeding or any advice rendered in
connection with any of the foregoing and (b) any remedial or other action taken
by any of the Borrowers or any of the Lenders in connection with compliance by
any of the Borrowers or any Subsidiary of any of the Borrowers, or any of their
respective properties, with any federal, state or local environmental laws,
acts, rules, regulations, orders, directions, ordinances, criteria or
guidelines.
11.11 Amendments and Waivers. No amendment or waiver of any provision of
this Credit Agreement, any part of Schedule B, or any other Credit Document
shall be effective unless in writing and signed by the Required Lenders (or by
the Agent on their behalf), except that:
(a) the consent of all Lenders shall be required to amend or waive
this Section 11.11;
(b) the consent of all the Lenders is required to (i) except as
otherwise set forth in Section 2.8, increase the Commitments, (ii) reduce
the principal of, or interest on, any Revolving Note, any Letter of Credit
reimbursement obligations or any Fees hereunder (other than Fees that are
exclusively for the account of the Agent), (iii) postpone any date fixed
for any payment in respect of principal of, or interest on, any Revolving
Note, any Letter of Credit reimbursement obligations or any Fees hereunder,
(iv) change the percentage of the Commitments, or any minimum requirement
necessary for the Lenders or the Required Lenders to take any action
hereunder, (v) change the definition of Required Lenders or (vi) except as
otherwise expressly provided in this Credit Agreement, and other than in
connection with the financing, refinancing, sale or other disposition of
any asset of a Borrower permitted under this Credit Agreement, release all
or substantially all of the Liens in favor of the Agent on any of the
Collateral; and
(c) the consent of the Agent shall be required for any amendment,
waiver or consent affecting the rights or duties of the Agent under any
Credit Document, in addition to the consent of the Lenders otherwise
required by this Section.
Neither the consent of the Funds Administrator nor any other Credit Party
shall be required for any amendment, modification or waiver of the provisions of
Article X (other than Section 10.9). The Funds Administrator, the other Credit
Parties and the Lenders each hereby authorize the Agent to modify this Credit
Agreement by unilaterally amending or supplementing Annex I to reflect
assignments of the Commitments or any increases or decreases in the Commitments
in accordance with the terms of this Agreement. Notwithstanding the foregoing,
the Credit Parties may amend Schedule B, Parts 6.1, 6.10, 6.14 and 6.16 in
accordance with the terms of this Credit Agreement, without the consent of the
Required Lenders. Upon the occurrence of a Permitted Acquisition which results
in a new Subsidiary of any Borrower as permitted by the terms of this Credit
Agreement, the Agent is authorized to accept any joinder or agreement of such
Subsidiary to be bound as a "Borrower" hereunder and in a similar capacity under
the other Credit Documents without the further consent of any Lender, Borrower
or Funds
75
Administrator, although each of the Lenders, the other Borrowers and the Funds
Administrator will promptly confirm in writing, if requested by Agent, such
joinder and agreement by such new Subsidiary.
11.12 Counterparts and Effectiveness. This Credit Agreement and any waiver
or amendment hereto may be executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. This Credit Agreement shall become
effective on the date on which all of the parties hereto shall have signed a
copy hereof (whether the same or different copies) and shall have delivered the
same to the Agent.
11.13 Severability. In case any provision in or obligation under this
Credit Agreement, the Revolving Notes or any of the other Credit Documents shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
11.14 Maximum Rate. Notwithstanding anything to the contrary contained
elsewhere in this Credit Agreement or in any other Credit Document, the
Borrowers, the Agent, and the Lenders hereby agree that all agreements among
them under this Credit Agreement and the other Credit Documents, whether now
existing or hereafter arising and whether written or oral, are expressly limited
so that in no contingency or event whatsoever shall the amount paid, or agreed
to be paid, to the Agent or any Lender for the use, forbearance, or detention of
the money loaned to the Borrowers and evidenced hereby or thereby or for the
performance or payment of any covenant or obligation contained herein or
therein, exceed the Highest Lawful Rate. If due to any circumstance whatsoever,
fulfillment of any provisions of this Credit Agreement or any of the other
Credit Documents at the time performance of such provision shall be due shall
exceed the Highest Lawful Rate, then, automatically, the obligation to be
fulfilled shall be modified or reduced to the extent necessary to limit such
interest to the Highest Lawful Rate, and if from any such circumstance any
Lender should ever receive anything of value deemed interest by applicable law
which would exceed the Highest Lawful Rate, such excessive interest shall be
applied pursuant to the terms hereof to the reduction of the principal amount
then outstanding hereunder or on account of any other then outstanding
Obligations and not to the payment of interest, or if such excessive interest
exceeds the principal unpaid balance then outstanding hereunder and such other
then outstanding Obligations, such excess shall be refunded to the Borrowers.
All sums paid or agreed to be paid to the Agent or any Lender for the use,
forbearance, or detention of the Obligations and other Indebtedness of the
Borrowers to the Agent or any Lender, to the extent permitted by applicable law,
shall be amortized, prorated, allocated and spread throughout the full term of
such Indebtedness, until payment in full thereof, so that the actual rate of
interest on account of all such Indebtedness does not exceed the Highest Lawful
Rate throughout the entire term of such Indebtedness. The terms and provisions
of this Section 11.14 shall control over every other provision of this Credit
Agreement, the other Credit Documents, and all agreements among the Borrowers,
the Agent and the Lenders.
11.15 Entire Agreement; Successors and Assigns. This Credit Agreement and
the other Credit Documents constitute the entire agreement among the Credit
Parties, the Agent and the
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Lenders, supersede any prior agreements among them, and shall bind and benefit
each of such Persons and their respective successors and permitted assigns.
11.16 Joint and Several Liability of Borrowers.
(a) Each of the Borrowers shall be jointly and severally liable
hereunder and under each of the other Credit Documents with respect to all
Obligations, regardless of which of the Borrowers actually receives the
proceeds of the Revolving Loans or the benefit of any other extensions of
credit hereunder, or the manner in which the Funds Administrator, the
Borrowers, the Agent or the Lenders account therefor in their respective
books and records. Notwithstanding the foregoing, (i) each Borrower's
obligations and liabilities with respect to proceeds of Revolving Loans
which it receives or Letters of Credit issued for its account, and related
fees, costs and expenses, and (ii) each Borrower's obligations and
liabilities arising as a result of the joint and several liability of the
Borrowers hereunder with respect to proceeds of Revolving Loans received
by, or Letters of Credit issued for the account of, any of the other
Borrowers, together with the related fees, costs and expenses, shall be
separate and distinct obligations, both of which are primary obligations of
such Borrower. Neither the joint and several liability of, nor the Liens
granted to the Agent under the Collateral Documents by, any of the
Borrowers shall be impaired or released by (A) the failure of Agent or any
Lender, any successors or assigns thereof, or any holder of any Revolving
Note or any of the Obligations to assert any claim or demand or to exercise
or enforce any right, power or remedy against the Funds Administrator, any
Borrower, any Subsidiary of any Borrower, any other Person, the Collateral
or otherwise; (B) any extension or renewal for any period (whether or not
longer than the original period) or exchange of any of the Obligations or
the release or compromise of any obligation of any nature of any Person
with respect thereto; (C) the surrender, release or exchange of all or any
part of any property (including without limitation the Collateral) securing
payment, performance and/or observance of any of the Obligations or the
compromise or extension or renewal for any period (whether or not longer
than the original period) of any obligations of any nature of any Person
with respect to any such property; (D) any action or inaction on the part
of the Agent or any Lender, or any other event or condition with respect to
any other Borrower, including any such action or inaction or other event or
condition, which might otherwise constitute a defense available to, or a
discharge of, such other Borrower, or a guarantor or surety of or for any
or all of the Obligations; and (E) any other act, matter or thing (other
than payment or performance of the Obligations) which would or might, in
the absence of this provision, operate to release, discharge or otherwise
prejudicially affect the obligations of such or any other Borrower.
(b) Each Borrower understands and acknowledges that, if the Agent
forecloses judicially or nonjudicially against any Collateral consisting of
real property, such foreclosure could impair or destroy any ability that
such Borrower may have to seek reimbursement, contribution or
indemnification from any other Borrower or Borrowers or from others based
on any right such Borrower may have of subrogation, reimbursement,
contribution or indemnification in respect of its joint and several
liability hereunder. Each Borrower further understands and acknowledges
that in the absence of this Section 11.16(b), such potential impairment or
destruction of such Borrower's rights, if any, may
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entitle such Borrower to assert a defense to its joint and several
liability hereunder based on Section 580d of the California Code of Civil
Procedure as interpreted in Union Bank x. Xxxxxxx, 265 Cal.App.2d 40
(1968). By executing this Agreement, each Borrower freely, irrevocably and
unconditionally: (i) waives and relinquishes that defense and agrees that
such Borrower will be fully liable hereunder and under the other Credit
Documents even though the Agent may foreclose judicially or nonjudicially
against any real property security for the Obligations; (ii) agrees that
such Borrower will not assert that defense in any action or proceeding
which the Agent or any of the Lenders may commence to enforce this
Agreement; (iii) acknowledges and agrees that the rights and defenses
waived by such Borrower hereunder include any right or defense that such
Borrower 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 the Agent and each of the Lenders is relying
on this waiver in making the Revolving Loans and other extensions of credit
hereunder, and that this waiver is a material part of the consideration
which the Agent and each Lender is receiving therefor.
(c) Each Borrower waives any rights and defenses that are or may
become available to such Borrower by reason of Sections 2787 to 2855,
inclusive, of the California Civil Code.
(d) Each Borrower waives all rights and defenses that such Borrower
may have because the Revolving Loans and other Obligations are secured in
part by real property. This means, among other things, that:
(i) the Lenders may collect from such Borrower, without first
foreclosing on any real or personal property Collateral
pledged by such or any other Borrower or any other Person;
and
(ii) if the Agent forecloses on any real property Collateral
pledged by any Borrower or any other Person:
(A) the amount of the Obligations may be reduced only by
the price for which that Collateral is sold at the
foreclosure sale, even if the Collateral is worth more
than the sale price; and
(B) Lenders may collect from such Borrower even if the
Agent, by foreclosing on the real property Collateral,
has destroyed any right such Borrower may have to
collect from any other Borrower or Person.
This Section 11.16(d) is an unconditional and irrevocable waiver of any
rights and defenses any Borrower may have because the Obligations are secured in
part by real property. These rights and defenses include, but are not limited
to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure.
78
11.17 Customer Identification - USA Patriot Act Notice. Each Lender and
LaSalle Bank (for itself and not on behalf of any other party) hereby notifies
the Credit Parties that, pursuant to the requirements of the USA Patriot Act,
Title III of Pub. L. 107-56, signed into law October 26, 2001 (the "Act"), it is
required to obtain, verify and record information that identifies the Credit
Parties, which information includes the name and address of the Credit Parties
and other information that will allow such Lender or LaSalle Bank, as
applicable, to identify the Credit Parties in accordance with the Act.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW]
79
IN WITNESS WHEREOF, the respective parties hereto have caused this Amended
and Restated Credit Agreement to be executed and delivered by their duly
authorized officers as of the date first set forth above.
METAL MANAGEMENT, INC.,
as Funds Administrator and as Borrower
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
ADDITIONAL BORROWERS:
CIM TRUCKING, INC.
MTLM ARIZONA, INC.
METAL MANAGEMENT AEROSPACE, INC.
METAL MANAGEMENT ALABAMA, INC.
METAL MANAGEMENT ARIZONA, L.L.C.
METAL MANAGEMENT CONNECTICUT, INC.
METAL MANAGEMENT INDIANA, INC.
METAL MANAGEMENT XXXXXXX, L.L.C.
METAL MANAGEMENT MEMPHIS, L.L.C.
METAL MANAGEMENT MIDWEST, INC.
METAL MANAGEMENT MISSISSIPPI, INC.
METAL MANAGEMENT NEW HAVEN, INC.
METAL MANAGEMENT NORTHEAST, INC.
METAL MANAGEMENT OHIO, INC.
METAL MANAGEMENT PITTSBURGH, INC.
METAL MANAGEMENT PROLER SOUTHWEST, INC.
METAL MANAGEMENT S&A HOLDINGS, INC.
METAL MANAGEMENT WEST, INC.
METAL MANAGEMENT WEST COAST HOLDINGS, INC.
NAPORANO IRON & METAL, INC.
PROLER SOUTHWEST GP, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
RESERVE IRON & METAL LIMITED PARTNERSHIP
By: METAL MANAGEMENT OHIO, INC.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
[Signature Page Continues]
[Signature Page to Amended and Restated Credit Amendment, Continued]
PROLER SOUTHWEST LP
By: PROLER SOUTHWEST GP, INC.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
[Signature Page Continues]
[Signature Page to Amended and Restated Credit Agreement, Continued]
AGENT:
LASALLE BANK NATIONAL ASSOCIATION,
as Agent
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: First Vice President
LENDERS:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: First Vice President
[Signature Page Continues]
[Signature Page to Amended and Restated Credit Agreement, Continued]
CHARTER ONE BANK, N.A.
