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As filed with the Securities and Exchange Commission on May 6, 2013.

Registration No 333-164484

 

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

AMENDMENT NO. 15

TO

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

RYERSON HOLDING CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   5051   26-1251524

(State or other jurisdiction of

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification No.)

227 W. Monroe, 27 th Floor

Chicago, Illinois 60606

(312) 292-5000

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

Mark S. Silver

Vice President and Managing Counsel

Ryerson Holding Corporation

227 W. Monroe, 27 th Floor

Chicago, Illinois 60606

(312) 292-5000

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

 

Cristopher Greer, Esq.  

James J. Clark, Esq.

William J. Miller, Esq.

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, New York 10019

(212) 728-8000

Facsimile: (212) 728-9214

 

Cahill Gordon & Reindel LLP

80 Pine Street

New York, New York 10005

(212) 701-3000

Facsimile: (212) 269-5420

 

 

Approximate date of commencement of proposed sale to the public:

As soon as practicable after this Registration Statement becomes effective.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box.   ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b2 of the Exchange Act.

 

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   x    Smaller reporting company   ¨

(Do not check if a smaller reporting company)

  

 

 

Title of Each Class of Securities To Be Registered  

Proposed Maximum

Aggregate Offering

Price(1)(2)

 

Amount of

Registration

Fee(3)

Common Stock, par value $0.01 per share

  $300,000,000   $34,380

 

(1) Estimated solely for purposes of determining the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended.
(2) Includes shares of common stock that may be purchased by the underwriters to cover over-allotments, if any. See “Underwriting.”
(3) Previously paid.

 

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 


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The information in this prospectus is not complete and may be changed. Neither we nor the selling stockholders may sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

 

Subject to Completion

Preliminary Prospectus dated                     , 2013

PROSPECTUS

             Shares

 

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Ryerson Holding Corporation

Common Stock

 

 

We are selling              shares of our common stock. The selling stockholders identified in this prospectus have granted the underwriters an option to purchase up to             additional shares of common stock to cover over-allotments. We will not receive any proceeds from the sale of shares by the selling stockholders.

This is the initial public offering of our common stock. We currently expect the initial public offering price to be between $             and $             per share. We have applied to have our common stock listed on the New York Stock Exchange under the symbol “RYI.”

Investing in our common stock involves a high degree of risk. See “Risk Factors” beginning on page 17.

 

 

 

     Per Share      Total  

Public Offering Price

   $         $     

Underwriting Discount

   $         $     

Proceeds, before expenses, to us

   $         $     

The underwriters may also purchase up to an additional              shares from the selling stockholders, at the public offering price, less the underwriting discount, within 30 days of the date of this prospectus.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

The underwriters expect to deliver the shares to purchasers on or about                     , 2013.

 

 

 

BofA Merrill Lynch    Deutsche Bank Securities    BMO Capital Markets
J.P. Morgan    Jefferies
Wells Fargo Securities    KeyBanc Capital Markets    Citigroup
Macquarie Capital                                          Evercore Partners        

 

 

The date of this prospectus is                     , 2013


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You should rely only on the information contained in this prospectus and any free writing prospectus we may specifically authorize to be delivered or made available to you. We have not, and the selling stockholders and the underwriters have not, authorized anyone to provide you with different information. We are not, and the selling stockholders and the underwriters are not, making an offer of these securities in any jurisdiction where the offer is not permitted. You should not assume that the information contained in this prospectus and any free writing prospectus we may specifically authorize to be delivered or made available to you is accurate as of any date other than the date on the front of this prospectus, regardless of its time of delivery or of any sale of shares of our common stock. Our business, financial condition, results of operations and prospects may have changed since that date.

TABLE OF CONTENTS

 

     Page  

PROSPECTUS SUMMARY

     1   

RISK FACTORS

     17   

FORWARD-LOOKING STATEMENTS

     29   

USE OF PROCEEDS

     31   

CAPITALIZATION

     32   

DILUTION

     34   

DIVIDEND POLICY

     35   

SELECTED CONSOLIDATED FINANCIAL DATA

     36   

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

     38   

BUSINESS

     57   

MANAGEMENT

     74   

EXECUTIVE COMPENSATION

     79   

GRANTS OF PLAN-BASED AWARDS

     87   

DIRECTOR COMPENSATION

     91   

CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

     92   

PRINCIPAL AND SELLING STOCKHOLDERS

     94   

DESCRIPTION OF CAPITAL STOCK

     96   

DESCRIPTION OF CERTAIN INDEBTEDNESS

     100   

SHARES ELIGIBLE FOR FUTURE SALE

     106   

MATERIAL U.S. FEDERAL INCOME AND ESTATE TAX CONSIDERATIONS

     108   

UNDERWRITING

     111   

LEGAL MATTERS

     119   

EXPERTS

     119   

WHERE YOU CAN FIND MORE INFORMATION

     119   

INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

     F-1   


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INDUSTRY AND MARKET DATA

In this prospectus, we rely on and refer to information and statistics regarding the steel processing industry and our market share in the sectors in which we compete. We obtained this information and these statistics from sources other than us, which we have supplemented where necessary with information from publicly available sources, discussions with our customers and our own internal estimates. References in this prospectus to:

 

   

American Iron and Steel Institute (“AISI”) refer to its SteelWorks website from March 2013;

 

   

The Institute of Supply Management refer to its March 2013 Manufacturing ISM Report on Business ® ;

 

   

United States Congressional Budget Office refer to its February 2013 “The Budget and Economic Outlook: Fiscal Years 2013 to 2023”;

 

   

The Metals Service Center Institute (“MSCI”) refer to its March 2013 edition of “MSCI Metal Activity Report”;

 

   

The Federal Reserve Bank of Philadelphia refer to its December 2012 issue of “The Livingston Survey”;

 

   

Euromonitor refer to its February 2013 “Consumer Appliances in the U.S.” report;

 

   

IBIS Worldwide refer to its January 2013 “Heating & Air Conditioning in the U.S.” report;

 

   

LMC Automotive refer to its Q4 2012 data;

 

   

MarketLine refer to its June 2012 “MarketLine Global Machinery” report;

 

   

American Metal Market refer to its March 2013 data;

 

   

Wood Mackenzie refer to its February 2013 “Metals Market Service Monthly Update” reports; and

 

   

CRU refer to projections featured in its January 2013 Market Outlook Statistical Review.

We use these sources and estimates and believe them to be reliable, but we cannot give you any assurance that any of the projected results will be achieved.


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PROSPECTUS SUMMARY

This summary highlights information contained elsewhere in this prospectus. This summary does not contain all of the information that you should consider before investing in our common stock. You should read the entire prospectus carefully together with our consolidated financial statements and the related notes appearing elsewhere in this prospectus before making an investment decision. This prospectus contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in such forward-looking statements as a result of certain factors, including those discussed in the “Risk Factors” and other sections of this prospectus.

Except as otherwise indicated herein or as the context otherwise requires, references in this prospectus to “Ryerson Holding,” “the Company,” “we,” “our,” and “us” refer to Ryerson Holding Corporation and its direct and indirect subsidiaries (including Ryerson Inc.). The term “Ryerson” refers to Ryerson Inc., a direct wholly owned subsidiary of Ryerson Holding, together with its subsidiaries on a consolidated basis. “Platinum” refers to Platinum Equity, LLC and its affiliated investment funds, certain of which are our principal stockholders, and “Platinum Advisors” refers to Platinum Equity Advisors, LLC. We refer to the issuance of our common stock being offered hereby as the “offering.”

Our Company

We believe we are one of the largest processors and distributors of metals in North America measured in terms of sales, with global operations in North America, China and a recently established presence in Brazil. Our industry is highly fragmented with the largest companies accounting for only a small percentage of total market share. Our customer base ranges from local, independently owned fabricators and machine shops to large, international original equipment manufacturers. We process and distribute a full line of over 75,000 products in stainless steel, aluminum, carbon steel and alloy steels and a limited line of nickel and red metals in various shapes and forms. More than one-half of the products we sell are processed to meet customer requirements. We use various processing and fabricating techniques to process materials to a specified thickness, length, width, shape and surface quality pursuant to customer orders. For the year ended December 31, 2012, we purchased 2.1 million tons of materials from suppliers throughout the world. Adjusted EBITDA, excluding LIFO expense, was $201.6 million, revenue was $4.0 billion and net income was $45.8 million. See note 4 in “Summary Historical Consolidated Financial and Other Data” for a reconciliation of Adjusted EBITDA to net income.

We operate over 100 facilities across North America, seven facilities in China and one in Brazil. Our service centers are strategically located in close proximity to our customers, which allows us to quickly process and deliver our products and services, often within the next day of receiving an order. We own, lease or contract a fleet of tractors and trailers, allowing us to efficiently meet our customers’ delivery demands. In addition, our scale enables us to maintain low operating costs. Our operating expenses as a percentage of sales for the years ended December 31, 2011 and 2012 were 11.8% and 12.6%, respectively.

We serve more than 40,000 customers across a wide range of manufacturing end markets. We believe the diverse end markets we serve reduce the volatility of our business in the aggregate. Our geographic network and broad range of products and services allow us to serve large, international manufacturing companies across multiple locations.

Following this offering, because Platinum will control more than 50% of the voting power of our common stock, we will be considered a “controlled company” under the New York Stock Exchange rules. As such, we are permitted, and have elected, to opt out of compliance with certain NYSE corporate governance requirements. Accordingly, stockholders will not have the same protections afforded to stockholders of companies that are

 

 

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subject to all of the NYSE corporate governance requirements. See “Risk Factors” — We are exempt from certain corporate governance requirements because we are a controlled company within the meaning of the NYSE rules for a summary of the effects of a controlled company on investors.

We are broadly diversified in our end markets and product lines in North America, as detailed below.

 

2012 Sales by End Market   2012 Sales by Product

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  LOGO
 

(1)    “Other” includes copper, brass, nickel, pipe, valves and fittings.

Industry and End Market Outlook

Ryerson participates in the metals service center industry providing steel, aluminum and other metals products across a wide range of industrial manufacturing end markets. Our business performance is therefore impacted by a number of factors tied to industrial activity, including economic growth, end market demand and metals pricing. With steel products accounting for 76% of our 2012 sales, it is the largest driver of our business. Aluminum products account for 21% of our business, with other metals accounting for the remainder.

Macroeconomic Outlook . Steel is utilized in a diverse range of manufacturing and fabrication applications with a variety of end market demand drivers. The primary drivers of demand for the steel industry are the construction, automotive, machinery and equipment, and energy end markets, which, according to the American Iron and Steel Institute, account for approximately 85% of shipments collectively. As evidenced by our end market sales segmentation, we are not reliant on a single specific sector, but rather broader diversified industrial activity. Our primary end markets include industrial equipment and fabrication, transportation equipment, heavy equipment, electrical machinery and oil and gas. We believe that we are well positioned in these markets and that they are poised for growth as the broader industrial sectors continue to grow. The charts below, which reflect the most recently available data from AISI, show our end market exposure as well as the broader steel market.

 

 

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2012 Steel Shipments by Market Classification (AISI)   2012 Ryerson Sales by End Market
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Source: American Iron and Steel Institute   Source: Company estimates

While some of the key end market drivers of steel industry demand do not directly overlap with our end markets, they do impact broader steel demand and pricing, which can impact our business. Recently, leading indicators in the key steel industry end markets referenced above have begun to show sustained growth and continue to build positive momentum. For example, housing starts have shown stable growth over the last 24 months, while non-residential construction, which typically lags housing, is starting to show signs of sustained improvement as well. Additionally, U.S. automotive sales continue to rise, reaching 15.2 million vehicles on a seasonally adjusted annualized rate basis in March 2013 versus 14.1 million for 2012. Machinery and equipment, a key end market for us, includes a variety of industrial manufacturing end markets, many of which are showing signs of significant growth. This is evidenced by the Institute for Supply Management’s (“ISM”) Purchasing Managers’ Index (“PMI”), which reached 51.3 in March 2013. The United States Congressional Budget Office’s GDP growth estimates of 1.4% and 3.4% for 2013 and 2014, respectively. Finally, the oil and gas end market continues to be a long-term growth market in steel. Much of this growth is attributable to growth in North American drilling and refining, substantially impacted by activity in United States shale oil and gas and the Canadian oil sands. Additionally, investment in new petrochemical production capacity in the United States as a result of relatively low domestic natural gas prices may further bolster steel demand. The following chart shows the historical movements of the Purchasing Managers’ Index.

ISM Purchasing Managers’ Index

 

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According to MSCI, total inventory levels of carbon steel, stainless steel and aluminum at U.S. service centers reached a trough in August 2009 and bottomed at the lowest levels since the data series began in 1977. Although industry demand recovered in 2010, 2011 and 2012, shipments and inventory are still well below pre-downturn averages, which we believe suggests long-term growth potential that may be realized if these metrics return to, or exceed, their historical averages.

 

 

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North American Monthly Service Center Shipments   North American Monthly Service Center Inventory
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Ryerson End Market Outlook . According to the latest Livingston Survey, published by the Federal Reserve Bank of Philadelphia, U.S. industrial production is expected to grow by 1.9% and 3.1% in 2013 and 2014, respectively. Two of our largest end markets, industrial equipment and fabrication, include numerous diversified industrial manufacturing markets which, along with the broader economy, are showing signs of sustained growth. For example, in the U.S. major appliances and Heating Ventilation and Air Conditioning (“HVAC”) equipment, both markets we serve, are projected to grow at even higher rates. Specifically, major appliances are expected to grow 4.2% and 6.5% in 2013 and 2014, respectively, according to Euromonitor. According to IBIS Worldwide, HVAC is expected to grow 4.5% and 7.8% over the same periods.

In addition, we also serve the transportation equipment, heavy equipment and electrical equipment markets which are expected to show significant growth in the coming years. Transportation equipment, including commercial vehicle production, represents 17% of our sales and is expected to grow 4.7% per year in the U.S. between 2012 and 2014 according to LMC Automotive. Machinery and heavy equipment, including construction and agricultural equipment, represents 9% of our end-market sales and is projected to grow 6.1% per year in the U.S. between 2012 and 2016 according to MarketLine.

Metals Pricing . Along with improvements in volume, as indicated by demand trends in the end markets, movements in the price of steel will also impact our business. Steel prices are driven by a number of factors, including input prices, capacity utilization and foreign imports. Currently, input costs are providing support for steel pricing, as they flow directly through the pricing of the mills’ steel output. Additionally, we believe that recent closings of mills, including the Sparrows Point steel mill, among others, that have been dismantled, combined with continued growth in the global economy and end market demand, should begin to absorb global capacity, resulting in increased utilization. The U.S. steel industry production capacity utilization rate increased to 77.6% by the end of April 2013 from a low of 34% in December 2008, according to American Metal Market. North American production capacity utilization levels remain below the 85% average utilization level observed in the post- consolidation restructured steel industry from 2002 to 2008. The combination of higher input prices, increased global demand and increased capacity utilization should support steel price increases, positively impacting our business.

Aluminum pricing also remains well below pre-downturn levels but has stabilized recently. Global output of aluminum is projected to increase 6.8% in 2013 according to Wood Mackenzie, fueled by factors including the rebound in U.S. construction and increased demand from the transportation and infrastructure markets in China.

Industry Consolidation . The United States service center industry is a highly fragmented market with the top 50 service centers controlling approximately 25% of industry sales, according to American Metal Market, only 12 of which have sales over $1 billion. Such fragmentation has historically resulted in the smaller service centers having less negotiating leverage with both the larger consolidated steel mills, as well as larger customers. In

 

 

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recent years, however, there has been increased consolidation among larger players resulting in fewer customers of size for the mills and greater purchasing power for service centers. A recent example is the recently completed acquisition of Metals USA Holding Corp. by Reliance Steel & Aluminum Co. We believe that there is significant opportunity for consolidation and we expect the trend will continue.

Our Competitive Strengths

Leading Market Position in North America.

We believe we are one of the largest service center companies for carbon and stainless steel as well as aluminum based on sales in the North American market where we have a broad geographic presence with over 100 locations.

Our service centers are located near our customer locations, enabling us to provide timely delivery to customers across numerous geographic markets. Additionally, our widespread network of locations in the United States, Canada and Mexico helps us to utilize our expertise to more efficiently serve customers with complex supply chain requirements across multiple manufacturing locations. We believe this is a key differentiator among customers who need a supplier that can reliably and consistently support them. Our ability to transfer inventory among our facilities better enables us to more timely and profitably source and process specialized items at regional locations throughout our network than if we were required to maintain inventory of all products and specialized equipment at each location.

We believe with our significant footprint in the North American market, combined with our significant scale and operating leverage, a cyclical recovery of the service center industry supported by long-term growth trends in Ryerson’s end-markets should allow us to experience higher growth rates relative to North American economic improvement, but there can be no guarantee that we will experience such higher growth rates.

Broad Geographic Reach across Attractive End Markets.

Our operations cover a diverse range of industries, including industrial equipment, industrial fabrication, electrical machinery, transportation equipment, heavy equipment and oil and gas. Manufacturing growth has accelerated since November 2012 as shown by the ISM index (as described in the Industry and End Market Outlook), and we believe industries we serve will provide strong demand for our products and services as the North American manufacturing economy continues to recover. We also believe that the continued trend of moving manufacturing to the United States from overseas should benefit us with our broad North American platform. In addition, we expect to benefit from continued growth in international markets that will help spur demand at domestic manufacturing facilities that sell into the global market. We believe that our ability to quickly adjust our offering based on regional and industry specific trends creates stability while also providing the opportunity to access specific growth markets.

Established Platform for Organic and Acquisition Growth.

Since 2011, we have opened seven new service centers in previously underserved North American regions. We have acquired another ten facilities to complement our existing locations and expanded the product offering in many locations based on customer demand. Over the last two years, a significant portion of our capital expenditures have been made to expand our long and plate processing capabilities at 15 existing locations. We believe that our expanded presence in select regions and products positions us well to capture further growth in these regions and products.

 

 

 

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Although there can be no guarantee of growth, we believe a number of our other strategies, such as improving our product mix, pricing our products and services based on the value we provide our customers, growing our large national network, and expanding our diverse operating capabilities, will provide us with growth opportunities.

In addition, we have utilized our leadership and experience in the North American markets to establish operations in China, the largest and one of the highest growth metals markets in the world, as well as in Brazil.

Given the highly fragmented nature of the service center industry, we believe there are numerous additional opportunities to acquire businesses and incorporate them into our existing infrastructure. Given our large scale and geographic reach, we believe we can add value to these businesses in a number of ways, including providing greater purchasing power, access to additional end markets and broadening product mix. Although the Company does not have any current plans to engage in any specific acquisitions, from time to time and in the ordinary course of business, the Company regularly evaluates potential acquisition opportunities.

Lean Operating Structure Providing Operating Leverage.

Since the acquisition by Platinum, we have transformed our operating model by decentralizing our operations and reducing our cost base. Decentralization has improved our customer service by moving key functions such as procurement, credit and operations support to our regional offices. From 2007 through the end of 2009, we engaged in a number of cost reduction initiatives that included a headcount reduction of approximately 1,700, representing 33% of our workforce, and the closure of 14 redundant or underperforming facilities in North America. Furthermore, in 2011, we also completed the decentralization of credit, operations, and procurement and reduced field staffing levels. In that overall period, we believe that we have generated annual fixed cost savings of approximately $200 million since 2007. We believe this reduction has improved our operating efficiency while also providing the flexibility for further growth in our targeted markets.

We have also focused on process improvements in inventory management. Our inventory days improved from an average of 100 days in 2006 to 74 days and 82 days in 2011 and 2012, respectively. This reduction has decreased our exposure to metals price movements as well as increased capacity in our facilities to devote to higher margin products. These organizational and operating changes have improved our operating structure, working capital management and efficiency.

As a result of our initiatives, we have increased our financial flexibility and believe we have a favorable cost structure compared to many of our peers. This will provide significant operating leverage.

Extensive Breadth of Products and Services for Diverse Customer Base.

We carry a full range of over 75,000 products, including aluminum, carbon, stainless and alloy steels and a limited line of nickel and red metals. In addition, we provide a broad range of processing and fabrication services to meet the needs of our 40,000 customers and fulfill more than 1,000,000 orders per year. We also provide supply chain solutions, including just-in-time delivery, and value-added components to many original equipment manufacturers.

We believe our broad product mix and marketing approach provides customers with a “one-stop shop” solution few other service center companies are able to offer.

For the year ended December 31, 2012, no single customer accounted for more than 2% of our sales, and our top 10 customers accounted for less than 10% of sales.

 

 

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Strong Relationships with Suppliers.

We are among the largest purchasers of metals in North America and have long-term relationships with many of our North American suppliers. We believe we are frequently one of the largest customers of our suppliers and that concentrating our orders among a core group of suppliers is an effective method for obtaining favorable pricing and service. We believe we have the opportunity to further leverage this strength through continued focus on price and volume using an analytics-driven approach to procurement. In addition, we view our strategic suppliers as supply chain partners. Our coordinated effort focused on logistics, lead times, rolling schedules, and scrap return programs ultimately results in value-based buying that is advantageous for us. Metals producers worldwide are consolidating, and large, geographically diversified customers, such as Ryerson, are desirable partners for these larger suppliers. Our relationships with suppliers often provides us with access to metals when supply is constrained. Through our knowledge of the global metals marketplace and capabilities of specific mills we believe we have developed a global purchasing strategy that allows us to secure favorable prices across our product lines.

Experienced Management Team with Deep Industry Knowledge.

Our senior management team has extensive industry and operational experience and has been instrumental in optimizing and implementing our strategy in the last two years. Our senior management has an average of more than 20 years of experience in the metals or service center industries. The senior executive team’s extensive experience in international markets and outside the service center industry provides perspective to drive profitable growth.

Our CEO, Mr. Michael Arnold, joined the Company in January 2011 and has 34 years of diversified industrial experience. Mr. Edward Lehner, who has been our CFO since August 2012, has 24 years of experience predominantly in the metals industry. Under their leadership, we have increased our focus on positioning the Company for growth and enhanced profitability.

Our Strategy

Expand Margins.

We are actively pursuing strategies to achieve increased gross margins. We believe this will allow our profitability to accelerate as volumes in our industry improve. Although our 2012 net sales decreased by 14.9% as compared to our net sales in 2011, we have employed and continue to employ the following initiatives which have resulted in an increase in our gross margins as a percentage of sales, excluding LIFO expense, by over 250 basis points, from 13.4% in Q4 2011 to 16.2% in Q4 2012:

Optimize Product Mix . We see significant opportunities to continue to improve our margins by increasing long and plate products supplied to our customers, as long and plate products typically generate higher margins than flat products. We have established regional long product inventory to provide a broad line of stainless, aluminum, carbon and alloy long products as well as the necessary processing equipment to meet demanding requirements of these customers. In addition, over the past two years, a significant portion of our capital expenditures have gone toward upgrading and adding plate and long processing capabilities throughout our operational footprint. We expect to continue to optimize product mix through these initiatives.

Optimize Customer Mix . We have increased our focus on serving a diversified group of industrial customers that value our customized processing services which we price on a transaction-by-transaction basis as opposed to larger volume program account customers who typically have fixed pricing arrangements over varying time periods. Our sales to customers using transactional pricing arrangements typically generate higher margins and require less working capital investment. We have re-evaluated and re-priced many of our lower margin program accounts which has resulted in an increase in our margins, as evidenced above.

 

 

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Expand Value-added Processing Services . We seek to continue to improve our margins by complementing our products with first stage manufacturing and other processing capabilities that add value for our customers. Additionally, for certain customers we have assumed the management and responsibility for complex supply chains involving numerous suppliers, fabricators and processors. We leverage our capabilities to deliver the highest value proposition to our customers by providing a wide breadth of competitive products and services, as well as superior customer service and product quality.

Improve Supply Chain and Procurement Management . As a large purchaser of metals we continue to use analytic-driven processes to develop supply chains which lower our procured costs, shorten our lead times, improve our working capital management and decrease our exposure to commodity price fluctuations.

Improve Operating Efficiency.

We are committed to improving our operating capabilities through continuous business improvements and cost reductions. We have made, and continue to make, improvements in a variety of areas, including operations, sales, delivery, administration and working capital management. Furthermore, we continue to focus on better customer service and the hiring, retention and promotion of high performing employees as well as place greater emphasis on working capital efficiencies. In particular with respect to inventory, our goal of maintaining approximately 75-80 days of sales on hand reduces our exposure to metals prices and increases capacity in facilities to devote to higher margin products. Our streamlined organizational structure combines local decision making with regional and national sourcing to improve efficiency.

Pursue Profitable Growth Through Expansion and Value-Accretive Acquisitions.

We are focused on increasing our sales to existing customers, as well as expanding our customer base globally, but there can be no guarantee we will be able to expand. We expect to continue increasing revenue through a variety of sales initiatives and by targeting attractive markets.

In North America, we have expanded and continue to expand in markets that we believe are underserved. We opened seven new facilities since 2011 in Texas, Georgia, Iowa, Illinois, Utah and Mexico, and have expanded higher-margin plate fabrication or long-product capabilities at many existing locations, where we have observed an opportunity to generate attractive returns. We are continuously monitoring opportunities for further expansion across the United States, Canada and Mexico. We expect to leverage our expertise in North America and selectively expand our business in China and Brazil as well as additional high growth emerging markets.

Since 2010, we have completed five strategic acquisitions: Texas Steel Processing Inc., SFI-Gray Steel Inc., Singer Steel Company, Turret Steel and Açofran Aços e Metais Ltda. These acquisitions have provided various opportunities for long-term value creation through the expansion of our product and service capabilities, geographic reach, operational distribution network, end markets diversification, cross-selling opportunities and the addition of transactional-based customers. Although the Company does not have any current plans to engage in any specific acquisitions, we regularly evaluate potential acquisitions of service center companies that complement our existing customer base and product offerings, and plan to continue pursuing our disciplined approach to such acquisitions.

Maintain Flexible Capital Structure and Strong Liquidity Position.

Our management team is focused on maintaining a strong level of liquidity that will facilitate our plans to execute our various growth strategies. Throughout the economic downturn, we maintained liquidity in excess of $300 million. Liquidity as of December 31, 2012 was approximately $406 million, comprised of $314 million of excess availability under Ryerson’s senior secured $1.35 billion asset-based revolving credit facility and foreign debt facilities, and $92 million of cash-on-hand and marketable securities. We have no financial maintenance covenants in our debt agreements unless availability under the Ryerson Credit Facility falls below $125 million.

 

 

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Substantially all of the proceeds from this offering will be used to further reduce our outstanding indebtedness. In addition, following the 2012 bond refinancing, there are no significant debt maturities until the maturity of the Ryerson Credit Facility, which occurs on the earlier of (a) April 3, 2018 or (b) August 16, 2017 (60 days prior to the scheduled maturity date of the 9% Senior Secured Notes due 2017 issued by Ryerson and its wholly owned subsidiary, Joseph T. Ryerson & Son Inc. (the “2017 Notes”)), if the 2017 Notes are then outstanding.

Risk Factors

An investment in our common stock is subject to substantial risks and uncertainties. Before investing in our common stock, you should carefully consider the following, as well as the more detailed discussion of risk factors and other information included in this prospectus:

 

   

although the financial markets are in a state of recovery, the economic downturn reduced both demand for our products and metals prices;

 

   

the metals distribution business is very competitive and increased competition could reduce our gross margins and net income;

 

   

we may not be able to sustain the annual cost savings realized as part of our cost reduction initiatives; and

 

   

we may not be able to successfully consummate and complete the integration of future acquisitions, and if we are unable to do so, we may be unable to increase our growth rates.

Recent Developments

Stock Split

On                     , 2013, our Board of Directors approved a         for 1.00 stock split of the Company’s common stock to be effected prior to the closing of this offering. Our consolidated financial statements as of December 31, 2012 and 2011 and for the years ended December 31, 2012, 2011 and 2010 give retroactive effect to the stock split.

The Sponsor

Platinum Equity, LLC (together with its affiliates, “Platinum Equity”) is a global acquisition firm headquartered in Beverly Hills, California with principal offices in New York, Boston and London. Since its founding in 1995, Platinum Equity has completed more than 145 acquisitions in a broad range of market sectors including packaging, technology, industrials, logistics, distribution, maintenance and service. Platinum Equity’s current portfolio includes over 30 companies in a variety of different industries that serve customers around the world. Platinum Equity has a diversified capital base that includes the assets of its portfolio companies, which generated more than $15 billion in revenue in 2012, as well as capital commitments from institutional investors in private equity funds managed by the firm. Platinum Equity’s M&A&O ® (Mergers & Acquisitions & Operations) approach to investing focuses on acquiring businesses that need operational support to realize their full potential and can benefit from Platinum Equity’s expertise in transition, integration and operations.

Joseph T. Ryerson & Son, Inc. (“JT Ryerson”), one of our subsidiaries, is party to a corporate advisory services agreement (the “Services Agreement”) with Platinum Advisors, an affiliate of Platinum. In connection with this offering, Platinum Advisors and JT Ryerson intend to terminate the Services Agreement, pursuant to which JT Ryerson will pay Platinum Advisors $             million as consideration for terminating the Services Agreement. We refer to this as the “Services Agreement Termination.” See “Certain Relationships and Related Party Transactions—Services Agreement.”

 

 

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Corporate Structure

Our current corporate structure is made up as follows: Ryerson Holding, the issuer of the common stock offered hereby, owns all of the common stock of Ryerson Inc. and all of the membership interests of Rhombus JV Holdings, LLC. Ryerson Inc. owns, directly or indirectly, all of the common stock of the following entities: JT Ryerson; Ryerson Americas, Inc.; Ryerson International, Inc.; Ryerson Pan-Pacific LLC; J.M. Tull Metals Company, Inc.; RdM Holdings, Inc.; RCJV Holdings, Inc.; Ryerson Procurement Corporation; Ryerson International Material Management Services, Inc.; Ryerson International Trading, Inc.; Ryerson Canada, Inc.; Ryerson Metals de Mexico, S. de R.L. de C.V.; 862809 Ontario, Inc.; Leets Assurance, Ltd.; Integris Metals Mexicana, S.A. de C.V.; Servicios Empresariales Ryerson Tull, S.A. de C.V.; Servicios Corporativos RIM, S.A. de C.V.; Turret Holding Corporation; Turret Steel Industries, Inc.; Turret Steel Canada, ULC; Sunbelt-Turret Steel, Inc.; Ryerson Brasil Participacoes Ltda; Ryerson Holdings (Brazil), LLC; EPE LLC; Ryerson Canada Finance ULC; Imperial Trucking Company, LLC; Wilcox-Turret Cold Drawn, Inc.; and Ryerson Holdings (India) Pte Ltd. Platinum currently owns 99% of the capital stock of Ryerson Holding and will own approximately         % of the capital stock following this offering. The chart below illustrates in summary form our material operating subsidiaries.

 

LOGO

 

1  

Platinum refers to the following entities: Platinum Equity Capital Partners, L.P.; Platinum Equity Capital Partners-PF, L.P.; Platinum Equity Capital Partners-A, L.P.; Platinum Equity Capital Partners II, L.P.; Platinum Equity Capital Partners-PF II, L.P.; Platinum Equity Capital Partners-A II, L.P.; and Platinum Rhombus Principals, LLC. For additional detail regarding ownership by Platinum, see “Principal and Selling Stockholders.”

 

 

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Corporate Information

Ryerson Holding and Ryerson Inc. are each incorporated under the laws of the State of Delaware. Ryerson Holding was formed in July 2007. Our principal executive offices are located at 227 W. Monroe, 27 th Floor, Chicago, Illinois 60606. Our telephone number is (312) 292-5000.

On January 1, 2006, Ryerson Inc. changed its name from Ryerson Tull, Inc. to Ryerson Inc. On January 4, 2010, Ryerson Holding changed its name from Rhombus Holding Corporation to Ryerson Holding Corporation. Our website is located at www.ryerson.com . Our website and the information contained on the website or connected thereto will not be deemed to be incorporated into this prospectus and you should not rely on any such information in making your decision whether to purchase our securities.

 

 

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The Offering

 

Issuer

Ryerson Holding Corporation.

 

Common stock offered by us

            shares.

 

Underwriters’ over-allotment option to purchase additional common stock from the selling stockholders

Up to             shares.

 

Common stock outstanding before this offering

5,000,000 shares.

 

Common stock to be outstanding immediately following this offering

            shares.

 

Use of proceeds

We estimate that our net proceeds from this offering will be approximately $         million, assuming an initial public offering price of $         per share, the mid-point of the estimated initial public offering price range.

 

We intend to use the net proceeds to us from this offering to (i) redeem $              in aggregate principal amount of the 11.25% Senior Notes due 2018 issued by Ryerson and its wholly owned subsidiary Joseph T. Ryerson & Son Inc. (the “2018 Notes”), (ii) repay approximately $              of the borrowings outstanding under our $1.35 billion revolving credit facility agreement that matures on the earlier of (a) April 3, 2018 or (b) August 16, 2017 (60 days prior to the scheduled maturity date of the 2017 Notes), if the 2017 Notes are then outstanding (as amended, the “Ryerson Credit Facility”), (iii) pay Platinum Advisors $              as consideration for terminating the Services Agreement, (iv) redeem up to $              in aggregate principal amount of the 9% Senior Secured Notes due 2017 issued by Ryerson and its wholly owned subsidiary Joseph T. Ryerson & Son Inc. (the “2017 Notes” and together with the 2018 Notes, the “2017 and 2018 Notes”) and (v) pay related transaction fees, expenses and premiums in connection with this offering.