By: /s/ Xxxx X. XxXxxxxxx
------------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Vice President
[Signature Page Continues]
[Signature Page to Amended and Restated Credit Agreement, Continued]
SOVEREIGN BANK
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
[Signature Page Continues]
[Signature Page to Amended and Restated Credit Agreement, Continued]
PNC BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
[Signature Page Continues]
[Signature Page to Amended and Restated Credit Agreement, Continued]
NATIONAL CITY BANK OF THE MIDWEST
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
[Signature Page Continues]
[Signature Page to Amended and Restated Credit Agreement, Continued]
U.S. BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
[Signature Page Continues]
[Signature Page to Amended and Restated Credit Agreement, Continued]
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
[Signature Page Continues]
[Signature Page to Amended and Restated Credit Agreement, Continued]
FIFTH THIRD BANK (CHICAGO)
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
[Signature Page Continues]
[Signature Page to Amended and Restated Credit Agreement, Continued]
ASSOCIATED BANK, N.A.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
[Signature Page Continues]
[Signature Page to Amended and Restated Credit Agreement, Continued]
REGIONS BANK
By: /s/ Xxx X. Xxxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxxx
Title: Vice President,
Corporate Banking Division
ANNEX I TO CREDIT AGREEMENT
LIST OF LENDERS; COMMITMENT AMOUNTS; APPLICABLE LENDING OFFICES
LENDER AND LENDING OFFICE COMMITMENT PROPORTIONATE SHARE
------------------------- ----------- -------------------
1. LaSalle Bank National Association $60,000,000 20.000000000%
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
2. Charter One Bank, N.A. $40,000,000 13.333333333%
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
3. Sovereign Bank $40,000,000 13.333333333%
0 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
4. PNC Bank National Association $30,000,000 10.000000000%
Xxx Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
5. National City Bank of the Midwest $30,000,000 10.000000000%
Xxx Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
6. U.S. Bank, National Association $25,000,000 8.333333333%
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
7. KeyBank National Association $20,000,000 6.666666667%
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
8. Fifth Third Bank (Chicago) $20,000,000 6.666666667%
000 Xxxxx Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
9. Associated Bank, N.A. $20,000,000 6.666666667%
000 X. Xxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
10. Regions Bank $15,000,000 5.000000000%
000 Xxxxx 00xx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
I-1
ANNEX II
PRICING SCHEDULE
Applicable Margin, Unused Line Fee Rate and Letter of Credit Fee Rate under
and in accordance with the terms of this Agreement shall mean, until the first
Pricing Date, the rates per annum shown opposite Level V below, and thereafter,
from one Pricing Date to the next, the Applicable Margin, Unused Line Fee Rate
and Letter of Credit Fee Rate mean the rates per annum determined in accordance
with the following schedule:
LETTER OF
LEVERAGE RATIO APPLICABLE MARGIN FOR APPLICABLE MARGIN UNUSED LINE CREDIT FEE
LEVEL FOR SUCH PRICING DATE BASE RATE LOANS: FOR LIBOR RATE LOANS FEE RATE RATE
----- ------------------------ --------------------- -------------------- ----------- ----------
I Greater than or equal to 0.375% 1.875% 0.275% 2.000%
2.0 to 1.0
II Less than 2.0 to 1.0, but 0.125% 1.625% 0.250% 1.750%
greater than or equal to
1.5 to 1.0
III Less than 1.5 to 1.0, but 0% 1.375% 0.225% 1.500%
greater than or equal to
1.0 to 1.0
IV Less than 1.0 to 1.0, but 0% 1.125% 0.200% 1.250%
greater than or equal to
0.50 to 1.0
V Less than 0.50 to 1.0 -0.250% 0.875% 0.175% 1.000%
For purposes hereof, the term "Pricing Date" means, for any fiscal quarter of
MTLM ending on or after March 31, 2006, the date on which the Agent is in
receipt of the MTLM's most recent financial statements (and, in the case of the
year-end financial statements, audit report) for the fiscal quarter then ended,
pursuant to Section 7.1 of this Agreement. The Applicable Margin, Unused Line
Fee Rate and Letter of Credit Fee Rate shall be established based on the
Leverage Ratio for the most recently completed fiscal quarter, and the
Applicable Margin, Unused Line Fee Rate and Letter of Credit Fee Rate
established on a Pricing Date shall remain in effect until the next Pricing
Date. If MTLM has not delivered its financial statements by the date such
financial statements (and, in the case of the year-end financial statements,
audit report) are required to be delivered under Section 7.1 of this Agreement,
then from and after the date such financial statements and audit report, as
applicable, are due until such financial statements and audit report are
delivered, the Applicable Margin, Unused Line Fee Rate and Letter of Credit Fee
Rate shall be the highest Applicable Margin, Unused Line Fee Rate and Letter of
Credit Fee Rate (i.e., Level I shall apply). If MTLM subsequently delivers such
financial statements before the next Pricing Date, the Applicable Margin, Unused
Line Fee Rate and Letter of Credit Fee Rate established by such late delivered
financial statements shall take effect from the date of delivery until the next
Pricing Date. In all other circumstances, the Applicable Margin, Unused Line Fee
Rate and Letter of Credit Fee Rate established by such financial statements
shall be in effect
II-1
from the Pricing Date that occurs immediately after the end of the fiscal
quarter covered by such financial statements until the next Pricing Date. Each
determination of the Applicable Margin, Unused Line Fee Rate and Letter of
Credit Fee Rate made by the Agent in accordance with the foregoing shall be
conclusive and binding on the Borrowers and the Lenders absent demonstrable
error.
II-2
[SCHEDULES]
EXHIBIT A
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 9, 2006
FORM OF NOTICE OF BORROWING
___________ ___, 200_
LASALLE BANK NATIONAL ASSOCIATION
as Agent for the Lenders
parties to the Credit
Agreement referred to below
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The undersigned, Metal Management, Inc., a Delaware corporation
(individually, "MTLM"), in its capacity as borrowing agent and funds
administrator (in such capacity, the "FUNDS ADMINISTRATOR"), under the Amended
and Restated Credit Agreement dated as of May 9, 2006 (as the same may be
amended, restated, supplemented, extended or otherwise modified and in effect
from time to time, the "CREDIT AGREEMENT"; capitalized terms used herein but not
elsewhere defined herein shall have the respective meanings ascribed to such
terms in the Credit Agreement), among the Funds Administrator, MTLM and certain
of its affiliates as borrowers thereunder (collectively, the "BORROWERS"), the
financial institutions from time to time parties thereto as lenders thereunder
("LENDERS") and LaSalle Bank National Association, a national banking
association, in its capacity as Agent for the Lenders, hereby gives you notice,
for and on behalf of the Borrowers, irrevocably, pursuant to SECTION 2.2.4 of
the Credit Agreement, that the Funds Administrator, for and on behalf of the
Borrowers, hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"PROPOSED BORROWING") as required by SECTION 2.2.4 of the Credit Agreement:
(I) The requested date of the Proposed Borrowing is _________________.
(II) The Type of Revolving Loans comprising the Proposed Borrowing are
[BASE RATE] [LIBOR RATE] Loans.
(III) The aggregate amount of the Proposed Borrowing is $__________.
(IV) The Interest Period for each Revolving Loan comprising the Proposed
Borrowing is _________. [ONLY IN THE CASE OF A PROPOSED BORROWING
CONSISTING OF LIBOR RATE LOANS]
A-1
The Funds Administrator, for and on behalf of the Borrowers, hereby (I)
represents and warrants that all of the conditions contained in SECTION 5.2 of
the Credit Agreement have been satisfied on and as of the date hereof, and will
continue to be satisfied on and as of the date of the Proposed Borrowing, before
and after giving effect thereto and to the application of the proceeds thereof;
and (II) reaffirms the continuance of Agent's Liens on the Collateral, for the
benefit of Agent and Lenders, pursuant to the Collateral Documents.
If notice of this Proposed Borrowing has been given previously by
telephone, then this notice should be considered a written confirmation of such
telephone notice as required by SECTION 2.2.4 of the Credit Agreement.
IN WITNESS WHEREOF, the Funds Administrator has caused this Notice of
Borrowing to be executed and delivered, for and on behalf of the Borrowers, by a
duly authorized officer of the Funds Administrator as of the date first set
forth above.
METAL MANAGEMENT, INC., a Delaware
corporation, in its capacity
as Funds Administrator
BY:
------------------------------------
NAME:
----------------------------------
TITLE:
---------------------------------
A-2
EXHIBIT B
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 9, 2006
FORM OF REVOLVING NOTE
$______________ ______ ___, 2006
FOR VALUE RECEIVED, each of the undersigned CIM TRUCKING, INC., an Illinois
corporation, MTLM ARIZONA, INC., an Arizona corporation, METAL MANAGEMENT
AEROSPACE, INC., a Delaware corporation, METAL MANAGEMENT ALABAMA, INC., a
Delaware corporation, METAL MANAGEMENT ARIZONA, L.L.C., an Arizona limited
liability company, METAL MANAGEMENT CONNECTICUT, INC., a Delaware corporation,
METAL MANAGEMENT, INC., a Delaware corporation, METAL MANAGEMENT INDIANA, INC.,
an Illinois corporation, METAL MANAGEMENT XXXXXXX, L.L.C., a Delaware limited
liability company, METAL MANAGEMENT MEMPHIS, L.L.C., a Tennessee limited
liability company, METAL MANAGEMENT MIDWEST, INC., an Illinois corporation,
METAL MANAGEMENT MISSISSIPPI, INC., a Delaware corporation, METAL MANAGEMENT NEW
HAVEN, INC., a Delaware corporation, METAL MANAGEMENT NORTHEAST, INC., a New
Jersey corporation, METAL MANAGEMENT OHIO, INC., an Ohio corporation, METAL
MANAGEMENT PITTSBURGH, INC., a Delaware corporation, METAL MANAGEMENT PROLER
SOUTHWEST, INC., a Delaware corporation, METAL MANAGEMENT S&A HOLDINGS, INC., a
Delaware corporation, METAL MANAGEMENT WEST, INC., a Colorado corporation, METAL
MANAGEMENT WEST COAST HOLDINGS, INC., a Delaware corporation, NAPORANO IRON &
METAL, INC., a Delaware corporation, PROLER SOUTHWEST GP, INC., a Delaware
corporation, PROLER SOUTHWEST LP, a Texas limited partnership, and RESERVE IRON
& METAL LIMITED PARTNERSHIP, a Delaware limited partnership (collectively, the
"BORROWERS"), jointly and severally promise to pay to the order of
[_____________________], at c/o LaSalle Bank National Association, in its
capacity as agent (in such capacity, the "AGENT"), 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 (the "PAYMENT OFFICE"), in lawful money of the United
States of America and in immediately available funds, the principal amount of
[________________] AND [___]/100 DOLLARS ($______________), or such lesser
amount as may then constitute the unpaid aggregate principal amount of the
Revolving Loans made by such Person, on the Expiration Date or such earlier date
as this Revolving Note may become due in accordance with the terms of the Credit
Agreement referred to below. Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings assigned thereto in the Credit
Agreement.
B-1
The Borrowers further agree to pay, on a joint and several basis, interest
at the Payment Office, in like money, on the unpaid principal amount owing
hereunder from time to time from the date hereof on the dates and at the rates
specified in and calculated pursuant to ARTICLE IV of the Credit Agreement.
If any payment on this Revolving Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day, and with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
This Revolving Note is a Revolving Note referred to in and executed and
delivered pursuant to that certain Amended and Restated Credit Agreement dated
as of May 9, 2006 (as the same may be amended, restated, supplemented, extended
or otherwise modified and in effect from time to time, the "CREDIT AGREEMENT"),
among the Borrowers, Metal Management, Inc., a Delaware corporation, in its
capacity as borrowing agent and funds administrator for the Borrowers, the
Lenders and the Agent, to which reference is hereby made for a statement of the
terms and conditions under which the Revolving Loans evidenced hereby are to be
made and repaid.
This Revolving Note is secured by certain Collateral Documents. Reference
is made to such Collateral Documents and to the Credit Agreement for the terms
and conditions governing the Collateral which secures the Obligations.
Each Borrower (and each endorser, guarantor or surety hereof) hereby waives
presentment, demand, protest and notice of any kind. No failure to exercise and
no delay in exercising any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS REVOLVING NOTE SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS
OF THE STATE OF ILLINOIS.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
B-2
IN WITNESS WHEREOF, each Borrower has caused this Revolving Note to be
executed and delivered by such Borrower's duly authorized officer or similar
representative as of the date first set forth above.
CIM TRUCKING, INC.
MTLM ARIZONA, INC.
METAL MANAGEMENT AEROSPACE, INC.
METAL MANAGEMENT ALABAMA, INC.
METAL MANAGEMENT ARIZONA, L.L.C.
METAL MANAGEMENT CONNECTICUT, INC.
METAL MANAGEMENT, INC.
METAL MANAGEMENT INDIANA, INC.
METAL MANAGEMENT XXXXXXX, L.L.C.
METAL MANAGEMENT MEMPHIS, L.L.C.
METAL MANAGEMENT MIDWEST, INC.
METAL MANAGEMENT MISSISSIPPI, INC.
METAL MANAGEMENT NEW HAVEN, INC.
METAL MANAGEMENT NORTHEAST, INC.
METAL MANAGEMENT OHIO, INC.
METAL MANAGEMENT PITTSBURGH, INC.
METAL MANAGEMENT PROLER SOUTHWEST, INC.
METAL MANAGEMENT S&A HOLDINGS, INC.
METAL MANAGEMENT WEST, INC.
METAL MANAGEMENT WEST COAST HOLDINGS, INC.
NAPORANO IRON & METAL, INC.
PROLER SOUTHWEST GP, INC.
By:
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
RESERVE IRON & METAL LIMITED PARTNERSHIP
By: METAL MANAGEMENT OHIO, INC.,
its general partner
By:
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
PROLER SOUTHWEST LP
By: PROLER SOUTHWEST GP, INC.,
its general partner
By:
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
B-3
EXHIBIT C
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 9, 2006
FORM OF LETTER OF CREDIT REQUEST
Dated: _____(1)_______
LASALLE BANK NATIONAL ASSOCIATION
as Agent for the Lenders
parties to the Credit
Agreement referred to below
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Issuing Bank: [ ______________(2)/______________ ]
[ Address ]
Ladies and Gentlemen:
The undersigned, Metal Management, Inc., a Delaware corporation
(individually, "MTLM"), in its capacity as borrowing agent and funds
administrator (in such capacity, the "FUNDS ADMINISTRATOR"), under the Amended
and Restated Credit Agreement dated as of May 9, 2006 (as the same may be
amended, restated, supplemented, extended or otherwise modified and in effect
from time to time, the "CREDIT AGREEMENT"; capitalized terms used herein but not
elsewhere defined herein shall have the respective meanings ascribed to such
terms in the Credit Agreement), among the Funds Administrator, MTLM and certain
of its affiliates as borrowers thereunder (collectively, the "BORROWERS"), the
financial institutions from time to time parties thereto as lenders thereunder
("LENDERS") and LaSalle Bank National Association, a national banking
association, in its capacity as Agent for the Lenders, hereby gives you notice,
for and on behalf of the Borrowers, irrevocably, pursuant to SECTION 3.3(A) of
the Credit Agreement, that the Funds Administrator, for and on behalf of the
Borrowers, hereby requests the Agent to direct the Issuing Bank to issue a
[trade] [standby] Letter of Credit on ____(3)_____ in the aggregate Stated
Amount of $_____(4)_____ for the account of the Funds Administrator.
----------
(1) Insert date of Letter of Credit Request.
(2) Insert name/address of Issuing Bank.
(3) Insert date of issuance which shall be a Business Day at least five (5)
Business Days from the date of the Letter of Credit Request (or such
shorter period as is acceptable to the Agent).
(4) Insert aggregate initial Stated Amount of Letter of Credit.
C-1
The beneficiary of the requested Letter of Credit will be _______(5)_______
and such Letter of Credit will be in support of _____________(6)___________ and
will have a stated expiration date of _______(7)________.
The Funds Administrator, for and on behalf of the Borrowers, hereby (I)
represents and warrants that all of the conditions contained in SECTION 5.2 of
the Credit Agreement have been satisfied on and as of the date hereof, and will
continue to be satisfied on and as of the proposed date of issuance of the
requested Letter of Credit, before and after giving effect thereto and to the
application of the proceeds thereof; and (II) reaffirms the continuance of
Agent's Liens on the Collateral, for the benefit of Agent and Lenders, pursuant
to the Collateral Documents.
Copies of all documentation with respect to the supported transaction are
attached hereto.
METAL MANAGEMENT, INC., a Delaware
corporation, as Funds Administrator
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
----------
(5) Insert name and address of beneficiary.
(6) Insert brief description of supported transaction.
(7) Insert last date upon which drafts may be presented, which may not be later
than (i) in the case of standby Letters of Credit, twelve (12) months after
the date of issuance and (ii) in the case of trade Letters of Credit, one
hundred twenty (120) days after the date of issuance.
C-2
EXHIBIT D
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 9, 2006
FORM OF NOTICE OF CONTINUATION
____________, ____
LASALLE BANK NATIONAL ASSOCIATION,
as Agent for the Lenders
parties to the
Credit Agreement referred to below
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The undersigned, Metal Management, Inc., a Delaware corporation
(individually, "MTLM"), in its capacity as borrowing agent and funds
administrator (in such capacity, the "FUNDS ADMINISTRATOR"), under the Amended
and Restated Credit Agreement dated as of May 9, 2006 (as the same may be
amended, restated, supplemented, extended or otherwise modified and in effect
from time to time, the "CREDIT AGREEMENT"; capitalized terms used herein but not
elsewhere defined herein shall have the respective meanings ascribed to such
terms in the Credit Agreement), among the Funds Administrator, MTLM and certain
of its affiliates as borrowers thereunder (collectively, the "BORROWERS"), the
financial institutions from time to time parties thereto as lenders thereunder
("LENDERS") and LaSalle Bank National Association, a national banking
association, in its capacity as Agent for the Lenders, hereby gives you notice,
for and on behalf of the Borrowers, irrevocably, pursuant to SECTION 4.14.1 of
the Credit Agreement, that the Funds Administrator, for and on behalf of the
Borrowers, hereby requests a continuation of a Borrowing consisting of LIBOR
Rate Loans under the Credit Agreement, and in that connection sets forth below
the information relating to such continuation (the "PROPOSED CONTINUATION") as
required by SECTION 4.14.1 of the Credit Agreement:
(I) The requested date of the Proposed Continuation is __________________.
(II) The aggregate amount of Loans subject to such Proposed Continuation is
$______________.
(III) The duration of the new Interest Period for each Loan that is the
subject of such Proposed Continuation is: ___________________________.
D-1
The Funds Administrator, for and on behalf of itself and each of the
Borrowers, hereby certifies that on the date hereof, and on the date of the
Proposed Continuation, the Proposed Continuation satisfies all applicable
limitations with respect thereto set forth in the Credit Agreement.
- Remainder of Page Intentionally Left Blank -
[Signature Page Follows]
D-2
IN WITNESS WHEREOF, the Funds Administrator has caused this Notice of
Continuation to be executed and delivered by a duly authorized officer of such
Funds Administrator as of the date first set forth above.
METAL MANAGEMENT, INC., a Delaware
corporation, as Funds Administrator
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
X-0
XXXXXXX X-0
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 9, 2006
FORM OF NOTICE OF CONVERSION
____________, ____
LASALLE BANK NATIONAL ASSOCIATION,
as Agent for the Lenders
parties to the
Credit Agreement referred to below
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The undersigned, Metal Management, Inc., a Delaware corporation
(individually, "MTLM"), in its capacity as borrowing agent and funds
administrator (in such capacity, the "FUNDS ADMINISTRATOR"), under the Amended
and Restated Credit Agreement dated as of May 9, 2006 (as the same may be
amended, restated, supplemented, extended or otherwise modified and in effect
from time to time, the "CREDIT AGREEMENT"; capitalized terms used herein but not
elsewhere defined herein shall have the respective meanings ascribed to such
terms in the Credit Agreement), among the Funds Administrator, MTLM and certain
of its affiliates as borrowers thereunder (collectively, the "BORROWERS"), the
financial institutions from time to time parties thereto as lenders thereunder
("LENDERS") and LaSalle Bank National Association, a national banking
association, in its capacity as Agent for the Lenders, hereby gives you notice,
for and on behalf of the Borrowers, irrevocably, pursuant to SECTION 4.14.2 of
the Credit Agreement, that the Funds Administrator, for and on behalf of the
Borrowers, hereby requests a conversion of a Borrowing consisting of LIBOR Rate
Loans under the Credit Agreement, and in that connection sets forth below the
information relating to such conversion (the "PROPOSED CONVERSION") as required
by SECTION 4.14.2 of the Credit Agreement:
(I) The requested date of the Proposed Conversion is ____________________.
(II) The aggregate amount of Loans subject to such Proposed Conversion is
$______________.
(III) The duration of the new Interest Period for each Loan that is the
subject of such Proposed Conversion is: ____________________________.
D-1/1
The Funds Administrator, for and on behalf of itself and each of the
Borrowers, hereby certifies that on the date hereof, and on the date of the
Proposed Conversion, the Proposed Conversion satisfies all applicable
limitations with respect thereto set forth in the Credit Agreement.
- Remainder of Page Intentionally Left Blank -
[Signature Page Follows]
D-1/2
IN WITNESS WHEREOF, the Funds Administrator has caused this Notice of
Conversion to be executed and delivered by a duly authorized officer of such
Funds Administrator as of the date first set forth above.
METAL MANAGEMENT, INC., a Delaware
corporation, as Funds Administrator
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-1/3
EXHIBIT E
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 9, 2006
FORM OF COMPLIANCE CERTIFICATE
____________, ____
LASALLE BANK NATIONAL ASSOCIATION
Agent for the Lenders parties to the
Credit Agreement referred to below
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
In order to assist you, as Agent, in the continuing evaluation of the
credit accommodations which the Lenders may extend to the Borrowers or for the
Borrowers' benefit, and pursuant to SECTION 7.1 of the Credit Agreement (as
hereinafter defined), I hereby certify to you on behalf of Metal Management,
Inc. a Delaware corporation ("MTLM"), individually as a Borrower and in its
capacity as the Funds Administrator, for and on behalf of the Borrowers, as
follows:
(A) I am the duly elected Chief Financial Officer of MTLM. Capitalized but
undefined terms used in this Certificate shall have the meanings
assigned to them in the Amended and Restated Credit Agreement dated as
of May 9, 2006 (as the same may be amended, restated, supplemented,
extended or otherwise modified from time to time, the "CREDIT
AGREEMENT") among MTLM and certain of its affiliates, as borrowers
thereunder ("BORROWERS"), the financial institutions from time to time
parties thereto as lenders thereunder ("LENDERS"), LaSalle Bank
National Association, a national banking association in its capacity
as agent for the Lenders (in such capacity, the "AGENT") and MTLM in
its capacity as borrowing agent and funds administrator (in such
capacity, the "FUNDS ADMINISTRATOR").
(B) I have reviewed the terms of the Credit Agreement, and have made, or
have caused to be made under my supervision, a review in reasonable
detail of the respective transactions and the conditions of the
Borrowers during the period commencing _____________ and continuing
through the [FISCAL YEAR] [FISCAL QUARTER] ending _____________ (the
"COMPLIANCE PERIOD").
(C) The review described in paragraph (B) above did not disclose the
existence during or at the end of the Compliance Period, and I have no
knowledge of the existence as of the date hereof, of any condition or
event which constitutes an Event of Default or
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Default, except as hereinafter set forth. Described in a separate
attachment to this Certificate are the exceptions, if any, to this
paragraph (C) listing, in reasonable detail, the nature of the
condition or event, the period during which it has existed and the
action which the Borrowers have taken, are taking, or propose to take
with respect to such condition or event.
Based on the review described in paragraph (B) above, I further
certify on behalf of the Funds Administrator and the Borrowers that,
except as specifically described in subparagraph (XIII) below, at no
time during or at the end of the Compliance Period:
(I) did any material adverse change occur in any Borrower's
credit and collection policy;
(II) did any material adverse change occur relating to the type,
quantity or quality of the Inventory, Accounts or any other
material portion of the Collateral, nor did any event occur
which could have a Material Adverse Effect on the value of
such Collateral nor did any event occur affecting the
validity or priority of the security interests granted to
Agent and the Lenders in such Collateral;
(III) did any event occur which has had or could reasonably be
expected to have a Material Adverse Effect;
(IV) did any casualty loss occur since the date of the last
Compliance Certificate delivered to the Agent;
(V) were any new or additional locations of any Collateral
established at which locations Collateral is or will be
located which have not been previously disclosed to you;
(VI) did any of the Borrowers change the location of their
respective chief executive offices or their respective state
of organization, organizational number, name or type of
entity;
(VII) did any of the Borrowers change their respective corporate,
limited liability company, partnership or other names or
conduct any material amount of business under any corporate,
limited liability company, partnership or fictitious name
other than the respective names shown on their respective
articles or certificate of incorporation or other
constituent documents, or as previously disclosed to the
Agent in writing;
(VIII) did any Borrower (A) receive any notice that any of the
operations of such Borrower or any of its Subsidiaries is
the subject of any judicial or administrative proceeding
alleging the material violation of any federal, state or
local environmental, health or safety statute, regulation,
direction, ordinance, criteria or guideline or (B) receive
any notice that under any
E-2
federal or state law indicating past or present treatment,
storage or disposal of a hazardous or toxic waste, substance
or constituent or reporting a spill or release of a
hazardous or toxic waste, substance or constituent or other
substance into the environment;
(IX) did any Borrower become aware of (A) any default under any
term or provision of any charter, by-law, mortgage,
indenture, agreement, instrument, statute, rule, regulation,
judgment, decree, order, writ, injunction, contract, lease
or other commitment to which any of them is a party or by
which any of them is bound such that such violations or
defaults singly or in the aggregate could reasonably be
expected to have a Material Adverse Effect or (B) any
dispute regarding any indenture, contract, lease, agreement
instrument or other commitment which would individually, or
when aggregated with other such disputes, be reasonably
likely to have a Material Adverse Effect;
(X) did any Borrower create, assume or suffer to exist any Lien
on any asset now owned or hereafter acquired by it other
than as specifically permitted in the Credit Agreement;
(XI) did any Borrower receive, obtain or enter into any of the
following:
(1) any Documents, Chattel Paper, Instruments, Securities
or Investment Property constituting Collateral;
(2) any Commercial Tort Claim in excess of $50,000;
(3) any Letter of Credit Rights in excess of $150,000;
(4) any claim against the United States government or any
state or local government or any instrumentality or
agency thereof, in each case in excess of $50,000, the
assignment of which is restricted by federal, state or
municipal law;
(5) any Patent, Trademark or Copyright, the loss of which
would reasonably be expected to have a Material Adverse
Effect;
(6) any Material Contract; or
(7) any negotiable Document with respect to any Collateral;
(XII) did any Borrower enter into or make a Permitted Acquisition
or a Permitted Investment in Non-Majority Interest;
(XIII) [LIST EXCEPTIONS, IF ANY, TO PARAGRAPHS (I) THROUGH (XIII)
ABOVE].