 

  If the over-allotment is exercised, we will not receive any proceeds from the sale of our common stock by the selling stockholders.

 

Risk factors

See “Risk Factors” on page 17 of this prospectus for a discussion of factors you should carefully consider before deciding to invest in our common stock.

 

Dividend policy

We do not anticipate declaring or paying any regular cash dividends on our common stock in the foreseeable future. Any payment of cash dividends on our common stock in the future will be at the discretion of our Board of Directors and will depend upon our results of operations, earnings, capital requirements, financial condition, future prospects, contractual restrictions, including under the Ryerson Credit Facility and our outstanding notes, and other factors deemed relevant by our Board of Directors.

 

 

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Proposed New York Stock Exchange symbol

“RYI.”

 

Directed share program

At our request, the underwriters have reserved up to 5% of the shares of common stock for sale at the initial public offering price to persons who are employees, officers, directors and other parties associated with us through a directed share program. The number of shares of common stock available for sale to the general public will be reduced by the number of directed shares purchased by participants in the program. Any directed shares not purchased will be offered by the underwriters to the general public on the same basis as all other shares of common stock offered. We have agreed to indemnify the underwriters against certain liabilities and expenses, including liabilities under the Securities Act, in connection with the sales of the directed shares. Individuals who purchase shares in excess of $1,000,000 in the directed share program will be subject to a 25-day lock-up period, except that any of our executive officers or directors or any selling stockholders who purchase shares in the directed share program will remain subject to the 180-day lock-up period from the date of this prospectus, as described in “Underwriting—No Sales of Similar Securities.”

The number of shares to be outstanding after this offering is based on 5,000,000 shares of common stock outstanding immediately before this offering and the             shares of common stock being sold by us in this offering, and assumes no exercise by the underwriters of their option to purchase shares of our common stock in this offering to cover over-allotments, if any. The number of shares to be outstanding after this offering excludes             shares of common stock reserved for future grants under our stock incentive plan assuming such plan is adopted in connection with this offering.

Unless we specifically state otherwise, the information in this prospectus assumes:

 

   

an initial public offering price of $             per share, the mid-point of the offering range set forth on the cover page of this prospectus;

 

   

the underwriters do not exercise their over-allotment option; and

 

   

a             for 1.00 stock split that will occur prior to the closing of this offering.

 

 

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Summary Historical Consolidated Financial and Other Data

The following table presents our summary historical consolidated financial data, as of the dates and for the periods indicated. Our summary historical consolidated statements of operations data for the years ended December 31, 2010, 2011 and 2012 and the summary historical balance sheet data as of December 31, 2011 and 2012 have been derived from our audited consolidated financial statements included elsewhere in this prospectus.

You should read the summary financial and other data set forth below along with the sections in this prospectus entitled “Use of Proceeds,” “Selected Consolidated Financial Data,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the consolidated financial statements and related notes included elsewhere in this prospectus. The share and per share information presented below has been adjusted to give effect to the             for 1.00 stock split that will occur immediately prior to the closing of this offering.

 

    Year Ended December 31,  
    2010     2011     2012  
    ($ in millions)  

Statements of Operations Data:

     

Net sales

  $ 3,895.5      $ 4,729.8      $ 4,024.7   

Cost of materials sold

    3,355.7        4,071.0        3,315.1   
 

 

 

   

 

 

   

 

 

 

Gross profit

    539.8        658.8        709.6   

Warehousing, selling, general and administrative

    506.9        539.7        508.9   

Restructuring and other charges

    12.0        11.1        1.1   

Gain on insurance settlement

    (2.6     —          —     

Impairment charges on fixed assets and goodwill

    1.4        9.3        1.0   

Pension and other postretirement benefits curtailment (gain) loss

    2.0        —          (1.7
 

 

 

   

 

 

   

 

 

 

Operating profit

    20.1        98.7        200.3   

Other income and (expense), net (1)

    (3.2     4.6        (33.5

Interest and other expense on debt (2)

    (107.5     (123.1     (126.5
 

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

    (90.6     (19.8     40.3   

Provision (benefit) for income taxes (3)

    13.1        (11.0     (5.5
 

 

 

   

 

 

   

 

 

 

Net income (loss)

    (103.7     (8.8     45.8   

Less: Net income (loss) attributable to noncontrolling interest

    0.3        (0.7     (1.3
 

 

 

   

 

 

   

 

 

 

Net income (loss) attributable to Ryerson Holding Corporation

  $ (104.0   $ (8.1   $ 47.1   
 

 

 

   

 

 

   

 

 

 

 

 

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     Year Ended December 31,  
     2010     2011     2012  
     ($ in millions, except per share data)  

Earnings (loss) per share of common stock:

      

Basic earnings (loss) per share

   $ (20.80   $ (1.62   $ 9.41   
  

 

 

   

 

 

   

 

 

 

Diluted earnings (loss) per share

   $ (20.80   $ (1.62   $ 9.41   
  

 

 

   

 

 

   

 

 

 

Weighted average shares outstanding — Basic

     5.0        5.0        5.0   

Weighted average shares outstanding — Diluted

     5.0        5.0        5.0   
      

Balance Sheet Data (at period end):

      

Cash and cash equivalents

   $ 62.6      $ 61.7      $ 71.2   

Restricted cash

     15.6        5.3        3.9   

Inventory

     783.4        732.4        741.5   

Working capital

     858.8        806.6        796.7   

Property, plant and equipment, net

     479.2        479.7        472.3   

Total assets

     2,053.5        2,058.4        1,954.1   

Long-term debt, including current maturities

     1,211.3        1,316.2        1,305.4   

Other Financial Data:

      

Cash flows provided by (used in) operations

   $ (198.7   $ 54.5      $ 186.5   

Cash flows used in investing activities

     (44.4     (115.0     (35.3

Cash flows provided by (used in) financing activities

     185.1        57.9        (143.4

Capital expenditures

     27.0        47.0        40.8   

Depreciation and amortization

     38.4        43.0        47.0   

EBITDA (4)

     55.0        147.0        215.1   

Adjusted EBITDA (4)

     81.1        174.5        264.7   

Adjusted EBITDA, excluding LIFO (4)

     133.5        223.1        201.6   

Ratio of Tangible Assets to Total Net Debt (5)

     1.5x        1.4x        1.3x   

Volume and Per Ton Data:

      

Tons shipped (000)

     2,252        2,433        2,149   

Average number of employees

     4,126        4,236        4,021   

Tons shipped per employee

     546        574        534   

Average selling price per ton

   $ 1,730      $ 1,944      $ 1,873   

Gross profit per ton

     240        271        330   

Operating profit (loss) per ton

     9        41        93   

 

(1) The year ended December 31, 2010 includes $2.6 million of foreign exchange losses related to the repayment of a long-term loan to our Canadian operations. The year ended December 31, 2011 includes a $5.8 million gain on bargain purchase related to our Singer acquisition. The year ended December 31, 2012 includes a $32.8 million loss on the redemption of the Ryerson Notes and Ryerson Holding Notes.
(2) The year ended December 31, 2011 includes a $1.1 million write off of debt issuance costs associated with our prior credit facility upon entering into an amended revolving credit facility on March 14, 2011.
(3) The year ended December 31, 2011 includes income tax benefits of $18.0 million relating to the purchase accounting impact of the Turret and Singer acquisitions. The year ended December 31, 2012 includes an income tax benefit of $15.2 million related to the release of valuation allowance associated with certain state deferred tax assets.
(4)

EBITDA, for the period presented below, represents net income before interest and other expense on debt, provision for income taxes, depreciation and amortization. Adjusted EBITDA gives further effect to, among other things, loss on retirement of debt, impairment charges on fixed assets and goodwill, reorganization expenses and the payment of management fees. We believe that the presentation of EBITDA and Adjusted EBITDA provides useful information to investors regarding our operational performance because they enhance an investor’s overall understanding of our core financial performance and provide a basis of comparison of results between current, past and future periods. EBITDA and Adjusted EBITDA are two of the primary metrics management uses for planning and forecasting in future periods, including trending and analyzing the core operating performance of our business without the effect of U.S. generally accepted

 

 

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  accounting principles, or GAAP, expenses, revenues and gains (losses) that are unrelated to the day to day performance of our business. We also establish compensation programs for our executive management and regional employees that are based upon the achievement of pre-established EBITDA and Adjusted EBITDA targets. We also use EBITDA and Adjusted EBITDA to benchmark our operating performance to that of our competitors. EBITDA and Adjusted EBITDA do not represent, and should not be used as a substitute for, net income or cash flows from operations as determined in accordance with generally accepted accounting principles, and neither EBITDA nor Adjusted EBITDA is necessarily an indication of whether cash flow will be sufficient to fund our cash requirements. Our definitions of EBITDA and Adjusted EBITDA may differ from that of other companies. Set forth below is the reconciliation of net income to EBITDA, as further adjusted to Adjusted EBITDA and Adjusted EBITDA, excluding LIFO.

 

     Year Ended December 31,  
     2010     2011     2012  
     ($ in millions)  

Net income (loss) attributable to Ryerson Holding

   $ (104.0   $ (8.1   $ 47.1   

Interest and other expense on debt

     107.5        123.1        126.5   

Provision (benefit) for income taxes

     13.1        (11.0     (5.5

Depreciation and amortization

     38.4        43.0        47.0   
  

 

 

   

 

 

   

 

 

 

EBITDA

     55.0        147.0        215.1   

Reorganization

     19.1        17.8        5.8   

Advisory service fee

     5.0        5.0        5.0   

Loss on retirement of debt

     —          —          32.8   

Foreign currency transaction losses

     2.7        0.8        1.5   

Gain on insurance settlement

     (2.6     —          —     

Impairment charges on fixed assets and goodwill

     1.4        9.3        1.0   

Gain on bargain purchase

     —          (5.8     —     

Purchase consideration

     —          —          4.3   

Other adjustments

     0.5        0.4        (0.8
  

 

 

   

 

 

   

 

 

 

Adjusted EBITDA

     81.1        174.5        264.7   

LIFO expense (income)

     52.4        48.6        (63.1
  

 

 

   

 

 

   

 

 

 

Adjusted EBITDA, excluding LIFO expense (income)

   $ 133.5      $ 223.1      $ 201.6   
  

 

 

   

 

 

   

 

 

 

 

(5) The table below sets forth the inputs used for the calculations of the ratio of tangible assets to total net debt for the years ended December 31, 2010, 2011 and 2012.

 

     Year ended December 31,  
     2010     2011     2012  
     ($ in millions)  

Receivables less provision for allowances, claims and doubtful accounts

   $ 497.9      $ 513.9      $ 394.1   

Inventories

     783.4        732.4        741.5   

Assets held for sale

     14.3        10.0        3.6   

Property, plant and equipment, net of accumulated depreciation

     479.2        479.7        472.3   
  

 

 

   

 

 

   

 

 

 

Tangible Assets

   $ 1,774.8      $ 1,736.0      $ 1,611.5   
  

 

 

   

 

 

   

 

 

 

Long-term debt, including current maturities

   $ 1,211.3      $ 1,316.2      $ 1,305.4   

Less cash and cash equivalents

     (62.6     (61.7     (71.2
  

 

 

   

 

 

   

 

 

 

Total Net Debt

   $ 1,148.7      $ 1,254.5      $ 1,234.2   
  

 

 

   

 

 

   

 

 

 

Ratio of Tangible Assets to Total Net Debt

     1.5x        1.4x        1.3x   
  

 

 

   

 

 

   

 

 

 

 

 

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RISK FACTORS

Investing in our common stock involves a high degree of risk. You should carefully consider the risks described below, together with the other information contained in this prospectus, before making your decision to invest in shares of our common stock. We cannot assure you that any of the events discussed in the risk factors below will not occur. These risks could have a material and adverse impact on our business, results of operations, financial condition and cash flows. If that were to happen, the trading price of our common stock could decline, and you could lose all or part of your investment.

Risks Relating to Our Business

We service industries that are highly cyclical, and any downturn in our customers’ industries could reduce our sales and profitability. The economic downturn has reduced demand for our products and may continue to reduce demand until an economic recovery.

Many of our products are sold to industries that experience significant fluctuations in demand based on economic conditions, energy prices, seasonality, consumer demand and other factors beyond our control. These industries include manufacturing, electrical products and transportation. We do not expect the cyclical nature of our industry to change.

The U.S. economy entered an economic recession in December 2007, which spread to many global markets in 2008 and 2009 and affected Ryerson and other metals service centers. Beginning in late 2008 and continuing through 2013, the metals industry, including Ryerson and other service centers, felt additional effects of the global economic crisis and recovery thereto and the impact of the credit market disruption. These events contributed to a rapid decline in both demand for our products and pricing levels for those products. The Company has implemented a number of actions to conserve cash, reduce costs and strengthen its competitiveness, including curtailing non-critical capital expenditures, initiating headcount reductions and reductions of certain employee benefits, among other actions. However, there can be no assurance that these actions, or any others that the Company may take in response to further deterioration in economic and financial conditions, will be sufficient.

The volatility of the market could result in a material impairment of goodwill.

We evaluate goodwill annually on October 1 and whenever events or changes in circumstances indicate potential impairment. Events or changes in circumstances that could trigger an impairment review include significant underperformance relative to our historical or projected future operating results, significant changes in the manner or the use of our assets or the strategy for our overall business, and significant negative industry or economic trends. We test for impairment of goodwill by calculating the fair value of a reporting unit using an average of an income approach based on discounted future cash flows and a market approach at the date of valuation. Under the discounted cash flow method, the fair value of each reporting unit is estimated based on expected future economic benefits discounted to a present value at a rate of return commensurate with the risk associated with the investment. Projected cash flows are discounted to present value using an estimated weighted average cost of capital, which considers both returns to equity and debt investors. Significant changes in any one of the assumptions made as part of our analysis, which could occur as a result of actual events, or further declines in the market conditions for our products, could significantly impact our impairment analysis. An impairment charge, if incurred, could be material.

The metals distribution business is very competitive and increased competition could reduce our revenues and gross margins.

The principal markets that we serve are highly competitive. The metals distribution industry is fragmented and competitive, consisting of a large number of small companies and a few relatively large companies. Competition is based principally on price, service, quality, production capabilities, inventory availability and

 

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timely delivery. Competition in the various markets in which we participate comes from companies of various sizes, some of which have greater financial resources than we have and some of which have more established brand names in the local markets served by us. Increased competition could reduce our market share, force us to lower our prices or to offer increased services at a higher cost, which could reduce our profitability.

The economic downturn has reduced metals prices. Though prices have risen since the onset of the economic downturn, we cannot assure you that prices will continue to rise. Changing metals prices may have a significant impact on our liquidity, net sales, gross margins, operating income and net income.

The metals industry as a whole is cyclical and, at times, pricing and availability of metal can be volatile due to numerous factors beyond our control, including general domestic and international economic conditions, labor costs, sales levels, competition, levels of inventory held by other metals service centers, consolidation of metals producers, higher raw material costs for the producers of metals, import duties and tariffs and currency exchange rates. This volatility can significantly affect the availability and cost of materials for us.

We, like many other metals service centers, maintain substantial inventories of metal to accommodate the short lead times and just-in-time delivery requirements of our customers. Accordingly, we purchase metals in an effort to maintain our inventory at levels that we believe to be appropriate to satisfy the anticipated needs of our customers based upon historic buying practices, contracts with customers and market conditions. When metals prices decline, as they did in 2008 and 2009, customer demands for lower prices and our competitors’ responses to those demands could result in lower sale prices and, consequently, lower margins as we use existing metals inventory. Notwithstanding recent price increases, metals prices may decline, and declines in those prices or further reductions in sales volumes could adversely impact our ability to maintain our liquidity and to remain in compliance with certain financial covenants under the Ryerson Credit Facility, as well as result in us incurring inventory or goodwill impairment charges. Changing metals prices therefore could significantly impact our liquidity, net sales, gross margins, operating income and net income.

We have a substantial amount of indebtedness, which could adversely affect our financial position and prevent us from fulfilling our obligations.

We currently have a substantial amount of indebtedness, including, as of December 31, 2012, $600.0 million outstanding under our 2017 Notes and $300.0 million outstanding under our 2018 Notes, and may incur additional indebtedness in the future. As of December 31, 2012, after giving effect to this offering and the application of net proceeds from this offering our total indebtedness would have been approximately $             million and we would have had approximately $             million of unused capacity under the Ryerson Credit Facility. Our substantial indebtedness may:

 

   

make it difficult for us to satisfy our financial obligations, including making scheduled principal and interest payments on our outstanding notes and our other indebtedness;

 

   

limit our ability to borrow additional funds for working capital, capital expenditures, acquisitions and general corporate and other purposes;

 

   

limit our ability to use our cash flow or obtain additional financing for future working capital, capital expenditures, acquisitions or other general corporate purposes;

 

   

require us to use a substantial portion of our cash flow from operations to make debt service payments;

 

   

limit our flexibility to plan for, or react to, changes in our business and industry;

 

   

place us at a competitive disadvantage compared to our less leveraged competitors; and

 

   

increase our vulnerability to the impact of adverse economic and industry conditions.

We may also incur additional indebtedness in the future. The terms of the Ryerson Credit Facility and the indentures governing our outstanding notes restrict but do not prohibit us from doing so, and the indebtedness incurred in compliance with these restrictions could be substantial. If new indebtedness is added to our current debt levels, the related risks that we now face could intensify.

 

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The covenants in the Ryerson Credit Facility and the indentures governing our outstanding notes impose, and covenants contained in agreements governing indebtedness we incur in the future may impose, restrictions that may limit our operating and financial flexibility.

The Ryerson Credit Facility and the indentures governing our outstanding notes contain a number of significant restrictions and covenants that limit our ability and the ability of our restricted subsidiaries, including Ryerson Inc., to:

 

   

incur additional debt;

 

   

pay dividends on our capital stock or repurchase our capital stock;

 

   

make certain investments or other restricted payments;

 

   

create liens or use assets as security in other transactions;

 

   

merge, consolidate or transfer or dispose of substantially all of our assets; and

 

   

engage in transactions with affiliates.

The terms of the Ryerson Credit Facility require that, in the event availability under the facility declines to a certain level, we maintain a minimum fixed charge coverage ratio at the end of each fiscal quarter. Total credit availability is limited by the amount of eligible accounts receivable and inventory pledged as collateral under the agreement insofar as the Company is subject to a borrowing base comprised of the aggregate of these two amounts, less applicable reserves. As of December 31, 2012, total credit availability was $293 million based upon eligible accounts receivable and inventory pledged as collateral.

Additionally, subject to certain exceptions, the indentures governing the outstanding notes restrict Ryerson’s ability to pay us dividends to the extent of 50% of future net income, once prior losses are offset. Future net income is defined in the indenture governing the notes as net income adjusted for, among other things, the inclusion of dividends from joint ventures actually received in cash by Ryerson, and the exclusion of: (i) all extraordinary gains or losses; (ii) a certain portion of net income allocable to minority interest in unconsolidated persons or investments in unrestricted subsidiaries; (iii) gains or losses in respect of any asset sale on an after tax basis; (iv) the net income from any disposed or discontinued operations or any net gains or losses on disposed or discontinued operations, on an after-tax basis; (v) any gain or loss realized as a result of the cumulative effect of a change in accounting principles; (vi) any fees and expenses paid in connection with the issuance of the notes; (vii) non-cash compensation expense incurred with any issuance of equity interest to an employee; and (viii) any net after-tax gains or losses attributable to the early extinguishment of debt. Our future indebtedness may contain covenants more restrictive in certain respects than the restrictions contained in the Ryerson Credit Facility and the indentures governing the notes. Operating results below current levels or other adverse factors, including a significant increase in interest rates, could result in our being unable to comply with financial covenants that are contained in the Ryerson Credit Facility or that may be contained in any future indebtedness. In addition, complying with these covenants may also cause us to take actions that are not favorable to holders of our notes and may make it more difficult for us to successfully execute our business strategy and compete against companies that are not subject to such restrictions.

We may not be able to generate sufficient cash to service all of our indebtedness.

Our ability to make payments on our indebtedness depends on our ability to generate cash in the future. Our outstanding notes, the Ryerson Credit Facility and our other outstanding indebtedness are expected to account for significant cash interest expenses. Accordingly, we will have to generate significant cash flows from operations to meet our debt service requirements. If we do not generate sufficient cash flow to meet our debt service and working capital requirements, we may be required to sell assets, seek additional capital, reduce capital expenditures, restructure or refinance all or a portion of our existing indebtedness, or seek additional financing. Moreover, insufficient cash flow may make it more difficult for us to obtain financing on terms that are acceptable to us, or at all. Furthermore, Platinum has no obligation to provide us with debt or equity financing and we therefore may be unable to generate sufficient cash to service all of our indebtedness.

 

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Because a substantial portion of our indebtedness bears interest at rates that fluctuate with changes in certain prevailing short-term interest rates, we are vulnerable to interest rate increases.

A substantial portion of our indebtedness, including the Ryerson Credit Facility, bears interest at rates that fluctuate with changes in certain short-term prevailing interest rates. As of December 31, 2012, we had approximately $383.5 million of outstanding borrowings under the Ryerson Credit Facility, with an additional $293 million available for borrowing under such facility. Assuming a consistent level of debt, a 100 basis point change in the interest rate on our floating rate debt effective from the beginning of the year would increase or decrease our interest expense under the Ryerson Credit Facility by approximately $4.8 million for the year ended December 31, 2012. If interest rates increase dramatically, we could be unable to service our debt which could have a material adverse effect on our business, financial condition, results of operations or cash flows.

We may not be able to successfully consummate and complete the integration of future acquisitions, and if we are unable to do so, we may be unable to increase our growth rates.

We have grown through a combination of internal expansion, acquisitions and joint ventures. We intend to continue to grow through selective acquisitions, but we may not be able to identify appropriate acquisition candidates, obtain financing on satisfactory terms, consummate acquisitions or integrate acquired businesses effectively and profitably into our existing operations. Restrictions contained in the agreements governing our notes, the Ryerson Credit Facility or our other existing or future debt may also inhibit our ability to make certain investments, including acquisitions and participations in joint ventures.

Our future success will depend on our ability to complete the integration of these future acquisitions successfully into our operations. After any acquisition, customers may choose to diversify their supply chains to reduce reliance on a single supplier for a portion of their metals needs. We may not be able to retain all of our and an acquisition’s customers, which may adversely affect our business and sales. Integrating acquisitions, particularly large acquisitions, requires us to enhance our operational and financial systems and employ additional qualified personnel, management and financial resources, and may adversely affect our business by diverting management away from day-to-day operations. Further, failure to successfully integrate acquisitions may adversely affect our profitability by creating significant operating inefficiencies that could increase our operating expenses as a percentage of sales and reduce our operating income. In addition, we may not realize expected cost savings from acquisitions, which may also adversely affect our profitability.

We may not be able to retain or expand our customer base if the North American manufacturing industry continues to erode through moving offshore or through acquisition and merger or consolidation activity in our customers’ industries.

Our customer base primarily includes manufacturing and industrial firms. Some of our customers operate in industries that are undergoing consolidation through acquisition and merger activity; some are considering or have considered relocating production operations overseas or outsourcing particular functions overseas; and some customers have closed as they were unable to compete successfully with overseas competitors. Our facilities are predominately located in the United States and Canada. To the extent that our customers cease U.S. operations, relocate or move operations overseas to regions in which we do not have a presence, we could lose their business. Acquirers of manufacturing and industrial firms may have suppliers of choice that do not include us, which could impact our customer base and market share.

Certain of our operations are located outside of the United States, which subjects us to risks associated with international activities .

Certain of our operations are located outside of the United States, primarily in Canada, China, Mexico and Brazil. We are subject to the Foreign Corrupt Practices Act (“FCPA”), which generally prohibits U.S. companies and their intermediaries from making corrupt payments or otherwise corruptly giving any other thing of value to

 

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foreign officials for the purpose of obtaining or keeping business or otherwise obtaining favorable treatment, and requires companies to maintain adequate record-keeping and internal accounting practices. The FCPA applies to covered companies, individual directors, officers, employees and agents. Under the FCPA, U.S. companies may be held liable for some actions taken by strategic or local partners or representatives. If we or our intermediaries fail to comply with the requirements of the FCPA, governmental authorities in the United States could seek to impose civil and/or criminal penalties.

The Chinese government exerts substantial influence over the manner in which we must conduct our business activities, particularly with regards to the land our facilities are located on.

The Chinese government has exercised and continues to exercise substantial control over the Chinese economy through regulation and state ownership. Our ability to operate in China may be harmed by changes in its laws and regulations, including those relating to taxation, import and export tariffs, environmental regulations, land use rights, property and other matters. We believe that our operations in China are in material compliance with all applicable legal and regulatory requirements. However, the central or local governments of the jurisdictions in which we operate may impose new, stricter regulations or interpretations of existing regulations that would require additional expenditures and efforts on our part to ensure our compliance with such regulations or interpretations. Moreover, the Chinese court system does not provide the same property and contract right guarantees as do courts in the United States and, accordingly, disputes may be protracted and resolution of claims may result in significant economic loss.

Additionally, although in recent years the Chinese government has implemented measures emphasizing the utilization of market forces for economic reform, there is no private ownership of land in China and all land ownership is held by the government of China, its agencies, and collectives, which issue land use rights that are generally renewable. We lease the land where our Chinese facilities are located from the Chinese government. Although we believe our relationship with the Chinese government is sound, if the Chinese government decided to terminate our land use rights agreements, our assets could become impaired and our ability to meet customer orders could be impacted.

Operating results experience seasonal fluctuations.

A portion of our customers experience seasonal slowdowns. Our sales in the months of July, November and December traditionally have been lower than in other months because of a reduced number of shipping days and holiday or vacation closures for some customers. Consequently, our sales in the first two quarters of the year are usually higher than in the third and fourth quarters.

Damage to our information technology infrastructure could harm our business.

The unavailability of any of our computer-based systems for any significant period of time could have a material adverse effect on our operations. In particular, our ability to manage inventory levels successfully largely depends on the efficient operation of our computer hardware and software systems. We use management information systems to track inventory information at individual facilities, communicate customer information and aggregate daily sales, margin and promotional information. Difficulties associated with upgrades, installations of major software or hardware, and integration with new systems could have a material adverse effect on results of operations. We will be required to expend substantial resources to integrate our information systems with the systems of companies we have acquired. The integration of these systems may disrupt our business or lead to operating inefficiencies. In addition, these systems are vulnerable to, among other things, damage or interruption from fire, flood, tornado and other natural disasters, power loss, computer system and network failures, operator negligence, physical and electronic loss of data, or security breaches and computer viruses.

 

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Any significant work stoppages can harm our business.

As of December 31, 2012, we employed approximately 3,400 persons in North America, 500 persons in China, and 50 persons in Brazil. Our North American workforce was comprised of approximately 1,700 office employees and approximately 1,700 plant employees. Thirty-one percent of our plant employees were members of various unions, including the United Steel Workers and the International Brotherhood of Teamsters. Our relationship with the various unions has generally been good.

Nine contracts covering 339 persons were scheduled to expire in 2009. We reached agreement on the renewal of eight contracts covering approximately 258 persons and one contract covering approximately 89 persons was extended. During 2010, the parties to this extended contract covering two Chicago area facilities agreed to sever the bargaining unit between the two facilities and bargaining was concluded for one facility, which covered approximately 59 employees. This contract expired in 2011 due to facility closure. The other facility’s contract, which covered approximately 30 employees, completed negotiations in 2011. Seven contracts covering approximately 85 persons were scheduled to expire in 2010. We reached agreement on the renewal of all seven contracts. Ten contracts covering approximately 312 persons were scheduled to expire in 2011. One of these contracts, which covered 59 employees, was not renewed due to facility closure. Eight of these contracts were successfully negotiated in 2011 and the remaining contract covering 60 employees had been extended and then was successfully concluded in December 2012. Six contracts covering approximately 258 employees were scheduled to expire in 2012. We reached agreement on all six of those agreements. In 2013, there is one contract covering 16 employees scheduled to expire in December.

Certain employee retirement benefit plans are underfunded and the actual cost of those benefits could exceed current estimates, which would require us to fund the shortfall.

As of December 31, 2012, our pension plan had an unfunded liability of $370 million. Our actual costs for benefits required to be paid may exceed those projected and future actuarial assessments to the extent that those costs exceed the current assessment. Under those circumstances, the adjustments required to be made to our recorded liability for these benefits could have a material adverse effect on our results of operations and financial condition and cash payments to fund these plans could have a material adverse effect on our cash flows. We may be required to make substantial future contributions to improve the plan’s funded status.

Future funding for postretirement employee benefits other than pensions also may require substantial payments from current cash flow.

We provide postretirement life insurance and medical benefits to eligible retired employees. Our unfunded postretirement benefit obligation as of December 31, 2012 was $130 million. Our actual costs for benefits required to be paid may exceed those projected and future actuarial assessments to the extent that those costs exceed the current assessment. Under those circumstances, adjustments will be required to be made to our recorded liability for these benefits.

Any prolonged disruption of our processing centers could harm our business.

We have dedicated processing centers that permit us to produce standardized products in large volumes while maintaining low operating costs. We may suffer prolonged disruption in the operations of any of these facilities, whether due to labor or technical difficulties, destruction or damage to any of the facilities or otherwise.

If we are unable to retain and attract management and key personnel, it may adversely affect our business.

We believe that our success is due, in part, to our experienced management team. Losing the services of one or more members of our management team could adversely affect our business and possibly prevent us from

 

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improving our operational, financial and information management systems and controls. In the future, we may need to retain and hire additional qualified sales, marketing, administrative, operating and technical personnel, and to train and manage new personnel. Our ability to implement our business plan is dependent on our ability to retain and hire a large number of qualified employees each year.

Our existing international operations and potential joint ventures may cause us to incur costs and risks that may distract management from effectively operating our North American business, and such operations or joint ventures may not be profitable.

We maintain foreign operations in Canada, China, Mexico and Brazil. International operations are subject to certain risks inherent in conducting business in, and with, foreign countries, including price controls, exchange controls, export controls, economic sanctions, duties, tariffs, limitations on participation in local enterprises, nationalization, expropriation and other governmental action, and changes in currency exchange rates. While we believe that our current arrangements with local partners provide us with experienced business partners in foreign countries, events or issues, including disagreements with our partners, may occur that require attention of our senior executives and may result in expenses or losses that erode the profitability of our foreign operations or cause our capital investments abroad to be unprofitable.

Lead time and the cost of our products could increase if we were to lose one of our primary suppliers.

If, for any reason, our primary suppliers of aluminum, carbon steel, stainless steel or other metals should curtail or discontinue their delivery of such metals in the quantities needed and at prices that are competitive, our business could suffer. The number of available suppliers could be reduced by factors such as industry consolidation and bankruptcies affecting steel and metal producers. For the year ended December 31, 2012, our top 25 suppliers represented approximately 75% of our purchases. We could be significantly and adversely affected if delivery were disrupted from a major supplier. If, in the future, we were unable to obtain sufficient amounts of the necessary metals at competitive prices and on a timely basis from our traditional suppliers, we may not be able to obtain such metals from alternative sources at competitive prices to meet our delivery schedules, which could have a material adverse effect on our sales and profitability.

We could incur substantial costs related to environmental, health and safety laws.

Our operations are subject to increasingly stringent environmental, health and safety laws. These include laws that impose limitations on the discharge of pollutants into the air and water and establish standards for the treatment, storage and disposal of regulated materials and the investigation and remediation of contaminated soil, surface water and groundwater. Failure to maintain or achieve compliance with these laws or with the permits required for our operations could result in substantial increases in operating costs and capital expenditures. In addition, we may be subject to fines and civil or criminal sanctions, third party claims for property damage or personal injury, worker’s compensation or personal injury claims, cleanup costs or temporary or permanent discontinuance of operations. Certain of our facilities are located in industrial areas, have a history of heavy industrial use and have been in operation for many years and, over time, we and other predecessor operators of these facilities have generated, used, handled and disposed of hazardous and other regulated wastes. Environmental liabilities could exist, including cleanup obligations at these facilities or at off-site locations where materials from our operations were disposed of, which could result in future expenditures that cannot be currently quantified and which could have a material adverse effect on our financial position, results of operations or cash flows. Such liabilities may be imposed without regard to fault or the legality of a party’s conduct and may, in certain circumstances, be joint and several. Future changes to environmental, health and safety laws, including those related to climate change, could result in material liabilities and costs, constrain operations or make such operations more costly for us, our suppliers and our customers. In October 2011, the United States Environmental Protection Agency named us as one of more than 100 businesses that may be a potentially responsible party for the Portland Harbor Superfund Site. We do not currently have sufficient

 

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information available to us to determine the total cost of any required investigation or remediation of the Portland Harbor site and management cannot predict the ultimate outcome of this matter or estimate a range of potential loss at this time.

New regulations related to conflict-free minerals may force us to incur additional expenses and place us at a competitive disadvantage.

On August 22, 2012, under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”), the SEC adopted new requirements for reporting companies that use certain minerals and metals, known as “conflict minerals”, in their products, whether or not these products are manufactured by third parties. These requirements will require companies to diligence, disclose and report whether or not such minerals originate from the Democratic Republic of Congo and adjoining countries. Since our supply chain is complex, we may not be able to conclusively verify the origins for all metals used in our products and we may face reputational challenges with our customers. Additionally, as there may be only a limited number of suppliers offering “conflict free” metals, we cannot be sure that we will be able to obtain necessary metals from such suppliers in sufficient quantities or at competitive prices. Accordingly, we could incur significant cost related to the compliance process, including potential difficulty or added costs in satisfying the disclosure requirements. Moreover, we may encounter challenges to satisfy those customers who require that all of the components of our products be certified as conflict free which could place us at a competitive disadvantage if we are unable to do so.