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(D) I hereby certify and warrant to you that SCHEDULE I attached hereto is
a true and correct computation for the Compliance Period of the ratios
and/or financial restrictions contained in and pursuant to SECTIONS
8.1, 8.2 AND 8.7 of the Credit Agreement.
The foregoing certifications are made and delivered this _____ day of
________, ____.
Very truly yours,
METAL MANAGEMENT, INC., a Delaware
corporation, individually and in its
capacity as Funds Administrator
By:
------------------------------------
Name:
----------------------------------
Chief Financial Officer
E-4
EXHIBIT F
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 9, 2006
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
________________, ____
Reference is made to the Credit Agreement described in ITEM 2 of ANNEX I
annexed hereto (as amended through the date hereof, the "CREDIT AGREEMENT").
[ASSIGNOR] (the "ASSIGNOR") and [ASSIGNEE] (the "ASSIGNEE") agree as follows:
1. When capitalized and used herein, terms defined in the Credit Agreement
and not otherwise defined herein shall have the meanings ascribed to them in the
Credit Agreement.
2. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, that interest in and to all of
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof which represents the percentage interest specified in ITEM 4(B) of ANNEX
I of all outstanding rights and obligations under the Credit Agreement relating
to the facility set forth in ITEM 2 of ANNEX I, including, without limitation,
such interest in (I) the Assignor's Commitment, (II) the Assignor's interest in
the Letters of Credit and (III) the Revolving Loans owing to the Assignor
relating to such facilities. After giving effect to such sale and assignment,
the Assignee's Commitment and the amount of the Revolving Loans and obligations
in respect of Letters of Credit Outstanding owing to the Assignee will be as set
forth in ITEM 4 of ANNEX I.
3. The Assignor (I) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (II) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
of the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement, the Revolving Notes, or any other instrument
or document furnished pursuant thereto; and (III) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any of the Borrowers or the performance or observance by any of the Borrowers
of any of such Borrower's obligations under the Credit Agreement, the Revolving
Notes, or any other instrument or document furnished pursuant thereto.
4. The Assignee (I) represents that it is either (A) a Person organized
under the laws of the United States or a state thereof or (B) if it is a Person
organized under the laws of any jurisdiction other than the United States or any
state thereof (a "FOREIGN LENDER"), the information set forth in the documents
delivered pursuant to clause (VII) of this SECTION 4 is true and correct as of
F-1
the date hereof; (II) confirms that it is either a commercial lender, other
financial institution or "accredited investor" (as defined in Regulation D
promulgated under the Securities Act of 1933, as amended) which makes loans or
purchases notes in the ordinary course of business and that it will make all
Loans under the Credit Agreement solely for its own account in the ordinary
course of business and not with a view to or for sale in connection with any
distribution of the Revolving Notes; PROVIDED, HOWEVER, that (X) the Assignee
shall not be deemed to have breached this representation by making assignments
or granting participations as permitted in the Credit Agreement and (Y) the
disposition of the Revolving Notes, or other evidence of debt held by the
Assignee shall at all times be within its exclusive control; (III) confirms that
it has received a copy of the Credit Agreement, together with copies of the
financial statements referred to therein 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 Agreement; (IV) agrees
that it will independently and without reliance upon the 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 Credit Agreement; (V) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (VI) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a
Lender; and (VII) if it is a Foreign Lender, attaches two accurate and complete
original signed copies of forms prescribed by the Internal Revenue Service of
the United States certifying that such Foreign Lender is exempt from United
States withholding taxes with respect to all payments to be made to the Assignee
under the Credit Agreement.
5. Following the execution of this Assignment and Assumption Agreement by
the Assignor and the Assignee, it will be delivered to the Agent for acceptance
and recording by the Agent in the Register. The effective date of this
Assignment and Assumption Agreement shall be the date of execution and delivery
hereof to the Agent by the Assignor and the Assignee unless otherwise specified
on ITEM 6 of ANNEX I hereto (the "EFFECTIVE DATE").
6. Upon such acceptance by the Agent and recording by the Agent, as of the
Effective Date, (I) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Assumption Agreement, have the
rights and obligations of a Lender thereunder and (II) the Assignor shall, to
the extent provided in this Assignment and Assumption Agreement, relinquish its
rights and be released from its obligations under the Credit Agreement.
7. Upon such acceptance by the Agent and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the Credit
Agreement in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and fees (if applicable) with
respect thereto) to the Assignee. Upon the Effective Date, the Assignee shall
pay to the Assignor the principal amount of any outstanding Loans under the
Credit Agreement which are being assigned hereunder, net of any closing costs.
The Assignor and the Assignee shall make all appropriate adjustments in payments
under the Credit Agreement for periods prior to the Effective Date directly
between themselves on the Effective Date.
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8. This Assignment and Assumption Agreement shall be governed by, and
construed in accordance with, the internal laws (as opposed to conflict of laws
provisions) of the State of Illinois.
9. This Assignment and Assumption Agreement and any waiver or amendment
hereto may be executed in any number of counterparts and by the different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one
and the same instrument.
- REMAINDER OF PAGE INTENTIONALLY LEFT BLANK -
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement and ANNEX I hereto be executed by their respective officers
thereunto duly authorized, as of the date first above written.
[NAME OF ASSIGNOR], as Assignor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[NAME OF ASSIGNEE], as Assignee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted:
LASALLE BANK NATIONAL ASSOCIATION,
as Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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ANNEX I
1. Borrowers: METAL MANAGEMENT, INC., a Delaware
corporation, and its Subsidiaries
2. Name and Date of Credit Agreement: Amended and Restated Credit Agreement
dated as of May 9, 2006 among
Borrowers, Metal Management, Inc, as
funds administrator for the
Borrowers, each of the financial
institutions initially a signatory
thereto as a Lender thereunder,
together with those assignees thereof
pursuant to SECTION 11.8, and LaSalle
Bank National Association, as Agent.
3. Date of Assignment Agreement: __________, __
4. Amounts (as of Date in Item #3
above):
a. Commitment $__________
b. Assigned Percentage __________%
c. Amount of Assigned Commitment $__________
d. Aggregate Amounts Outstanding
as of the Assignment Effective
Date (of Assignor) $__________
e. Aggregate Amounts Assigned to
Assignee $__________
5. Assignee's Commitment Amount: $__________
6. Effective Date: __________, __
7. Notice and Payment Instructions:
ASSIGNOR:
PAYMENT NOTICE
----------------------------------- -------------------------------------
----------------------------------- -------------------------------------
----------------------------------- -------------------------------------
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Attention: Attention:
------------------------ --------------------------
Reference: Telephone:
------------------------ --------------------------
Facsimile:
--------------------------
Reference:
--------------------------
ASSIGNEE:
PAYMENT NOTICE
----------------------------------- -------------------------------------
----------------------------------- -------------------------------------
----------------------------------- -------------------------------------
Attention: Attention:
------------------------ --------------------------
Reference: Telephone:
------------------------ --------------------------
Facsimile:
--------------------------
Reference:
--------------------------
Accepted and Agreed:
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
------------------------------------ ---------------------------------
Name: Name:
---------------------------------- -------------------------------
Title: Title:
--------------------------------- ------------------------------
F-6
EXHIBIT G
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 9, 2006
FORM OF COMMITMENT AMOUNT INCREASE REQUEST
_______________, ____
LASALLE BANK NATIONAL ASSOCIATION,
as Agent for the Lenders
parties to the Credit
Agreement referred to below
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Amended and Restated Credit Agreement dated as of May 9, 2006 (as the same
may be amended, restated, supplemented, extended or otherwise modified from
time to time, the "CREDIT AGREEMENT") among Metal Management, Inc., a
Delaware Corporation ("MTLM") and certain of its affiliates, as borrowers
thereunder ("BORROWERS"), the financial institutions from time to time
parties thereto as lenders thereunder ("LENDERS"), LaSalle Bank National
Association, a national banking association in its capacity as agent for
the Lenders (in such capacity, the "AGENT") and MTLM in its capacity as
borrowing agent and funds administrator (in such capacity, the "FUNDS
ADMINISTRATOR").
Ladies and Gentlemen:
In accordance with the Credit Agreement, the Funds Administrator hereby
requests that the Agent consent to an increase in the aggregate Commitments (the
"COMMITMENT AMOUNT INCREASE"), in accordance with Section 2.8 of the Credit
Agreement, to be effected by [AN INCREASE IN THE COMMITMENT OF [NAME OF EXISTING
LENDERS] [THE ADDITION OF [NAME OF NEW LENDER] (THE "NEW LENDER") AS A LENDER
UNDER THE TERMS OF THE CREDIT AGREEMENT]. Capitalized terms used herein without
definition shall have the same meanings herein as such terms have in the Credit
Agreement.
After giving effect to such Commitment Amount Increase, the Commitment of
the [LENDERS] [NEW LENDER] shall be $_____________.
[INCLUDE PARAGRAPHS 1-4 FOR A NEW LENDER]
1. The New Lender hereby confirms that it has received a copy of the Credit
Documents and the exhibits related thereto, together with copies of the
documents which were required to be delivered under the Credit Agreement as a
condition to the making of the
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Revolving Loans and any other extensions of credit thereunder. The New Lender
acknowledges and agrees that it has made and will continue to make,
independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it has deemed appropriate, its own credit
analysis and decisions relating to the Credit Agreement. The New Lender further
acknowledges and agrees that the Agent has not made any representations or
warranties about the credit worthiness of the Borrowers or any other party to
the Credit Agreement or any other Credit Document or with respect to the
legality, validity, sufficiency or enforceability of the Credit Agreement or any
other Credit Documents or the value of any security therefor.
2. Except as otherwise provided in the Credit Agreement, effective as of
the date of acceptance hereof by the Agent, the New Lender (i) shall be deemed
automatically to have become a party to the Credit Agreement and have all the
rights and obligations of a "Lender" under the Credit Agreement as if it were an
original signatory thereto and (ii) agrees to be bound by the terms and
conditions set forth in the Credit Agreement as if it were an original signatory
thereto.
3. The New Lender hereby advises you of the following administrative
details with respect to its Revolving Loans and Commitments:
(A) Notices: ____________________________________
Institution Name: ___________________________
Address: ____________________________________
____________________________________
Telephone: __________________________________
Facsimile: __________________________________
(B) Payment Instructions: _______________________
[4. THE NEW LENDER HAS DELIVERED, IF APPROPRIATE, TO THE BORROWERS AND THE
AGENT (OR IS DELIVERING TO THE BORROWERS AND THE AGENT CONCURRENTLY HEREWITH)
THE TAX FORMS REFERRED TO IN SECTION 4.17 OF THE CREDIT AGREEMENT.]*
THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACTUAL OBLIGATION UNDER, AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF ILLINOIS.
The Commitment Amount Increase shall be effective when the executed consent
of the Agent is received or otherwise in accordance with Section 2.8 of the
Credit Agreement, but not in any case prior to ___________________, ____. It
shall be a condition to the effectiveness of the Commitment Amount Increase that
all expenses referred to in Section 2.8 of the Credit Agreement shall have been
paid.
----------
* Insert bracketed paragraph if New Lender is organized under the law of a
jurisdiction other than the United States of America or a state thereof.
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The Borrower hereby certifies that no Default or Event of Default has
occurred and is continuing.
Please indicate the Agent's consent to such Commitment Amount Increase by
signing the enclosed copy of this letter in the space provided below.
Very truly yours,
METAL MANAGEMENT, INC., a Delaware
corporation, as Funds Administrator
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[NEW BANK/BANK INCREASING COMMITMENTS]
By:
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
The undersigned hereby consents on
this __ day of _____________, _____
to the above-requested Commitment
Amount Increase.
LASALLE BANK NATIONAL ASSOCIATION,
as Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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EXHIBIT H
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 9, 2006
FORM OF JOINDER
THIS JOINDER (this "Joinder") is executed as of _________, 200__ by
____________ _____________, a _______________________ ("Joining Party"), and
delivered to LaSalle Bank National Association, as Agent (the "Agent"), on
behalf of the Lenders set forth below. Except as otherwise defined herein, terms
used herein shall have the respective meanings set forth in the Credit Agreement
(as defined below).
WITNESSETH:
WHEREAS, Metal Management, Inc., a Delaware corporation ("MTLM"), and its
subsidiaries party thereto (collectively, the "Borrowers"), together with MTLM
in its capacity as Funds Administrator thereunder ("Funds Administrator"), have
entered into an Amended and Restated Credit Agreement dated as of May 9, 2006
(as it may be amended, supplemented, restated or modified from time to time, the
"Credit Agreement") with Agent and the financial institutions party thereto
("Lenders");
WHEREAS, in connection with the Credit Agreement, (i) the Borrowers have
issued certain Revolving Notes to the order of each of the Lenders (as amended,
modified, supplemented or replaced from time to time, the "Revolving Notes"),
(ii) the Borrowers have entered into an Amended and Restated Security Agreement,
dated as of even date therewith (as amended, modified or supplemented from time
to time, the "Security Agreement"), and (iii) the Borrowers and the Funds
Administrator have entered into a certain Amended and Restated Master Letter
from time to time (the "Master Letter of Credit Agreement"); and
WHEREAS, the Joining Party is a direct or indirect Subsidiary of MTLM and
desires, or is required pursuant to the provisions of the Credit Agreement, to
become a Borrower under the terms of the Credit Agreement and the Revolving
Notes, a Grantor under the terms of the Security Agreement and an Applicant
under the terms of the Master Letter of Credit Agreement.
NOW THEREFORE, in consideration of the foregoing and other benefits
accruing to the Joining Party, the receipt and sufficiency of which are hereby
acknowledged, the Joining Party hereby makes the following representations and
warranties to the Agent and the Lenders and hereby covenants and agrees with the
Agent and the Lenders as follows:
1, By this Joinder, the Joining Party becomes (i) a Borrower for all
purposes under the Credit Agreement and each of the Revolving Notes, (ii) a
Grantor for all purposes under the Security Agreement, and (iii) an Applicant
for all purposes under the Master Letter of Credit Agreement.
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2. The Joining Party agrees that, upon its execution hereof, it (i) will
become a Borrower under, and as defined in, the Credit Agreement and the
Revolving Notes with respect to all Obligations and Rate Management Obligations
(as such terms are defined in the Credit Agreement) and will be bound by all
terms, conditions and duties applicable to a Borrower under the Credit Agreement
and the Revolving Notes, (ii) will become a Grantor under, and as defined in,
the Security Agreement, and will be bound by all terms, conditions and duties
applicable to a Grantor under the Security Agreement, (iii) will become an
Applicant under, and as defined in, the Master Letter of Credit Agreement, and
will be bound by all terms, conditions and duties applicable to an Applicant
under the Master Letter of Credit Agreement, and (iv) will join each of the
other Credit Documents in a similar capacity and be bound thereby.
3. Without limitation of the foregoing and in furtherance thereof, as
security for the due and punctual payment of the Obligations and Rate Management
Obligations (as such terms are defined in the Credit Agreement), the Joining
Party hereby pledges, hypothecates, assigns, transfers, sets over and delivers
to the Agent, for its own benefit and the benefit of the Lenders, and grants to
the Agent, for its own benefit and the benefit of the Lenders, a security
interest in all Collateral (as defined in the Security Agreement) now owned or
hereafter acquired by it.
4. In connection with the grant by the Joining Party, pursuant to paragraph
3 above, of a security interest in all of its right, title and interest in the
Collateral (as defined in the Security Agreement) in favor of the Agent, for its
own benefit and the benefit of the Lenders, the Joining Party (i) agrees to
execute (if necessary) and deliver to the Agent such financing statements, in
form acceptable to the Agent, as the Agent may request or as are necessary or
desirable in the opinion of the Agent to establish and maintain a valid,
enforceable, first priority perfected security interest in the Collateral (as
defined in the Security Agreement) owned by the Joining Party, (ii) authorizes
the Agent to file any such financing statements without the signature of the
Joining Party where permitted by law (such authorization includes a description
of the Collateral as "all personal property, whether now owned and/or hereafter
acquired, excluding all equipment, fixtures and real estate" (or any
substantially similar variation thereof) and (iii) agrees to execute and deliver
to the Agent assignments of United States trademarks, patents and copyrights
(and the respective applications therefor) to the extent requested by the Agent.
5. Without limiting the foregoing, the Joining Party hereby makes and
undertakes, as the case may be, each covenant, representation and warranty made
by, and as (i) each Borrower pursuant to the Credit Agreement, (ii) each Grantor
pursuant to the Security Agreement and, (iii) each Applicant pursuant to the
Master Letter of Credit Agreement, in each case as of the date hereof (except to
the extent any such representation or warranty relates solely to an earlier date
in which case such representation and warranty shall be true and correct as of
such earlier date).
6. Each of Schedule B, Parts 6.1, 6.10 (a) and 6.10 (b) of the Credit
Agreement is hereby amended by supplementing such Parts with the information for
the Joining Party contained on Schedule B, Parts 6.1, 6.10 (a) and 6.10 (b)
attached hereto as Annex I.
7. This Joinder shall be binding upon the parties hereto and their
respective successors and permitted assigns and shall inure to the benefit of
and be enforceable by each of the parties hereto and its successors and
permitted assigns, provided, however, the Joining Party
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may not assign any of its rights, obligations or interest hereunder or under the
Credit Agreement or other Credit Documents without the prior written consent of
the Agent or as otherwise permitted by the Credit Agreement. THIS JOINDER SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS
AND DECISIONS OF THE STATE OF ILLINOIS. This Joinder may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall constitute one instrument. In the event that any provision of this Joinder
shall prove to be invalid or unenforceable, such provision shall be deemed to be
severable from the other provisions of this Joinder which shall remain binding
on all parties hereto.
8. From and after the execution and delivery hereof by the parties hereto,
this Joinder shall constitute a "Credit Document" for all purposes of the Credit
Agreement and the other Credit Documents.
9. The effective date of this Joinder is _____________, 200__.
* * *
IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be duly
executed as of the date first above written.
JOINING PARTY:
----------------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted and Acknowledged by:
LASALLE BANK NATIONAL ASSOCIATION,
as Agent
By:
--------------------------------
Name:
-------------------------------
Title:
------------------------------
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SCHEDULE A
TO AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 9, 2006
CLOSING DOCUMENT LIST
Legend:
Funds Administrator: Metal Management, Inc. ("MTLM")
Borrowers: CIM Trucking, Inc. ("CIM")
MTLM Arizona, Inc. ("MTLM Arizona")
Metal Management Aerospace, Inc. ("MTLM Aerospace")
Metal Management Alabama, Inc. ("MTLM Alabama")
Metal Management Arizona, L.L.C. ("MTLM Arizona LLC")
Metal Management Connecticut, Inc. ("MTLM Connecticut")
Metal Management, Inc. ("MTLM")
Metal Management Indiana, Inc. ("MTLM Indiana")
Metal Management Xxxxxxx, L.L.C. ("MTLM Jackson")
Metal Management Memphis, L.L.C. ("MTLM Memphis")
Metal Management Midwest, Inc. ("MTLM Midwest")
Metal Management Mississippi, Inc. ("MTLM Mississippi")
Metal Management New Haven, Inc. ("MTLM New Haven")
Metal Management Northeast, Inc. ("MTLM Northeast")
Metal Management Ohio, Inc. ("MTLM Ohio")
Metal Management Pittsburgh, Inc. ("MTLM Pittsburgh")
Metal Management Proler Southwest, Inc. ("MTLM Proler Southwest")
Metal Management S&A Holdings, Inc. ("MTLM S&A Holdings")
Metal Management West, Inc. ("MTLM West")
Metal Management West Coast Holdings, Inc. ("MTLM West Coast
Holdings")
Naporano Iron & Metal, Inc. ("Naporano")
Proler Southwest GP, Inc. ("Proler Southwest GP")
Proler Southwest LP ("Proler Southwest LP")
Reserve Iron & Metal Limited Partnership ("Reserve")
Agent: LaSalle Bank National Association (the "Agent")
Lenders: LaSalle Bank National Association ("LBNA")
Charter One Bank, N.A.
Sovereign Bank
PNC Bank National Association
National City Bank of the Midwest
U.S. Bank, National Association
Key Bank National Association
Fifth Third Bank (Chicago)
Associated Bank, N.A.
Regions Bank
1. Credit Agreement
Annex I List of Lenders; Commitment Amounts; Applicable
Lending Offices
Annex II Pricing Schedule
Schedule A Closing Document List
Schedule B Disclosure Schedules
Schedule B, Part 1.1 Existing Letters of Credit
Schedule B, Part 6.1 Jurisdictions In Which Qualified
Schedule B, Part 6.9 Contingent Obligations And Other Liabilities
Schedule B, Part 6.10(a) Chief Executive Offices
Schedule B, Part 6.10(b) Locations Of Collateral
Schedule B, Part 6.11 Subsidiaries
Schedule B, Part 6.12 Litigation
Schedule B, Part 6.14 Labor Matters
Schedule B, Part 6.15 Compliance With Laws Matters
Schedule B, Part 6.16 Benefit Plans
Schedule B, Part 6.17 Environmental Matters
Schedule B, Part 6.20 Tax Matters; Tax Sharing Agreements
Schedule B, Part 6.21 Material Contracts
Schedule B, Part 8.3 Certain Existing Indebtedness
Schedule B, Part 8.4 Certain Existing Liens
Schedule B, Part 8.8(g) Certain Existing Investments
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Revolving Note
Exhibit C Form of Letter of Credit Request
Exhibit D Form of Notice of Continuation
Exhibit D-1 Form of Notice of Conversion
Exhibit E Form of Compliance Certificate
Exhibit F Form of Assignment And Assumption Agreement
Exhibit G Form of Commitment Amount Increase Request
Exhibit H Form of Joinder
2. Revolving Notes, by Borrowers to the order of:
(a) LaSalle Bank National Association
(b) Charter One Bank, N.A.
(c) Sovereign Bank
(d) PNC Bank National Association
(e) National City Bank of the Midwest
(f) U.S. Bank, National Association
(g) Key Bank National Association
(h) Fifth Third Bank (Chicago)
(i) Associated Bank, N.A.
(j) Regions Bank
2
3. Amended and Restated Security Agreement, by and between Borrowers and Agent
4. Amended and Restated Master Letter of Credit Agreement by Borrowers to LBNA
5. Evidence of the filing of the following UCC-1 Financing Statements:
(a) CIM (Illinois SOS)
(b) MTLM Arizona (Arizona SOS)
(c) MTLM Aerospace (Delaware SOS)
(d) MTLM Alabama (Delaware SOS)
(e) MTLM Arizona LLC (Arizona SOS)
(f) MTLM Connecticut (Delaware SOS)
(g) MTLM (Delaware SOS)
(h) MTLM Indiana (Illinois SOS)
(i) MTLM Xxxxxxx (Delaware SOS)
(j) MTLM Memphis (Tennessee SOS)
(k) MTLM Midwest (Illinois SOS)
(l) MTLM Mississippi (Delaware SOS)
(m) MTLM New Haven (Delaware SOS)
(n) MTLM Northeast (New Jersey SOS)
(o) MTLM Ohio (Ohio SOS)
(p) MTLM Pittsburgh (Delaware SOS)
(q) MTLM Proler Southwest (Delaware SOS)
(r) MTLM S&A Holdings (Delaware SOS)
(s) MTLM West (Colorado SOS)
(t) MTLM West Coast Holdings (Delaware SOS)
(u) Naporano (Delaware SOS)
(v) Proler Southwest GP (Delaware SOS)
(w) Proler Southwest LP (Texas SOS)
(x) Reserve (Delaware SOS)
6. Evidence of the delivery to Agent of the following stock certificates (or
certificates of limited partnership interest), together with undated stock
powers or equivalent in blank:
(a) CIM
(b) MTLM Arizona
(c) MTLM Aerospace
(d) MTLM Alabama
(e) MTLM Connecticut
(f) MTLM Indiana
(g) MTLM Midwest
(h) MTLM Mississippi
(i) MTLM New Haven
(j) MTLM Northeast
(k) MTLM Ohio
(l) MTLM Pittsburgh
(m) MTLM Proler Southwest
(n) MTLM S&A Holdings
(o) MTLM West
(p) MTLM West Coast Holdings
3
(q) Naporano
(r) Proler Southwest GP
(s) Proler Southwest LP
7. Secretary's Certificate or equivalent of each Borrower as to: (i) articles
of incorporation/certificates of formation (or equivalent);(ii)
bylaws/operating agreements/partnership agreements, as applicable; (iii)
good standing certificates (iv) authorizing resolutions and (v) incumbency:
(a) CIM
(b) MTLM Arizona
(c) MTLM Aerospace
(d) MTLM Alabama
(e) MTLM Arizona LLC
(f) MTLM Connecticut
(g) MTLM
(h) MTLM Indiana
(i) MTLM Jackson
(j) MTLM Memphis
(k) MTLM Midwest
(l) MTLM Mississippi
(m) MTLM New Haven
(n) MTLM Northeast
(o) MTLM Ohio
(p) MTLM Pittsburgh
(q) MTLM Proler Southwest
(r) MTLM S&A Holdings
(s) MTLM West
(t) MTLM West Coast Holdings
(u) Naporano
(v) Proler Southwest GP
(w) Proler Southwest LP
(x) Reserve
8. Good standing certificates or equivalent from each Borrower's state of
formation and certificates of foreign qualification or equivalent from each
other state in which such Borrower is qualified:
(a) CIM (Illinois)
(b) MTLM Arizona (Arizona)
(c) MTLM Aerospace (Delaware) (Connecticut)
(d) MTLM Alabama (Delaware) (Alabama)
(e) MTLM Arizona LLC (Arizona)
(f) MTLM Connecticut (Delaware) (Connecticut)
(g) MTLM (Delaware) (Illinois) (New York)
(h) MTLM Indiana (Illinois) (Indiana)
(i) MTLM Jackson (Delaware) (Mississippi)
(j) MTLM Memphis (Tennessee)
(k) MTLM Midwest (Illinois) (Kentucky)
(l) MTLM Mississippi (Delaware) (Arkansas) (Mississippi)
4
(m) MTLM New Haven (Delaware) (Connecticut)
(n) MTLM Northeast (New Jersey) (New York) (Kentucky)
(o) MTLM Ohio (Ohio)
(p) MTLM Pittsburgh (Delaware) (Pennsylvania)
(q) MTLM Proler Southwest (Delaware)
(r) MTLM S&A Holdings (Delaware)
(s) MTLM West (Colorado) (Utah)
(t) MTLM West Coast Holdings (Delaware)
(u) Naporano (Delaware) (New York) (New Jersey)
(v) Proler Southwest GP (Delaware) (Texas)
(w) Proler Southwest LP (Texas)
(x) Reserve (Delaware)
9. Charter Documents from each Borrower's state of formation as certified by
the Secretary of State or other applicable state official:
(a) CIM (Illinois)
(b) MTLM Arizona (Arizona)
(c) MTLM Aerospace (Delaware)
(d) MTLM Alabama (Delaware)
(e) MTLM Arizona LLC (Arizona)
(f) MTLM Connecticut (Delaware)
(g) MTLM (Delaware)
(h) MTLM Indiana (Illinois)
(i) MTLM Xxxxxxx (Delaware)
(j) MTLM Memphis (Tennessee)
(k) MTLM Midwest (Illinois)
(l) MTLM Mississippi (Delaware)
(m) MTLM New Haven (Delaware)
(n) MTLM Northeast (New Jersey)
(o) MTLM Ohio (Ohio)
(p) MTLM Pittsburgh (Delaware)
(q) MTLM Proler Southwest (Delaware)
(r) MTLM S&A Holdings (Delaware)
(s) MTLM West (Colorado)
(t) MTLM West Coast Holdings (Delaware)
(u) Naporano (Delaware)
(v) Proler Southwest GP (Delaware)
(w) Proler Southwest LP (Texas)
(x) Reserve (Delaware)
10. Officers' Certificate of MTLM and the other Borrowers
11. Depository Account Agreement
12. Legal Opinions of Borrowers' Counsel:
(a) Delaware Counsel
(b) Texas Counsel
(c) New Jersey Counsel
(d) Illinois Counsel
5
13. Perfection Certificate
14. Lien Searches
15. Evidence of Insurance
6
SCHEDULE B, PART 1.1
EXISTING LETTERS OF CREDIT
LETTER OF LETTER OF
EFFECTIVE CREDIT CREDIT EXPIRATION
DATE NUMBER TYPE BENEFICIARY SUBSIDIARY DATE AMOUNT
--------- --------- --------- ------------------ -------------- ---------- -------------
04/01/03 S571379 Standby Royal Indemnity MTLM Corporate 01/01/07 $ 500,000.00
Company
07/28/99 S571183 Standby The Trust Company MTLM Ohio 08/14/06 $ 222,000.00
of Toledo
04/01/04 S571027 Standby ACE American MTLM Corporate 04/01/07 $3,506,884.00(1)
Insurance
04/28/05 S579065 Standby The Port Authority MTLM Northeast 04/30/07 $1,900,000.00
of New York & New
Jersey
04/25/05 S578820 Standby The Port Authority MTLM Northeast 04/30/07 $ 100,000.00
of New York & New
Jersey
-------------
Total $6,228,884.00
=============
----------
(1) This Letter of Credit steps up quarterly. This number is correct until July
4, 2006. As of January 1, 2007, it will be $4,294,384.