We are subject to litigation that could strain our resources and distract management.

From time to time, we are involved in a variety of claims, lawsuits and other disputes arising in the ordinary course of business. These suits concern issues including product liability, contract disputes, employee-related matters and personal injury matters. It is not feasible to predict the outcome of all pending suits and claims, and the ultimate resolution of these matters as well as future lawsuits could have a material adverse effect on our business, financial condition, results of operations or cash flows or reputation.

We may face product liability claims that are costly and create adverse publicity.

If any of the products that we sell cause harm to any of our customers, we could be exposed to product liability lawsuits. If we were found liable under product liability claims, we could be required to pay substantial monetary damages. Further, even if we successfully defended ourself against this type of claim, we could be forced to spend a substantial amount of money in litigation expenses, our management could be required to spend valuable time in the defense against these claims and our reputation could suffer.

Our ability to use our net operating loss carryforwards and certain other tax attributes may be limited.

As of December 31, 2012, we had U.S. federal net operating loss carryforwards totaling approximately $160 million, which expire between December 31, 2030 and December 31, 2031. Under Section 382 of the Internal Revenue Code of 1986, as amended, if a corporation undergoes an “ownership change,” the corporation’s ability to use its pre-change net operating loss carryforwards and certain other pre-change tax attributes to offset its post-change income may be limited significantly. In general, an “ownership change” will occur if there is a cumulative change in our ownership by “5-percent shareholders” that exceeds 50 percentage points over a rolling three-year period. It is not expected that the offering will result in an “ownership change.” However, because the potential existence and amount of our “5-percent shareholders,” if any, resulting from the offering is not within our control, there is no assurance that the offering will not result in an ownership change. Moreover, even if an ownership change does not result from the offering, subsequent events over which we will have little or no control (including changes in the direct and indirect ownership of our 5-percent shareholders) may cause us to experience an ownership change in the near future. An ownership change could significantly limit the future use of our pre-change tax attributes and thereby significantly increase our future tax liabilities.

 

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Our risk management strategies may result in losses.

From time to time, we may use fixed-price and/or fixed-volume supplier contracts to offset contracts with customers. Additionally, we may use foreign exchange contracts and interest rate swaps to hedge Canadian dollar and floating rate debt exposures. These risk management strategies pose certain risks, including the risk that losses on a hedge position may exceed the amount invested in such instruments. Moreover, a party in a hedging transaction may be unavailable or unwilling to settle our obligations, which could cause us to suffer corresponding losses. A hedging instrument may not be effective in eliminating all of the risks inherent in any particular position. Our profitability may be adversely affected during any period as a result of use of such instruments.

We may be adversely affected by currency fluctuations in the U.S. dollar versus the Canadian dollar and the Chinese renminbi.

We have significant operations in Canada which incur the majority of their metal supply costs in U.S. dollars but earn the majority of their sales in Canadian dollars. Additionally, we have significant assets in China. We may from time to time experience losses when the value of the U.S. dollar strengthens against the Canadian dollar or the Chinese renminbi, which could have a material adverse effect on our results of operations. In addition, we will be subject to translation risk when we consolidate our Canadian and Chinese subsidiaries’ net assets into our balance sheet. Fluctuations in the value of the U.S. dollar versus the Canadian dollar or Chinese renminbi could reduce the value of these assets as reported in our financial statements, which could, as a result, reduce our stockholders’ equity.

Risks Relating to Our Common Stock and this Offering

There is no existing market for our common stock, and we do not know if one will develop to provide you with adequate liquidity.

Prior to this offering, there has not been a public market for our common stock. We cannot predict the extent to which investor interest in our company will lead to the development of an active trading market on the New York Stock Exchange (“NYSE”), or otherwise, or how liquid that market might become. If an active trading market does not develop, you may have difficulty selling any of our common stock that you buy in this offering. Consequently, you may not be able to sell our common stock at prices equal to or greater than the price you paid in this offering. In addition, an inactive trading market may impair our ability to raise additional capital by selling shares and may impair our ability to acquire other companies by using our shares as consideration.

The initial public offering price of the shares has been determined by negotiations between the Company and the representative of the underwriters. Among the factors considered in determining the initial public offering price were our record of operations, our current financial condition, our future prospects, our markets, the economic conditions in and future prospects for the industry in which we compete, our management, and currently prevailing general conditions in the equity securities markets, including current market valuations of publicly traded companies considered comparable to our company. We cannot assure you, however, that the prices at which the shares will sell in the public market after this offering will not be lower than the initial public offering price or that an active trading market in our common stock will develop and continue after this offering.

Our stock price may be volatile, and your investment in our common stock could suffer a decline in value.

The stock markets have experienced extreme price and volume fluctuations that have affected and continue to affect the market prices of equity securities of many companies. These fluctuations have often been unrelated or disproportionate to the operating performance of those companies. These broad market and industry fluctuations, as well as general economic, political and market conditions such as recessions, interest rate changes or international currency fluctuations, may negatively affect the market price of our common stock. The

 

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initial public offering price for our common stock was determined by negotiations between the Company and the representative of the underwriters and may not be indicative of prices that will prevail in the open market following this offering. You may not be able to resell your shares at or above the initial public offering price due to fluctuations in the market price of our common stock caused by changes in our operating performance or prospects, including possible changes due to the cyclical nature of the metals distribution industry and other factors such as fluctuations in metals prices, which could cause short-term swings in profit margins. If the market price of our ordinary shares after this offering does not exceed the initial public offering price, you may not realize any return on your investment in us and may lose some or all of your investment. In addition, companies that have historically experienced volatility in the market price of their stock have been subject to securities class action litigation. We may be the target of this type of litigation in the future. Securities litigation against us could result in substantial costs and divert our management’s attention from other business concerns.

Future sales of our common stock in the public market could lower our share price.

We may sell additional shares of common stock into the public markets after this offering. The market price of our common stock could decline as a result of sales of a large number of shares of our common stock in the public markets after this offering or the perception that these sales could occur. These sales, or the possibility that these sales may occur, also might make it more difficult for us to sell equity securities at a time and at a price that we deem appropriate.

After the consummation of this offering, we will have            shares of common stock outstanding. Of the remaining             outstanding shares, 5,000,000, or     %, of our total outstanding shares will be restricted from immediate resale under the “lock-up” agreements between us and all of our directors, officers and stockholders and the underwriters described in the section entitled “Underwriting” below, but may be sold into the market after those “lock-up” restrictions expire, in certain limited circumstances as set forth in the “lock-up” agreements, or if they are waived by             as the representative of the underwriters, in their discretion. The outstanding shares subject to the “lock-up” restrictions will generally become available for sale following the expiration of the lock-up agreements, which is 180 days after the date of this prospectus, subject to the volume limitations and manner-of-sale requirements under Rule 144 of the Securities Act of 1933, as amended (the “Securities Act”).

This offering will cause immediate and substantial dilution in net tangible book value.

The initial public offering price of a share of our common stock is substantially higher than the net tangible book value (deficit) per share of our outstanding common stock immediately after this offering. Net tangible book value (deficit) per share represents the amount of total tangible assets less total liabilities, divided by the number of shares of common stock outstanding. If you purchase our common stock in this offering, you will incur an immediate dilution of approximately $             in the net tangible book value per share of common stock based on our net tangible book value as of December 31, 2012. You may experience additional dilution if we issue common stock in the future. As a result of this dilution, you may receive significantly less than the full purchase price you paid for the shares in the event of a liquidation. See “Dilution.”

Our controlling stockholder and its affiliates will be able to influence matters requiring stockholder approval and could discourage the purchase of our outstanding shares at a premium.

Prior to this offering, Platinum owned 99% of our outstanding common stock. Upon completion of this offering, Platinum will continue to control all matters submitted for approval by our stockholders through its ownership of approximately     % of our outstanding common stock. These matters could include the election of all of the members of our Board of Directors, amendments to our organizational documents, or the approval of any proxy contests, mergers, tender offers, sales of assets or other major corporate transactions.

The interests of Platinum may not in all cases be aligned with your interests as a holder of common stock. For example, a sale of a substantial number of shares of stock in the future by Platinum could cause our stock

 

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price to decline. Further, Platinum could cause us to make acquisitions that increase the amount of the indebtedness that is secured or senior to the Company’s existing debt or sell revenue-generating assets, impairing our ability to make payments under such debt. Additionally, Platinum is in the business of making investments in companies and may from time to time acquire and hold interests in businesses that compete directly or indirectly with us. Accordingly, Platinum may also pursue acquisition opportunities that may be complementary to our business, and as a result, those acquisition opportunities may not be available to us. In addition, Platinum may have an interest in pursuing acquisitions, divestitures and other transactions that, in their judgment, could enhance their equity investment, even though such transactions might involve risks to you as a holder of our common stock. For example, in January 2010, we closed an offering (the “Ryerson Holding Offering”) pursuant to which we issued the Ryerson Holding Notes, 97% of the gross proceeds of which were paid to Platinum as a cash dividend.

We are exempt from certain corporate governance requirements because we are a “controlled company” within the meaning of the NYSE rules and, as a result, you will not have the protections afforded by these corporate governance requirements.

Because Platinum will control more than 50% of the voting power of our common stock after this offering, we are considered to be a “controlled company” for purposes of the NYSE listing requirements. Under the NYSE rules, a “controlled company” may elect not to comply with certain NYSE corporate governance requirements, including (1) the requirement that a majority of our Board of Directors consist of independent directors, (2) the requirement that the nominating and corporate governance committee of our Board of Directors be composed entirely of independent directors, (3) the requirement that the compensation committee of our Board of Directors be composed entirely of independent directors and (4) the requirement for an annual performance evaluation of the nomination/corporate governance and compensation committees. Given that Platinum will control a majority of the voting power of our common stock after this offering, we are permitted, and have elected, to opt out of compliance with certain NYSE corporate governance requirements. Accordingly, you will not have the same protections afforded to stockholders of companies that are subject to all of the NYSE corporate governance requirements.

We will incur increased costs and demands upon our management and other personnel as a result of complying with the laws and regulations affecting public companies, which could harm our operating results.

As a public company, we will incur significant legal, accounting and other expenses. In addition, the Sarbanes-Oxley Act, as well as related rules implemented by the SEC and the NYSE, impose various requirements on public companies. Our management and other personnel will need to devote a substantial amount of time to these compliance requirements. Although prior to October 2012 we were filing Forms 10-K and 10-Q pursuant to the terms of our then outstanding notes, these rules will increase our legal and financial compliance costs and will make certain activities more time-consuming and costly. To the extent we become an accelerated or large accelerated filer, our annual reports must also contain a statement that our independent registered public accounting firm has issued an attestation report on the effectiveness of our internal control over financial reporting.

The Sarbanes-Oxley Act requires, among other things, that we maintain effective internal control over financial reporting and disclosure controls and procedures. In particular, we will be required to perform system and process evaluation and testing of our internal control over financial reporting to allow management and our independent registered accounting firm to report on the effectiveness of our internal control over financial reporting, as required by Section 404 of the Sarbanes-Oxley Act. Our compliance with Section 404 will require that we incur substantial accounting expense and expend significant management time on compliance-related issues. If our management identifies one or more material weaknesses in our internal control over financial reporting, we will be unable to assert that our internal control over financial reporting is effective. If we are unable to assert that our internal control over financial reporting is effective, or if our independent registered

 

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public accounting firm is unable to express an opinion on the effectiveness of our internal control over financial reporting, market perception of our financial condition and the trading price of our stock may be adversely affected and customer perception of our business may suffer.

Our corporate documents and Delaware law will contain provisions that could discourage, delay or prevent a change in control of the Company.

Our amended and restated certificate of incorporation and amended and restated bylaws will contain provisions that may make the acquisition of our company more difficult without the approval of our Board of Directors. These provisions:

 

   

establish a classified Board of Directors so that not all members of our Board of Directors are elected at one time;

 

   

authorize the issuance of undesignated preferred stock, the terms of which may be established and the shares of which may be issued without stockholder approval, and which may include super voting, special approval, dividend, or other rights or preferences superior to the rights of the holders of common stock;

 

   

provide that the Board of Directors is expressly authorized to make, alter, or repeal our amended and restated bylaws;

 

   

prohibit stockholders from acting by written consent if less than a majority of the voting power of our outstanding stock is controlled by Platinum; and

 

   

establish advance notice requirements for nominations for elections to our Board of Directors or for proposing matters that can be acted upon by stockholders at stockholder meetings.

These anti-takeover provisions and other provisions under Delaware law could discourage, delay or prevent a transaction involving a change in control of our company, even if doing so would benefit our stockholders. These provisions could also discourage proxy contests and make it more difficult for you and other stockholders to elect directors of your choosing and to cause us to take other corporate actions you desire.

Any issuance of preferred stock could make it difficult for another company to acquire us or could otherwise adversely affect holders of our common stock, which could depress the price of our common stock.

Upon completion of this offering, our Board of Directors will have the authority to issue preferred stock and to determine the preferences, limitations and relative rights of shares of preferred stock and to fix the number of shares constituting any series and the designation of such series, without any further vote or action by our stockholders. Our preferred stock could be issued with voting, liquidation, dividend and other rights superior to the rights of our common stock. The potential issuance of preferred stock may delay or prevent a change in control of us, discouraging bids for our common stock at a premium over the market price, and adversely affect the market price and the voting and other rights of the holders of our common stock.

We do not intend to pay regular cash dividends on our stock after this offering.

We do not anticipate declaring or paying regular cash dividends on our common stock or any other equity security in the foreseeable future. The amounts that may be available to us to pay cash dividends are restricted under our debt agreements. Any payment of cash dividends on our common stock in the future will be at the discretion of our Board of Directors and will depend upon our results of operations, earnings, capital requirements, financial condition, future prospects, contractual restrictions and other factors deemed relevant by our Board of Directors. Therefore, you should not rely on dividend income from shares of our common stock. For more information, see “Dividend Policy.” Your only opportunity to achieve a return on your investment in us may be if the market price of our common stock appreciates and you sell your shares at a profit but there is no guarantee that the market price for our common stock after this offering will ever exceed the price that you pay for our common stock in this offering.

 

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FORWARD-LOOKING STATEMENTS

This prospectus contains “forward-looking statements.” Such statements can be identified by the use of forward-looking terminology such as “believes,” “expects,” “may,” “estimates,” “will,” “should,” “plans” or “anticipates” or the negative thereof or other variations thereon or comparable terminology, or by discussions of strategy. Readers are cautioned that any such forward-looking statements are not guarantees of future performance and may involve significant risks and uncertainties, and that actual results may vary materially from those in the forward-looking statements as a result of various factors. Among the factors that significantly impact the metals distribution industry and our business are:

 

   

cyclicality of our business, due to the cyclical nature of our customers’ businesses;

 

   

impairment of goodwill that could result from, among other things, volatility in the markets in which we operate;

 

   

remaining competitive and maintaining market share in the highly fragmented metals distribution industry, in which price is a competitive tool and in which customers who purchase commodity products are often able to source metals from a variety of sources;

 

   

managing the costs of purchased metals relative to the price at which we sell our products during periods of rapid price escalation, when we may not be able to pass through pricing increases fully to our customers quickly enough to maintain desirable gross margins, or during periods of generally declining prices, when our customers may demand that price decreases be passed fully on to them more quickly than we are able to obtain similar discounts from our suppliers;

 

   

our substantial indebtedness and the covenants in instruments governing such indebtedness;

 

   

the failure to effectively integrate newly acquired operations;

 

   

regulatory and other operational risks associated with our operations located outside of the United States;

 

   

fluctuating operating results depending on seasonality;

 

   

potential damage to our information technology infrastructure;

 

   

work stoppages;

 

   

certain employee retirement benefit plans that are underfunded and the actual costs could exceed current estimates;

 

   

future funding for postretirement employee benefits may require substantial payments from current cash flow;

 

   

prolonged disruption of our processing centers;

 

   

ability to retain and attract management and key personnel;

 

   

ability of management to focus on North American and foreign operations;

 

   

termination of supplier arrangements;

 

   

the incurrence of substantial costs or liabilities to comply with, or as a result of violations of, environmental laws;

 

   

the impact of new or pending litigation against us;

 

   

a risk of product liability claims;

 

   

following this offering, a single investor group will continue to control all matters submitted for approval by our stockholders, and the interests of that single investor group may conflict with yours as a holder of our common stock;

 

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our risk management strategies may result in losses;

 

   

currency fluctuations in the U.S. dollar versus the Canadian dollar and the Chinese renminbi;

 

   

management of inventory and other costs and expenses; and

 

   

consolidation in the metals producer industry, from which we purchase products, which could limit our ability to effectively negotiate and manage costs of inventory or cause material shortages, either of which would impact profitability.

These forward-looking statements involve a number of risks and uncertainties that could cause actual results to differ materially from those suggested by the forward-looking statements. Forward-looking statements should, therefore, be considered in light of various factors, including those set forth in this prospectus under “Risk Factors” and the caption “Industry and Operating Trends” included in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and elsewhere in this prospectus. Moreover, we caution you not to place undue reliance on these forward-looking statements, which speak only as of the date they were made. We do not undertake any obligation to publicly release any revisions to these forward-looking statements to reflect events or circumstances after the date of this prospectus or to reflect the occurrence of unanticipated events.

 

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USE OF PROCEEDS

We estimate that the net proceeds from the sale of the             shares of common stock that we are offering will be approximately $             million after deducting the underwriting discount and estimated offering expenses of $             million and assuming an initial public offering price of $             per share, the mid-point of the estimated initial public offering price range. A $1.00 increase (decrease) in the assumed initial public offering price of $             per share would increase (decrease) the net proceeds from the sales of shares of common stock that we are offering by $             million after deducting the underwriting discount and estimated offering expenses of $             million.

We intend to use the net proceeds to us from this offering to (i) redeem $              in aggregate principal amount of the 11.25% Senior Notes due 2018 issued by Ryerson and its wholly owned subsidiary Joseph T. Ryerson & Son Inc. (the “2018 Notes”), (ii) repay approximately $              of the borrowings outstanding under our $1.35 billion revolving credit facility agreement that matures on the earlier of (a) April 3, 2018 or (b) August 16, 2017 (60 days prior to the scheduled maturity date of the 2017 Notes), if the 2017 Notes are then outstanding (as amended, the “Ryerson Credit Facility”), (iii) pay Platinum Advisors $              as consideration for terminating the Services Agreement, (iv) redeem up to $              in aggregate principal amount of the 9% Senior Secured Notes due 2017 issued by Ryerson and its wholly owned subsidiary Joseph T. Ryerson & Son Inc. (the “2017 Notes” and together with the 2018 Notes, the “2017 and 2018 Notes”) and (v) pay related transaction fees, expenses and premiums in connection with this offering. The proceeds from the offering of the 2017 and 2018 Notes were used by us to (a) repay in full our 14 ½% Senior Discount Notes due 2015 (the “Ryerson Holding Notes”), plus accrued and unpaid interest up to, but not including, the repayment date of the Ryerson Holding Notes, (b) repay in full our Floating Rate Senior Secured Notes due November 1, 2014 (the “2014 Notes”), plus accrued and unpaid interest up to, but not including, the repayment date of the 2014 Notes, (c) repay in full our 12% Senior Secured Notes due November 1, 2015 (the “2015 Notes” and together with the 2014 Notes, the “Old Ryerson Notes”), plus accrued and unpaid interest up to, but not including, the repayment date of the 2015 Notes, (d) repay outstanding indebtedness under the Ryerson Credit Facility and (e) pay related transaction fees, expenses and premiums in connection with the offering of the 2017 and 2018 Notes.

We will not receive any proceeds resulting from any exercise by the underwriters of the over-allotment option to purchase additional shares from the selling stockholders identified in this prospectus. In the aggregate, if the over-allotment is exercised, the selling stockholders will receive approximately $             million after deducting the underwriting discount and estimated offering expenses of $             million and assuming an initial public offering price of $             per share, the mid-point of the estimated initial public offering price range.

The foregoing represents our current intentions with respect to the use and allocation of the net proceeds of this offering based upon our present plans and business conditions, but our management will have significant flexibility and discretion in applying the net proceeds. The occurrence of unforeseen events or changed business conditions could result in application of the net proceeds of this offering in a manner other than as described in this prospectus.

Pending our use of any of the net proceeds of this offering for the purposes stated above, we may invest such proceeds in investment grade, short-term, interest-bearing securities or other investments approved by our management.

 

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CAPITALIZATION

The following table sets forth our cash and cash equivalents and our total capitalization as of December 31, 2012:

 

   

on a historical basis; and

 

   

on an as adjusted basis to give effect to (1) the sale of shares of our common stock offered hereby assuming an initial public offering price of $             per share, the mid-point of the estimated initial public offering price range, (2) the application of the net proceeds from this offering as described in “Use of Proceeds,” and (3) the Services Agreement Termination.

You should read this table together with the information contained in “Use of Proceeds,” “Selected Consolidated Financial Data,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the consolidated financial statements and related financial information contained elsewhere in this prospectus.

 

     As of December 31, 2012  
     Historical     Adjusted(1)  
     ($ in millions)  

Cash and cash equivalents

   $ 71.2      $ 71.2   
  

 

 

   

 

 

 

Debt:

    

Ryerson Credit Facility(2)(3)

     383.5     

Ryerson Inc. 9% Senior Secured Notes due 2017

     600.0     

Ryerson Inc. 11  1 / 4 % Senior Notes due 2018

     300.0     

Foreign debt

     21.9        21.9   
  

 

 

   

 

 

 

Total debt

     1,305.4     

Redeemable noncontrolling interest

     1.7        1.7   

Equity:

    

Common Stock, par value $0.01 per share, 10,000,000 shares authorized, and 5,000,000 issued and outstanding; 10,000,000 shares authorized, and issued and outstanding, as adjusted(4)

         

Paid-in-capital

     189.9     

Accumulated deficit(5)

     (234.4  

Accumulated other comprehensive loss

     (252.1     (252.1

Noncontrolling interest

     2.7        2.7   
  

 

 

   

 

 

 

Total stockholders’ equity (deficit)

     (293.9  
  

 

 

   

 

 

 

Total capitalization

   $ 1,013.2      $     
  

 

 

   

 

 

 

 

(1) A $1.00 increase (decrease) in the assumed initial public offering price of $             per share would increase (decrease) total stockholders’ equity by $             million assuming the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting the underwriting discount and estimated offering expenses of $             million.
(2) In connection with this offering, Platinum and JT Ryerson intend to terminate the Services Agreement, pursuant to which JT Ryerson will pay Platinum Advisors $             million as consideration for terminating the monitoring fee payable thereunder. The “As Adjusted” amount reflects the expense incurred for the payment of the termination fee. For a discussion of the Services Agreement, see “Certain Relationships and Related Party Transactions.”
(3) As of February 28, 2013, we had approximately $343 million outstanding and $298.3 million of availability under the Ryerson Credit Facility.
(4) Share amounts give effect to the             for 1.00 stock split that will occur prior to the closing of this offering.

 

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The number of shares of our common stock shown as issued and outstanding in the table above excludes (i)             shares of our common stock that may be purchased by the underwriters to cover over-allotments and (ii)             shares of common stock reserved for future grants under our stock incentive plan (assuming our stock incentive plan, which is described in “Executive Compensation—Stock Incentive Plan,” is adopted in connection with this offering).

(5) The “As Adjusted” amount reflects the $             million fee paid to Platinum Advisors in consideration for terminating the Services Agreement.

 

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DILUTION

Dilution is the amount by which the offering price paid by the purchasers of our common stock to be sold in this offering will exceed the net tangible book value per share of our common stock immediately after this offering. The net tangible book value per share presented below is equal to the amount of our total tangible assets (total assets less intangible assets) less total liabilities as of December 31, 2012, divided by the number of shares of our common stock that would have been held by our common stockholders of record immediately prior to this offering after giving effect to the              for 1.00 stock split. Our net tangible book value as of December 31, 2012, was approximately $             million, or $             per share. After giving effect to the sale of the shares of common stock we propose to offer pursuant to this prospectus at an assumed public offering price of $             per share, the mid-point of the range of estimated initial public offering prices set forth on the cover page of this prospectus and the application of the net proceeds therefrom, and after deducting the underwriting discount and estimated offering expenses, our net tangible book value as of December 31, 2012 would have been $             million, or $             per share. This represents an immediate dilution in net tangible book value of $             per share.

The following tables illustrate this dilution:

 

Initial public offering price per share

      $                

Net tangible book value per share at December 31, 2012

   $                   

Increase in net tangible book value per share attributable to cash payments made by new investors

     
  

 

 

    

 

 

 

Net tangible book value per share after this offering

     
     

 

 

 

Dilution of net tangible book value per share to new investors

      $     
     

 

 

 

A $1.00 increase (decrease) in the assumed initial public offering price of $             per share (the mid-point of the range on the cover page of this prospectus) would (decrease) increase our net tangible book value (deficit) by $             million, the net tangible book value (deficit) per share after this offering by $             per share and the decrease in net tangible book value (deficit) to new investors in this offering by $             per share, assuming the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting the estimated underwriting discounts and commissions and estimated offering expenses.

The following table summarizes the number of shares purchased from us and the total consideration and average price per share paid to us, by existing holders of common stock, and the total number of shares purchased from the Company, the total consideration paid to the Company and the price per share paid by new investors purchasing shares in this offering:

 

     Shares Purchased      Total
Consideration
     Average
Price
Per

Share
 
       Number    Percent      Amount      Percent     
     (dollars in thousands, except per share amounts)  

Existing holders of common stock

        %       $                    %       $            

Investors purchasing common stock in this offering

              
  

 

  

 

 

    

 

 

    

 

 

    

Total

        100%       $           100%       $     

If the underwriters’ over-allotment option is exercised in full:

 

   

the percentage of our shares of common stock held by our existing holders of common stock will decrease to              shares, or approximately     % of the total number of shares of common stock outstanding after this offering; and

 

   

the number of our shares of common stock held by investors purchasing common stock in this offering will increase to              shares, or approximately     % of the total number of shares of common stock outstanding after this offering.

 

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DIVIDEND POLICY

We have in the past paid cash dividends to our stockholders. See “Certain Relationships and Related Party Transactions—Dividend Payments.” We do not currently anticipate declaring or paying regular cash dividends on our common stock in the foreseeable future. Any payment of cash dividends on our common stock in the future will be at the discretion of our Board of Directors and will depend upon our results of operations, earnings, capital requirements, financial condition, future prospects, contractual restrictions, including restrictions contained in our existing debt documents or the terms of any of our future debt or other agreements that we may enter into from time to time, and other factors deemed relevant by our Board of Directors. See “Description of Certain Indebtedness,” and “Description of Capital Stock—Common Stock.”

 

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SELECTED CONSOLIDATED FINANCIAL DATA

The following table sets forth our selected historical consolidated financial information. Our selected historical consolidated statements of operations data for the years ended December 31, 2010, 2011 and 2012 and the summary historical balance sheet data as of December 31, 2011 and 2012 have been derived from our audited consolidated financial statements included elsewhere in this prospectus. The selected historical consolidated statements of operations data for the years ended December 31, 2008 and 2009 and the summary historical balance sheet data as of December 31, 2008 and 2009 were derived from the audited financial statements and related notes thereto, which are not included in this prospectus.

The information presented below should be read together with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the consolidated financial statements and the notes thereto included elsewhere in this prospectus. The share and per share information presented below for the periods after October 19, 2007 has been adjusted to give effect to the              for 1.00 stock split that will occur prior to the closing of this offering.

 

     Year Ended December 31,  
     2008     2009     2010     2011     2012  

Statements of Operations Data:

     ($ in millions)   

Net sales

   $ 5,309.8      $ 3,066.1      $ 3,895.5      $ 4,729.8      $ 4,024.7   

Cost of materials sold

     4,596.9        2,610.0        3,355.7        4,071.0        3,315.1   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit(1)

     712.9        456.1        539.8        658.8        709.6   

Warehousing, selling, general and administrative

     586.1        483.8        506.9        539.7        508.9   

Restructuring and other charges

                   12.0        11.1        1.1   

Gain on insurance settlement

                   (2.6              

Gain on sale of assets

            (3.3                     

Impairment charges on fixed assets and goodwill

            19.3        1.4        9.3        1.0   

Pension and other postretirement benefits curtailment (gain) loss

            (2.0     2.0               (1.7
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Operating profit (loss)

     126.8        (41.7     20.1        98.7        200.3   

Other income and (expense), net(2)

     29.2        (10.1     (3.2     4.6        (33.5

Interest and other expense on debt(3)

     (109.9     (72.9     (107.5     (123.1     (126.5
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

     46.1        (124.7     (90.6     (19.8     40.3   

Provision (benefit) for income taxes(4)

     14.8        67.5        13.1        (11.0     (5.5
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss)

     31.3        (192.2     (103.7     (8.8     45.8   

Less: Net income (loss) attributable to noncontrolling interest

     (1.2     (1.5     0.3        (0.7     (1.3
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss) attributable to Ryerson Holding Corporation

   $ 32.5      $ (190.7   $ (104.0   $ (8.1   $ 47.1   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Earnings (loss) per share of common stock:

          

Basic:

          

Basic earnings (loss) per share

   $ 6.50      $ (38.14   $ (20.80   $ (1.62   $ 9.41   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Diluted:

          

Diluted earnings (loss) per share

   $ 6.50      $ (38.14   $ (20.80   $ (1.62   $ 9.41   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cash dividends per common share

   $      $ 11.30      $ 42.76      $      $ 7.00   

Weighted average shares outstanding — Basic

     5.0        5.0        5.0        5.0        5.0   

Weighted average shares outstanding — Diluted

     5.0        5.0        5.0        5.0        5.0   

Balance Sheet Data (at period end):

          

Cash and cash equivalents

   $ 130.4      $ 115.0      $ 62.6      $ 61.7      $ 71.2   

Restricted cash

     7.0        19.5        15.6        5.3        3.9   

Inventory

     819.5        601.7        783.4        732.4        741.5   

Working capital

     1,084.2        750.4        858.8        806.6        796.7   

Property, plant and equipment, net

     547.7        477.5        479.2        479.7        472.3   

Total assets

     2,281.9        1,775.8        2,053.5        2,058.4        1,954.1   

Long-term debt, including current maturities

     1,030.3        754.2        1,211.3        1,316.2        1,305.4   

Total equity(deficit)

     392.2        154.3        (182.5     (267.6     (293.9

 

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     Year Ended December 31,  
     2008     2009     2010     2011     2012  

Other Financial Data:

     ($ in millions)   

Cash flows provided by (used in) operations

   $ 280.5      $ 284.9      $ (198.7   $ 54.5      $ 186.5   

Cash flows provided by (used in) investing activities

     19.3        32.1        (44.4     (115.0     (35.3

Cash flows provided by (used in) financing activities

     (197.0     (342.4     185.1        57.9        (143.4

Capital expenditures

     30.1        22.8        27.0        47.0        40.8   

Depreciation and amortization

     37.6        36.9        38.4        43.0        47.0   

Volume and Per Ton Data:

          

Tons shipped (000)

     2,505        1,881        2,252        2,433        2,149   

Average selling price per ton

   $ 2,120      $ 1,630      $ 1,730      $ 1,944      $ 1,873   

Gross profit per ton

     285        242        240        271        330   

Operating expenses per ton

     234        264        231        230        237   

Operating profit (loss) per ton

     51        (22     9        41        93   

 

(1) The year ended December 31, 2008 includes a LIFO liquidation gain of $15.6 million, or $9.9 million after-tax.
(2) The year ended December 31, 2008 includes a $18.2 million gain on the retirement of debt as well as a $6.7 million gain on the sale of corporate bonds. The year ended December 31, 2009 includes $11.8 million of foreign exchange losses related to short-term loans from our Canadian operations, offset by the recognition of a $2.7 million gain on the retirement of debt. The year ended December 31, 2010 includes $2.6 million of foreign exchange losses related to the repayment of a long-term loan to our Canadian operations. The year ended December 31, 2011 includes a $5.8 million gain on bargain purchase related to our Singer acquisition. The year ended December 31, 2012 includes a $32.8 million loss on the redemption of the Ryerson Notes and Ryerson Holding Notes.
(3) The year ended December 31, 2011 includes a $1.1 million write off of debt issuance costs associated with our prior credit facility upon entering into an amended revolving credit facility on March 14, 2011.
(4) The year ended December 31, 2009 includes a $92.7 million tax expense related to the establishment of a valuation allowance against the Company’s US deferred tax assets and a $14.5 million income tax charge on the sale of our joint venture in India. The year ended December 31, 2011 includes income tax benefits of $18.0 million relating to the purchase accounting impact of the Turret and Singer acquisitions. The year ended December 31, 2012 includes an income tax benefit of $15.2 million related to the release of valuation allowance associated with certain state deferred tax assets.

 

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MANAGEMENT’S DISCUSSION AND ANALYSIS OF

FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The following discussion and analysis should be read in conjunction with the “Selected Historical Consolidated Financial Data” and the accompanying consolidated financial statements and related notes included elsewhere in this prospectus. This discussion contains forward-looking statements that involve risks and uncertainties. See the section entitled “Forward-Looking Statements.” Our actual results and the timing of selected events could differ materially from those discussed in these forward-looking statements as a result of certain factors, including those discussed in “Risk Factors” and elsewhere in this prospectus.