SCHEDULE B, PART 6.1
JURISDICTIONS QUALIFIED TO DO BUSINESS
1. Metal Management Aerospace, Inc. (Delaware) Connecticut
2. Metal Management Alabama, Inc. (Delaware) Alabama
3. Metal Management Arizona, L.L.C. (Arizona) None
4. Metal Management Connecticut, Inc. (Delaware) Connecticut
5. Metal Management Mississippi, Inc. (Delaware) Arkansas
Mississippi
6. Reserve Iron & Metal Limited Partnership (Delaware) None
7. Metal Management Indiana, Inc. (Illinois) Indiana
8. Metal Management Memphis, L.L.C. (Tennessee) None
9. Metal Management Midwest, Inc. (Illinois) Kentucky
10. CIM Trucking, Inc. (Illinois) None
11. Metal Management Jackson, L.L.C. (Delaware) Mississippi
12. Metal Management New Haven, Inc. (Delaware) Connecticut
13. Metal Management Northeast, Inc. (New Jersey) New York
Kentucky
14. Metal Management Ohio, Inc. (Ohio) None
15. Metal Management Pittsburgh, Inc. (Delaware) Pennsylvania
16. Metal Management S&A Holdings, Inc. (Delaware) None
17. Naporano Iron & Metal, Inc. (Delaware) New York
New Jersey
18. Proler Southwest LP (Texas) None
19. Metal Management West Coast Holdings, Inc. (Delaware) None
20. Metal Management West, Inc. (Colorado) Utah
21. MTLM Arizona, Inc. (Arizona) None
22. Metal Management, Inc. (Delaware) Illinois
New York
23. Metal Management Proler Southwest, Inc. (Delaware) None
24. Proler Southwest GP, Inc. (Delaware) Texas
SCHEDULE B, PART 6.9
CONTINGENT OBLIGATIONS AND OTHER LIABILITIES
See Schedule B, Part 6.12 and Schedule B, Part 6.17
1
SCHEDULE B, PART 6.10(A)
CHIEF EXECUTIVE OFFICES
METAL MANAGEMENT, INC., MTLM ARIZONA, INC., METAL MANAGEMENT S&A HOLDINGS, INC.,
METAL MANAGEMENT WEST COAST HOLDINGS, INC., AND METAL MANAGEMENT PROLER
SOUTHWEST, INC.
1. The Chief Executive Offices of Metal Management, Inc., MTLM Arizona, Inc.,
Metal Management S&A Holdings, Inc., Metal Management West Coast Holdings,
Inc., and Metal Management Proler Southwest, Inc. are located at 000 X.
XxXxxxx Xx., Xxx. 000, Xxxxxxx, Xxxxxxxx 00000.
METAL MANAGEMENT PITTSBURGH, INC.
1. The Chief Executive Office of Metal Management Pittsburgh, Inc. is located
at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000.
METAL MANAGEMENT AEROSPACE, INC.
1. The Chief Executive Office of Metal Management Aerospace, Inc. is located
at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000.
METAL MANAGEMENT ALABAMA, INC.
1. The Chief Executive Office of Metal Management Alabama, Inc. is located at
0000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000.
METAL MANAGEMENT CONNECTICUT, INC.
1. The Chief Executive Office of Metal Management Connecticut, Inc. is located
at 000 Xxxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxxx 00000.
METAL MANAGEMENT MEMPHIS, L.L.C.
1. The Chief Executive Office of Metal Management Memphis, L.L.C. is located
at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000.
METAL MANAGEMENT NEW HAVEN, INC.
1. The Chief Executive Office of Metal Management New Haven, Inc. is located
at 000 Xxxxxxxxxx Xxx., Xxx Xxxxx, Xxxxxxxxxxx 00000.
1
SCHEDULE B, PART 6.10(A)
CHIEF EXECUTIVE OFFICES
METAL MANAGEMENT NORTHEAST, INC. AND NAPORANO IRON & METAL, INC.
1. The Chief Executive Offices of Metal Management Northeast, Inc. and
Naporano Iron & Metal, Inc. are located at Foot of Xxxxxxx Xxxxxx, Xxxxxx,
Xxx Xxxxxx 00000.
METAL MANAGEMENT ARIZONA, L.L.C.
1. The Chief Executive Office of Metal Management Arizona, L.L.C., is located
at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
PROLER SOUTHWEST LP, PROLER SOUTHWEST GP, INC., AND METAL MANAGEMENT XXXXXXX,
L.L.C.
1. The Chief Executive Offices of Proler Southwest LP, Proler Southwest GP,
Inc. and Metal Management Xxxxxxx, L.L.C are located at 00 Xxxxxx Xxxx,
Xxxxxxx, Xxxxx 00000.
METAL MANAGEMENT WEST, INC.
1. The Chief Executive Office of Metal Management West, Inc. is located at
0000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
METAL MANAGEMENT MIDWEST, INC., CIM TRUCKING, INC. AND METAL MANAGEMENT INDIANA,
INC.
1. The Chief Executive Offices of Metal Management Midwest, Inc., CIM
Trucking, Inc., and Metal Management Indiana, Inc. are located at 0000 X.
Xxxxxxx Xxx., Xxxxxxx, Xxxxxxxx 00000
METAL MANAGEMENT MISSISSIPPI, INC.
1. The Chief Executive Office of Metal Management Mississippi, Inc. is located
at 000 X. Xxxxxxxx Xx., Xxx Xxxxxx, XX 00000.
METAL MANAGEMENT OHIO, INC. AND RESERVE IRON & METAL LIMITED PARTNERSHIP
1. The Chief Executive Offices of Metal Management Ohio, Inc. and Reserve Iron
& Metal Limited Partnership are located at 0000 X. 000xx Xx., Xxxxxxxxx,
Xxxx 00000.
SCHEDULE B, PART 6.10(B)
LOCATIONS OF COLLATERAL
METAL MANAGEMENT, INC.
A Delaware corporation
- Locations
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
METAL MANAGEMENT AEROSPACE, INC.
A Delaware Corporation
- Locations
000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 Leased
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
CIM TRUCKING, INC.
An Illinois corporation
- Locations
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
0000 X. Xxxxxxxxx, Xxxxxxx Xxxx, XX 00000 Owned
METAL MANAGEMENT MIDWEST, INC.
An Illinois corporation
- Locations
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
0000 X. Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 Owned
0000 X. Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 Owned
0000 X. Xxxx Xx., Xxxxxxx, XX 00000 Owned
0000 X. Xxxx Xx., Xxxxxxx, XX 00000 Owned
0000 X. Xxxxxxxx, Xxxxxxx, XX 00000 Owned
0000 X. Xxxxxx, Xxxxxxx, XX 00000 Owned
000 X. Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 Owned
000 X. Xxxxxxxxx, Xxxxxxx, XX 00000 Owned
0000 X. Xxxxx Xxxxxx, Xxxxxxx, XX 00000 Owned
0000 X. 00xx Xx., Xxxxxxx, XX 00000 Owned
0000 X. Xxxxxxx, Xxxxxxx, XX 00000 Owned
0000 X. Xxxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 Leased
0000 X. Xxxxxxxxx, Xxxxxxx Xxxx, XX 00000 Owned
000 Xxxxxxxx Xx., Xxxxxx, XX 00000 Leased
0000 X. Xxxxxxxxxx, Xxxxxxxx, XX 00000 Owned
000 X. Xxxxxxxx Xxx., Xxxxxxxx, XX 00000 Owned
00000 X. Xxxx Xxx., Xxxxxxx, XX 00000 Leased
0000 X. Xxxxxxx Xx., Xxxxxxx, XX 00000 Owned
1
METAL MANAGEMENT ALABAMA, INC.
A Delaware corporation
- Locations
0000 Xxxxxxxxxx Xx., Xxxxxxxxxx, XX 00000 Owned
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
METAL MANAGEMENT ARIZONA, L.L.C.
An Arizona limited liability company
- Locations
0000 X. 00 xxx Xxxxxx, Xxxxxxx, XX 00000 Owned
0000 X. Xxxxxxx Xxxx, Xxxxxx, XX 00000 Owned
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
METAL MANAGEMENT CONNECTICUT, INC.
A Delaware corporation
- Locations
000 Xxxxxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000 Owned
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
METAL MANAGEMENT MISSISSIPPI, INC.
A Delaware corporation
- Locations
000 X. Xxxxxxxx Xx., Xxx Xxxxxx, XX 00000 (books and records only) Leased
0000 Xxxxx Xxx 000, Xxxxxxx, XX 00000 Owned
0000 Xxxx Xxxxxxxxx Xx, Xxxx Xxxxx, XX 00000 Owned
0000 Xxxxx Xxxxxxxx Xxxx, Xxxxxx, XX 00000 Owned
00 Xxxxxx Xxxx, Xxxxxxx, XX 00000 Owned
000 0xx Xxxxxx, Xxxxxxxxx, XX 00000 Owned (interest
is in a
pre-paid 99 year
lease)
000 Xxxx Xxxxx Xx., Xxxxxxxxx, XX 00000 Owned
0000 Xxxxxx Xxxxx Xx., Xxxxxxxxxx, XX 00000 Leased
000 Xxxx Xxxx, Xxxxxx, XX 00000 Leased
0000 Xxxx Xxxxxxxxx Xx., Xx Xxxxxx, XX 00000 Owned
METAL MANAGEMENT INDIANA, INC.
An Illinois corporation
- Locations
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
0000 Xxxxx Xx., Xxxx Xxxxxxx, XX 00000 Owned
METAL MANAGEMENT XXXXXXX, L.L.C.
A Delaware limited liability company
- Locations
120 and 000 Xxxxxx, Xxxxxxx, XX 00000 Owned
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
METAL MANAGEMENT OHIO, INC.
An Ohio corporation
- Locations
0000 X. 000xx Xx., Xxxxxxxxx, XX 00000 Leased
000 X. Xxxxx Xx., Xxxxx, XX 00000 Owned
00000 Xxxxx Xxx. 000, Xxxx, Xxxxxxxx, XX 00000 Owned
0000 Xxxx Xxx., Xxxxxx, XX 00000 Owned
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
METAL MANAGEMENT NORTHEAST, INC.
A New Jersey corporation
- Locations
Foot of Xxxxxxx St., Xxxxxx XX 00000 Owned
000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 Owned
00-00 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 Owned
Xxx Xxxxxxxx Xx., Xxxxxx, XX 00000 Leased
000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 Leased
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
METAL MANAGEMENT PITTSBURGH, INC.
A Delaware corporation
- Locations
0000 Xxxxxxx Xxxx., Xxxxxxxxx, XX 00000 Owned
00 X. Xxxxxxxx Xx., Xxxxxxxxxxxx, XX 00000 Owned
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
METAL MANAGEMENT S&A HOLDINGS, INC.
A Delaware corporation
- Locations
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
NAPORANO IRON & METAL, INC.
A Delaware corporation
- Locations
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
Foot of Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 Owned
METAL MANAGEMENT WEST COAST HOLDINGS, INC.
A Delaware corporation
- Locations
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
METAL MANAGEMENT WEST, INC.
A Colorado corporation
- Locations
0000 Xxxx Xx., Xxxxxx, XX 00000 Owned
0000 X. 000 Xxxxx, Xxxx Xxxx Xxxx, XX 00000 Owned
0000 Xxxx Xxx Xxxxx Xx., Xxxxxxxx Xxxxxxx, XX 00000 Owned
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
METAL MANAGEMENT MEMPHIS, L.L.C.
A Tennessee limited liability company
- Locations
000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 Owned
000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 Owned
000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 Owned
000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 Owned
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 Owned
0000 Xxxxx Xxxxxxx, Xxxxxxx, XX 00000 Owned
0000 Xxxxx Xxxxxxx, Xxxxxxx, XX 00000 Owned
000 Xxxx Xxxxxx, Xxxxxxx, XX 00000 Owned
000 Xxxx Xxxxxx, Xxxxxxx, XX 00000 Owned
000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 Owned
X000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 Owned
000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 Owned
0000 Xxxxx Xxxxxxx, Xxxxxxx, XX 00000 Owned
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
METAL MANAGEMENT NEW HAVEN, INC.
A Delaware corporation
- Locations
000 Xxxxxxxxxx Xxx., Xxx Xxxxx, XX 00000 Leased
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
MTLM ARIZONA, INC.
An Arizona corporation
- Locations
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
0000 X. Xxxxx Xxxxxxx Xxxx, Xxxxxxx, XX 00000 Owned
PROLER SOUTHWEST LP
A Texas limited partnership
- Locations
00 Xxxxxx Xxxx, Xxxxxxx, XX 00000 Owned
00 Xxxxxx Xx., Xxxxxxx, XX 00000 Owned
0000 Xxxxxxxxxx Xxxx., Xxxxxxxx, XX 00000 Leased
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
RESERVE IRON & METAL LIMITED PARTNERSHIP
A Delaware limited partnership
- Locations
0000 X. 000xx Xx., Xxxxxxxxx, XX 00000 Leased
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
METAL MANAGEMENT PROLER SOUTHWEST, INC.
A Delaware corporation
- Locations
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
PROLER SOUTHWEST GP, INC.
A Delaware corporation
- Locations
00 Xxxxxx Xxxx, Xxxxxxx, XX 00000 Owned
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000 (books and records only) Leased
WAREHOUSE AND OTHER FACILITIES (BAILEE LOCATIONS)
1. METAL MANAGEMENT AEROSPACE, INC. - INVENTORY OF METAL MANAGEMENT
AEROSPACE, INC. IS LOCATED AT THE FOLLOWING BAILEE LOCATIONS:
Xxxxxxxxx Technology Corporation
No. Yard Scalehouse, Building 000
Xxxxx Xxxx Xxxxxxxx
Xxxxxxx, XX 00000
2. METAL MANAGEMENT CONNECTICUT, INC. - INVENTORY OF METAL MANAGEMENT
CONNECTICUT, INC. IS LOCATED AT THE FOLLOWING BAILEE LOCATION:
Gateway Terminal
0000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
3. METAL MANAGEMENT PITTSBURGH, INC. - EQUIPMENT AND INVENTORY OF METAL
MANAGEMENT PITTSBURGH, INC. IS LOCATED AT THE FOLLOWING LOCATION:
Pittsburgh Intermodal Terminal (Equipment and Inventory)
00 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
SCHEDULE B, PART 6.11
SUBSIDIARIES
STATES IN
WHICH
STATE OF ORGANIZATIONAL QUALIFIED AUTHORIZED NUMBER OF SHARES OF
NAME OF INCORPORATION IDENTIFICATION TO DO CAPITAL EACH CLASS ISSUED
SUBSIDIARY /FORMATION NUMBER BUSINESS STOCK AND OUTSTANDING OWNER
---------------- ------------- -------------- --------- -------------- ------------------- -----------------------------------
CIM TRUCKING, IL 0000-000-0 100 10 Common Metal Management Midwest, Inc.
INC.
METAL XXXXXXXXXX XX 0000000 CT 1,000 500 Common Metal Management S&A Holdings, Inc.
AEROSPACE, INC.
METAL MANAGEMENT DE 2862098 AL 1,000 1,000 Common Proler Southwest LP
ALABAMA, INC. (1,000 outstanding)
METAL MANAGEMENT AZ L-0770756-4 (100% membership Metal Management West Coast
ARIZONA, L.L.C. interest) Holdings, Inc.
METAL XXXXXXXXXX XX 0000000 CT 1,000 1,000 Common Metal Management Northeast,
CONNECTICUT, Inc.
INC.
METAL XXXXXXXXXX XX 0000000 AR, MS 1,000 100 Common Proler Southwest LP
MISSISSIPPI,
INC.
METAL MANAGEMENT IL 0000-000-0 IN 10,000 250 Common Metal Management Midwest, Inc.
INDIANA, INC.
METAL XXXXXXXXXX XX 0000000 (100% membership Metal Management Midwest, Inc.
MEMPHIS, L.L.C. interest)
METAL MANAGEMENT IL 0000-000-0 KY 10,000 108 3/4 Common Metal Management, Inc.
MIDWEST, INC.
METAL MANAGEMENT DE 2435318 MS (100% membership Proler Southwest XX
XXXXXXX, L.L.C. interest)
METAL XXXXXXXXXX XX 000000 CT 1,000 100 Common Metal Management, Inc.
NEW HAVEN, INC.
METAL MANAGEMENT NJ 0000000000 KY, NY 12,000
NORTHEAST, INC. (1,000 Common) 400 Common Metal Management, Inc.
(9,000
Preferred
Common)
(2,000
Preferred)
METAL XXXXXXXXXX XX 000000 300,000 24,767.25 (voting Metal Management, Inc.
OHIO, INC. (75,000 A A); 81,279.25
Common) (non-voting B)
(225,000 B
Common)
METAL XXXXXXXXXX XX 0000000 PA 1,000 100 Common Metal Management S&A Holdings,
PITTSBURGH, INC. Inc.
METAL XXXXXXXXXX XX 0000000 50,000 20,000 Common Metal Management, Inc.
S&A HOLDINGS,
INC.
XXXXXXXX XXXX & XX 0000000 XX, XX 1,000 100 Common Metal Management, Inc.
METAL, INC.
METAL XXXXXXXXXX XX 0000000 1,000 100 Common Metal Management, Inc.
WEST COAST
HOLDINGS, INC.
METAL MANAGEMENT CO 19871489659 UT 1,000 000 Xxxxxx Xxxxx Xxxxxxxxxx Xxxx Xxxxx
XXXX, INC. Holdings, Inc.
XXXX XXXXXXX, XX 0000000-0 10,000 10,000 Common Metal Management West Coast
INC. Holdings, Inc.
PROLER SOUTHWEST TX 800585413 990 limited Metal Managemetn Xxxxxx
XX partnership units Southwest, Inc.
10 general Proler Southwest GP, Inc. (GP)
partnership units
PROLER XXXXXXXXX XX 0000000 TX 10,000 1,000 Common Metal Management, Inc.
GP, INC.
METAL
MANAAGEMENT DE 4072322 10,000 1,000 Common Metal Management, Inc.
PROLER
SOUTHWEST, INC.
RESERVE XXXX & XX 0000000 000 (Xxxxx X) Metal Management Ohio,
METAL LIMITED MTLM Ohio, Inc. (GP)
PARTNERSHIP 2500 (Class B)
MTLM Ohio
1
SCHEDULE B, PART 6.12
LITIGATION
PARTIES NATURE OF DISPUTE EXPOSURE OR BENEFIT/AMOUNT OF DISPUTE
------------------------------------- ----------------------------------- ------------------------------------------
Metal Management Connecticut, Inc. v. On July 1, 1998, the Company's At this stage, the Company is not able
Connecticut Department of subsidiary Metal Management to predict its potential liability in
Environmental Protection Connecticut, Inc. ("MTLM connection with this action or any
Connecticut") acquired the scrap required investigation and/or
metal recycling assets of Xxxxxx X. remediation. The Company believes that
Xxxxxxxxx Corp. (formerly known as it has meritorious defenses to certain
Xxxxxxx Xxxxxxxxx & Sons, Inc.). of the claims asserted against it in the
The acquired assets include real suit and intends to vigorously defend
property in North Haven, itself against the claims. In addition,
Connecticut upon which the the Company believes that it is entitled
Company's scrap metal recycling to indemnification from Xxxxxx X.
operations are currently performed Xxxxxxxxx Corp. and Xxxxxxxxx for some
(the ""North Haven Facility "). The or all of the obligations and
owner of Xxxxxx X. Xxxxxxxxx Corp. liabilities that may be imposed on the
was Xxxxxxx Xxxxxxxxx Company in connection with this matter
("Xxxxxxxxx "). under the various agreements governing
our purchase of the North Haven Facility
On March 31, 2003, the Connecticut from Xxxxxx X. Xxxxxxxxx Corp. The
Department of Environmental Company cannot provide assurances that
Protection ("Connecticut DEP") Xxxxxx X. Xxxxxxxxx Corp. and Xxxxxxxxx
filed suit against Xxxxxx X. will have sufficient resources to fund
Xxxxxxxxx Corp., Xxxxxxxxx, and any or all identifiable claims that the
MTLM Connecticut in the Superior Company may assert.
Court of the State of Connecticut -
Judicial District of Hartford. The The Company has engaged in settlement
suit alleges, among other things, discussions with Xxxxxx X. Xxxxxxxxx
that the North Haven Facility Corp., Xxxxxxxxx and the Connecticut DEP
discharged and continues to regarding the possible characterization
discharge contaminants, including of the North Haven Facility, and the
oily material, into the environment subsequent remediation thereof should
and has failed to comply with the contamination be present at
terms of certain permits and other concentrations that require remedial
filing requirements. The suit seeks action. The Company is currently working
injunctions to restrict us from with an independent environmental
maintaining discharges and to consultant to develop an acceptable
require us to remediate the characterization plan. The Company
facility. The suit also seeks civil cannot provide assurances that it will
penalties from all of the be able to reach an acceptable
defendants in accordance with settlement of this matter with the other
Connecticut environmental statutes. parties.
1
SCHEDULE B, PART 6.12
LITIGATION
PARTIES NATURE OF DISPUTE EXPOSURE OR BENEFIT/AMOUNT OF DISPUTE
------------------------------------- ----------------------------------- ------------------------------------------
Department of Justice In January 2003, the Company The Company is fully cooperating with
received a subpoena requesting that the subpoena and the grand jury's
the Company provides documents to a investigation. The Company is unable at
grand jury that is investigating this stage to determine future legal
scrap metal purchasing practices in costs or other costs to be incurred in
the four state region of Ohio, responding to such subpoena or other
Illinois, Indiana and Michigan. impact to the Company of such
investigation.
Department of Justice As a result of internal audits that The Board of Directors has appointed a
the Company conducted, the Company special committee, consisting of all of
determined that current and former the Company's independent directors, to
employees of certain business units conduct an investigation of these
have engaged in activities relating activities. The Company is cooperating
to cash payments to individual with the U.S. Department of Justice. The
industrial account suppliers of Company has implemented policies to
scrap metal that may have involved eliminate such cash payments to
violations of federal and state industrial customers. During fiscal
law. In May 2004, the Company 2004, such cash payments to industrial
voluntarily disclosed the Company's customers represented approximately 0.7%
concerns regarding such cash of the Company's consolidated ferrous
payments to the U.S. Department of and non-ferrous yard shipments. The
Justice. fines and penalties under applicable
statutes contemplate qualitative as well
as quantitative factors that are not
readily assessable at this stage of the
investigation, but could be material.
The Company is not able to predict at
this time the outcome of any actions by
the U.S. Department of Justice or other
governmental authorities or their effect
on us, if any, and accordingly, we have
not recorded any amounts in the
financial statements.
SCHEDULE B, PART 6.12
LITIGATION
PARTIES NATURE OF DISPUTE EXPOSURE OR BENEFIT/AMOUNT OF DISPUTE
------------------------------------- ----------------------------------- ------------------------------------------
Metal Management Midwest, Inc. vs. On July 15, 2005, the Company and Complaint seeks, among other things,
Xxxxxx X. Xxxxx, Xxxxx X. Xxxxx and MTLM-Midwest filed a complaint (the monetary compensation for the Company's
Xxxxxxx X. Xxxxx "Complaint") against former actual losses and damages, and an
officers and directors Xxxxxx X. injunction restraining and enjoining the
Xxxxx, Xxxxx X. Xxxxx, and Xxxxxxx Defendants from breaching their
X. Xxxxx (collectively, the respective separation and release
"Defendants") in the Circuit Court agreements. On October 21, 2005,
of Xxxx County Illinois, County Defendants moved to dismiss the
Department, Chancery Division. The Complaint or in the alternative to
Complaint seeks damages from Xxxxx compel arbitration and stay the judicial
X. Xxxxx and Xxxxxxx X. Xxxxx for proceedings. Defendants also filed a
their actions in designing, counterclaim seeking recovery of unpaid
implementing, and maintaining cash employee severance payments of
payment practices in MTLM-Midwest's approximately $1.2 million.
accounts payable that violated
Company policy and, potentially,
federal law. The Complaint also
alleges that the Defendants
breached the non-competition and
non-solicitation provisions of
their respective separation and
release agreements by seeking to
engage in business activities and
seeking to solicit suppliers,
customers and service providers in
competition with the Company's
business.
Metal Management Midwest, Inc. Tort (not personal injury) An ex parte judgment was filed November
Xxxxx X Xxxxxxx complaint filed July 2, 2003. 11, 2005 in the amount of $1,479.31.