Overview

Business

Ryerson Holding Corporation (“Ryerson Holding”), a Delaware corporation, is the parent company of Ryerson Inc. (“Ryerson”). Ryerson Holding is 99% owned by affiliates of Platinum.

Ryerson conducts materials distribution operations in the United States through its wholly-owned direct subsidiary Joseph T. Ryerson & Son, Inc. (“JT Ryerson”), a Delaware corporation, in Canada through its indirect wholly-owned subsidiary Ryerson Canada, Inc., a Canadian corporation (“Ryerson Canada”) and in Mexico through its indirect wholly-owned subsidiary Ryerson Metals de Mexico, S. de R.L. de C.V., a Mexican corporation (“Ryerson Mexico”). In addition to our North American operations, we conduct materials distribution operations in China through Ryerson China Limited (“Ryerson China”), a company in which we have a 100% ownership percentage and in Brazil through Açofran Aços e Metais Ltda (“Açofran”), a company in which we have had a 50% direct ownership percentage since February 17, 2012. Unless the context indicates otherwise, Ryerson Holding, Ryerson, JT Ryerson, Ryerson Canada, Ryerson China, Ryerson Mexico and Açofran together with their subsidiaries, are collectively referred to herein as “Ryerson Holding,” “we,” “us,” “our,” or the “Company.”

Industry and Operating Trends

We purchase large quantities of metal products from primary producers and sell these materials in smaller quantities to a wide variety of metals-consuming industries. More than one-half of the metals products sold are processed by us by burning, sawing, slitting, blanking, cutting to length or other techniques. We sell our products and services to many industries, including machinery manufacturers, metals fabricators, electrical machinery, transportation equipment, construction, wholesale distributors, and metals mills and foundries. Revenue is recognized upon delivery of product to customers. The timing of shipment is substantially the same as the timing of delivery to customers given the proximity of our distribution sites to our customers.

Sales, cost of materials sold, gross profit and operating expense control are the principal factors that impact our profitability:

Net Sales. Our sales volume and pricing is driven by market demand, which is largely determined by overall industrial production and conditions in specific industries in which our customers operate. Sales prices are also primarily driven by market factors such as overall demand and availability of product. Our net sales include revenue from product sales, net of returns, allowances, customer discounts and incentives.

Cost of materials sold . Cost of materials sold includes metal purchase and in-bound freight costs, third-party processing costs and direct and indirect internal processing costs. The cost of materials sold fluctuates with our sales volume and our ability to purchase metals at competitive prices. Increases in sales volume generally enable us both to improve purchasing leverage with suppliers, as we buy larger quantities of metals inventories, and to reduce operating expenses per ton sold.

 

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Gross profit. Gross profit is the difference between net sales and the cost of materials sold. Our sales prices to our customers are subject to market competition. Achieving acceptable levels of gross profit is dependent on our acquiring metals at competitive prices, our ability to manage the impact of changing prices and efficiently managing our internal and external processing costs.

Operating expenses. Optimizing business processes and asset utilization to lower fixed expenses such as employee, facility and truck fleet costs which cannot be rapidly reduced in times of declining volume, and maintaining low fixed cost structure in times of increasing sales volume, have a significant impact on our profitability. Operating expenses include costs related to warehousing and distributing our products as well as selling, general and administrative expenses.

The metals service center industry is generally considered cyclical with periods of strong demand and higher prices followed by periods of weaker demand and lower prices due to the cyclical nature of the industries in which the largest consumers of metals operate. However, domestic metals prices are volatile and remain difficult to predict due to its commodity nature and the extent which prices are affected by interest rates, foreign exchange rates, energy prices, international supply/demand imbalances, surcharges and other factors.

Results of Operations

 

     Year Ended
December 31,
2012
    % of
Net
Sales
    Year Ended
December 31,
2011
    % of
Net
Sales
    Year Ended
December 31,
2010
    % of
Net
Sales
 

Net sales

   $ 4,024.7        100.0   $ 4,729.8        100.0   $ 3,895.5        100.0

Cost of materials sold

     3,315.1        82.4        4,071.0        86.1        3,355.7        86.1   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit

     709.6        17.6        658.8        13.9        539.8        13.9   

Warehousing, delivery, selling, general and administrative expenses

     508.9        12.6        539.7        11.4        506.9        13.0   

Restructuring and other charges

     1.1               11.1        0.2        12.0        0.3   

Gain on insurance settlement

                                 (2.6     (0.1

Impairment charges on fixed assets and goodwill

     1.0               9.3        0.2        1.4        0.1   

Pension and other postretirement benefits curtailment (gain) loss

     (1.7                          2.0        0.1   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Operating profit

     200.3        5.0        98.7        2.1        20.1        0.5   

Other expenses

     (160.0     (4.0     (118.5     (2.5     (110.7     (2.8
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

     40.3        1.0        (19.8     (0.4     (90.6     (2.3

Provision (benefit) for income taxes

     (5.5     (0.1     (11.0     (0.2     13.1        0.3   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss)

     45.8        1.1        (8.8     (0.2     (103.7     (2.6

Less: Net income (loss) attributable to noncontrolling interest

     (1.3     (0.1     (0.7            0.3          
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss) attributable to Ryerson Holding Corporation

   $ 47.1        1.2   $ (8.1     (0.2 )%    $ (104.0     (2.6 )% 
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Basic and diluted earnings (loss) per share

   $ 9.41        $ (1.62     $ (20.80  
  

 

 

     

 

 

     

 

 

   

 

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Comparison of the year ended December 31, 2011 with the year ended December 31, 2012

Net Sales

Net sales decreased 14.9% to $4.0 billion in 2012 as compared to $4.7 billion in 2011. Tons sold per ship day were 8,528 in 2012 as compared to 9,655 in 2011. Volume decreased 11.7% in 2012 reflecting our efforts to improve margins by focusing on less price sensitive transactional customers who buy in smaller quantities instead of large volume program buyers. Tons sold in 2012 decreased across all of our product lines compared to 2011 with the largest decreases in shipments of our stainless steel flat, carbon steel flat and aluminum flat product lines. The average selling price per ton decreased in 2012 to $1,873 from $1,944 in 2011 reflecting weaker market conditions compared to 2011. Average selling prices per ton decreased for most of our product lines in 2012 with the largest decrease in our stainless steel flat and stainless steel plate product lines.

Cost of Materials Sold

Cost of materials sold decreased 18.6% to $3.3 billion in 2012 compared to $4.1 billion in 2011. The decrease in cost of materials sold in 2012 compared to 2011 was primarily due to the decrease in tons sold. The average cost of materials sold per ton decreased to $1,543 in 2012 from $1,673 in 2011. The average cost of materials sold for our stainless steel plate and stainless steel flat product lines decreased more than our other products, in line with the change in average selling price per ton.

During 2012, LIFO income was $63 million related to decreases in pricing for all product lines. During 2011, LIFO expense was $49 million primarily related to increases in the cost of carbon steel.

Gross Profit

Gross profit as a percentage of sales improved to 17.6% in 2012 compared to 13.9% in 2011 for reasons discussed above. Gross profit increased 7.7% to $709.6 million in 2012 as compared to $658.8 million in 2011.

Operating Expenses

Operating expenses as a percentage of sales increased to 12.6% in 2012 from 11.8% in 2011. Operating expenses in 2012 decreased $50.8 million from $560.1 million in 2011 primarily due to the following reasons:

 

   

lower salaries and wages of $12.9 million resulting from lower employment levels,

 

   

lower incentive plan expenses of $10.4 million,

 

   

lower restructuring charges of $10.0 million,

 

   

lower impairment charges of $8.3 million,

 

   

lower delivery costs of $6.8 million due to lower volume,

 

   

lower bad debt expense of $3.7 million, and

 

   

the other postretirement benefits curtailment gain of $1.7 million in 2012.

These changes were partially offset by:

 

   

higher amortization of intangibles expense of $3.3 million in 2012 primarily due to the acquisition of Turret Steel in December of 2011.

On a per ton basis, operating expenses increased to $237 per ton in 2012 from $230 per ton in 2011.

Operating Profit

As a result of the factors above, in 2012 we reported an operating profit of $200.3 million, or 5.0% of sales, compared to an operating profit of $98.7 million, or 2.1% of sales, in 2011.

 

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Other Expenses

Interest and other expense on debt increased to $126.5 million in 2012 from $123.1 million in 2011, primarily due to higher interest expense related to our Ryerson Holding Notes until their redemption in October 2012 as interest expense was calculated on the outstanding principal amount, which increased as the discount was amortized, as well as higher interest rates on the Ryerson Holding Notes in 2012. The interest rate on the Ryerson Holding Notes was 15.50% from January 1, 2011 through July 31, 2011, 16.50% from August 1, 2011 through April 30, 2012 and 17.00% from May 1, 2012 until the Notes were redeemed. Partially offsetting the higher expense related to Ryerson Holding Notes was lower interest expense in the fourth quarter of 2012 due to the issuance of new notes at lower interest rates to replace the Ryerson Holding Notes and our Old Ryerson Notes.

On October 10, 2012, we issued $600 million of 9% Senior Secured Notes due 2017 (the “2017 Notes”) and $300 million of 11  1 / 4 % Senior Notes due 2018 (the “2018 Notes” and, together with the 2017 Notes, the “2017 and 2018 Notes”). In connection therewith, we redeemed the $368.7 million outstanding principal of our 2015 Notes, the $102.9 million outstanding principal of our 2014 Notes and the $344.9 million outstanding principle of our Ryerson Holding Notes. The excess of the proceeds from the issuance of the 2017 and 2018 Notes over the redemption of the Old Ryerson Notes and the Ryerson Holding Notes was used to repay borrowings on our credit facility.

Other income and (expense), net was expense of $33.5 million in 2012 as compared to income of $4.6 million in 2011. The year 2012 expense was primarily related to a $32.8 million loss on the redemption of the Old Ryerson Notes and the Ryerson Holding Notes. The year 2011 included a $5.8 million bargain purchase gain on our acquisition of Singer Steel Company (“Singer”).

Provision for Income Taxes

The Company recorded an income tax benefit of $5.5 million in 2012 compared to an income tax benefit of $11.0 million in 2011. The $5.5 million income tax benefit in 2012 primarily relates to the impact of acquisition-related elections and settlements, as well as net changes in valuation allowance. The $11.0 million income tax benefit in 2011 primarily relates to $18.0 million of tax benefits relating to the purchase accounting impact of the acquisitions of Singer and Turret Steel Industries Inc., Sunbelt-Turret Steel, Inc., Wilcox-Turret Cold Drawn, Inc., Imperial Trucking Company, LLC (collectively, “Turret”) net of foreign tax expense.

Noncontrolling Interest

Ryerson China’s and Açofran’s results of operations was a loss in 2012. Ryerson China’s results of operations was also a loss in 2011. The portion of the loss attributable to the noncontrolling interest in Ryerson China and Açofran was $1.3 million for 2012 and $0.7 million for 2011.

Earnings (Loss) Per Share

Basic and diluted earnings (loss) per share was $9.41 in 2012 and $(1.62) in 2011. The changes in earnings (loss) per share are due to the results of operations discussed above.

Comparison of the year ended December 31, 2010 with the year ended December 31, 2011

Net Sales

Net sales increased 21.4% to $4.7 billion in 2011 as compared to $3.9 billion in 2010. Tons sold per ship day were 9,655 in 2011 as compared to 8,972 in 2010. Volume increased 8.0% in 2011 as improvement in the

 

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manufacturing sector of the economy favorably impacted all of our product lines. The average selling price per ton increased in 2011 to $1,944 from $1,730 in 2010 reflecting the improvement in market conditions compared to 2010. Average selling prices per ton increased for all of our product lines in 2011 with the largest increase in our carbon plate and carbon long product lines.

Cost of Materials Sold

Cost of materials sold increased 21.3% to $4.1 billion in 2011 compared to $3.4 billion in 2010. The increase in cost of materials sold in 2011 compared to 2010 was primarily due to an 11.0% increase in average mill prices in 2011 along with the 8.0% increase in tons sold reflecting the improvement in the economy. The average cost of materials sold per ton increased to $1,673 in 2011 from $1,490 in 2010. The average cost of materials sold for our carbon plate and carbon long product lines increased more than our other products, in line with the change in average selling price per ton.

During 2011, LIFO expense was $49 million, primarily related to an increase in the cost of carbon steel. During 2010, LIFO expense was $52 million primarily related to increases in the costs of stainless and carbon steel.

Gross Profit

Gross profit as a percentage of sales was 13.9% in both 2011 and 2010. Gross profit increased 22.0% to $658.8 million in 2011 as compared to $539.8 million in 2010.

Operating Expenses

Operating expenses as a percentage of sales decreased to 11.8% in 2011 from 13.4% in 2010. Operating expenses in 2011 increased $40.4 million from $519.7 million in 2010 primarily due to the following reasons:

 

   

higher delivery costs of $11.9 million resulting from higher volume,

 

   

higher salaries and wages of $11.8 million,

 

   

higher facility costs of $4.8 million,

 

   

higher outside consultant costs of $4.3 million,

 

   

the $11.1 million restructuring charge in 2011,

 

   

the $9.3 million impairment charges on fixed assets and goodwill included in 2011 results, and

 

   

the gain on insurance settlement of $2.6 million in 2010.

These changes were partially offset by:

 

   

the $12.0 million restructuring and other charges along with the $2.0 million pension curtailment loss in 2010, and

 

   

the impairment charge of $1.4 million in 2010 to reduce the carrying value of certain assets to their net realizable value.

On a per ton basis, operating expenses were $230 per ton in 2011 compared to $231 per ton in 2010.

Operating Profit

As a result of the factors above, in 2011 we reported an operating profit of $98.7 million, or 2.1% of sales, compared to an operating profit of $20.1 million, or 0.5% of sales, in 2010.

 

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Other Expenses

Interest and other expense on debt increased to $123.1 million in 2011 from $107.5 million in 2010, primarily due to increased interest expense associated with our Ryerson Holding Notes. The Ryerson Holding Notes were issued on January 29, 2010 resulting in twelve months of interest expense in 2011 compared to eleven months in 2010. The interest rate on the Ryerson Holding Notes also increased from 14.50% at issuance to 15.50% at November 1, 2010 until July 31, 2011 and then to 16.50% at August 1, 2011. In addition, interest expense increased due to a higher level of borrowing on our credit facility and to recording a charge of $1.1 million in the first quarter of 2011 to write off debt issuance costs associated with our prior credit facility upon entering into an amended revolving credit facility. Other income and (expense), net was income of $4.6 million in 2011 as compared to expense of $3.2 million in 2010. The year 2011 included a $5.8 million bargain purchase gain on our acquisition of Singer Steel Company (“Singer”). The year 2010 was negatively impacted by $2.6 million of foreign exchange loss realized upon the repayment of a long-term loan to our Canadian operations.

Provision for Income Taxes

The Company recorded an income tax benefit of $11.0 million in 2011 compared to an income tax expense of $13.1 million in 2010. The $11.0 million income tax benefit in 2011 primarily relates to $18.0 million of tax benefits relating to the purchase accounting impact of the acquisitions of Singer and Turret Steel Industries Inc., Sunbelt-Turret Steel, Inc., Wilcox-Turret Cold Drawn, Inc., Imperial Trucking Company, LLC (collectively, “Turret”) net of foreign tax expense. The $13.1 million income tax expense in 2010 primarily relates to additional valuation allowance recorded against deferred tax assets due to changes in the deferred tax asset amounts, adjustments to reflect the filing of the Company’s 2009 federal income tax return and to foreign income tax expense.

Noncontrolling Interest

Ryerson China incurred a loss in 2011. The portion of the loss attributable to the noncontrolling interest in Ryerson China was $0.7 million for 2011. The portion of the income attributable to the noncontrolling interest in Ryerson China was $0.3 million for 2010.

Earnings (Loss) Per Share

Basic and diluted earnings (loss) per share was $(1.62) in 2011 and $(20.80) in 2010. The changes in earnings (loss) per share are due to the results of operations discussed above.

Liquidity and Capital Resources

The Company’s primary sources of liquidity are cash and cash equivalents, cash flows from operations and borrowing availability under our $1.35 billion revolving credit facility agreement that matures on March 14, 2016 (as amended, the “Ryerson Credit Facility”). Its principal source of operating cash is from the sale of metals and other materials. Its principal uses of cash are for payments associated with the procurement and processing of metals and other materials inventories, costs incurred for the warehousing and delivery of inventories and the selling and administrative costs of the business, capital expenditures, and for interest payments on debt.

The following table summarizes the Company’s cash flows:

 

     Year Ended December 31,  
     2012     2011     2010  
     (In millions)  

Net cash provided by (used in) operating activities

   $ 186.5      $ 54.5      $ (198.7

Net cash used in investing activities

     (35.3     (115.0     (44.4

Net cash provided by (used in) financing activities

     (143.4     57.9        185.1   

Effect of exchange rates on cash

     1.7        1.7        5.6   
  

 

 

   

 

 

   

 

 

 

Net increase (decrease) in cash and cash equivalents

   $ 9.5      $ (0.9   $ (52.4
  

 

 

   

 

 

   

 

 

 

 

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The Company had cash and cash equivalents at December 31, 2012 of $71.2 million, compared to $61.7 million at December 31, 2011 and $62.6 million at December 31, 2010. The Company had $1,305 million and $1,316 million of total debt outstanding, a debt-to-capitalization ratio of 129% and 125% and $293 million and $274 million available under the Ryerson Credit Facility at December 31, 2012 and 2011, respectively. The Company had total liquidity (defined as cash and cash equivalents, marketable securities and availability under the Ryerson Credit Facility and foreign debt facilities) of $406 million at December 31, 2012 versus $368 million at December 31, 2011. Total liquidity is a non-GAAP financial measure. We believe that total liquidity provides additional information for measuring our ability to fund our operations. Total liquidity does not represent, and should not be used as a substitute for, net income or cash flows from operations as determined in accordance with GAAP and total liquidity is not necessarily an indication of whether cash flow will be sufficient to fund our cash requirements. At December 31, 2010, the Company had $1,211 million of total debt outstanding, a debt-to-capitalization ratio of 118%, $317 million available under the Ryerson Credit Facility, and total liquidity of $414 million.

Below is a reconciliation of cash and cash equivalents to total liquidity:

 

     December 31,
2012
     December 31,
2011
     December 31,
2010
 
     (In millions)  

Cash and cash equivalents

   $ 71       $ 62       $ 63   

Marketable securities

     21         10         20   

Availability on Ryerson Credit Facility and foreign debt facilities

     314         296         331   
  

 

 

    

 

 

    

 

 

 

Total liquidity

   $ 406       $ 368       $ 414   
  

 

 

    

 

 

    

 

 

 

Of the total cash and cash equivalents as of December 31, 2012, $53.5 million was held in subsidiaries outside the United States which is deemed to be permanently reinvested. Ryerson does not currently foresee a need to repatriate funds from its non-U.S. subsidiaries. Although Ryerson has historically satisfied needs for more capital in the U.S. through debt or equity issuances, Ryerson could elect to repatriate funds held in foreign jurisdictions. This alternative could result in higher effective tax rates.

During the years ended December 31, 2012 and 2011, net cash provided by operating activities was $186.5 million and $54.5 million, respectively. During the year ended December 31, 2010, net cash used by operating activities was $198.7 million. Net income (loss) was $45.8 million, $(8.8) million and $(103.7) million for the years ended December 31, 2012, 2011 and 2010, respectively. In addition to the net income in 2012, cash provided by operating activities of $186.5 million during the year ended December 31, 2012 was primarily the result of a decrease in accounts receivable of $120.8 million reflecting lower volume in 2012, non-cash depreciation and amortization expense of $47.0 million and non-cash interest amortization of $39.0 million, partially offset by pension contributions of $45.9 million and a decrease in accounts payable of $38.3 million. Cash provided by operating activities was $54.5 million during the year ended December 31, 2011 and was primarily the result of a decrease in inventories of $92.9 million resulting from increased sales, partially offset by a decrease in accounts payable of $71.7 million. Cash used by operating activities was $198.7 million during the year ended December 31, 2010 and was primarily the result of an increase in inventories of $170.9 million resulting from higher inventory purchases to support increased sales levels, an increase in accounts receivable of $137.5 million reflecting higher sales levels, partially offset by an increase in accounts payable of $102.3 million.

Net cash used by investing activities was $35.3 million, $115.0 million and $44.4 million in 2012, 2011 and 2010, respectively. Capital expenditures for the years ended December 31, 2012, 2011 and 2010 were $40.8 million, $47.0 million and $27.0 million, respectively. The Company sold property, plant and equipment and assets held for sale generating cash proceeds of $11.6 million, $11.3 million and $5.5 million during the years ended December 31, 2012, 2011 and 2010, respectively. In 2012, 2011 and 2010, the Company made several acquisitions, resulting in cash outflows of $5.1 million, $95.2 million and $12.0 million, respectively.

 

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Net cash used in financing activities was $143.4 million for the year ended December 31, 2012, primarily due to the redemption of the Old Ryerson Notes and the Ryerson Holding Notes for $829.5 million, a distribution of $35.0 million to Platinum, repayment of credit facility borrowings for $149.0 million, and the payment of $18.1 million in fees related to the issuance of the 2017 and 2018 Notes, partially offset by the issuance of the 2017 and 2018 Notes for $900.0 million. The $149.0 million reduction in credit facility borrowings was primarily due to the $186.5 million of net cash provided by operating activities and excess proceeds from the issuance of the 2017 and 2018 Notes over the redemption of the Old Ryerson Notes and the Ryerson Holding Notes, partially offset by the capital spending of $40.8 million and the distribution of $35.0 million to Platinum. Net cash provided by financing activities was $57.9 million for the year ended December 31, 2011, primarily related to increased credit facility borrowings to finance accounts receivable and inventory to support increased sales levels in 2011. Net cash provided by financing activities was $185.1 million for the year ended December 31, 2010, primarily related to the issuance of the Ryerson Holding Notes and increased credit facility borrowings to finance accounts receivable and inventory to support increased sales levels in 2010, offset by a $213.8 million distribution made to our stockholders. We also acquired Van Shung Chong Holdings Limited’s (“VSC”), our former joint venture partner, remaining 20 percent ownership in Ryerson China for $17.5 million in 2010. We believe that cash flow from operations and proceeds from the Ryerson Credit Facility will provide sufficient funds to meet our contractual obligations and operating requirements in the normal course of business.

As a result of the redemption of the Old Ryerson Notes and the Ryerson Holding Notes and cash provided by operating activities, net of the issuance of the 2017 and 2018 Notes, total debt decreased to $1,305 million at December 31, 2012 from $1,316 million at December 31, 2011.

Total debt outstanding as of December 31, 2012 consisted of the following amounts: $383.5 million borrowing under the Ryerson Credit Facility, $600.0 million under the 2017 Notes, $300.0 million under the 2018 Notes, and $21.9 million of foreign debt. Availability at December 31, 2012 and 2011 under the Ryerson Credit Facility was $293 million and $274 million, respectively. Discussion of our outstanding debt follows.

Ryerson Credit Facility

On March 14, 2011, Ryerson amended and restated its $1.35 billion revolving credit facility agreement (as amended, the “Ryerson Credit Facility”) to, among other changes, extend the maturity date to March 14, 2016. At December 31, 2012, Ryerson had $383.5 million of outstanding borrowings, $24 million of letters of credit issued and $293 million available under the $1.35 billion Ryerson Credit Facility compared to $520.0 million of outstanding borrowings, $29 million of letters of credit issued and $274 million available at December 31, 2011. Total credit availability is limited by the amount of eligible accounts receivable and inventory pledged as collateral under the agreement insofar as the Company is subject to a borrowing base comprised of the aggregate of these two amounts, less applicable reserves. Eligible accounts receivable, at any date of determination, are comprised of the aggregate value of all accounts directly created by a borrower in the ordinary course of business arising out of the sale of goods or the rendition of services, each of which has been invoiced, with such receivables adjusted to exclude various ineligible accounts, including, among other things, those to which a borrower does not have sole and absolute title and accounts arising out of a sale to an employee, officer, director, or affiliate of a borrower. The weighted average interest rate on the borrowings under the Ryerson Credit Facility was 2.6 percent and 2.4 percent at December 31, 2012 and 2011, respectively.

Amounts outstanding under the Ryerson Credit Facility bear interest at a rate determined by reference to the base rate (Bank of America’s prime rate) or a LIBOR rate or, for the Company’s Canadian subsidiary which is a borrower, a rate determined by reference to the Canadian base rate (Bank of America-Canada Branch’s “Base Rate” for loans in U.S. Dollars in Canada) or the BA rate (average annual rate applicable to Canadian Dollar bankers’ acceptances) or a LIBOR rate and the Canadian prime rate (Bank of America-Canada Branch’s “Prime Rate.”). The spread over the base rate and Canadian prime rate is between 0.75% and 1.50% and the spread over the LIBOR and for the bankers’ acceptances is between 1.75% and 2.50%, depending on the amount available to be borrowed. Overdue amounts and all amounts owed during the existence of a default bear interest at 2% above

 

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the rate otherwise applicable thereto. The Company also pays commitment fees on amounts not borrowed at a rate between 0.375% and 0.50% depending on the average borrowings as a percentage of the total $1.35 billion agreement during a rolling three month period.

Borrowings under the Ryerson Credit Facility are secured by first-priority liens on all of the inventory, accounts receivable, lockbox accounts and related assets of Ryerson, subsidiary borrowers and certain other U.S. subsidiaries of Ryerson that act as guarantors.

The Ryerson Credit Facility contains covenants that, among other things, restrict Ryerson with respect to the incurrence of debt, the creation of liens, transactions with affiliates, mergers and consolidations, sales of assets and acquisitions. The Ryerson Credit Facility also requires that, if availability under such facility declines to a certain level, Ryerson maintain a minimum fixed charge coverage ratio as of the end of each fiscal quarter.

The Ryerson Credit Facility contains events of default with respect to, among other things, default in the payment of principal when due or the payment of interest, fees and other amounts after a specified grace period, material misrepresentations, failure to perform certain specified covenants, certain bankruptcy events, the invalidity of certain security agreements or guarantees, material judgments and the occurrence of a change of control of Ryerson. If such an event of default occurs, the lenders under the Ryerson Credit Facility will be entitled to various remedies, including acceleration of amounts outstanding under the Ryerson Credit Facility and all other actions permitted to be taken by secured creditors.

The lenders under the Ryerson Credit Facility have the ability to reject a borrowing request if any event, circumstance or development has occurred that has had or could reasonably be expected to have a material adverse effect on Ryerson. If Ryerson or any significant subsidiaries of the other borrowers becomes insolvent or commences bankruptcy proceedings, all amounts borrowed under the Ryerson Credit Facility will become immediately due and payable.

Proceeds from borrowings under the Ryerson Credit Facility and repayments of borrowings thereunder that are reflected in the Consolidated Statements of Cash Flows represent borrowings under the Company’s revolving credit agreement with original maturities greater than three months. Net proceeds (repayments) under the Ryerson Credit Facility represent borrowings under the Ryerson Credit Facility with original maturities less than three months.

2017 and 2018 Notes

On October 10, 2012, Ryerson and its wholly owned subsidiary, Joseph T. Ryerson & Son, Inc., issued $600 million in aggregate principal amount of their 2017 Notes and $300 million in aggregate principal amount of their 2018 Notes. The 2017 Notes bear interest at a rate of 9% per annum. The 2018 Notes bear interest at a rate of 11.25% per annum. The 2017 Notes are fully and unconditionally guaranteed on a senior secured basis and the 2018 Notes are fully and unconditionally guaranteed on a senior unsecured basis by all of our existing and future domestic subsidiaries that are co-borrowers or guarantee obligations under the Ryerson Credit Facility.

The 2017 Notes and related guarantees are secured by a first-priority lien on substantially all of our and our guarantors’ present and future assets located in the United States (other than receivables, inventory, related general intangibles, certain other assets and proceeds thereof), subject to certain exceptions and customary permitted liens. The 2017 Notes and related guarantees are secured on a second-priority basis by a lien on the assets that secure our obligations under the Ryerson Credit Facility. The 2018 Notes are not secured. The 2017 and 2018 Notes contain customary covenants that, among other things, limit, subject to certain exceptions, our ability, and the ability of our restricted subsidiaries, to incur additional indebtedness, pay dividends on our capital stock or repurchase our capital stock, make investments, sell assets, engage in acquisitions, mergers or consolidations or create liens or use assets as security in other transactions. Subject to certain exceptions, Ryerson may only pay dividends to Ryerson Holding to the extent of 50% of future net income, once prior losses

 

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are offset. As a result of these restrictions, the restricted net assets of consolidated subsidiaries exceed 25 percent of consolidated net assets as of December 31, 2012. Restricted net assets as of December 31, 2012 were $262.5 million. See Schedule I for condensed financial information of the parent company.

The 2017 Notes will become redeemable by the Company, in whole or in part, at any time on or after April 15, 2015 and the 2018 Notes will become redeemable, in whole or in part, at any time on or after October 15, 2015, in each case at specified redemption prices. The 2017 and 2018 Notes are redeemable prior to such dates at a redemption price equal to 100% of the principal amount, together with accrued and unpaid interest, if any, to the redemption date, plus a make-whole premium. If a change of control occurs, Ryerson must offer to purchase the 2017 and 2018 Notes at 101% of their principal amount, plus accrued and unpaid interest.

Pursuant to registration rights agreements relating to the 2017 and 2018 Notes, we agreed to file with the SEC by July 7, 2013, registration statements with respect to offers to exchange each of the 2017 and 2018 Notes for new issues of our debt securities registered under the Securities Act, with terms substantially identical to those of the 2017 and 2018 Notes and to consummate such exchange offers no later than October 5, 2013.

The Company used the net proceeds from the 2017 and 2018 Notes (i) to repay in full the Ryerson Holding Notes, plus accrued and unpaid interest thereon up to, but not including, the repayment date, (ii) to repay in full the Old Ryerson Notes, plus accrued and unpaid interest thereon up to, but not including, the repayment date, (iii) to repay outstanding indebtedness under the Ryerson Credit Facility and (iv) to pay related fees, expenses and premiums.

Ryerson Holding Notes

As of November 1, 2012, all of the Ryerson Holding Notes, which were first issued on January 29, 2010, were repurchased or redeemed and cancelled. The Company recorded a $15.6 million loss on the repurchase and cancellation of debt related to the Ryerson Holding Notes within other income and (expense), net on the Consolidated Statements of Operations.

2014 and 2015 Notes

As of November 1, 2012, all of the Old Ryerson Notes, which were first issued on October 19, 2007, were repurchased or redeemed and cancelled. The Company recorded a $17.2 million loss on the repurchase and cancellation of debt related to the Old Ryerson Notes within other income and (expense), net on the Consolidated Statements of Operations.

During 2011, $7.5 million principal amount of the 2015 Notes were repurchased for $7.7 million and retired, resulting in the recognition of a $0.2 million loss within other income and (expense), net on the Consolidated Statements of Operations.

Foreign Debt

At December 31, 2012, Ryerson China’s total foreign borrowings were $21.4 million, which were owed to banks in Asia at a weighted average interest rate of 4.8% secured by inventory and property, plant and equipment. At December 31, 2012, Açofran’s total foreign borrowings were $0.5 million, which were owed to foreign banks at a weighted average interest rate of 11.2%. Of the total foreign borrowings of $32.0 million outstanding at December 31, 2011, $30.1 million was owed to banks in Asia at a weighted average interest rate of 6.2% secured by inventory and property, plant and equipment. Ryerson China also owed $1.9 million at December 31, 2011 to other parties at a weighted average interest rate of 0.9%.

Availability under the foreign credit lines was $21 million and $22 million at December 31, 2012 and 2011, respectively. Letters of credit issued by our foreign subsidiaries totaled $8 million and $11 million at December 31, 2012 and 2011, respectively.

 

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Pension Funding

The Company made contributions of $45.9 million in 2012, $43.9 million in 2011, and $46.6 million in 2010 to improve the Company’s pension plans funded status. At December 31, 2012, as reflected in “NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—Note 10: Employee Benefits” pension liabilities exceeded plan assets by $370 million. The Company anticipates that it will have a minimum required pension contribution of approximately $48 million in 2013 under the Employee Retirement Income Security Act of 1974 (“ERISA”) and Pension Protection Act (“PPA”) in the U.S and the Ontario Pension Benefits Act in Canada. Future contribution requirements depend on the investment returns on plan assets, the impact of discount rates on pension liabilities, and changes in regulatory requirements. The Company is unable to determine the amount or timing of any such contributions required by ERISA or whether any such contributions would have a material adverse effect on the Company’s financial position or cash flows. The Company believes that cash flow from operations and the Ryerson Credit Facility described above will provide sufficient funds to make the minimum required contribution in 2013.

Income Tax Payments

The Company made income tax payments of $5.2 million in 2012 and received income tax refunds of $3.1 million and $46.8 million in 2011 and 2010, respectively.

Off-Balance Sheet Arrangements

In the normal course of business with customers, vendors and others, we have entered into off-balance sheet arrangements, such as letters of credit, which totaled $29 million as of December 31, 2012. Additionally, other than normal course long-term operating leases included in the following Contractual Obligations table, we do not have any material off-balance sheet financing arrangements. None of these off-balance sheet arrangements are likely to have a material effect on our current or future financial condition, results of operations, liquidity or capital resources.

Contractual Obligations

The following presents a pro forma contractual obligations table at December 31, 2012 in consideration of the Company’s debt obligations immediately after this stock offering:

 

     Payments Due by Period  
     Total      Less than
1 year
     1 – 3
years
     4 – 5
years
     After 5
years
 
     (In millions)  

Contractual Obligations(1)(2)

              

2017 Notes

   $            $ —         $ —         $            $ —     

2018 Notes

        —           —           —        

Ryerson Credit Facility

        —           —              —     

Foreign Debt

     22         22         —           —           —     

Interest on 2017 Notes, 2018 Notes, Foreign Debt and Ryerson Credit Facility (3)

              

Purchase Obligations (4)

     33         33         —           —           —     

Operating Leases

     133         27         40         29         37   

Pension Withdrawal Liability

     1         —           —           —           1   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $                $                $                $         $            
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) The contractual obligations disclosed above do not include our potential future pension funding obligations (see previous discussion under “Pension Funding” caption).

 

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(2) Due to uncertainty regarding the completion of tax audits and possible outcomes, we do not know the timing of when our obligations related to unrecognized tax benefits will occur, if at all. See Note 17 “Income Taxes” of the notes to our consolidated financial statements for additional detail.
(3) Interest payments related to the variable rate debt were estimated using the weighted average interest rate for the Ryerson Credit Facility.
(4) The purchase obligations with suppliers are entered into when we receive firm sales commitments with certain of our customers.

The following table presents contractual obligations at December 31, 2012:

 

     Payments Due by Period  
     Total      Less than
1 year
     1 – 3
years
     4 – 5
years
     After 5
years
 

Contractual Obligations(1)(2)

   (In millions)  

2017 Notes

   $ 600       $  —         $  —         $ 600       $  —     

2018 Notes

     300         —           —           —           300   

Ryerson Credit Facility

     384         —           —           384         —     

Foreign Debt

     22         22         —           —           —     

Interest on 2017 Notes, 2018 Notes, Foreign Debt and Ryerson Credit Facility(3)

     479         98         191         164         26   

Purchase Obligations (4)

     33         33         —           —           —     

Operating Leases

     133         27         40         29         37   

Pension Withdrawal Liability

     1         —           —           —           1   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 1,952       $ 180       $ 231       $ 1,177       $ 364   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) The contractual obligations disclosed above do not include our potential future pension funding obligations (see previous discussion under “Pension Funding” caption).
(2) Due to uncertainty regarding the completion of tax audits and possible outcomes, we do not know the timing of when our obligations related to unrecognized tax benefits will occur, if at all. See Note 17 “Income Taxes” of the notes to our consolidated financial statements for additional detail.
(3) Interest payments related to the variable rate debt were estimated using the weighted average interest rate for the Ryerson Credit Facility.
(4) The purchase obligations with suppliers are entered into when we receive firm sales commitments with certain of our customers.

Subsequent Events

On April 3, 2013, Ryerson amended and restated the Ryerson Credit Facility to, among other things, extend the maturity date to the earlier of (a) April 3, 2018 or (b) August 16, 2017 (60 days prior to the scheduled maturity date of the 2017 Notes), if the 2017 Notes are then outstanding. The amendment also reduces the interest rate on outstanding borrowings by 25 to 50 basis points as well as reduces the commitment fees on amounts not borrowed by 12.5 basis points.

JT Ryerson, one of our subsidiaries, is party to a corporate advisory services agreement with Platinum Advisors, an affiliate of Platinum, pursuant to which Platinum Advisors provides JT Ryerson certain business, management, administrative and financial advice. On             , JT Ryerson’s Board of Directors approved the termination of this services agreement contingent on the closing of the initial public offering. As consideration for terminating the monitoring fee payable thereunder, JT Ryerson will pay Platinum Advisors $             million. The Company will recognize the termination fee within Warehousing, delivery, selling, general and administrative expense upon the closing of the initial public offering. The unaudited pro forma balance sheet presents the effect of funding the termination payment to the principal stockholder. The unaudited pro forma balance sheet is presented for informational purposes only in accordance with Staff Accounting Bulletin Topic 1.B.3.

 

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On             , our Board of Directors approved a              for 1.00 stock split of the Company’s common stock to be effected prior to the closing of this offering. Per share and share amounts presented herein have been adjusted for all periods presented to give retroactive effect to the              for 1.00 stock split.

Capital Expenditures

Capital expenditures during 2012, 2011 and 2010 totaled $40.8 million, $47.0 million and $27.0 million, respectively. Capital expenditures were primarily for machinery and equipment.

The Company anticipates capital expenditures, excluding acquisitions, to be approximately $30 million in 2013. The spending includes improvements in the Company’s North American processing capabilities and expenditures in emerging markets.

Restructuring

2012

In 2012, the Company recorded a charge of $1.3 million related to the closure of one of its facilities. The charge consists of employee-related costs, primarily severance for 42 employees. In the fourth quarter of 2012, the Company paid $0.3 million in employee costs related to this facility closure. The remaining $1.0 million balance is expected to be paid in 2013. In the first quarter of 2013, as part of this facility closure, the Company expects to record tenancy-related costs of approximately $2 million.

During 2012, the Company paid $4.0 million in employee costs and $0.2 million in tenancy costs related to its October 2011 reorganization plan. The Company also recorded a $0.4 million reduction to this reorganization reserve for employee-related costs and recorded a charge of $0.2 million related to tenancy costs. The $0.2 million net credit reduced the reserve for the October 2011 reorganization to zero and was credited to restructuring and other charges in the Consolidated Statements of Operations.

In 2012, the Company paid the remaining $0.1 million of employee costs related to the facility closed in the fourth quarter of 2010.

2011

In October 2011, the Company implemented a reorganization plan that reduced headcount by 292 employees resulting in a restructuring charge of $9.8 million recorded in the fourth quarter. The Company reduced headcount in a continued effort to decentralize functions to its regions as well as to execute management’s strategy of focusing on long and fabricated product sales. The charge consists of restructuring expenses of $8.4 million for employee-related costs, primarily severance, and additional non-cash pensions and other post-retirement benefit costs totaling $1.4 million. In the fourth quarter of 2011, the Company paid $4.0 million in employee costs related to this restructuring.

In 2011, the Company recorded an additional charge of $1.3 million related to the closure of one of its facilities for which it had recorded a charge of $12.5 million in the fourth quarter of 2010. The charge consists of additional employee-related costs, primarily severance. In 2011, the Company paid $1.3 million in employee costs related to this facility closure.

During 2011, the Company paid the remaining $0.2 million of tenancy and other costs related to the exit plan liability recorded on October 19, 2007.

2010

During 2010, the Company paid $0.7 million related to the exit plan liability recorded on October 19, 2007. In the fourth quarter of 2010, the Company recorded a $12.5 million charge related to the closure of one of its

 

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facilities. The charge consists of restructuring expenses of $0.4 million for employee-related costs, including severance for 66 employees, and additional non-cash pensions and other post-retirement benefits costs totaling $12.1 million. Included in the non-cash pension charge is a pension curtailment loss of $2.0 million. In the fourth quarter of 2010, the Company paid $0.3 million in employee costs related to this facility closure.

Other Charges

In the fourth quarter of 2010, the Company also recorded a charge of $1.5 million for costs related to the retirement of its former Chief Executive Officer, which is recorded within the “Restructuring and other charges” line of the Consolidated Statements of Operations.

Deferred Tax Amounts

At December 31, 2012, the Company had a net deferred tax liability of $83 million comprised primarily of a deferred tax asset of $143 million related to pension liabilities, a deferred tax asset related to postretirement benefits other than pensions of $49 million, $30 million of Alternative Minimum Tax (“AMT”) credit carryforwards, and deferred tax assets of $76 million related to federal, local and foreign loss carryforwards, offset by a valuation allowance of $147 million, and deferred tax liabilities of $109 million related to fixed assets and $130 million related to inventory.

The Company’s deferred tax assets include $56 million related to US federal net operating loss (“NOL”) carryforwards, $12 million related to state NOL carryforwards and $8 million related to foreign NOL carryforwards, available at December 31, 2012.

In accordance with FASB ASC 740, “ Income Taxes ,” the Company assesses the realizability of its deferred tax assets. The Company records a valuation allowance when, based upon the evaluation of all available evidence, it is more-likely-than-not that all or a portion of the deferred tax assets will not be realized. In making this determination, we analyze, among other things, our recent history of earnings, the nature and timing of reversing book-tax temporary differences, tax planning strategies and future income. After considering both the positive and negative evidence available, in the second quarter of 2009, the Company determined that it was more-likely-than-not that it would not realize a portion of its U.S. deferred tax assets. As a result, the Company established a valuation allowance against a portion of its U.S. deferred tax assets. The Company has maintained a valuation allowance against a portion of its U.S. deferred tax assets since that time. As of December 31, 2010, the valuation allowance was $136.6 million, an increase of $37.8 million from the prior year. Of the $37.8 million increase during 2010, $36.5 million was charged to the income tax provision, $4.4 million was charged to other comprehensive income and $3.1 million reflected a decrease in net deferred tax assets for which a valuation allowance was fully provided. As of December 31, 2011, the valuation allowance was $151.7 million, an increase of $15.1 million from the prior year. Of the $15.1 million increase during 2011, $11.7 million was credited to the income tax provision predominantly due to the impact of purchase accounting for the Singer and Turret acquisitions and $26.8 million was charged to other comprehensive income predominantly due to increases in our unfunded pension liability. As of December 31, 2012, the Company had a valuation allowance of $147.3 million, a decrease of $4.4 million from the prior year. Of the $4.4 million decrease during 2012, $19.2 million was credited to the income tax provision, $13.6 million was charged to other comprehensive income and $1.2 million was added related to the purchase accounting of Açofran.

The Company recognized a total net tax benefit of $19.2 million related to 2012 changes in valuation allowance, including a $15.2 million tax benefit as a result of the release of valuation allowance related to certain state deferred tax assets recorded at one of its subsidiaries, JT Ryerson, at December 31, 2012. As described in Note 1 to the financial statements, the Company assesses the need for a valuation allowance considering all available positive and negative evidence, including past operating results, projections of future taxable income and the feasibility of ongoing tax planning strategies. The fourth quarter of 2012 was the first quarter in which JT Ryerson had sustained an operating profit in both the preceding cumulative three fiscal year period and in

 

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each of its two preceding fiscal years, providing objective evidence of JT Ryerson’s ability to earn future profits. Combined with JT Ryerson’s projections of future income providing additional subjective evidence of JT Ryerson’s ability to earn future profits and management’s judgment, the Company determined that these deferred tax assets were more likely than not realizable and accordingly the valuation allowance was no longer required.

The Company will continue to maintain a valuation allowance on definite-lived U.S. federal and state (excluding JT Ryerson) deferred tax assets until such time as in management’s judgment, considering all available positive and negative evidence and consistent with its determinations regarding JT Ryerson described above, the Company determines that these deferred tax assets are more likely than not realizable. If the current trend in our U.S. operating profit continues, it is possible that we will release some or all of the current valuation allowance recorded against the U.S. related deferred tax assets during the next twelve months.

Recent legislative proposals in the U.S. would repeal the use of the last-in-first-out method of accounting (“LIFO method”) for inventory for U.S. tax purposes. Currently, the Company carries a deferred tax liability associated with its use of the LIFO method that does not offset the Company’s deferred tax assets, with the effect that the Company carries a valuation allowance against most of its U.S. deferred tax assets. If legislation repealing the use of the LIFO method for tax purposes becomes law, we would expect to release a substantial portion of our valuation allowance during the quarter of that event. In addition, enactment of those proposals would generally result in an increase in the cash taxes the Company will need to pay over a 10 year period, resulting from repeal of the LIFO method.

Critical Accounting Estimates

Preparation of our financial statements requires us to make estimates and assumptions that affect the reported amount of assets and liabilities, disclosure of contingent assets and liabilities at the date of our financial statements, and the reported amounts of sales and expenses during the reporting period. Our critical accounting policies, including the assumptions and judgments underlying them, are disclosed under the caption “NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—Note 1: Summary of Accounting and Financial Policies.” These policies have been consistently applied and address such matters as revenue recognition, depreciation methods, inventory valuation, asset impairment recognition and pension and postretirement expense. While policies associated with estimates and judgments may be affected by different assumptions or conditions, we believe our estimates and judgments associated with the reported amounts are appropriate in the circumstances. Actual results may differ from those estimates.

We consider the policies discussed below as critical to an understanding of our financial statements, as application of these policies places the most significant demands on management’s judgment, with financial reporting results relying on estimation of matters that are uncertain.

Provision for allowances, claims and doubtful accounts : We perform ongoing credit evaluations of customers and set credit limits based upon review of the customers’ current credit information and payment history. We monitor customer payments and maintain a provision for estimated credit losses based on historical experience and specific customer collection issues that we have identified. Estimation of such losses requires adjusting historical loss experience for current economic conditions and judgments about the probable effects of economic conditions on certain customers. We cannot guarantee that the rate of future credit losses will be similar to past experience. Provisions for allowances and claims are based upon historical rates, expected trends and estimates of potential returns, allowances, customer discounts and incentives. We consider all available information when assessing the adequacy of the provision for allowances, claims and doubtful accounts.

Inventory valuation : Our inventories are stated at the lower of cost or market. Inventory costs reflect metal and in-bound freight purchase costs, third-party processing costs and internal direct and allocated indirect processing costs. Cost is primarily determined by the LIFO method. We regularly review inventory on hand and

 

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record provisions for obsolete and slow-moving inventory based on historical and current sales trends. Changes in product demand and our customer base may affect the value of inventory on hand which may require higher provisions for obsolete inventory.

Income Taxes : Our income tax expense, deferred tax assets and liabilities and reserve for uncertain tax positions reflect our best estimate of taxes to be paid. The Company is subject to income taxes in the U.S. and several foreign jurisdictions. The determination of the consolidated income tax expense requires judgment and estimation by management. It is possible that actual results could differ from the estimates that management has used to determine its consolidated income tax expense.

We record operating loss and tax credit carryforwards and the estimated effect of temporary differences between the tax basis of assets and liabilities and the reported amounts in the Consolidated Balance Sheet. We follow detailed guidelines in each tax jurisdiction when reviewing tax assets recorded on the balance sheet and provide for valuation allowances as required. Deferred tax assets are reviewed for recoverability based on historical taxable income, the expected reversals of existing temporary differences, tax planning strategies and on forecasts of future taxable income. The forecasts of future taxable income require assumptions regarding volume, selling prices, margins, expense levels and industry cyclicality. If we are unable to generate sufficient future taxable income in certain tax jurisdictions, we may be required to record additional valuation allowances against our deferred tax assets related to those jurisdictions.

The Company’s income tax provisions are based on calculations and assumptions that are subject to examination by the IRS and other tax authorities. Although the Company believes that the positions taken on filed tax returns are reasonable, it has established tax and interest reserves in recognition that various taxing authorities may challenge the positions taken. For uncertain tax positions, the Company applies the provisions of relevant authoritative guidance, which requires application of a “more likely than not” threshold to the recognition and derecognition of tax positions. The Company’s ongoing assessments of the more likely than not outcomes of tax authority examinations and related tax positions require significant judgment and can increase or decrease the Company’s effective tax rate.

Long-lived Assets and Other Intangible Assets : Long-lived assets held and used are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. We estimate the future cash flows expected to result from the use of the asset and its eventual disposition. If the sum of the expected future cash flows (undiscounted and without interest charges) is less than the carrying amount of the asset, an impairment is recognized. Determining whether an impairment has occurred typically requires various estimates and assumptions, including determining which undiscounted cash flows are directly related to the potentially impaired asset, the useful life over which cash flows will occur, their amount, and the asset’s residual value, if any. Any related impairment loss is calculated based upon comparison of the fair value to the carrying value of the asset. Separate intangible assets that have finite useful lives are amortized over their useful lives. An impaired long-lived or intangible asset would be written down to fair value, based on various available valuation techniques, including the discounted cash flow method.

Goodwill : We assess the recoverability of the carrying value of recorded goodwill annually in the fourth quarter of each year or whenever indicators of potential impairment exist. We test for impairment of goodwill by assessing various qualitative factors with respect to developments in our business and the overall economy and calculating the fair value of a reporting unit using the discounted cash flow method, as necessary. Factors that may be considered indicators of impairment include: deterioration in general economic conditions; declines in the market conditions of our products, including metals prices; reduced future cash flow estimates; and slower growth rates in our industry, among others. If we determine that it is more likely than not that the fair value of a reporting unit is less than the carrying value based on our qualitative assessment, we will proceed to the two-step goodwill impairment test. In step one, we compare the fair value of the reporting unit in which goodwill resides to its carrying value. If the carrying amount exceeds the fair value, the second step of the goodwill impairment test is performed to measure the amount of the impairment loss, if any. In the second step, the implied fair value of the goodwill is estimated as the fair value of the reporting unit used in the first step less the fair value of all

 

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other net tangible and intangible assets of the reporting unit. If the carrying amount of goodwill exceeds its implied fair value, an impairment loss is recognized in an amount equal to that excess, not to exceed the carrying amount of the goodwill. The fair value of the reporting units are estimated using an average of an income approach and a market approach as this combination is deemed to be the most indicative of our fair value in an orderly transaction between market participants. An income approach based on discounted future cash flows requires us to estimate income from operations based on projected results and discount rates based on a weighted average cost of capital of comparable companies. A market approach estimates fair value using market multiples of various financial measures of comparable public companies. If these estimates or their related assumptions for commodity prices and demand change in the future, we may be required to record impairment charges for these assets.

Based on the impairment test performed on October 1, 2012, the Company concluded that the fair values for each reporting unit exceeded the carrying values. The discount rate for each reporting unit was estimated to be 14% at October 1, 2012. The Company determines a discount rate based on an estimate of a reasonable risk-adjusted return an investor would expect to realize on an investment in the reporting unit. Our U.S. reporting unit’s fair value exceeded its carrying value by more than 25%. Certain of our foreign subsidiary reporting units’ fair values exceeded their carrying values by approximately 8%. The goodwill balance at risk for these foreign subsidiaries is approximately $7 million. Deterioration in market conditions in our industry or products, changes in expected future cash flows, expected growth rates or to discount rates could result in impairment charges in future periods.

Purchase Price Accounting : Business combinations are accounted for using the acquisition method of accounting. This method requires the Company to record assets and liabilities of the business acquired at their estimated fair market values as of the acquisition date. Any excess of the cost of the acquisition over the fair value of the net assets acquired is recorded as goodwill. The Company uses valuation specialists, where necessary, to perform appraisals and assist in the determination of the fair values of the assets acquired and liabilities assumed. These valuations require management to make estimates and assumptions that are critical in determining the fair values of the assets and liabilities.

Pension and postretirement benefit plan assumptions : We sponsor various benefit plans covering a substantial portion of our employees for pension and postretirement medical costs. Statistical methods are used to anticipate future events when calculating expenses and liabilities related to the plans. The statistical methods include assumptions about, among other things, the discount rate, expected return on plan assets, rate of increase of health care costs and the rate of future compensation increases. Our actuarial consultants also use subjective factors such as withdrawal and mortality rates when estimating expenses and liabilities. The discount rate used for U.S. plans reflects the market rate for high-quality fixed-income investments on our annual measurement date (December 31) and is subject to change each year. The discount rate was determined by matching, on an approximate basis, the coupons and maturities for a portfolio of corporate bonds (rated Aa or better by Moody’s Investor Services or AA or better by Standard and Poor’s) to the expected plan benefit payments defined by the projected benefit obligation. The discount rates used for plans outside the U.S. are based on a combination of relevant indices regarding corporate and government securities, the duration of the liability and appropriate judgment.

When calculating pension expense for 2012, we assumed the pension plans’ assets would generate a long-term rate of return of 8.75% and 6.50% for the U.S. and Canadian plans, respectively. The expected long-term rate of return assumption was developed based on historical experience and input from the trustee managing the plans’ assets. The expected long-term rate of return on plan assets is based on a target allocation of assets, which is based on a goal of earning the highest rate of return while maintaining risk at acceptable levels. Our projected long-term rate of return for the U.S. pension plan is slightly higher than some market indices due to the active management of our plans’ assets, and is supported by the historical returns on our plans’ assets. The plans strive to have assets sufficiently diversified so that adverse or unexpected results from one security class will not have an unduly detrimental impact on the entire portfolio. We regularly review actual asset allocation and the pension plans’ investments are periodically rebalanced to the targeted allocation when considered appropriate. Pension expense increases as the expected rate of return on plan assets decreases. Lowering the expected long-term rate of return on plan assets by 50 basis points would have increased 2012 pension expense by approximately $3 million.

 

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Future pension obligations for the U.S. and Canadian plans were discounted using a weighted average rate of 4.00% and 4.20% at December 31, 2012, respectively. Lowering the discount rate by 50 basis points would increase the pension liability at December 31, 2012 by approximately $56 million.

The calculation of other postretirement benefit expense and obligations requires the use of a number of assumptions, including the assumed discount rate for measuring future payment obligations and the health care cost trend rate. A one percentage point increase (decrease) in assumed health care trend rates would increase (decrease) our total service and interest cost for the year ended December 31, 2012 by $0.3 million and $(0.2) million, respectively. A one percentage point decrease in the weighted average discount rate would increase the postretirement benefit liability by approximately $6 million.

The assumptions used in the actuarial calculation of expenses and liabilities may differ materially from actual results due to changing market and economic conditions, higher or lower withdrawal rates or longer or shorter life spans of participants. These differences may result in a significant impact on the amount of pension or postretirement benefit expense we may record in the future.

Legal contingencies : We are involved in a number of legal and regulatory matters including those discussed in the “NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—Note 11: Commitments and Contingencies.” We determine whether an estimated loss from a loss contingency should be accrued by assessing whether a loss is deemed probable and can be reasonably estimated. We analyze our legal matters based on available information to assess potential liability. We consult with outside counsel involved in our legal matters when analyzing potential outcomes. We cannot determine at this time whether any potential liability related to this litigation would materially affect our financial position, results of operations or cash flows.

Recent Accounting Pronouncements

Recent accounting pronouncements are discussed within the “NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—Note 1: Summary of Accounting and Financial Policies.”

Quantitative and Qualitative Disclosures About Market Risk

Interest rate risk

We are exposed to market risk related to our fixed-rate and variable-rate long-term debt. Market risk is the potential loss arising from adverse changes in market rates and prices, such as interest rates. Changes in interest rates may affect the market value of our fixed-rate debt. The estimated fair value of our long-term debt and the current portions thereof using quoted market prices of Company debt securities recently traded and market-based prices of similar securities for those securities not recently traded was $1,296 million at December 31, 2012 and $1,226 million at December 31, 2011 as compared with the carrying value of $1,305 million and $1,316 million at December 31, 2012 and December 31, 2011, respectively.

A hypothetical 1% increase in interest rates on variable rate debt would have increased interest expense in 2012 by approximately $4.8 million.

Foreign exchange rate risk

We are subject to exposure from fluctuations in foreign currencies. We use foreign currency exchange contracts to hedge our Canadian subsidiaries’ variability in cash flows from the forecasted payment of currencies other than the functional currency. The Canadian subsidiaries’ foreign currency contracts were principally used to purchase U.S. dollars. We had foreign currency contracts with a U.S. dollar notional amount of $0.7 million outstanding at December 31, 2012 and a value of zero. We do not currently account for these contracts as hedges but rather mark these contracts to market with a corresponding offset to current earnings.

 

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Commodity price risk

Metal prices can fluctuate significantly due to several factors including changes in foreign and domestic production capacity, raw material availability, metals consumption and foreign currency rates. Declining metal prices could reduce our revenues, gross profit and net income. From time to time, we may enter into fixed price sales contracts with our customers for certain of our inventory components. We may enter into metal commodity futures and options contracts to reduce volatility in the price of these metals. We do not currently account for these contracts as hedges, but rather mark these contracts to market with a corresponding offset to current earnings. As of December 31, 2012, we had 182 tons of nickel futures or option contracts, 1,300 tons of hot roll steel coil option contracts, and 80 tons of aluminum price swaps outstanding with an asset value of $0.2 million, a value of zero, and a value of zero, respectively.

 

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BUSINESS

Our Company

We believe we are one of the largest processors and distributors of metals in North America measured in terms of sales, with global operations in North America, China and a recently established presence in Brazil. Our industry is highly fragmented with the largest companies accounting for only a small percentage of total market share. We believe we have an established and growing presence in China and that we are the only major North American metal service center whose activities in China represent a meaningful portion of overall operations in terms of revenue, which we believe positions us favorably in the largest metals market in the world. Our customer base ranges from local, independently owned fabricators and machine shops to large, international original equipment manufacturers. We process and distribute a full line of over 75,000 products in stainless steel, aluminum, carbon steel and alloy steels and a limited line of nickel and red metals in various shapes and forms. More than one-half of the products we sell are processed to meet customer requirements. We use various processing and fabricating techniques to process materials to a specified thickness, length, width, shape and surface quality pursuant to customer orders. For the year ended December 31, 2012, we purchased 2.1 million tons of materials from suppliers throughout the world. Adjusted EBITDA, excluding LIFO expense, was $201.6 million, revenue was $4.0 billion and net income was $45.8 million. See note 4 in “Summary Historical Consolidated Financial and Other Data” for a reconciliation of Adjusted EBITDA to net loss.

We operate over 100 facilities across North America and seven facilities in China and one in Brazil. Our service centers are strategically located in close proximity to our customers, which allows us to quickly process and deliver our products and services, often within the next day of receiving an order. We own, lease or contract a fleet of tractors and trailers, allowing us to efficiently meet our customers’ delivery demands. In addition, our scale enables us to maintain low operating costs. Our operating expenses as a percentage of sales for the years ended December 31, 2011 and 2012 were 11.8% and 12.6%, respectively.

In addition to providing a wide range of flat and long metals products, we offer numerous value-added processing and fabrication services such as sawing, slitting, blanking, cutting to length, leveling, flame cutting, laser cutting, edge trimming, edge rolling, roll forming, tube manufacturing, polishing, shearing, forming, stamping, punching, rolling shell plate to radius and beveling to process materials to a specified thickness, length, width, shape and surface quality pursuant to specific customer orders. Our value proposition also includes providing a superior level of customer service and responsiveness, technical services and inventory management solutions. Our breadth of services allows us to create long-term partnerships with our customers and enhances our profitability.

We serve more than 40,000 customers across a wide range of manufacturing end markets. We believe the diverse end markets we serve reduce the volatility of our business in the aggregate. Our geographic network and broad range of products and services allow us to serve large, international manufacturing companies across multiple locations.

 

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We are broadly diversified in our end markets and product lines in North America, as detailed below.

 

2012 Sales by End Market

 

2012 Sales by Product

LOGO   LOGO
 

(1)    “Other” includes copper, brass, nickel, pipe, valves and fittings.

Industry Overview

Metals service centers serve as key intermediaries between metal producers and end users of metal products. Metal producers offer commodity products and typically sell metals in the form of standard-sized coils, sheets, plates, structurals, bars and tubes. Producers prefer large order quantities, longer lead times and limited inventory in order to maximize capacity utilization. End users of metal products seek to purchase metals with customized specifications, including value-added processing. End market customers look for “one-stop” suppliers that can offer processing services along with lower order volumes, shorter lead times, and more reliable delivery. As an intermediary, metals service centers aggregate end-users’ demand, purchase metal in bulk to take advantage of economies of scale and then process and sell metal that meets specific customer requirements. The end-markets for metals service centers are highly diverse and include machinery, manufacturing, construction and transportation.

The metals service center industry is comprised of many companies, the majority of which have limited product lines and inventories, with customers located in a specific geographic area. The industry is highly fragmented, with a large number of small companies and few relatively large companies. In general, competition is based on quality, service, price and geographic proximity.

The metals service center industry typically experiences cash flow trends that are counter-cyclical to the revenue and volume growth of the industry. Companies that participate in the industry have assets that are composed primarily of working capital. During an industry downturn, companies generally reduce working capital investments and generate cash as inventory and accounts receivable balances decline. As a result, operating cash flow and liquidity tend to increase during a downturn, which typically facilitates industry participants’ ability to cover fixed costs and repay outstanding debt.

The industry is divided into three major groups: general line service centers, specialized service centers, and processing centers, each of which targets different market segments. General line service centers handle a broad line of metals products and tend to concentrate on distribution rather than processing. General line service centers range in size from a single location to a nationwide network of locations. For general line service centers, individual order size in terms of dollars and tons tends to be small relative to processing centers, while the total number of orders is typically high. Specialized service centers focus their activities on a narrower range of product and service offerings than do general line companies. Such service centers provide a narrower range of

 

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services to their customers and emphasize product expertise and lower operating costs, while maintaining a moderate level of investment in processing equipment. Processing centers typically process large quantities of metals purchased from primary producers for resale to large industrial customers, such as the automotive industry. Because orders are typically large, operation of a processing center requires a significant investment in processing equipment.

We compete with many other general line service centers, specialized service centers and processing centers on a regional and local basis, some of which may have greater financial resources and flexibility than us. We also compete to a lesser extent with primary metal producers. Primary metal producers typically sell to very large customers that require regular shipments of large volumes of steel. Although these large customers sometimes use metals service centers to supply a portion of their metals needs, metals service center customers typically are consumers of smaller volumes of metals than are customers of primary steel producers. Although we purchase from foreign steelmakers, some of our competitors purchase a higher percentage of metals than us from foreign steelmakers. Such competitors may benefit from favorable exchange rates or other economic or regulatory factors that may result in a competitive advantage. This competitive advantage may be offset somewhat by higher transportation costs and less dependable delivery times associated with importing metals into North America.

Competitive Strengths

Leading Market Position in North America.

We believe we are one of the largest service center companies for carbon and stainless steel as well as aluminum based on sales in the North American market where we have a broad geographic presence with over 100 locations.

Our service centers are located near our customer locations, enabling us to provide timely delivery to customers across numerous geographic markets. Additionally, our widespread network of locations in the United States, Canada and Mexico helps us to utilize our expertise to more efficiently serve customers with complex supply chain requirements across multiple manufacturing locations. We believe this is a key differentiator among customers who need a supplier that can reliably and consistently support them. Our ability to transfer inventory among our facilities better enables us to more timely and profitably source and process specialized items at regional locations throughout our network than if we were required to maintain inventory of all products and specialized equipment at each location.

We believe with our significant footprint in the North American market, combined with our significant scale and operating leverage, a cyclical recovery of the service center industry supported by long-term growth trends in Ryerson’s end-markets should allow us to experience higher growth rates relative to North American economic improvement, but there can be no guarantee that we will experience such higher growth rates.

Broad Geographic Reach across Attractive End Markets.

Our operations cover a diverse range of industries, including industrial equipment, industrial fabrication, electrical machinery, transportation equipment, heavy equipment and oil and gas. Manufacturing growth has accelerated since November 2012 as shown by the ISM index (as described in the Industry and End Market Outlook), and we believe industries we serve will provide strong demand for our products and services as the North American manufacturing economy continues to recover. We also believe that the continued trend of moving manufacturing to the United States from overseas should benefit us with our broad North American platform. In addition, we expect to benefit from continued growth in international markets that will help spur demand at domestic manufacturing facilities that sell into the global market. We believe that our ability to quickly adjust our offering based on regional and industry specific trends creates stability while also providing the opportunity to access specific growth markets.

 

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Established Platform for Organic and Acquisition Growth.

Since 2011, we have opened seven new service centers in previously underserved North American regions. We have acquired another ten facilities to complement our existing locations and expanded the product offering in many locations based on customer demand. Over the last two years, a significant portion of our capital expenditures have been made to expand our long and plate processing capabilities at 15 existing locations. We believe that our expanded presence in select regions and products positions us well to capture further growth in these regions and products.

Although there can be no guarantee of growth, we believe a number of our other strategies, such as improving our product mix, pricing our products and services based on the value we provide our customers, growing our large national network, and expanding our diverse operating capabilities, will provide us with growth opportunities.

In addition, we have utilized our leadership and experience in the North American markets to establish operations in China, the largest and one of the highest growth metals markets in the world, as well as in Brazil.

Given the highly fragmented nature of the service center industry, we believe there are numerous additional opportunities to acquire businesses and incorporate them into our existing infrastructure. Given our large scale and geographic reach, we believe we can add value to these businesses in a number of ways, including providing greater purchasing power, access to additional end markets and broadening product mix. Although the Company does not have any current plans to engage in any specific acquisitions, from time to time and in the ordinary course of business, the Company regularly evaluates potential acquisition opportunities.

Lean Operating Structure Providing Operating Leverage.

Since the acquisition by Platinum, we have transformed our operating model by decentralizing our operations and reducing our cost base. Decentralization has improved our customer service by moving key functions such as procurement, credit and operations support to our regional offices. From 2007 through the end of 2009, we engaged in a number of cost reduction initiatives that included a headcount reduction of approximately 1,700, representing 33% of our workforce, and the closure of 14 redundant or underperforming facilities in North America. Furthermore, in 2011, we also completed the decentralization of credit, operations, and procurement and reduced field staffing levels. In that overall period, we believe that we have generated annual fixed cost savings of approximately $200 million since 2007. We believe this reduction has improved our operating efficiency while also providing the flexibility for further growth in our targeted markets.