1
SCHEDULE B, PART 6.14
LABOR MATTERS
APPROXIMATE
CONTRACT TERM EMPLOYEES/
------------------- BARGAINING
SUBSIDIARY UNION START END UNIT
---------------------------- ------------------------------------ -------- -------- --------------
Metal Management Aerospace United Steelworkers of America 11/02/01 11/04/06 80
Local 134L
Metal Management Alabama United Steelworkers of America 10/17/02 10/16/06 10
Local 4636
Metal Management Connecticut Int'l Union of Operating Engineers 04/01/04 03/31/07 25
Local 478
Metal Management Connecticut Teamsters Local 443 04/01/05 03/31/09 40
Metal Management Midwest Teamsters Local 142 04/01/03 03/31/08 35
Metal Management Midwest Teamsters Local 714 03/01/05 02/28/09 249
Metal Management Midwest United Steelworkers of America 06/01/02 05/31/06 40
Local 9777
Metal Management Northeast L.I.U. of N.A. Local 734 5/26/03 05/25/06 125
Metal Management Northeast L.I.U. of N.A. Local 734 12/19/03 12/18/07 60
Metal Management Ohio Int'l Union, United Automobile, 11/01/01 04/30/06 56
Aerospace and Agricultural Implement
Workers of America 211
Metal Management Pittsburgh United Steelworkers of America 07/10/02 07/09/06 30
Local 5852-16
Metal Management Pittsburgh United Steelworkers of America 09/01/02 08/31/06 14
Local 5852-16
1
SCHEDULE B, PART 6.15
COMPLIANCE WITH LAWS MATTERS
None.
1
SCHEDULE B, PART 6.16
BENEFIT PLANS
PLAN NAME ISSUER
--------- ------
Metal Management, Inc. 401(k) Plan Metal Management, Inc.
Metal Management, Inc. Employee
Benefit Plan Metal Management, Inc.
Metal Management Aerospace, Inc.,
Retirement Plan Metal Management Aerospace, Inc.
Retirement Plan for Employees of
Xxxxxxx Xxxxxxxxx Company, Inc. Metal Management Pittsburgh, Inc.
The Xxxxx Corporation Pension Plan
- MMI 98 Metal Management Ohio, Inc.
Metal Management Northeast, Inc.
Employee Benefit Plan Metal Management Northeast, Inc.
1
SCHEDULE B, PART 6.17
ENVIRONMENTAL MATTERS
PARTY CASE DETAILS EXPOSURE
---------------------------------- --------------------------------------------- --------------------------------------------
Metal Management Memphis, L.L.C. Xxxxxx Dock & Warehouse - Trust is funded with $200,000 (Metal
The trust has been established between Perlco Management Memphis funded $144,000) of cash
and X. Xxxxxxx & Company to fund the for purposes of monitoring over the period.
monitoring costs associated with a closed The Company believes a portion of the
landfill in Tennessee over a ten-year period. escrow will be returned to the Company when
landfill monitoring is no longer required
by the state.
Metal Management Connecticut, Inc. On March 31, 2003, the Connecticut Department At this stage, the Company is not able to
v. Connecticut Department of of Environmental Protection ("CTDEP") filed predict MTLM-Connecticut's potential
Environmental Protection suit against Xxxxxx X. Xxxxxxxxx Corp., liability in connection with this action or
Xxxxxxxxx, and MTLM-Connecticut in the any required investigation and/or
Superior Court of the State of Connecticut -- remediation. The Company believes that it
Judicial District of Hartford. The suit has meritorious defenses to certain claims
alleges, among other things, that the North and believes that it is entitled to
Haven Facility discharged and continues to indemnification from the former owner for
discharge contaminants, including oily some or all of its obligations and
material, into the environment and has failed liabilities. The Company has engaged in
to comply with the terms of certain permits settlement discussions with Xxxxxx X.
and other filing requirements. The suit seeks Xxxxxxxxx Corp., Xxxxxxxxx and CTDEP
injunctions to restrict MTLM-Connecticut from regarding the possible characterization of
maintaining discharges and to require the North Haven Facility, and the
MTLM-Connecticut to remediate the facility. subsequent remediation thereof should
The suit also seeks civil penalties from all contamination be present at concentrations
of the defendants in accordance with that require remedial action. The Company
Connecticut environmental statutes. is currently working with an independent
environmental consultant to develop an
acceptable characterization plan. The
Company cannot provide assurances that it
will be able to reach an acceptable
settlement of this matter with the other
parties. Site characterization of the
property began in February 2006.
Metal Management Midwest, Inc. On April 29, 1998, MTLM-Midwest acquired At this preliminary stage, the Company
substantially all of the operating assets of cannot predict MTLM-Midwest's potential
138 Scrap, Inc. (""138 Scrap ") that were liability, if any, in connection with such
used in its scrap metal recycling business. lawsuit or any required remediation. The
Most of these assets were located at a Company believes that it has meritorious
recycling facility in Riverdale, Illinois defenses to certain of the claims outlined
(the ""Facility "). In early November 2003, in the Notice and MTLM-Midwest intends to
MTLM-Midwest was served with a Notice of vigorously defend itself against any claims
Intent to Xxx (the ""Notice ") by The Jea ultimately asserted by the Village of
Diver Group, L.L.C., on behalf of the Village Riverdale. In addition, although the
of Riverdale, alleging, among other things, Company believes that it would be entitled
that the release or disposal of hazardous to indemnification from the sellers of 138
substances within the meaning of the CERCLA Scrap for some or all of the obligations
has occurred at an approximately 57 acre that may be imposed on MTLM-Midwest in
property in the Village of Riverdale (which connection with this matter under the
includes the 8.8 acre Facility that was agreement governing its purchase of the
leased by MTLM-Midwest until December 31, operating assets of 138 Scrap, the Company
2003). The Notice indicates that the Village cannot provide assurances that any of the
of Riverdale intends to file suit against
MTLM-Midwest (directly and as a successor
1
SCHEDULE B, PART 6.17
ENVIRONMENTAL MATTERS
PARTY CASE DETAILS EXPOSURE
---------------------------------- --------------------------------------------- --------------------------------------------
to 138 Scrap) and numerous other third sellers will have sufficient resources to
parties under one or both of CERCLA and the fund any indemnifiable claims to which the
Resource Conservation and Recovery Act. Company may be entitled.
Metal Management Aerospace, Inc. On September 22, 2005 and September 23, 2005, On October 21, 2005, MTLM-Aerospace
CTDEP's Bureau of Water Management and Bureau submitted substantive responses to CTDEP
of Waste Management each issued a Notice of regarding the NOVs. At this time, the
Violation ("NOV") to Metal Management Company is unable to determine
Aerospace, Inc. ("MTLM-Aerospace"), a MTLM-Aerospace's potential liability in
subsidiary of the Company, for alleged connection with these NOVs. The Company
violations at MTLM-Aerospace's facility, believes that MTLM-Aerospace has
including, among other things, (1) operation meritorious defenses to certain of the
of a solid waste facility without the allegations outlined in the NOVs. In
approval of CTDEP; (2) failure to comply with addition, although the Company believes
certain environmental regulations regarding that by virtue of certain consent orders,
the handling of used oil, the performance of Connecticut Transfer Act obligations, and
certain hazardous waste determinations, the lease/transactional documents executed by
disposal of PCBs and the discharge of oils the lessor and former owner, certain
and coolants; (3) failure to comply with environmental liabilities noted in the NOVs
certain discharge reporting obligations; (4) will be the responsibility of the lessor
creation of certain potential environmental and former owner, there can be no assurance
hazards; (5) inadequacy or improper that the lessor and former owner will have
maintenance of certain pollution management sufficient resources to fund any or all of
devices, including erosion and sediment such liabilities.
controls and release detection for an
underground diesel storage tank; and (6)
failure to comply with a pollution prevention
plan.
SCHEDULE B, PART 6.20
TAX MATTERS; TAX SHARING AGREEMENTS
None.
1
SCHEDULE B, PART 6.21
MATERIAL CONTRACTS
1. Mortgage, dated March 6, 1995, between Metal Management Memphis, LLC, and
Union Planters Bank, N.A.
2. Lease Agreement, dated January 20, 1998, between Metal Management
Aerospace, Inc. and Xxxxx Corp. for the property located at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx.
3. Lease Agreement, dated December 1, 1997, between Reserve Iron and Metal,
L.P. and Illinois International Port District for the property located at
00000 X. Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx.
4. Lease Agreement, dated August 2, 1994, between Metal Management Northeast,
Inc. and Port Authority of New York and New Jersey for the property located
at One Calcutta Street, Newark, New Jersey.
5. Lease Agreement, dated October 1, 1990, between Reserve Iron and Metal,
L.P. and Xxx Xxxxxx for the property located at 0000 X. 000xx Xxxxxx,
Xxxxxxxxx, Xxxx.
6. Lease Agreement, dated October 22, 1993, between Metal Management Midwest,
Inc. and Sanitation District of Chicago and X.X. Xxxxxx Company for the
property located at 0000 X. Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx.
7. Lease Agreement, dated December 15, 1998, between Metal Management Midwest,
Inc. and BP Properties, L.L.C. for the property located at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxx.
8. Lease Agreement, dated April 1, 1995, between Metal Management Northeast,
Inc. and 303 Xxxxxxx Urban Renewal Associates for the property located at
000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx.
9. Lease Agreement, dated May 1, 2002, between Xxxxxx X. Xxxxxx as Trustee of
XXXXXX Trust and Proler Southwest Inc. for the property located at 0000
Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxx.
10. Lease Agreement, dated October 31, 2003, between Metal Management New
Haven, Inc., and X. Xxxxx & Sons, Inc., for the property located at 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxxx.
11. Employment Agreement, dated January 16, 2004, between Xxxxxx X. Xxxxxx and
the Company.
12. Promissory Note, dated January 21, 2004, between Proler Southwest LP and
Amegy Bank, N.A. in the original principal amount of $2,500,000.00
1
SCHEDULE B, PART 6.21
MATERIAL CONTRACTS
13. Employment Agreement, dated July 1, 2001, as amended, between Xxxxxx X.
Xxxxx and the Company.
14. Employment Agreement, dated May 17, 2004, between Xxxxxx Xxxxxxxx and the
Company.
15. Lease Agreement, dated June 7, 2005 between Metal Management, Inc. and
Xxxxxxxx Properties, Ltd., for the property located at 000 X. XxXxxxx Xx.,
Xxxxxxx, Xxxxxxxx.
16. Lease Agreement, dated June 1, 1998 between Metal Management Mississippi,
Inc. and Columbus and Greenville Railway for property located at 000 0xx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx.
17. Lease Agreement, dated March 1, 2000 between Metal Management Mississippi,
Inc. and Washington County and Greenville Port Commission for property
located at 0000 Xxxxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx.
18. Lease Agreement dated July 1, 2003 between Metal Management Mississippi,
Inc. and Union County Co-Operative for property located at 000 Xxxx
Xxxxxxxx Xx., Xxx Xxxxxx, Xxxxxxxxxxx.
19. Lease Agreement dated December 1, 2004 between Metal Management
Mississippi, Inc. and Itawamba Port Commission for property located at 000
Xxxx Xxxx, Xxxxxx, Xxxxxxxxxxx.
20. Non-Competition Agreement, dated as of November 30, 2005, by and among
Xxxxxx Recycling of Arkansas, Inc. and Xxxxxxx X. Xxxxxx. (Metal Management
Mississippi, Inc. is successor in interest to Xxxxxx Recycling of
Arkansas).
SCHEDULE B, PART 8.3
CERTAIN EXISTING INDEBTEDNESS
OUTSTANDING
DUE AMOUNT
TYPE LENDER ISSUERS DATE RATE APRIL 2006
--------------- ----------------------------------------- ---------------------------------- -------- ---- ------------
MORTGAGE: Amegy Bank N.A. (Proler), secured by Proler Southwest LP 01/01/09 5.50% $1,896,753
Proler real property on 00 Xxxxxx Xx.,
Xxxxxxx, XX
Metal Management Memphis, L.L.C. 12/01/09 4.86% $ 228,365
Union Planters (Perlco), secured by ----------
Memphis real property on Xxxxxxx Avenue $2,125,118
CAPITAL LEASES: XxXxxxx Xxxxxx Metal Management West, Inc. 11/01/06 0.00% $ 8,483
Tri-Lift Metal Management Aerospace, Inc. 08/02/10 6.75% $ 84,412
BellSouth Financial Services (Memphis) Metal Management Memphis, L.L.C. 06/01/06 7.15% $ 1,503
----------
$ 94,398
AGREEMENT: Non-Competition Agreement, dated as of Metal Management Mississippi, Inc. 11/30/10 0% $ 300,000
November 30, 2005, by and among Xxxxxx ($60,000
Recycling of Arkansas, Inc. and Xxxxxxx payable each
X. Xxxxxx. (Metal Management Mississippi, year for
Inc. is successor in interest to Xxxxxx five years)
Recycling of Arkansas).
1
SCHEDULE 8.4
CERTAIN EXISTING LIENS
[None]
SCHEDULE B, PART 8.8(G)
CERTAIN EXISTING INVESTMENTS
INVESTMENT TYPE ISSUER/OWNER AMOUNT
------------------------------- ------------- -------------------------------- ------------
Rondout Iron & Metal, LLC Joint Venture Metal Management Midwest, Inc. 50% interest
Metal Management Nashville, LLC Joint Venture Metal Management Midwest, Inc. 50% interest
Port Albany Ventures, LLC Joint Venture Metal Management Northeast, Inc. 50% interest
3