We have also focused on process improvements in inventory management. Our inventory days improved from an average of 100 days in 2006 to 74 days and 82 days in 2011 and 2012, respectively. This reduction has decreased our exposure to metals price movements as well as increased capacity in our facilities to devote to higher margin products. These organizational and operating changes have improved our operating structure, working capital management and efficiency.

As a result of our initiatives, we have increased our financial flexibility and believe we have a favorable cost structure compared to many of our peers. This will provide significant operating leverage.

Extensive Breadth of Products and Services for Diverse Customer Base.

We carry a full range of over 75,000 products, including aluminum, carbon, stainless and alloy steels and a limited line of nickel and red metals. In addition, we provide a broad range of processing and fabrication services to meet the needs of our 40,000 customers and fulfill more than 1,000,000 orders per year. We also provide supply chain solutions, including just-in-time delivery, and value-added components to many original equipment manufacturers.

We believe our broad product mix and marketing approach provides customers with a “one-stop shop” solution few other service center companies are able to offer.

 

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For the year ended December 31, 2012, no single customer accounted for more than 2% of our sales, and our top 10 customers accounted for less than 10% of sales.

Strong Relationships with Suppliers.

We are among the largest purchasers of metals in North America and have long-term relationships with many of our North American suppliers. We believe we are frequently one of the largest customers of our suppliers and that concentrating our orders among a core group of suppliers is an effective method for obtaining favorable pricing and service. We believe we have the opportunity to further leverage this strength through continued focus on price and volume using an analytics-driven approach to procurement. In addition, we view our strategic suppliers as supply chain partners. Our coordinated effort focused on logistics, lead times, rolling schedules, and scrap return programs ultimately results in value-based buying that is advantageous for us. Metals producers worldwide are consolidating, and large, geographically diversified customers, such as Ryerson, are desirable partners for these larger suppliers. Our relationships with suppliers often provides us with access to metals when supply is constrained. Through our knowledge of the global metals marketplace and capabilities of specific mills we believe we have developed a global purchasing strategy that allows us to secure favorable prices across our product lines.

Experienced Management Team with Deep Industry Knowledge.

Our senior management team has extensive industry and operational experience and has been instrumental in optimizing and implementing our strategy in the last two years. Our senior management has an average of more than 20 years of experience in the metals or service center industries. The senior executive team’s extensive experience in international markets and outside the service center industry provides perspective to drive profitable growth.

Our CEO, Mr. Michael Arnold, joined the Company in January 2011 and has 34 years of diversified industrial experience. Mr. Edward Lehner, who has been our CFO since August 2012, has 24 years of experience predominantly in the metals industry. Under their leadership, we have increased our focus on positioning the Company for growth and enhanced profitability.

Our Strategy

Expand Margins.

We are actively pursuing strategies to achieve increased gross margins. We believe this will allow our profitability to accelerate as volumes in our industry improve. Although our 2012 net sales decreased by 14.9% as compared to our net sales in 2011, we have employed and continue to employ the following initiatives which have resulted in an increase in our gross margins as a percentage of sales, excluding LIFO expense, by over 250 basis points, from 13.4% in Q4 2011 to 16.2% in Q4 2012:

Optimize Product Mix . We see significant opportunities to continue to improve our margins by increasing long and plate products supplied to our customers, as long and plate products typically generate higher margins than flat products. We have established regional long product inventory to provide a broad line of stainless, aluminum, carbon and alloy long products as well as the necessary processing equipment to meet demanding requirements of these customers. In addition, over the past two years, a significant portion of our capital expenditures have gone toward upgrading and adding plate and long processing capabilities throughout our operational footprint. We expect to continue to optimize product mix through these initiatives.

Optimize Customer Mix . We have increased our focus on serving a diversified group of industrial customers that value our customized processing services which we price on a transaction-by-transaction basis as opposed to larger volume program account customers who typically have fixed pricing arrangements over varying time periods. Our sales to customers using transactional pricing arrangements typically generate higher margins and require less working capital investment. We have re-evaluated and re-priced many of our lower margin program accounts which has resulted in an increase in our margins, as evidenced above.

 

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Expand Value-added Processing Services . We seek to continue to improve our margins by complementing our products with first stage manufacturing and other processing capabilities that add value for our customers. Additionally, for certain customers we have assumed the management and responsibility for complex supply chains involving numerous suppliers, fabricators and processors. We leverage our capabilities to deliver the highest value proposition to our customers by providing a wide breadth of competitive products and services, as well as superior customer service and product quality.

Improve Supply Chain and Procurement Management . As a large purchaser of metals we continue to use analytic-driven processes to develop supply chains which lower our procured costs, shorten our lead times, improve our working capital management and decrease our exposure to commodity price fluctuations.

Improve Operating Efficiency.

We are committed to improving our operating capabilities through continuous business improvements and cost reductions. We have made, and continue to make, improvements in a variety of areas, including operations, sales, delivery, administration and working capital management. Furthermore, we continue to focus on better customer service and the hiring, retention and promotion of high performing employees as well as place greater emphasis on working capital efficiencies. In particular with respect to inventory, our goal of maintaining approximately 75-80 days of sales on hand reduces our exposure to metals prices and increases capacity in facilities to devote to higher margin products. Our streamlined organizational structure combines local decision making with regional and national sourcing to improve efficiency.

Pursue Profitable Growth Through Expansion and Value-Accretive Acquisitions.

We are focused on increasing our sales to existing customers, as well as expanding our customer base globally, but there can be no guarantee we will be able to expand. We expect to continue increasing revenue through a variety of sales initiatives and by targeting attractive markets.

In North America, we have expanded and continue to expand in markets that we believe are underserved. We opened seven new facilities since 2011 in Texas, Georgia, Iowa, Illinois, Utah and Mexico, and have expanded higher-margin plate fabrication or long-product capabilities at many existing locations, where we have observed an opportunity to generate attractive returns. We are continuously monitoring opportunities for further expansion across the United States, Canada and Mexico. We expect to leverage our expertise in North America and selectively expand our business in China and Brazil as well as additional high growth emerging markets.

Since 2010, we have completed five strategic acquisitions: Texas Steel Processing Inc., SFI-Gray Steel Inc., Singer Steel Company, Turret Steel and Açofran Aços e Metais Ltda. These acquisitions have provided various opportunities for long-term value creation through the expansion of our product and service capabilities, geographic reach, operational distribution network, end markets diversification, cross-selling opportunities and the addition of transactional-based customers. Although the Company does not have any current plans to engage in any specific acquisitions, we regularly evaluate potential acquisitions of service center companies that complement our existing customer base and product offerings, and plan to continue pursuing our disciplined approach to such acquisitions.

Maintain Flexible Capital Structure and Strong Liquidity Position.

Our management team is focused on maintaining a strong level of liquidity that will facilitate our plans to execute our various growth strategies. Throughout the economic downturn, we maintained liquidity in excess of $300 million. Liquidity as of December 31, 2012 was approximately $406 million, comprised of $314 million of excess availability under Ryerson’s senior secured $1.35 billion asset-based revolving credit facility and foreign debt facilities, and $92 million of cash-on-hand and marketable securities. We have no financial maintenance covenants in our debt agreements unless availability under the Ryerson Credit Facility falls below $125 million.

 

 

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Substantially all of the proceeds from this offering will be used to further reduce our outstanding indebtedness. In addition, following the 2012 bond refinancing, there are no significant debt maturities until the maturity of the Ryerson Credit Facility in 2016.

Industry and End Market Outlook

Ryerson participates in the metals service center industry providing steel, aluminum and other metals products across a wide range of industrial manufacturing end markets. Our business performance is therefore impacted by a number of factors tied to industrial activity, including economic growth, end market demand and metals pricing. With steel products accounting for 76% of our 2012 sales, it is the largest driver of our business. Aluminum products account for 21% of our business, with other metals accounting for the remainder.

Macroeconomic Outlook . Steel is utilized in a diverse range of manufacturing and fabrication applications with a variety of end market demand drivers. The primary drivers of demand for the steel industry are the construction, automotive, machinery and equipment, and energy end markets, which, according to the American Iron and Steel Institute, account for approximately 85% of shipments collectively. As evidenced by our end market sales segmentation, we are not reliant on a single specific sector, but rather broader diversified industrial activity. Our primary end markets include industrial equipment and fabrication, transportation equipment, heavy equipment, electrical machinery and oil and gas. We believe that we are well positioned in these markets and that they are poised for growth as the broader industrial sectors continue to grow. The charts below, which reflect the most recently available data from AISI, show our end market exposure as well as the broader steel market.

 

2012 Steel Shipments by Market Classification (AISI)   2012 Ryerson Sales by End Market
LOGO

Source:American Iron and Steel Institute

 

Source:Company estimates

While some of the key end market drivers of steel industry demand do not directly overlap with our end markets, they do impact broader steel demand and pricing, which can impact our business. Recently, leading indicators in the key steel industry end markets referenced above have begun to show sustained growth and continue to build positive momentum. For example, housing starts have shown stable growth over the last 24 months, while non-residential construction, which typically lags housing, is starting to show signs of sustained improvement as well. Additionally, U.S. automotive sales continue to rise, reaching 15.2 million vehicles on a seasonally adjusted annualized rate basis in March 2013 versus 14.1 million for 2012. Machinery and equipment, a key end market for us, includes a variety of industrial manufacturing end markets, many of which are showing signs of significant growth. This is evidenced by the Institute for Supply Management’s (“ISM”) Purchasing Managers’ Index (“PMI”), which reached 51.3 in March 2013. The United States Congressional Budget Office’s GDP growth estimates of 1.4% and 3.4% for 2013 and 2014, respectively. Finally, the oil and gas end market continues to be a long-term growth market in steel. Much of this growth is attributable to growth in North American drilling and refining, substantially impacted by activity in United States shale oil and gas and the Canadian oil sands. Additionally, investment in new petrochemical production capacity in the United States

 

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as a result of relatively low domestic natural gas prices may further bolster steel demand. The following chart shows the historical movements of the Purchasing Managers’ Index.

ISM Purchasing Managers’ Index

 

LOGO

According to MSCI, total inventory levels of carbon steel, stainless steel and aluminum at U.S. service centers reached a trough in August 2009 and bottomed at the lowest levels since the data series began in 1977. Although industry demand recovered in 2010, 2011 and 2012, shipments and inventory are still well below pre-downturn averages, which we believe suggests long-term growth potential that may be realized if these metrics return to, or exceed, their historical averages.

 

North American Monthly Service Center Shipments   North American Monthly Service Center Inventory
LOGO     LOGO  

Ryerson End Market Outlook . According to the latest Livingston Survey, published by the Federal Reserve Bank of Philadelphia, U.S. industrial production is expected to grow by 1.9% and 3.1% in 2013 and 2014, respectively. Two of our largest end markets, industrial equipment and fabrication, include numerous diversified industrial manufacturing markets which, along with the broader economy, are showing signs of sustained growth. For example, in the U.S. major appliances and Heating Ventilation and Air Conditioning (“HVAC”) equipment, both markets we serve, are projected to grow at even higher rates. Specifically, major appliances are expected to grow 4.2% and 6.5% in 2013 and 2014, respectively, according to Euromonitor. According to IBIS Worldwide, HVAC is expected to grow 4.5% and 7.8% over the same periods.

In addition, we also serve the transportation equipment, heavy equipment and electrical equipment markets which are expected to show significant growth in the coming years. Transportation equipment, including commercial vehicle production, represents 17% of our sales and is expected to grow 4.7% per year in the U.S. between 2012 and 2014 according to LMC Automotive. Machinery and heavy equipment, including construction and agricultural equipment, represents 9% of our end-market sales and is projected to grow 6.1% per year in the U.S. between 2012 and 2016 according to MarketLine.

 

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Metals Pricing . Along with improvements in volume, as indicated by demand trends in the end markets, movements in the price of steel will also impact our business. Steel prices are driven by a number of factors, including input prices, capacity utilization and foreign imports. Currently, input costs are providing support for steel pricing, as they flow directly through the pricing of the mills’ steel output. Additionally, we believe that recent closings of mills, including the Sparrows Point steel mill, among others, that have been dismantled, combined with continued growth in the global economy and end market demand, should begin to absorb global capacity, resulting in increased utilization. The U.S. steel industry production capacity utilization rate increased to 77.6% by the end of April 2013 from a low of 34% in December 2008, according to American Metal Market. North American production capacity utilization levels remain below the 85% average utilization level observed in the post- consolidation restructured steel industry from 2002 to 2008. The combination of higher input prices, increased global demand and increased capacity utilization should support steel price increases, positively impacting our business.

Aluminum pricing also remains well below pre-downturn levels but has stabilized recently. Global output of aluminum is projected to increase 6.8% in 2013 according to Wood Mackenzie, fueled by factors including the rebound in U.S. construction and increased demand from the transportation and infrastructure markets in China.

Industry Consolidation . The United States service center industry is a highly fragmented market with the top 50 service centers controlling approximately 25% of industry sales, according to American Metal Market, only 12 of which have sales over $1 billion. Such fragmentation has historically resulted in the smaller service centers having less negotiating leverage with both the larger consolidated steel mills, as well as larger customers. In recent years, however, there has been increased consolidation among larger players resulting in fewer customers of size for the mills and greater purchasing power for service centers. A recent example is the recently completed acquisition of Metals USA Holding Corp. by Reliance Steel & Aluminum Co. We believe that there is significant opportunity for consolidation and we expect the trend will continue.

Products and Services

We carry a full line of carbon steel, stainless steel, alloy steels and aluminum, and a limited line of nickel and red metals. These materials are inventoried in a number of shapes, including coils, sheets, rounds, hexagons, square and flat bars, plates, structurals and tubing.

The following table shows our percentage of sales by major product lines for 2010, 2011 and 2012:

 

Product Line

   2010     2011     2012  

Carbon Steel Flat

     29     27     25

Carbon Steel Plate

     8        11        13   

Carbon Steel Long

     9        10        15   

Stainless Steel Flat

     21        18        15   

Stainless Steel Plate

     4        4        4   

Stainless Steel Long

     3        4        4   

Aluminum Flat

     15        15        14   

Aluminum Plate

     3        3        3   

Aluminum Long

     4        4        4   

Other

     4        4        3   
  

 

 

   

 

 

   

 

 

 

Total

     100     100     100
  

 

 

   

 

 

   

 

 

 

 

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More than one-half of the materials sold by us are processed. We use processing and fabricating techniques such as sawing, slitting, blanking, cutting to length, leveling, flame cutting, laser cutting, edge trimming, edge rolling, polishing and shearing to process materials to specified thickness, length, width, shape and surface quality pursuant to specific customer orders. Among the most common processing techniques used by us are slitting, which involves cutting coiled metals to specified widths along the length of the coil, and leveling, which involves flattening metals and cutting them to exact lengths. We also use third-party fabricators to outsource certain processes that we are not able to perform internally (such as pickling, painting, forming and drilling) to enhance our value-added services.

The plate burning and fabrication processes are particularly important to us. These processes require sophisticated and expensive processing equipment. As a result, rather than making investments in such equipment, manufacturers have increasingly outsourced these processes to metals service centers.

As part of securing customer orders, we also provide services to our customers to assure cost effective material application while maintaining or improving the customers’ product quality.

Our services include: just-in-time inventory programs, production of kits containing multiple products for ease of assembly by the customer, consignment arrangements and the placement of our employees at a customer’s site for inventory management and production and technical assistance. We also provide special stocking programs in which products that would not otherwise be stocked by us are held in inventory to meet certain customers’ needs. These services are designed to reduce customers’ costs by minimizing their investment in inventory and improving their production efficiency.

Customers

Our customer base is diverse, numbering approximately 40,000 and includes most metal-consuming industries, most of which are cyclical. For the year ended December 31, 2012, no single customer accounted for more than 2% of our sales, and the top 10 customers accounted for less than 10% of our sales. Substantially all of our sales are attributable to our U.S. operations and substantially all of our long-lived assets are located in the United States. Our Canadian operations comprised 10% of our sales in each of 2010, 2011 and 2012, our China operations comprised 4%, 4%, and 3% of our sales in 2010, 2011 and 2012, respectively, our Mexican operations comprised less than 1% of our sales in each of 2010, 2011 and 2012, and our Brazilian operations comprised less than 1% of our sales in 2012. Canadian assets were 10%, 10% and 11% of consolidated assets at December 31, 2010, 2011 and 2012, respectively. Chinese assets were 5% of consolidated assets at December 31, 2010, 2011 and 2012. Mexican assets were less than 1% of consolidated assets at December 31, 2010, 2011 and 2012. Brazilian assets were less than 1% of consolidated assets at December 31, 2012.

Some of our largest customers have procurement programs with us, typically ranging from three months to one year in duration. Pricing for these contracts is generally based on a pricing formula rather than a fixed price for the program duration. However, certain customer contracts are at fixed prices; in order to minimize our financial exposure, we generally match these fixed-price sales programs with fixed-price supply programs. In general, sales to customers are priced at the time of sale based on prevailing market prices.

Suppliers

For the year ended December 31, 2012, our top 25 suppliers accounted for approximately 75% of our purchase dollars.

We purchase the majority of our inventories at prevailing market prices from key suppliers with which we have established relationships to obtain improvements in price, quality, delivery and service. We are generally able to meet our materials requirements because we use many suppliers, because there is a substantial overlap of product offerings from these suppliers, and because there are a number of other suppliers able to provide identical or similar products. Because of the competitive nature of the business, when metal prices increase due to product demand, mill surcharges, supplier consolidation or other factors that in turn lead to supply constraints

 

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or longer mill lead times, we may not be able to pass our increased material costs fully to customers. In recent years, there have been significant consolidations among suppliers of carbon steel, stainless steel, and aluminum. Continued consolidation among suppliers could lead to disruptions in our ability to meet our material requirements as the sources of our products become more concentrated from fewer producers. We believe we will be able to meet our material requirements because we believe that we have good relationships with our suppliers and believe we will continue to be among the largest customers of our suppliers.

Facilities

Our owned and leased facilities as of December 31, 2012 are set forth below.

Operations in the United States

Ryerson, through JT Ryerson, maintains 89 operational facilities, including 6 locations that are dedicated to administration services, in the United States. All of our metals service center facilities are in good condition and are adequate for JT Ryerson’s existing operations. Approximately 47% of these facilities are leased. The lease terms expire at various times through 2021. Owned properties noted as vacated below have been closed and are in the process of being sold. JT Ryerson’s properties and facilities are adequate to serve its present and anticipated needs.

The following table sets forth certain information with respect to each facility as of December 31, 2012:

 

Location

   Own/Lease

Birmingham, AL

   Owned

Mobile, AL

   Owned

Fort Smith, AR

   Owned

Hickman, AR**

   Leased

Little Rock, AR (2)

   Owned

Phoenix, AZ

   Owned

Dos Palos, CA

   Leased

Fresno, CA

   Leased

Livermore, CA

   Leased

Vernon, CA

   Owned

Commerce City, CO

   Owned

Greenwood, CO*

   Leased/Vacated

South Windsor, CT

   Leased

Wilmington, DE

   Leased

Wilmington, DE

   Owned

Jacksonville, FL

   Owned

Tampa Bay, FL

   Owned

Duluth, GA

   Owned

Norcross, GA

   Leased

Norcross, GA

   Owned

Des Moines, IA

   Owned

Eldridge, IA

   Leased

Marshalltown, IA

   Owned

 

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Location

   Own/Lease

Boise, ID

   Leased

Chicago, IL (Headquarters)*

   Leased

Chicago, IL (2)

   Leased

Dekalb, IL

   Leased

Elgin, IL

   Leased

Lisle, IL*

   Leased

Burns Harbor, IN

   Owned

Indianapolis, IN

   Owned

Wichita, KS

   Leased

Louisville, KY

   Owned/Vacated

Shelbyville, KY**

   Owned

Shreveport, LA

   Owned

St. Rose, LA

   Owned

Devens, MA

   Owned

Grand Rapids, MI*

   Leased

Jenison, MI

   Owned

Lansing, MI

   Leased

Minneapolis, MN

   Owned

Plymouth, MN

   Owned

Maryland Heights, MO

   Leased

North Kansas City, MO

   Owned

St. Louis, MO

   Leased/Vacated

Greenwood, MS

   Leased

Jackson, MS

   Owned

Billings, MT

   Leased

Charlotte, NC

   Owned

Charlotte, NC

   Owned/Vacated

Charlotte, NC

   Leased

Greensboro, NC

   Owned

Pikeville, NC

   Leased

Youngsville, NC

   Leased

Omaha, NE

   Owned

Lancaster, NY

   Owned

Liverpool, NY*

   Leased/Vacated

New York, NY*

   Leased/Vacated

Cincinnati, OH

   Owned/Vacated

Cleveland, OH

   Owned

Columbus, OH

   Leased

Hamilton, OH*

   Leased

Streetsboro, OH

   Leased

 

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Location

   Own/Lease

Warren, OH

   Leased

Tulsa, OK

   Owned

Oklahoma City, OK

   Owned

Portland, OR

   Leased

Tigard, OR

   Leased

Ambridge, PA**

   Owned

Fairless Hills, PA

   Leased

Pittsburgh, PA*

   Leased

Charleston, SC

   Owned

Greenville, SC

   Owned

Chattanooga, TN

   Owned

Knoxville, TN*

   Leased

Memphis, TN

   Owned

Cooper, TX

   Leased

Dallas, TX (2)

   Owned

El Paso, TX

   Leased

Houston, TX

   Owned

Houston, TX (3)

   Leased

McAllen, TX

   Leased

Clearfield, UT

   Leased

Salt Lake City, UT

   Leased

Pounding Mill, VA

   Owned

Richmond, VA

   Owned

Renton, WA

   Owned

Spokane, WA

   Owned

Baldwin, WI

   Leased

Green Bay, WI

   Leased

Green Bay, WI

   Owned

Milwaukee, WI

   Owned

 

* Office space only
** Processing centers

 

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Operations in Canada

Ryerson Canada, a wholly owned indirect Canadian subsidiary of Ryerson, has 13 facilities in Canada. All of the metals service center facilities are in good condition and are adequate for Ryerson Canada’s existing and anticipated operations. Five facilities are leased.

 

Location

   Own/
Lease

Calgary, AB

   Owned

Edmonton, AB

   Owned

Richmond, BC

   Owned

Winnipeg, MB

   Owned

Winnipeg, MB

   Leased

Saint John, NB

   Owned

Brampton, ON

   Leased

Sudbury, ON

   Owned

Toronto, ON (includes Canadian Headquarters)

   Owned

Laval, QC

   Leased

Vaudreuil, QC

   Leased

Saskatoon, SK

   Owned

Saskatoon, SK

   Leased

Operations in China

Ryerson China, an indirect wholly owned subsidiary of Ryerson, has six service and processing centers in China, at Guangzhou, Dongguan, Kunshan and Tianjin, performing coil processing, sheet metal fabrication and plate processing. Ryerson China’s headquarters office building is located in Shanghai. We own three buildings in China and have purchased the related land use rights. The remainder of our facilities are leased. All of the facilities are in good condition and are adequate for Ryerson China’s existing and anticipated operations.

Operations in Mexico

Ryerson Mexico, an indirect wholly owned subsidiary of Ryerson, has two facilities in Mexico. We have service centers in Monterrey and Tijuana, both of which are leased. The facilities are in good condition and are adequate for Ryerson Mexico’s existing and anticipated operations.

Operations in Brazil

On February 17, 2012, we acquired 50% of the issued and outstanding capital stock of Açofran. As of December 31, 2012, we, through Açofran, lease one service center in São Paulo, Brazil. The facility is in good condition and is adequate for its existing and anticipated operations.

Sales and Marketing

We maintain our own sales force. In addition to our office sales staff, we market and sell our products through the use of our field sales force that we believe has extensive product and customer knowledge and through a comprehensive catalog of our products. Our office and field sales staffs, which together consist of approximately 700 employees, include technical and metallurgical personnel.

 

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A portion of our customers experience seasonal slowdowns. Our sales in the months of July, November and December traditionally have been lower than in other months because of a reduced number of shipping days and holiday or vacation closures for some customers. Consequently, our sales in the first two quarters of the year are usually higher than in the third and fourth quarters.

Capital Expenditures

In recent years we have made capital expenditures to maintain, improve and expand processing capabilities. Additions by us to property, plant and equipment, together with retirements for the five years ended December 31, 2012, excluding the initial purchase price of acquisitions and the initial effect of fully consolidating a joint venture, are set forth below. The net capital change during such period aggregated to an increase of $59.9 million.

 

     Additions      Retirements
or Sales
     Net  
     (In millions)  

2012

   $ 40.8       $ 18.0       $ 22.8   

2011

     47.0         14.9         32.1   

2010

     27.0         5.5         21.5   

2009

     22.8         17.4         5.4   

2008

     30.1         52.0         (21.9

We currently anticipate capital expenditures, excluding acquisitions, of up to approximately $30 million for 2013. We expect capital expenditures will be funded from cash generated by operations and available borrowings.

Employees

As of December 31, 2012, we employed approximately 3,400 persons in North America, 500 persons in China, and 50 persons in Brazil. Our North American workforce was comprised of approximately 1,700 office employees and approximately 1,700 plant employees. Thirty-one percent of our plant employees were members of various unions, including the United Steel Workers and the International Brotherhood of Teamsters. Our relationship with the various unions has generally been good.

Nine contracts covering 339 persons were scheduled to expire in 2009. We reached agreement on the renewal of eight contracts covering approximately 258 persons and one contract covering approximately 89 persons was extended. During 2010, the parties to this extended contract covering two Chicago area facilities agreed to sever the bargaining unit between the two facilities and bargaining was concluded for one facility, which covered approximately 59 employees. This contract expired in 2011 due to facility closure. The other facility’s contract, which covered approximately 30 employees, completed negotiations in 2011. Seven contracts covering approximately 85 persons were scheduled to expire in 2010. We reached agreement on the renewal of all seven contracts. Ten contracts covering approximately 312 persons were scheduled to expire in 2011. One of these contracts, which covered 59 employees, was not renewed due to facility closure. Eight of these contracts were successfully negotiated in 2011 and the remaining contract covering 60 employees had been extended and then was successfully concluded in December 2012 Six contracts covering approximately 258 employees were scheduled to expire in 2012. We reached agreement on all six of those agreements. In 2013, there is one contract covering 16 employees scheduled to expire in December.

Environmental, Health and Safety Matters

Our facilities and operations are subject to many foreign, federal, state and local laws and regulations relating to the protection of the environment and to health and safety. In particular, our operations are subject to extensive requirements relating to waste disposal, recycling, air and water emissions, the handling of regulated materials, remediation, underground storage tanks, asbestos-containing building materials, workplace exposure

 

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and other matters. We believe that our operations are currently in substantial compliance with all such laws and do not presently anticipate substantial expenditures in the foreseeable future in order to meet environmental, workplace health or safety requirements or to pay for any investigations, corrective action or claims. Claims, enforcement actions, or investigations regarding personal injury, property damage, or violation of environmental laws could result in substantial costs to us, divert our management’s attention and result in significant liabilities, fines, or the suspension or interruption of our facilities.

We continue to analyze and implement safeguards to mitigate any environmental, health and safety risks we may face. As a result, additional costs and liabilities may be incurred to comply with future requirements or to address newly discovered conditions, which costs and liabilities could have a material adverse effect on the results of operations, financial condition or cash flows. For example, there is increasing likelihood that additional regulation of greenhouse gas emissions will occur at the foreign, federal, state and local level, which could affect us, our suppliers, and our customers. While the costs of compliance could be significant, given the uncertain outcome and timing of future action by the U.S. federal government and states on this issue, we cannot accurately predict the financial impact of future greenhouse gas regulations on our operations or our customers at this time. We do not currently anticipate any new programs disproportionately impacting us compared to our competitors.

Some of the properties currently or previously owned or leased by us are located in industrial areas or have a long history of heavy industrial use. We may incur environmental liabilities with respect to these properties in the future including cost of investigations, corrective action, claims for natural resource damages, claims by third parties relating to property damages or claims relating to contamination at sites where we have sent waste for treatment or disposal. Based on currently available information we do not expect any investigation or remediation matters or claims related to properties presently or formerly owned or operated or to which we have sent waste for treatment or disposal would have a material adverse effect on our financial condition, results of operations or cash flows.

In October 2011, the United States Environmental Protection Agency named us as one of more than 100 businesses that may be a potentially responsible party for the Portland Harbor Superfund Site. We do not currently have sufficient information available to us to determine the total cost of any required investigation or remediation of the Portland Harbor site and management cannot predict the ultimate outcome of this matter or estimate a range of potential loss at this time.

Capital and operating expenses for pollution control projects were less than $500,000 per year for the past five years. Excluding any potential additional remediation costs resulting from any corrective action for the properties described above, we expect spending for pollution control projects to remain at historical levels.

Our United States operations are also subject to the Department of Transportation Federal Motor Carrier Safety Regulations. We operate a private trucking motor fleet for making deliveries to some of our customers. Our drivers do not carry any material quantities of hazardous materials. Our foreign operations are subject to similar regulations. Future regulations could increase maintenance, replacement, and fuel costs for our fleet. These costs could have a material adverse effect on our results of operations, financial condition or cash flows.

Intellectual Property

We own several U.S. and foreign trademarks, service marks and copyrights. Certain of the trademarks are registered with the U.S. Patent and Trademark Office and, in certain circumstances, with the trademark offices of various foreign countries. We consider certain other information owned by us to be trade secrets. We protect our trade secrets by, among other things, entering into confidentiality agreements with our employees regarding such matters and implementing measures to restrict access to sensitive data and computer software source code on a need-to-know basis. We believe that these safeguards adequately protect our proprietary rights and vigorously defend these rights. While we consider all of our intellectual property rights as a whole to be important, we do not consider any single right to be essential to our operations as a whole. The 2017 and 2018 Notes are secured by our intellectual property.

 

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Foreign Operations

Ryerson Canada

Ryerson Canada, an indirect wholly owned Canadian subsidiary of Ryerson, is a metals service center and processor. Ryerson Canada has facilities in Calgary (AB), Edmonton (AB), Richmond (BC), Winnipeg (MB), Saint John (NB), Brampton (ON), Sudbury (ON), Toronto (ON) (includes Canadian headquarters), Laval (QC), Vaudreuil (QC) and Saskatoon (SK), Canada.

Ryerson China

In 2006, Ryerson Inc. and VSC and its subsidiary, CAMP BVI, formed Ryerson China to enable us, through this foreign operation, to provide metals distribution services in China. We invested $28.3 million in Ryerson China for a 40% equity interest. We increased ownership of Ryerson China from 40% to 80% in the fourth quarter of 2008 for a total purchase cost of $18.5 million. We consolidated the operations of Ryerson China as of October 31, 2008. On July 12, 2010, we acquired VSC’s remaining 20% equity interest in Ryerson China for $17.5 million. As a result, Ryerson China is now an indirect wholly owned subsidiary of Ryerson Holding. Ryerson China is based in Shanghai and operates processing and service centers in Guangzhou, Dongguan, Kunshan and Tianjin.

Ryerson Mexico

Ryerson Mexico, an indirect wholly owned subsidiary of Ryerson, operates as a metals service center and processor. Ryerson formed Ryerson Mexico in 2010 to expand operations into the Mexican market. Ryerson Mexico has a service centers in Monterrey, Mexico and Tijuana, Mexico.

Brazil

In February 2012, we acquired 50% of the issued and outstanding capital stock of Açofran. As of such date, we, through Açofran, lease one service center in São Paulo, Brazil.

Legal Proceedings

From time to time, we are named as a defendant in legal actions incidental to our ordinary course of business. We do not believe that the resolution of these claims will have a material adverse effect on our financial position, results of operations or cash flows. We maintain liability insurance coverage to assist in protecting our assets from losses arising from or related to activities associated with business operations.

On December 27, 2011, Nancy Hoffman, Mark Hoffman, and Karen Hoffman (collectively, the “plaintiffs”) filed a sixth amended complaint in the Circuit Court of Cook County, Illinois naming JT Ryerson and three other entities as defendants (collectively, the “defendants”) in a lawsuit (Nancy Hoffman, et.al. v. Dorlan Crane, et.al. ). That complaint asserted negligence and loss of consortium counts against the defendants for personal injuries allegedly suffered by plaintiffs resulting from a motor vehicle accident. On February 10, 2012, a jury returned a verdict against the defendants and awarded damages totaling $27.7 million for which the defendants are purportedly jointly and severally liable. On August 28, 2012, our post-trial motion was denied. On September 24, 2012, we filed our Notice of Appeal to the Appellate Court of Illinois, First Judicial District. Any potential loss ranges from zero to $27.7 million plus interest. We believe that any loss will be covered by insurance. At this time, the Company cannot predict the likely outcome of this matter.

In October 2011, the United States Environmental Protection Agency named us as one of more than 100 businesses that may be a potentially responsible party for the Portland Harbor Superfund Site (“Portland Harbor”). We do not currently have sufficient information available to us to determine the total cost of any required investigation or remediation of the Portland Harbor site. We cannot predict the ultimate outcome of this matter or estimate a range of potential loss at this time.

 

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MANAGEMENT

Set forth below is a list of the names, ages and positions of the executive officers and directors of Ryerson Holding as of the closing of this offering. All directors are elected to serve until their successors are elected and qualified. Following this offering, our amended and restated certificate of incorporation and our amended and restated bylaws will provide for a classified Board of Directors consisting of three classes of directors, each serving staggered three-year terms. See “Board of Directors, Committees and Executive Officers—Term and Class of Directors” below and “Description of Capital Stock—Anti-Takeover provisions of Delaware law,” and “—Charter and bylaw’s anti-takeover provisions” for more information.

 

Name

  

Age

    

Position

Michael C. Arnold

     56       Chief Executive Officer and President

Edward J. Lehner

     46       Executive Vice President and Chief Financial Officer

Robert L. Archambault

     48       Director

Kirk K. Calhoun*

     68       Director

Eva M. Kalawski

     57       Director

Jacob Kotzubei

     44       Director

Mary Ann Sigler

     58       Director

 

* Mr. Calhoun will be joining the Board of Directors upon the closing of this offering.

Biographies of Executive Officers

Michael C. Arnold has been our Chief Executive Officer and President since January 2011. Prior to joining Ryerson, he served as executive vice president and president for The Timken Company (“Timken”) from 2007 to 2010 and president of Timken’s Bearings and Power Transmission Group from 2007 to 2010. Timken is a global company that manufactures steel, bearings and related components. Mr. Arnold earned a Bachelor’s degree in Mechanical Engineering and an MBA in sales and marketing from the University of Akron.

Edward J. Lehner has been our Executive Vice President and Chief Financial Officer since August 2012. Prior to joining Ryerson, he served as chief financial officer and chief administrative officer for PSC Metals, Inc. from 2009 to 2012. PSC Metals is a North American ferrous and non-ferrous scrap processor. Mr. Lehner earned a Bachelor’s degree in Accounting from the University of Cincinnati.

In addition to the above-named executive officers, there are a number of Platinum employees who perform non-policy making officer functions at the Company.

Biographies of Directors

Robert L. Archambault has been a director since April 2010. Mr. Archambault joined Platinum in 1997 and is a Partner at the firm. Prior to joining Platinum, Mr. Archambault worked at Pilot Software, Inc., where he held the positions of VP Business Development, VP Professional Services and VP Channels, Americas. Mr. Archambault received a B.S. in Management from New York Maritime College. Mr. Archambault served as acting president of Ryerson from October 2007 through August 2008 and his familiarity with Ryerson and its business has led the Board of Directors to conclude that he has the necessary expertise to serve as a director of the Company.

Kirk K. Calhoun will join our Board of Directors as the chairman of the audit committee upon the completion of this offering. Mr. Calhoun joined the public accounting firm Ernst & Young, LLP in 1965 and served as a partner of the firm from 1975 until his retirement in 2002. Mr. Calhoun has a B.S. in Accounting from the University of Southern California and is a Certified Public Accountant (non-practicing) in California. He is currently lead director of the Board of Directors of Response Genetics, Inc. Previously Mr. Calhoun served

 

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on the boards of five public companies up until the dates of their respective sales, including Abraxis Bioscience, Inc., Myogen, Inc., Aspreva Pharmaceutical Corporation, Adams Respiratory Therapeutics, Inc., and Replidyne, Inc. Mr. Calhoun’s experience serving on public company audit committees and boards of directors and his past work as a partner with Ernst & Young, LLP has led the Board of Directors to conclude that Mr. Calhoun has the requisite expertise to serve as a director of the Company and qualifies as a financial expert for audit committee purposes.

Eva M. Kalawski has been a director since October 2007. Ms. Kalawski joined Platinum in 1997, is a Partner and serves as the firm’s General Counsel and Secretary. Ms. Kalawski serves or has served as an officer and/or director of many of Platinum’s portfolio companies. Prior to joining Platinum in 1997, Ms. Kalawski was Vice President of Human Resources, General Counsel and Secretary for Pilot Software, Inc. Ms. Kalawski earned a Bachelor’s Degree in Political Science and French from Mount Holyoke College and a Juris Doctor from Georgetown University Law Center. Ms. Kalawski’s expertise and experience managing the legal operations of many portfolio companies has led the Board of Directors to conclude that she has the background and skills necessary to serve as a director of the Company.

Jacob Kotzubei has been a director since January 2010. Mr. Kotzubei joined Platinum in 2002 and is a Partner at the firm. Mr. Kotzubei serves as an officer and/or director of a number of Platinum’s portfolio companies. Prior to joining Platinum in 2002, Mr. Kotzubei worked for 4 1 / 2 years for Goldman Sachs’ Investment Banking Division in New York City. Previously, he was an attorney at Sullivan & Cromwell LLP in New York City, specializing in mergers and acquisitions. Mr. Kotzubei received a Bachelor’s degree from Wesleyan University and holds a Juris Doctor from Columbia University School of Law where he was elected a member of the Columbia Law Review. Mr. Kotzubei’s experience in executive management oversight, private equity, capital markets and transactional matters has led the Board of Directors to conclude that he has the varied expertise necessary to serve as a director of the Company.

Mary Ann Sigler has been a director since January 2010. Ms. Sigler is the Chief Financial Officer of Platinum. Ms. Sigler joined Platinum in 2004 and is responsible for overall accounting, tax, and financial reporting as well as managing strategic planning projects for the firm. Prior to joining Platinum, Ms. Sigler was with Ernst & Young LLP for 25 years where she was a partner. Ms. Sigler has a B.A. in Accounting from California State University Fullerton and a Masters in Business Taxation from the University of Southern California. Ms. Sigler is a Certified Public Accountant in California, as well as a member of the American Institute of Certified Public Accountants and the California Society of Certified Public Accountants. Ms. Sigler’s experience in accounting and strategic planning matters has led the Board of Directors to conclude that she has the requisite qualifications to serve as a director of the Company and facilitate its continued growth.

Board of Directors, Committees and Executive Officers

Composition of Board of Directors

Our amended and restated certificate of incorporation and bylaws provide that the authorized number of directors shall be fixed from time to time by a resolution of the majority of our Board of Directors. As of the closing of this offering, our Board of Directors will be comprised of the following five members: Messrs. Archambault, Calhoun and Kotzubei, and Mses. Kalawski and Sigler.

Because Platinum will own more than 50% of the voting power of our common stock after this offering, we are considered to be a “controlled company” for purposes of the NYSE listing requirements. As such, we are permitted, and have elected, to opt out of the NYSE listing requirements that would otherwise require our Board of Directors to be comprised of a majority of independent directors and require our compensation committee and nominating and corporate governance committee to be comprised entirely of independent directors. Accordingly, you may not have the same protections afforded to stockholders of companies that are subject to all of the NYSE corporate governance requirements. Our Board of Directors has determined that upon the closing of this offering, Mr. Calhoun will be independent.

 

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Term and Class of Directors

Upon the closing of this offering, our Board of Directors will be divided into three staggered classes of directors of the same or nearly the same number. At each annual meeting of stockholders, a class of directors will be elected for a three-year term to succeed the directors of the same class whose terms are then expiring. The terms of the directors will expire upon election and qualification of successor directors at the Annual Meeting of Stockholders to be held during the years 2014 for the Class I directors, 2015 for the Class II directors and 2016 for the Class III directors.

 

   

Our Class I directors will be Mses. Kalawski and Sigler;

 

   

Our Class II director will be Mr. Archambault; and

 

   

Our Class III directors will be Messrs. Calhoun and Kotzubei.

Any additional directorships resulting from an increase in the number of directors will be distributed among the three classes so that, as nearly as possible, each class shall consist of one-third of the directors. The division of our Board of Directors into three classes with staggered three-year terms may delay or prevent a change of our management or a change in control.

Term of Executive Officers

Each executive officer is appointed and serves at the discretion of the Board of Directors and holds office until his or her successor is elected and qualified or until his or her earlier resignation or removal. There are no family relationships among any of our directors or executive officers.

Director Compensation

Following the completion of this offering, we intend to pay our independent director, and any additional independent directors, an annual retainer fee that is commensurate with market practice for public companies of similar size. Other than independent directors, we do not intend to compensate directors for serving on our Board of Directors or any of its committees. We do, however, intend to reimburse each member of our Board of Directors for out-of-pocket expenses incurred by them in connection with attending meetings of the Board of Directors and its committees.

Board Committees

In connection with the consummation of this offering, our Board of Directors will continue to have an audit committee, and will have a compensation committee and a nominating and corporate governance committee, each of which will have the composition and responsibilities described below.

Audit Committee . Our audit committee will oversee a broad range of issues surrounding our accounting and financial reporting processes and audits of our financial statements, including the following: (i) monitor the integrity of our financial statements, our compliance with legal and regulatory requirements, our independent registered public accounting firm’s qualifications and independence, and the performance of our internal audit function and independent registered public accounting firm, (ii) assume direct responsibility for the appointment, compensation, retention and oversight of the work of any independent registered public accounting firm engaged for the purpose of performing any audit, review or attest services and for dealing directly with any such accounting firm, (iii) provide a medium for consideration of matters relating to any audit issues and (iv) prepare the audit committee report that the rules require be included in our filings with the SEC. Upon completion of this offering, the members of our audit committee will be Messrs. Kotzubei and Calhoun and Ms. Sigler. Mr. Calhoun will serve as chairman of the audit committee and the composition of our audit committee will comply with all applicable NYSE rules, including the requirement that at least one member of the audit committee have accounting or related financial management expertise. Mr. Calhoun will qualify as an “audit

 

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committee financial expert” as such term is defined in Item 407(d)(5) of Regulation S-K and will be “independent” as such term is defined in Rule 10A-3(b)(1) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules of the NYSE. Neither Mr. Kotzubei nor Ms. Sigler is so independent.

In accordance with NYSE rules, we plan to appoint a second independent director to our Board of Directors within 90 days of the effective date of the registration statement of which this prospectus is a part, who will replace Mr. Kotzubei as a member of the audit committee and to appoint a third independent director to our Board of Directors within 12 months of the effective date of the registration statement of which this prospectus is a part, who will replace Ms. Sigler as a member of the audit committee such that all of our audit committee members will be independent as such term is defined in Rule 10A-3(b)(1) under the Exchange Act and applicable NYSE rules.

Our Board of Directors will adopt a written charter for the audit committee, which will be available on our website upon consummation of this offering.

Compensation Committee . Our compensation committee will review and recommend policy relating to compensation and benefits of our officers and employees, including reviewing and approving corporate goals and objectives relevant to the compensation of our Chief Executive Officer and other senior officers, evaluating the performance of these officers in light of those goals and objectives and setting compensation of these officers based on such evaluations. The compensation committee will review and evaluate, at least annually, the performance of the compensation committee and its members, including compliance of the compensation committee with its charter. Upon the closing of this offering, the members of our compensation committee will be Messrs. Archambault and Kotzubei, neither of which is independent as such term is defined in the rules of the NYSE, and Mr. Calhoun. Because Platinum will own more than 50% of the voting power of our common stock after this offering, we are considered to be a “controlled company” for the purposes of the NYSE listing requirements. As such, we are permitted, and have elected, to opt out of the NYSE listing requirements that would otherwise require our compensation committee to be comprised entirely of independent directors.

Our Board of Directors will adopt a written charter for the compensation committee, which will be available on our website upon consummation of this offering.

Nominating and Corporate Governance Committee . The nominating and corporate governance committee will oversee and assist our Board of Directors in identifying, reviewing and recommending nominees for election as directors; evaluate our Board of Directors and our management; develop, review and recommend corporate governance guidelines and a corporate code of business conduct and ethics; and generally advise our Board of Directors on corporate governance and related matters. Upon the closing of this offering, we will establish a nominating and corporate governance committee consisting of Mses. Kalawski and Sigler, none of whom are independent as such term is defined in the rules of the NYSE. Because Platinum will own more than 50% of the voting power of our common stock after this offering, we are considered to be a “controlled company” for the purposes of the NYSE listing requirements. As such, we are permitted, and have elected, to opt out of the NYSE listing requirements that would otherwise require our nominating and corporate governance committee to be comprised entirely of independent directors.

Our Board of Directors will adopt a written charter for the nominating and corporate governance committee, which will be available on our website upon consummation of this offering.

Our Board of Directors may from time to time establish other committees.

 

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Compensation Committee Interlocks and Insider Participation

We do not currently have a designated compensation committee. None of our executive officers has served as a member of the Board of Directors or compensation committee of any entity that has an executive officer serving as a member of our Board of Directors.

Indemnification

We maintain directors’ and officers’ liability insurance. Our amended and restated certificate of incorporation and amended and restated bylaws include provisions limiting the liability of directors and officers and indemnifying them under certain circumstances. We expect to enter into indemnification agreements with our directors to provide our directors and certain of their affiliated parties with additional indemnification and related rights. See “Description of Capital Stock—Limitation on liability of directors and indemnification” for further information.

Code of Ethics

Our Board of Directors has adopted a Code of Ethics that contains the ethical principles by which our chief executive officer and chief financial officer, among others, are expected to conduct themselves when carrying out their duties and responsibilities. A copy of our Code of Ethics may be found on our website at www.ryerson.com . We will provide a copy of our Code of Ethics to any person, without charge, upon request, by writing to the Compliance Officer, Ryerson Inc., 227 W. Monroe, 27 th Floor, Chicago, Illinois 60606 (telephone number (312) 292-5000). We intend to satisfy the disclosure requirement under Item 5.05 of Form 8-K regarding an amendment to, or waiver from, a provision of our Code of Ethics by posting such information on Ryerson Inc.’s website at www.ryerson.com .

 

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EXECUTIVE COMPENSATION.

Compensation Discussion and Analysis

Compensation Overview and Objectives

As a private company, our compensation decisions with respect to our named executive officers have historically been based on the goal of achieving performance at levels necessary to provide meaningful returns to our primary stockholder upon an ultimate liquidity event. To this end, our compensation decisions in 2012 were primarily based on the goals of recruiting, retaining, and motivating individuals who can help us meet and exceed our financial and operational goals.

Determination of Compensation

Ryerson’s Board of Directors (the “Ryerson Board”), in consultation with us, was principally responsible for establishing and making decisions with respect to our compensation and benefit plans in 2012, including all compensation decisions relating to our named executive officers. The following individuals served as named executive officers in 2012: (i) Michael C. Arnold, President and Chief Executive Officer of Ryerson Inc., (ii) Edward J. Lehner, Executive Vice President and Chief Financial Officer of Ryerson Inc., (iii) Matthias Heilmann, former Chief Operating Officer of Ryerson Inc., who resigned from Ryerson Inc. on January 31, 2012, (iv) Terence R. Rogers, former Chief Financial Officer of Ryerson Inc., who left the Company on April 12, 2012, and (v) William S. Johnson, former Interim Chief Financial Officer of Ryerson Inc., who resigned from Ryerson Inc. on November 2, 2012.

In determining the levels and mix of compensation, the Ryerson Board has not generally relied on formulaic guidelines but rather has sought to maintain a flexible compensation program that allowed it to adapt components and levels of compensation to motivate and reward individual executives within the context of our desire to maximize stockholder value. Subjective factors considered in compensation determinations included an executive’s skills and capabilities, contributions as a member of the executive management team, contributions to our overall performance, and whether the total compensation potential and structure were sufficient to ensure the retention of an executive when considering the compensation potential that may be available elsewhere. In making its determination, the Ryerson Board has not undertaken any formal benchmarking or reviewed any formal surveys of compensation for our competitors. During the first few months of 2012, the Ryerson Board consulted with each of the then named executive officers for recommendations regarding annual bonus targets and other compensation matters (including their own) and for financial analysis concerning the impact of various benefits and compensation structures. The Ryerson Board had no formal, regularly scheduled meetings to set compensation policy and instead met as circumstances required from time to time.

The Ryerson Board considered the slow pace of the economic recovery and its impact on our business as the biggest factor impacting compensation decisions during 2012. The Ryerson Board weighed the conflicting goals of providing an attractive and competitive compensation package against making appropriate adjustments to our cost structure in recognition of this slow recovery. The Ryerson Board considered the impact on employee morale and potential loss of key employees versus the desire to contain costs. The Ryerson Board believes that its compensation decisions in 2012 accomplished both goals.

The Ryerson Board believes that employment agreements with our named executive officers are valuable tools to both enhance our efforts to retain these executives and to protect our competitive and confidential information. The estimates of the value of the benefits potentially payable under these agreements upon a termination of employment or a change in control are set out below under the caption “Potential Payments Upon Termination or Change in Control.”

 

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Components of Compensation for 2012

The compensation provided to our named executive officers in 2012 consisted of the same elements generally available to our non-executive employees, including base salary, bonuses, perquisites and retirement and other benefits, each of which is described in more detail below. Additionally, our named executive officers participated in a long-term incentive program, also described in more detail below.

Base Salary

The base salary (or, with respect to Mr. Johnson, the monthly fee) payable to each named executive officer was intended to provide a fixed component of compensation reflecting the executive’s skill set, experience, role and responsibilities, as well as to recruit well-qualified executives. In determining base salary for any particular year (or, with respect to Mr. Johnson, the monthly fee for any particular month), the Ryerson Board generally considered, among other factors, competitive market practice, individual performance for the prior year, the mix of fixed compensation to overall compensation, and any minimum guarantees afforded to the named executive officer pursuant to any agreement. Pursuant to the terms of his contract, Mr. Johnson received a 25% increase in his monthly fee on June 25, 2012.

Annual Bonus

Ryerson Inc. maintains the Ryerson Annual Incentive Plan, as amended (the “AIP”), pursuant to which its key managers (including our named executive officers (other than Mr. Johnson)) were eligible to receive a performance-based cash bonus tied to our achievement of specified financial performance targets in 2012. Each participant’s threshold and target performance measures, as well as each participant’s target award (expressed as a percentage of the participant’s base salary) were established by the Ryerson Board. No cash AIP bonuses were payable unless we achieved the threshold set for the performance period. The Ryerson Board generally viewed the use of cash AIP bonuses as an effective means to compensate our named executive officers for achieving our annual financial goals and to provide meaningful returns to our primary stockholder upon a future liquidity event. The target AIP bonuses for Messrs. Arnold, Lehner, Heilmann and Rogers were 100%, 75%, 100% and 75% of their respective base salaries for 2012. In early 2012, the Ryerson Board set and communicated the performance targets to the named executive officers. The target AIP bonus levels were set to reflect the relative responsibility for our performance and to appropriately allocate the total cash opportunity between base salary and incentive based compensation. Mr. Johnson did not participate in the AIP, but in order to induce him to accept the position of Interim Chief Financial Officer, the terms of his offer letter provided for a $25,000 bonus award after the completion of three months of service.

For 2012, the Ryerson Board determined that a combination of earnings before interest, taxes, depreciation, amortization and restructuring expenses (“EBITDAR”) excluding last in, first out inventory accounting expense plus adjustments established by the Ryerson Board, if any and “economic value added” (“EVA”) should be used as the performance measure for determining the cash AIP bonus payable to our named executive officers. EVA is the amount by which (i) EBITDAR plus adjustments established by the Ryerson Board, if any, exceeded (ii) a carrying cost of capital applied to certain of our assets. The Ryerson Board chose these factors as the appropriate performance measures to motivate our key executives, including the named executive officers, to both maximize earnings and increase utilization of our working capital. Fifty percent of each named executive officer’s bonus opportunity for 2012 was based on the EBITDAR during 2012 and the remaining 50% was based on the EVA during 2012.

For 2012, threshold EBITDAR was set at approximately $275 million, target EBITDAR was set at $327 million, and maximum EBITDAR was set at $401 million. For 2012, the actual EBITDAR for AIP purposes was $207 million, which did not meet the threshold EBITDAR and thus did not result in cash bonuses. For 2012, threshold EVA was set at approximately $22 million, target EVA was set at approximately $66 million and maximum EVA was set at $125 million. For 2012, the actual EVA for AIP purposes was negative $28 million, which did not meet the threshold EVA and thus did not result in cash bonuses to any of our named executive officers for 2012.

 

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Long Term Incentive Bonus

In February of 2009, we adopted the Rhombus Holding Corporation Amended and Restated 2009 Participation Plan (the “Participation Plan”), designed to provide incentive to key employees, including our named executive officers, to maximize our performance and to provide maximum returns to our stockholders. Under the Participation Plan, participants are granted performance units, the value of which appreciate when and as the value of the Company increases from and after the date of grant, and it is this appreciation in value which is the basis upon which incentive compensation may become payable upon the occurrence of certain qualifying events, which are described below. The Compensation Committee for the Participation Plan (the “Compensation Committee”) determines who is eligible to receive an award, the size and timing of the award, and the value of the award at the time of grant. The maximum number of performance units that may be awarded under the Participation Plan is 87,500,000. The performance units generally mature over a 44-month period of time which the Compensation Committee believes acts as an incentive for participants to remain in our employ and to strive to create value throughout the investment cycle. Subject to certain thresholds, payment on the performance units is contingent upon the occurrence of either (i) a sale of some or all of the Company’s common stock by its stockholders or (ii) Ryerson Holding Corporation’s payment of a cash dividend. The Participation Plan will expire on February 15, 2014 (or earlier if terminated by the Compensation Committee prior to February 15, 2014) and all performance units will terminate upon the expiration of the Participation Plan. Performance units are generally forfeited upon a participant’s termination of employment. Before their termination, Messrs. Heilmann and Rogers each held grants of 8,750,000 performance units, which units were forfeited upon termination. No performance units were granted in 2012, although Mr. Arnold and Mr. Lehner are each eligible to receive a number of performance units that each represents 1% of the management allocation pursuant to their respective employment letters (described below).

Retirement Benefits

Ryerson currently sponsors a qualified defined benefit pension plan, which was frozen as of December 31, 1997. The plan is described in further detail below under the caption “Narrative Disclosure of the Pension Benefits Table.”

Ryerson’s tax-qualified employee savings and retirement plan (“401(k) Plan”) covers certain full and part-time employees, including our named executive officers. Under the 401(k) Plan, employees may elect to reduce their current compensation up to the statutorily prescribed annual limit and have the amount of such reduction contributed to the 401(k) Plan. The Ryerson Board believes that the 401(k) Plan provides an important and highly valued means for employees to save for retirement.

The Ryerson Board of Directors reviewed the basic employee matching contribution policy under the 401(k) Plan in 2012 and concluded that it was competitive as compared to that of other employers. With respect to the 401(k) Plan, in 2012, we matched 100% of the first 4% of the named executive officers’ contributed base salary and 50% of the contributions of the 5 th and 6 th percent of the named executive officers’ contributed base salary. Except for Mr. Johnson, all of our named executive officers participated in the 401(k) Plan on the same basis as our other employees in 2012.

Ryerson also maintains a nonqualified savings plan, which is an unfunded, nonqualified plan that allows highly compensated employees who make the maximum annual 401(k) contributions allowed by applicable law to the 401(k) Plan to make additional deferrals in excess of the statutory limits. We match up to 4% of all contributed base salary of the participants. The Ryerson Board believes that our nonqualified savings plan provides an enhanced opportunity for our eligible employees, including our named executive officers, to plan for and meet their retirement savings needs. Messrs. Rogers and Heilmann participated in this plan on the same terms as other eligible employees in 2012.

 

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Perquisites and Other Benefits

Except for Mr. Johnson, all of our named executives were eligible for coverage under the Company’s health insurance programs, and Company-provided life insurance, short-term disability and long term disability benefits.

Mr. Lehner’s employment letter provides payments for 12 months of temporary housing in Chicago, weekly round trip airfare to Ohio and payments pursuant to the relocation policy which provided for payment of or reimbursement for certain expenses such as moving expenses, buying or selling a home, and a tax gross-up for any income related to such relocation payments and reimbursements. The Ryerson Board believed that Mr. Lehner should not suffer any adverse financial impact due to his relocation from Ohio to Illinois.

The terms of Mr. Johnson’s contract provided for housing, bi-monthly travel to/from Chicago, Illinois and Orange County, California and reimbursement of certain other travel expenses which was capped in the aggregate at $8,000 per month. The Ryerson Board believed that Mr. Johnson should not suffer any adverse financial impact due to his commute from California to Illinois.

Employment/Severance, Non-compete, Change in Control and Non-solicitation Agreements

Ryerson Inc. is a party to a letter agreement with Mr. Arnold which provides for at-will employment, an annual base salary of $750,000 per year and a target annual bonus opportunity equal to 100% of his base salary, based on the achievement of targets established pursuant to the AIP. Additionally, Mr. Arnold is eligible to receive an allocation of a number of performance units under the Participation Plan that represents 1% of the management allocation. The offer letter also provides that we and Mr. Arnold will work together to structure an additional incentive compensation arrangement that will entitle Mr. Arnold to an after-tax economic return of between $2.8 and $3.2 million upon the occurrence of a liquidity event. In addition, the employment letter provides that Mr. Arnold is entitled to six weeks’ paid vacation.

In the event that Mr. Arnold’s employment is terminated by us without cause, he will, subject to his execution and non-revocation of a general release in favor of us and our affiliates, be entitled to continue to receive his base salary payable in installments in accordance with normal payroll practices for the lesser of (i) the 52-week period following such termination and (ii) the period beginning on the date of such termination and ending on the date on which Mr. Arnold secures employment, either as an employee or an independent contractor, with Platinum Equity.

Ryerson Inc. is a party to a letter agreement with Mr. Lehner, which provides for at-will employment, a base salary of $450,000 per year and a target annual bonus opportunity equal to 75% of his base salary, based on the achievement of targets established pursuant to the AIP. Mr. Lehner’s employment letter provides for a one-time $200,000 gross payment which shall be repayable if Mr. Lehner leaves Ryerson Inc. within 2 years of his start date without “good reason.” Further, the employment letter provides that Mr. Lehner be provided with certain temporary housing and relocation expenses in connection with his move from Ohio to Illinois. Additionally, Mr. Lehner is eligible to receive an allocation of a number of performance units under the Participation Plan that represents 1% of the management allocation. In the event that Mr. Lehner’s employment is terminated by us without cause, he will, subject to his execution and non-revocation of a post-employment non-competition agreement and a general release in favor of us and our affiliates, be entitled to continue to receive his base salary, payable in installments in accordance with the normal payroll practices, for the lesser of (i) the 52-week period immediately following such termination and (ii) the period beginning on the date of such termination and ending on the date on which Mr. Lehner secures employment, either as an employee or an independent contractor, with Platinum.

During 2012, the terms of employment for Mr. Rogers were governed by employment/severance, non-compete, confidentiality and similar arrangements with Ryerson Inc., pursuant to which Mr. Rogers served as

 

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Chief Financial Officer, which arrangements set his title, base salary, target cash AIP bonus, and other compensation elements, and imposes post-termination confidentiality, non-compete, and non-solicitation obligations that apply following the termination of an executive’s employment for any reason. The employment agreement sets a minimum base salary and target bonus, but the compensation paid to him exceeded the minimum amounts provided in the employment agreement. Additionally, Mr. Rogers’ employment agreement provided for severance upon a termination by us without cause or by him for good reason. On April 12, 2012, Mr. Rogers terminated his employment voluntarily and therefore the Company was under no obligation to pay severance.

Ryerson Inc. was a party to an employment letter with Mr. Heilmann which provided for at-will employment, a base salary of $350,000 and a target AIP bonus of 100% of base salary. Additionally, the employment letter provided that Mr. Heilmann be provided with certain temporary housing and relocation expenses in connection with his move from California to Illinois. Because Mr. Heilmann’s employment was terminated for reasons other than cause, he was paid $344,858.87 as an enhanced 52 weeks of severance pay based on his weekly base pay rate and received medical and dental benefits until January 31, 2013 pursuant to our severance plan. Mr. Heilmann is subject to invention assignment provisions and confidentiality provisions which run for a 3-year period following any termination of employment, as well as post-termination non-compete and non-solicitation covenants which run for a 12-month period immediately following any termination.

Ryerson Inc. was a party to a letter agreement with Mr. Johnson, which provided for compensation of $20,000 per month for the first three months. After completion of the first 3 months, Mr. Johnson’s compensation would increase to $25,000 per month. Additionally, the contract provided for a $25,000 bonus payment to Mr. Johnson after the completion of the first 3 months. The agreement had a minimum term of 90 days, after which it could be terminated by either party upon 30 days’ notice. Mr. Johnson’s agreement did not provide for any participation in the AIP.

The Ryerson Board believes that employment agreements with our named executive officers are valuable tools to both enhance our efforts to retain these executives and to protect our competitive and confidential information. The estimates of the value of the benefits potentially payable under these agreements upon a termination of employment or a change of control are set out below under the captions “Potential Payments Upon Termination or Change in Control.”

Stock Incentive Plan

We intend to adopt, prior to effectiveness, a stock incentive plan that will afford more flexibility to our compensation committee by allowing grants of a wide variety of equity awards to our key employees, directors and consultants, including incentive and nonqualified stock options, shares of restricted stock, restricted stock units, stock appreciation rights, performance awards and other awards that are valued by reference to, or otherwise based on, the fair market value of our common stock. This plan is designed to assist us in attracting, retaining, motivating and rewarding key employees, directors, and consultants, and promoting the creation of long-term value for our public stockholders by closely aligning the interests of the participants with those of our public stockholders.

Our compensation committee will administer the stock incentive plan and will be authorized to, among other things, designate participants, grant awards, determine the number of shares subject to awards and the terms and conditions relating to such awards, prescribe award agreements, interpret the plan, establish, amend and rescind any rules and regulations relating to the plan and to make any other determinations that it deems necessary or advisable for the administration of the plan. The compensation committee may also delegate to our officers or employees, or other committees, subject to applicable law, the authority, subject to such terms as the compensation committee determines appropriate, to perform such functions, including but not limited to administrative functions, including the appointment of agents to assist in the administration of the plan. Any action of the compensation committee (or its authorized delegates) will be final, conclusive and binding on all persons, including participants and their beneficiaries.

 

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The total number of shares of our common stock that we plan to make available for issuance or delivery under the plan will be              shares, subject to adjustment in the event of any stock split, reverse stock split, reorganization, recapitalization, merger, consolidation, combination, share exchange or any other similar change in our capitalization, or in connection with any extraordinary dividend declared and paid in respect of shares of our common stock. For the purpose of determining the remaining shares of common stock available for grant under the plan, to the extent that an award expires or is canceled, forfeited, settled in cash or otherwise terminated without a delivery to the participant of the full number of shares to which the award related, the undelivered shares will again be available for grant. Similarly, shares withheld in payment of the exercise price of, or taxes relating to, an award, and shares equal in number to those surrendered in payment of any exercise price or taxes relating to an award shall be deemed to constitute shares not delivered to the participant and shall be deemed to be available again for future grants of awards under the plan. In order to qualify certain awards under the plan as “performance-based compensation” within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended, or the Code, as of the first date required by Section 162(m) of the Code, no employee shall be eligible to be granted during any calendar year options, performance awards or stock appreciation rights covering more than the maximum number of shares of our common stock then-available for issue under the plan.

The plan provides for the grant of both incentive stock options, within the meaning of Section 422(b) of the Code, and non-qualified stock options. Stock options will vest in accordance with the terms of the applicable award agreement. Options granted under the plan will expire no later than the tenth (10th) anniversary of the applicable date of grant, except that, to the extent that incentive stock options are granted to a ten percent (10%) stockholder, such options will expire after five (5) years from the date of grant. Options will have an exercise price determined by the compensation committee at the time of grant, although options intended to not be considered “nonqualified deferred compensation” within the meaning of Section 409A of the Code, or to qualify as “performance-based compensation” within the meaning of Section 162(m) of the Code, will have an exercise price that is not less than the fair market value of our common stock on the grant date. The term “fair market value” is defined as the closing price of our common stock as of any particular date on the principal national securities exchange on which our common stock is listed and traded on such date, or if our common stock is not listed on an exchange, the amount determined by our Board in good faith and in a manner consistent with Section 409A of the Code to be the fair market value.

The stock incentive plan also expressly permits the compensation committee to grant shares of restricted stock, which generally refers to shares of our common stock that are subject to vesting conditions or other lapsing or repurchase rights upon a termination of a recipient’s employment, which conditions or rights are determined by the compensation committee at the time of award, and performance awards, which may be designated as performance units that have an initial value that is set by the compensation committee at the time of grant, or as performance shares that have an initial value equal to the fair market value of our common stock on the date of grant. Performance awards may be settled in cash, shares of our common stock or other awards (or a combination thereof). The performance objectives and other terms and conditions that must be satisfied in order for performance awards to become vested and payable are determined by the compensation committee at the time of award. Performance objectives may be described in terms of Company-wide objectives or objectives that are related to the performance of an individual participant or the participant’s employer, division, department or function within the Company or the participant’s employer. Performance objectives may be measured on an absolute or relative basis, and relative performance may be measured by comparison to a group of peer companies or to a financial market index. Performance objectives shall be limited to specific levels of, or increases in, one or more of the following: return on equity; diluted earnings per share; net earnings; total earnings; earnings growth; return on capital; working capital turnover; return on assets; earnings before interest and taxes; earnings before interest, taxes, depreciation, and amortization; sales; sales growth; gross margin; return on investment; increase in the fair market value per share; share price (including but not limited to growth measures and total stockholder return); operating profit; cash flow (including but not limited to operating cash flow and free cash flow); cash flow return on investment (which equals cash flow divided by total capital); inventory turns; financial return ratios; total return to shareholders; market share; earnings measures/ratios; economic value added; balance sheet measurements including but not limited to receivable turnover; internal rate

 

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of return; and expense targets. The Company may specify minimum acceptable levels of achievement below which no payment of awards will occur, and may establish formulas to determine the payment of awards if performance exceeds such minimum levels but falls short of the specified maximum levels of achievement. The compensation committee may adjust performance objectives and the related minimum acceptable level of achievement if it determines, in its discretion, that events or transactions have occurred after the applicable date of grant of a performance award that are unrelated to the performance of the Company or the participant and result in a distortion of the performance objectives or the related minimum acceptable level of achievement, including unusual or non-recurring events such as restructurings or discontinued operations, an event either not directly related to the operations of the Company or not within the reasonable control of the Company’s management or changes in applicable tax laws, regulations or accounting principles.

The compensation committee may also grant other awards that may be denominated in, payable in, valued in whole or in part by reference to or otherwise based on or related to our common stock, including restricted stock units and stock appreciation rights. Such awards will be subject to terms and conditions that are determined by the compensation committee at the time of the award.

The compensation committee may, in the event of a corporate event (as defined in the plan), provide that any outstanding awards, whether vested or unvested, be assumed or substituted, be accelerated as of the consummation of the corporate event, be cancelled as of the consummation of the corporate event and that holders of cancelled awards receive a payment in respect of such cancellation based on the amount of per-share consideration being paid in connection with the corporate event less, in the case of options and other awards subject to exercise, the applicable exercise price, or be replaced with a cash incentive program that preserves the value of replaced awards and contains identical vesting conditions.

Our Board will have the ability to amend the stock incentive plan or any awards granted thereunder at any time, provided that no amendment will be made that impairs the rights of the holder of any award. Our Board may also suspend or terminate the stock incentive plan at any time, and, unless sooner terminated, the stock incentive plan shall terminate on the day before the tenth (10th) anniversary of the date the stock incentive plan is adopted by our Board. All awards granted under the plan will be subject to incentive compensation clawback and recoupment policies implemented by our Board from time to time.

We intend to require participants in our Participation Plan to waive any and all rights thereunder in connection with their receipt of any award under the stock incentive plan and intend to terminate the Participation Plan following receipt of such waiver from each participant therein.

Compensation Risk Management

We have reviewed our compensation policies and practices and have determined that those policies and practices do not subject us to any material risk.

 

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Executive Compensation

The following table shows compensation of our principal executive officer, our principal financial officer, and our other named executive officers.

2012 Summary Compensation Table

 

Name and Principal Position

   Year      Salary
($)
     Non-Equity
Incentive Plan
Compensation
($)
     Change in
Pension and
Nonqualified
Deferred
Compensation
Earnings ($)
(3)
     All other
Compensation
($) (4)
     Total
($) (6)
 

Michael C. Arnold—

President and Chief Executive Officer

    

 

2012

2011

  

  

    

 

750,006

721,160

  

  

    

 

—  

437,970

  

  

    

 

—  

—  

  

  

    
 
10,001
9,801
  
  
    
 
760,007
1,168,931
  
  

Edward J. Lehner—

Executive Vice President and Chief Financial Officer(1)

     2012         178,269         —           —           263,538         441,807   

Terence R. Rogers—

Former Chief Financial Officer(2)

    

 

 

2012

2011

2010

  

  

  

    

 

 

121,364

354,620

333,951

  

  

  

    

 
 

—  

148,948
179,159

  

  
  

    

 
 

16,977

6,765
6,513

  

  
  

    
 
 
5,392
16,313
20,579
  
  
  
    
 
 
143,733
526,646
540,202
  
  
  

William S. Johnson

Interim Former Chief Financial Officer(2)

     2012         171,887         25,000         —           60,626         257,513   

Matthias L. Heilmann—

Former Chief Operating Officer(5)

    

 
 

2012

2011
2010

  

  
  

    
 

 

69,564
384,068

359,649

  
  

  

    

 
 

—  

224,718
257,250

  

  
  

    

 

 

—  

—  

—  

  

  

  

    
 
 
346,857
18,547
93,956
  
  
  
    
 
 
416,421
627,333
710,855
  
  
  

 

(1) Edward J. Lehner became the Executive Vice President and Chief Financial Officer on August 1, 2012.
(2) During 2012, Mr. Rogers served as the Chief Financial Officer during the period from January 1, 2012 until resigning on April 12, 2012. Mr. Johnson served as Interim Chief Financial Officer from April 12, 2012 until the election of Mr. Lehner as Chief Financial Officer on August 1, 2012.
(3) Shows the aggregate change in the actuarial present value of the named executive officer’s accumulated benefit under our qualified pension plan and supplemental pension plan from December 31, 2011 (the pension plan measurement date used for financial statement reporting purposes with respect to our audited financial statements for 2011) to December 31, 2012 (the pension plan measurement date used for financial statement reporting purposes with respect to our audited financial statements for 2012). We do not pay above-market or preferential earnings on compensation deferred under our nonqualified savings plan.
(4) In 2012, we contributed to our qualified savings plan $10,001, $7,785, $5,392 and $1,998 for Messrs. Arnold, Lehner, Rogers and Heilmann, respectively, and did not make any contributions to any non-qualified plan account. Mr. Lehner’s other compensation also includes $32,770 for relocation expenses, a $22,984 tax gross up related to the relocation expenses and a $200,000 signing bonus. Mr. Johnson’s other compensation also includes $60,626 for housing and travel expenses. Mr. Heilmann’s other compensation also includes $344,859 for severance payments.
(5) Mr. Heilmann’s employment with us terminated effective January 31, 2012, as a result of our election to eliminate our Chief Operating Officer position.

 

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GRANTS OF PLAN-BASED AWARDS

 

            Grant
Date
     Estimated Possible Payouts Under
Non-Equity
Incentive Plan Awards
 
               Threshold
($)
     Target
($)
     Maximum
($)
 

Michael C. Arnold

     AIP         03/29/12         375,000         750,000         1,500,000   

Edward J. Lehner

     AIP         08/01/12         168,750         337,500         675,000   

Terence R. Rogers

     AIP         N/A         N/A         N/A         N/A   

Mathias Heilmann

     AIP         N/A         N/A         N/A         N/A   

William S. Johnson

     AIP         N/A         N/A         N/A         N/A   

Narrative Relating to Summary Compensation Table and

Grants of Plan-based Awards Table

Employment Agreements

Ryerson Inc. is a party to a letter agreement with Mr. Arnold, which provides for at-will employment, an annual base salary of $750,000 per year and has a target annual bonus opportunity equal to 100% of his base salary, based on the achievement of targets established pursuant to the AIP. Additionally, Mr. Arnold is eligible to receive an allocation of a number of performance units under the Participation Plan that represents 1% of the management allocation. The offer letter also provides that we and Mr. Arnold will work together to structure an additional incentive compensation arrangement that will entitle Mr. Arnold to an after-tax economic return of between $2.8 and $3.2 million upon the occurrence of a liquidity event. In addition, the employment letter provides that Mr. Arnold is entitled to six weeks’ paid vacation.

In the event that Mr. Arnold’s employment is terminated by us without cause, he will, subject to his execution and non-revocation of a general release in favor of us and our affiliates, be entitled to continue to receive his base salary, payable in installments in accordance with normal payroll practices, for the lessor of (i) the 52-week period immediately following such termination and (ii) the period beginning on the date of such termination and ending on the date on which Mr. Arnold secures employment, either as an employee or an independent contractor, with Platinum.

Ryerson Inc. is a party to a letter agreement with Mr. Lehner, which provides for at-will employment, a base salary of $450,000 per year and a target annual bonus opportunity equal to 75% of his base salary, based on the achievement of targets established pursuant to the AIP. Mr. Lehner’s employment letter provides for a one-time $200,000 gross payment which shall be repayable if Mr. Lehner leaves Ryerson Inc. within 2 years of his start date without “good reason.” Further, the employment letter provides that Mr. Lehner be provided with certain temporary housing and relocation expenses in connection with his move from Ohio to Illinois. Additionally, Mr. Lehner is eligible to receive an allocation of a number of performance units under the Participation Plan that represents 1% of the management allocation. In the event that Mr. Lehner’s employment is terminated by us without cause, he will, subject to his execution and non-revocation of a post-employment non-competition agreement and a general release in favor of us and our affiliates, be entitled to continue to receive his base salary, payable in installments in accordance with normal payroll practices, for the lesser of (i) the 52-week period immediately following such termination and (ii) the period beginning on the date of such termination and ending on the date on which Mr. Lehner secures employment, either as an employee or an independent contractor, with Platinum.

During 2012, the terms of employment for Mr. Rogers were governed by employment/severance, non-compete, confidentiality, and similar arrangements with Ryerson Inc., pursuant to which Mr. Rogers served as

 

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Chief Financial Officer, which arrangements set his title, base salary, target cash AIP bonus, and other compensation elements, and imposes post-termination confidentiality, non-compete, and non-solicitation obligations that apply following the termination of an executive’s employment for any reason. The employment agreement sets a minimum base salary and target bonus, but the compensation paid to him exceeded the minimum amounts provided in the employment agreement. Additionally, Mr. Rogers’ employment agreement provided for severance upon a termination by us without cause or by him for good reason. On April 12, 2012, Mr. Rogers terminated his employment voluntarily and therefore the Company was under no obligation to pay severance.

Ryerson Inc. was a party to an employment letter with Mr. Heilmann, which provided for at-will employment, a base salary of $350,000 and a target AIP bonus of 100% of base salary. Additionally, the employment letter provided that Mr. Heilmann be provided with certain temporary housing and relocation expenses in connection with his move from California to Illinois. Because Mr. Heilmann’s employment was terminated for reasons other than cause, he was paid $344,859 as an enhanced 52 weeks of severance pay based on his weekly base pay rate and received medical and dental benefits until January 31, 2013 pursuant to our severance plan. Mr. Heilmann is subject to invention assignment provisions and confidentiality provisions which run for a 3-year period following any termination of employment, as well as post-termination non-compete and non-solicitation covenants which run for a 12-month period immediately following any termination.

Ryerson Inc. was a party to a letter agreement with Mr. Johnson, which provided for compensation of $20,000 per month for the first three months. After completion of the first 3 months, Mr. Johnson’s compensation would increase to $25,000 per month. Additionally, the contract provided for a $25,000 bonus payment to Mr. Johnson after the completion of the first 3 months. The agreement had a minimum term of 90 days, after which it could be terminated by either party upon 30 days’ notice. Mr. Johnson’s agreement did not provide for any participation in the AIP.

Outstanding Equity Awards at Fiscal Year-End 2012

There were no outstanding equity awards at fiscal year-end 2012.

Pension Benefits

 

Name

   Plan Name    Number of Years
Credited Service (#)(1)
     Present Value of
Accumulated Benefit ($)(2)
 

Michael C. Arnold

   Pension Plan      —           —     

Edward J. Lehner

   Pension Plan      —           —     

Terence R. Rogers

   Pension Plan      3.67         67,924   

Matthias Heilmann

   Pension Plan      —           —     

William S. Johnson

   Pension Plan      —           —     

 

(1) Computed as of December 31, 2012, the same pension plan measurement date used for financial statement reporting purposes with respect to our audited financial statements for the last completed fiscal year.
(2) The actuarial present value of the named executive officer’s accumulated benefit under the relevant plan, assuming retirement at age 65 with at least 5 years of credited service, computed as of December 31, 2012, the same pension plan measurement date used for financial statement reporting purposes with respect to our audited financial statements for the last completed fiscal year. The valuation method and material assumptions applied in quantifying the present value of the current accrued benefits under the Pension Plan include, amongst other assumptions, that the discount rate used to value the present value of accumulated benefits is 4.00%.

 

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Narrative Disclosure of the Pension Benefits Table

Qualified Pension Plan

We froze benefit and service accruals under our qualified pension plan (the “Pension Plan”), effective as of December 31, 1997 and most participants, including our named executive officers, no longer accrue any benefit under these plans.

Full pension benefits are payable to eligible employees who, as of the date of separation from employment, are (i) age 65 or older with at least 5 years of vesting service, (ii) age 55 or older with at least 10 years of vesting service, or (iii) any age with at least 30 years of vesting service. Benefits may be reduced depending on age and service when an individual retires and/or chooses to have benefit payments begin. Benefits are reduced under (ii) above if voluntary retirement commences prior to the employee reaching age 62 with at least 15 years of vesting service. Benefits are not reduced if the age and service conditions under (i) or (iii) are met.

In general, benefits for salaried employees are based on two factors: (i) years of benefit service prior to the freeze date of the pension benefit, and (ii) average monthly earnings, based on the highest 36 months of earnings during the participant’s last ten years of service prior to the freeze date of the participant’s pension benefit.

Nonqualified Deferred Compensation

 

Name

   Executive
Contributions

in Last Fiscal
Year ($)
     Registrant
Contributions
in Last Fiscal
Year ($)
     Aggregate
Earnings in
Last Fiscal
Year ($)(3)
     Aggregate
Balance at
Last Fiscal
Year End
($)
 

Michael C. Arnold

     —           —           —           —     

Edward J. Lehner

     —           —           —           —     

Terence R. Rogers(1)

     —           —           —           —     

Matthias Heilmann

     —           —           53         4,216   

William S. Johnson(2)

     —           —           —           —     

 

(1) Upon his departure on April 12, 2012, Mr. Rogers withdrew $79,704, which represented a disbursement of the entire balance of his nonqualified savings plan account.
(2) Mr. Johnson was not eligible to participate in the nonqualified savings plan.
(3) All account balances are deferred to a cash account which is credited with interest at the rate paid by our 401(k) Plan’s Managed Income Portfolio Fund II fund, which in 2012 ranged from 0.10% to 0.12% compounded monthly. The amounts reported in this column consist of interest earned on such deferred cash accounts.

Narrative Disclosure of Nonqualified Deferred Compensation

The Internal Revenue Code imposes annual limits on employee contributions to our 401(k) Plan. Our nonqualified plan allows highly compensated employees who make the maximum annual 401(k) contributions to defer, on a pre-tax basis, amounts in excess of the limits applicable to deferrals under our 401(k) Plan. This nonqualified savings plan allows deferred amounts to be notionally invested in the Managed Income Portfolio Fund II (or any successor fund) that is available to the participants in our 401(k) Plan.

Generally, each of our named executive officers (other than Mr. Johnson) is eligible to participate in, our nonqualified savings plan. Our named executive officers will be entitled to the vested balance of their respective accounts when they retire or otherwise terminate employment. Participants are generally permitted to choose whether the benefits paid following their retirement will be paid in a lump sum or installments, with all amounts to be paid by the end of the calendar year in which the employee reaches age 75. For participants terminating employment for reasons other than retirement, the account balance is payable in a lump sum by no later than 60 days after the 1-year anniversary of the termination of employment.

 

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Potential Payments Upon Termination or Change in Control

Each of our named executive officers have entered into agreements, the material terms of which have been summarized above under the caption “Narrative Disclosure Relating to the Summary Compensation Table and Grants of Plan-based Awards Table.” Upon certain terminations of employment, our named executive officers (employed as of December 31, 2012) are entitled to payments of compensation and certain benefits. The table below reflects the amount of compensation and benefits payable to each named executive officer who was employed as of December 31, 2012 in the event of (i) termination for cause or without good reason (“voluntary termination”), (ii) termination other than for cause or with good reason (“involuntary termination”), (iii) termination by reason of an executive’s death or disability, or (iv) a change in control. The amounts shown assume that the applicable triggering event occurred on December 31, 2012, and therefore, are estimates of the amounts that would be paid to the named executive officers upon the occurrence of such triggering event.

 

Name

  

Reason for

Termination

   Cash
Severance
($)
    Continued
Welfare
Benefits
($)
     Total
($)
 

Mr. Arnold

   Voluntary      —          —           —     
   Involuntary      750,000 (1)     —           750,000   
   Death or Disability      —          —           —     
   Change in Control(2)(3)      —          —           —     

Mr. Lehner

   Voluntary      —          —           —     
  

Involuntary

     450,000 (1)      —           450,000   
  

Death or Disability

     —          —           —     
  

Change in Control(3)

     —          —           —     

 

(1) Consists of 52 weeks of severance pay based on weekly base pay rate.
(2) We have an obligation to structure an additional compensation arrangement that will entitle Mr. Arnold to an after-tax economic return of between $2.8 million and $3.2 million upon the occurrence of a liquidity event. However, no arrangement has been negotiated to date.
(3) No performance units were granted in 2012, though Mr. Arnold and Mr. Lehner are eligible to receive a number of performance units that each represents 1%, respectively of the management allocation pursuant to their employment letters.

Narrative Disclosure of Payments Upon Termination

Mr. Heilmann’s employment ended involuntarily on January 31, 2012 and pursuant to the terms of his employment letter we have made bi-weekly severance payments that totaled $344,859. We also provided him with $7,787 in continued health benefits.

Mr. Rogers’ employment ended voluntarily and therefore we were under no obligation to pay, nor did we pay, any severance to him. Upon his departure, Mr. Rogers withdrew $79,704 as a distribution for his nonqualified deferred savings plan account.

 

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DIRECTOR COMPENSATION

We did not pay our current directors any compensation for serving on the Board of Directors during 2012.

 

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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

Services Agreement

JT Ryerson, one of our subsidiaries, is party to a corporate advisory services agreement (the “Services Agreement”) with Platinum Advisors, an affiliate of Platinum. Under the terms of the Services Agreement, Platinum Advisors provides to JT Ryerson certain general business, management, administrative and financial advice. In consideration of these and other services, JT Ryerson pays an annual advisory fee to Platinum Advisors of no greater than $5 million. The Services Agreement will continue in effect until terminated by Platinum Advisors. In addition to the fees paid to Platinum Advisors pursuant to the Services Agreement, JT Ryerson will pay Platinum’s out-of-pocket expenses incurred in connection with providing management services to JT Ryerson.

In connection with this offering, Platinum Advisors and JT Ryerson intend to terminate the Services Agreement, pursuant to which JT Ryerson will pay Platinum Advisors $         million as consideration for terminating the fee payable thereunder.

Participation Plan

In February of 2009, we adopted the Rhombus Holding Corporation 2009 Participation Plan (the “Participation Plan”), pursuant to which participants are granted performance units, the value of which appreciate when and as our value increases from and after the date of grant, and it is this appreciation in value which is the basis upon which incentive compensation may become payable upon the occurrence of certain qualifying events, which are described below. On February 16, 2009, the Compensation Committee granted 8,750,000 performance units to Mr. Rogers. These performance units matured in four equal installments; the first installment matured on the date of grant, the second matured on October 31, 2009, the third installment matured on October 31, 2010 and the remaining installment matured on October 31, 2011. Subject to certain thresholds, payment on the performance units is contingent upon the occurrence of either (i) a sale of some or all of our common stock by our stockholders, or (ii) our payment of a cash dividend. The Participation Plan will expire February 15, 2014 and all performance units will terminate upon the expiration of the Participation Plan. Performance units are generally forfeited upon a participant’s termination of employment. We intend to require participants in our Participation Plan to waive any and all rights thereunder in connection with their receipt of any award under the stock incentive plan that we intend to adopt prior to completion of this offering and intend to terminate the Participation Plan following receipt of such waiver from each participant therein. For additional information on the stock incentive plan, see “Executive Compensation—Stock Incentive Plan.”

Investor Rights Agreement

Ryerson Holding and Platinum are party to an investor rights agreement and have agreed to enter into an amended and restated investor rights agreement (the “Investor Rights Agreement”) upon the consummation of this offering that will provide for, among other things, demand, piggyback and Form S-3 registration rights and board nomination rights.

The Investor Rights Agreement will provide that Platinum may make written demands of us to require us to register the shares of our common stock owned by Platinum; provided, however that we will not be obligated to effect more than two such demand registrations. In addition, Platinum will have piggyback registration rights entitling them to require us to register shares of our common stock owned by them in connection with any registration statements filed by us after the completion of this offering, subject to certain exceptions. Upon the closing of this offering, we have agreed to use commercially reasonable efforts to qualify for registration on Form S-3 for secondary sales. After we have qualified for the use of Form S-3, Platinum will, subject to certain exceptions, have the right to request an unlimited number of registrations on Form S-3. We will not be obligated to effect a registration unless certain pricing or timing conditions are first satisfied.

The Investor Rights Agreement provides that we will indemnify Platinum against losses suffered by it in connection with any untrue or alleged untrue statement of a material fact contained in any prospectus, offering

 

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circular, or other document delivered or made available to investors (or in any related registration statement or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, except insofar as the same may be caused by or contained in any information furnished in writing to us by Platinum for use therein.

The Investor Rights Agreement will provide that for so long as Platinum collectively beneficially owns at least 30% of the voting power of the outstanding capital stock of the Company, Platinum will have the right to nominate for election to the board of directors of the Company no fewer than that number of directors that would constitute a majority of the number of directors if there were no vacancies on the board. So long as Platinum collectively beneficially owns (i) at least 15% but less than 30% of the voting power of the outstanding capital stock of the Company, Platinum will have the right to nominate two directors and (ii) at least 5% but less than 15% of the voting power of the outstanding capital stock of the Company, Platinum will have the right to nominate one director. The agreement will also provide that if the size of the board of directors is increased or decreased at any time, Platinum’s nomination rights will be proportionately increased or decreased, respectively, rounded up to the nearest whole number, except that if the board of directors increases its size within 180 days of the date of the agreement, Platinum will have the right to designate director nominees to fill each newly created directorship.

The Investor Rights Agreement was negotiated among management and Platinum, and we believe the Investor Rights Agreement is on arm’s-length terms.

Distributions

In July 2009, we made distributions in an aggregate amount of approximately $56.5 million to our stockholders.

On January 29, 2010, we made a distribution in an aggregate amount of approximately $213.8 million to our stockholders with the proceeds from the issuance of the Ryerson Holding Notes.

On December 21, 2012, we made a distribution of $35.0 million to our stockholders.

Policies and Procedures Regarding Transactions with Related Persons

Upon consummation of the offering, our Board of Directors will have adopted written policies and procedures for transactions with related persons. As a general matter, the policy will require the audit committee to review and approve or disapprove the entry by us into certain transactions with related persons. The policy will contain transactions which are pre-approved transactions. The policy will only apply to transactions, arrangements and relationships where the aggregate amount involved could reasonably be expected to exceed $120,000 in any calendar year and in which a related person has a direct or indirect interest. A related person is: (i) any director, nominee for director or executive officer of our company; (ii) any immediate family member of a director, nominee for director or executive officer; and (iii) any person, and his or her immediate family members, or entity, including affiliates, that was a beneficial owner of 5% or more of any of our outstanding equity securities at the time the transaction occurred or existed.

The policy will provide that if advance approval of a transaction subject to the policy is not obtained, it must be promptly submitted to the committee for possible ratification, approval, amendment, termination or rescission. In reviewing any transaction, the committee will take into account, among other factors the committee deems appropriate, recommendations from senior management, whether the transaction is on terms no less favorable than terms generally available to a third party in similar circumstances and the extent of the related person’s interest in the transaction. Any related person transaction must be conducted at arm’s length. Any member of the audit committee who is a related person with respect to a transaction under review may not participate in the deliberations or vote on the approval or ratification of the transaction. However, such a director may be counted in determining the presence of a quorum at a meeting of the audit committee that considers the transaction.

 

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PRINCIPAL AND SELLING STOCKHOLDERS

99% of our issued and outstanding 5,000,000 shares of common stock is beneficially owned by Platinum. The following table sets forth certain information regarding the beneficial ownership of our common stock as of April 15, 2013, and on an as adjusted basis to give effect to the closing of the offering, with respect to each person known by us to beneficially own more than 5% of our common stock and each person that will be a selling stockholder in this offering. None of our directors or executive officers beneficially owns any of our common stock and following the closing of this offering, no director or executive officer will beneficially own more than 1% of our common stock.

Beneficial ownership is determined in accordance with the rules and regulations of the SEC. The number of shares and percentages of beneficial ownership set forth below are based on 5,000,000 shares of our common stock outstanding as of April 15, 2013, with the number of shares and percentages of beneficial ownership being determined after giving effect to the             for 1.00 stock split that we will effect prior to the closing of this offering. Except as indicated in the footnotes to this table and subject to applicable community property laws, upon the closing of this offering, the persons named in the table will have sole voting and investment power with respect to all shares of common stock listed as beneficially owned by them. As of April 15, 2013, there were nine registered holders of our common stock. For more information regarding our principal stockholder or any of the selling stockholders and the relationship they have with us, see “Certain Relationships and Related Party Transactions.”

 

    Prior to This Offering     After This Offering  
                Assuming the Underwriters’
Over-Allotment Option
Is Not Exercised
    Assuming the Underwriters’
Over-Allotment Option
Is Exercised in Full(5)
 

Beneficial Owner

  Number of
Shares
Beneficially
Owned
    Percent of
Shares
Beneficially
Owned
    Number of
Shares
Beneficially
Owned
    Percent of
Shares
Beneficially
Owned
    Shares Offered
Pursuant to
the Underwriters’
Over-Allotment
Option
  Number of
Shares
Beneficially
Owned
  Percent of
Shares
Beneficially
Owned
 

Platinum(1)(2)

    4,950,000        99     4,950,000                                 

Moelis(3)(4)

    50,000        1     50,000                                 

 

(1) Consists of (i) 711,236.84 shares of common stock held by Platinum Equity Capital Partners, L.P.; (ii) 132,868.42 shares of common stock held by Platinum Equity Capital Partners-PF, L.P.; (iii) 195,394.74 shares of common stock held by Platinum Equity Capital Partners-A, L.P.; (iv) 2,211,674 shares of common stock held by Platinum Equity Capital Partners II, L.P.; (v) 358,366 shares of common stock held by Platinum Equity Capital Partners-PF II, L.P.; (vi) 350,460 shares of common stock held by Platinum Equity Capital Partners-A II, L.P.; and (vii) 990,000 shares of common stock held by Platinum Rhombus Principals, LLC. Platinum is the beneficial owner of each of the Platinum entities listed above and Tom Gores is the Chairman and Chief Executive Officer of Platinum Equity, LLC, which, through its affiliates, manages Platinum. Mr. Gores may be deemed to share voting and investment power with respect to all shares of common stock of Ryerson Holding held beneficially by Platinum. Mr. Gores disclaims beneficial ownership of all shares of common stock of Ryerson Holding that are held by each of the Platinum entities listed above with respect to which Mr. Gores does not have a pecuniary interest therein. Eva M. Kalawski, Mary Ann Sigler, Jacob Kotzubei and Robert L. Archambault are directors of Ryerson Holding and each disclaims beneficial ownership of any shares of common stock of Ryerson Holding that they may be deemed to beneficially own because of their affiliation with Platinum, except to the extent of any pecuniary interest therein.
(2) Address is 360 North Crescent Drive, Beverly Hills, California 90210.
(3)

Consists of (i) 46,448 shares of common stock held by Moelis Capital Partners Opportunity Fund I, LP and (ii) 3,552 shares of common stock held by Moelis Capital Partners Opportunity Fund I-A, LP. Moelis & Company Holdings LLC is the beneficial owner of each of the Moelis entities listed above (together with all other affiliated investment funds, “Moelis”) and Kenneth D. Moelis is the Chief Executive Officer of

 

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  Moelis & Company Holdings LLC, which, through controlled affiliates, manages Moelis. Mr. Moelis may be deemed to have voting and investment power with respect to all shares of common stock of Ryerson Holding held beneficially by Moelis. Mr. Moelis is also a limited partner of Moelis Capital Partner Opportunity Fund I-A, LP. Mr. Moelis disclaims beneficial ownership of all shares of common stock of Ryerson Holding that are held by each of the Moelis entities listed above with respect to which Mr. Moelis does not have a pecuniary interest therein.
(4) Address is 399 Park Avenue, 5th Floor, New York, New York 10022.
(5) To the extent the underwriters’ option to purchase additional shares is not exercised in full, the shares sold by the selling stockholders will be decreased on a pro rata basis.

 

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DESCRIPTION OF CAPITAL STOCK

General

The following summary describes the material terms of our capital stock. However, you should refer to the actual terms of the capital stock contained in our amended and restated certificate of incorporation and applicable law. We intend to amend and restate our certificate of incorporation and bylaws prior to consummation of this offering. A copy of our amended and restated certificate of incorporation and amended and restated bylaws will be filed as exhibits to the Registration Statement of which this prospectus is a part. The following description refers to the terms of our amended and restated certificate of incorporation. Our amended and restated certificate of incorporation provides that our authorized capital stock will consist of 100 million shares of common stock, par value $0.01 per share, and 7 million shares of preferred stock, par value $0.01 per share, that are undesignated as to series.

As of December 31, 2012, there were nine record holders of our common stock.

Common Stock

The holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of stockholders and are not entitled to cumulative votes with respect to the election of directors. The holders of common stock are entitled to receive dividends as may be declared by our Board of Directors out of legally available funds. Upon our liquidation, dissolution or winding up, the holders of common stock are entitled to share ratably in all assets that are legally available for distribution after payment of all debts and other liabilities, subject to the prior rights of any holders of preferred stock then outstanding. The holders of common stock have no other preemptive, subscription, redemption, sinking fund or conversion rights. All outstanding shares of our common stock are fully paid and nonassessable. The shares of common stock to be issued upon completion of the offering will also be fully paid and nonassessable. The rights, preferences and privileges of holders of common stock are subject to, and may be negatively impacted by, the rights of the holders of shares of any series of preferred stock which we may designate and issue in the future.

Undesignated Preferred Stock

There will not be any shares of preferred stock outstanding upon the closing of the offering. Under our amended and restated certificate of incorporation, which will become effective simultaneously with the offering, our Board of Directors has the authority, without action by our stockholders, to designate and issue any authorized but unissued shares of preferred stock in one or more series and to designate the rights, preferences and privileges of each series, any or all of which may be greater than the rights of our common stock. It is not possible to state the actual effect of the issuance of any shares of preferred stock upon the rights of holders of our common stock until our board determines the specific rights of the holders of preferred stock. However, the effects might include, among other things, restricting dividends on the common stock, diluting the voting power of the common stock, impairing the liquidation rights of the common stock and delaying or preventing a change in control of our common stock without further action by our stockholders. We have no present plans to issue any shares of preferred stock.

Anti-Takeover Provisions of Delaware Law

We are subject to Section 203 of the Delaware General Corporation Law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a business combination with an interested stockholder for a period of three years following the date the person became an interested stockholder, unless the business combination or the transaction in which the person became an interested stockholder is approved in a prescribed manner. Generally, a business combination includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. Generally, an interested stockholder is a person who, together with affiliates and associates, owns or, in the case of affiliates or associates of the corporation, within three years prior to the determination of interested stockholder status, owned 15% or more of a corporation’s voting stock.

 

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The existence of this provision could have anti-takeover effects with respect to transactions not approved in advance by our Board of Directors, such as discouraging takeover attempts that might result in a premium over the market price of our common stock. For these purposes Platinum will not constitute “interested stockholders.”

Stockholders will not be entitled to cumulative voting in the election of directors. The authorization of undesignated preferred stock will make it possible for our Board of Directors to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to effect a change of control of our company. The foregoing provisions of our amended and restated certificate of incorporation and the Delaware General Corporation Law may have the effect of deterring or discouraging hostile takeovers or delaying changes in control of our company.

Charter and Bylaws Anti-Takeover Provisions

Our amended and restated certificate of incorporation and our amended and restated bylaws each provide that on and following the date that Platinum no longer beneficially owns a majority of the voting power of all of our capital stock, any action required or permitted to be taken by our stockholders at an annual meeting or special meeting of the stockholders may only be taken at such annual or special meeting, and not by written consent without a meeting, if it is properly brought before such annual or special meeting.

Our amended and restated certificate of incorporation provides that our Board of Directors will be divided into three classes of directors, with the number of directors in each class to be as nearly equal as possible. Our classified board staggers terms of the three classes and will be implemented through one, two and three-year terms for the initial three classes, followed in each case by full three-year terms. With a classified board, only one-third of the members of our Board of Directors will be elected each year. This classification of directors will have the effect of making it more difficult for stockholders to change the composition of our Board of Directors. Our amended and restated certificate of incorporation and our amended and restated bylaws provide that the number of directors will be fixed from time to time exclusively pursuant to a resolution adopted by our Board of Directors, but must consist of not less than three directors. This provision will prevent stockholders from circumventing the provisions of our classified board.

Our amended and restated certificate of incorporation provides that, on and following the date that Platinum no longer beneficially owns a majority of the voting power of all of our capital stock, the affirmative vote of the holders of at least 66 2/3% of the voting power of our issued and outstanding capital stock, voting together as a single class, is required for the following:

 

   

alteration, amendment or repeal of the staggered Board of Directors provisions in our amended and restated certificate of incorporation; and

 

   

alteration, amendment or repeal of certain provisions of our amended and restated bylaws, including the provisions relating to our stockholders’ ability to call special meetings, notice provisions for stockholder business to be conducted at an annual meeting, requests for stockholder lists and corporate records, nomination and removal of directors and filling of vacancies on our Board of Directors.

Our amended and restated certificate of incorporation provides for the issuance by the Board of Directors of up to 7 million shares of preferred stock, with voting power, designations, preferences and other special rights. The issuance of preferred stock could decrease the amount of earnings and assets available for distribution to the holders of common stock or could adversely affect the rights and powers, including voting rights, of holders of common stock. In certain circumstances, such issuance could have the effect of decreasing the market price of the common stock. Preferred stockholders could also make it more difficult for a third party to acquire our company. At the closing of this offering, no shares of preferred stock will be outstanding and we currently have no plans to issue any shares of preferred stock.

Our amended and restated bylaws establish an advance notice procedure for stockholders to bring matters before special stockholder meetings, including proposed nominations of persons for election to our Board of Directors. These procedures specify the information stockholders must include in their notice and the timeframe

 

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in which they must give us notice. At a special stockholder meeting, stockholders may only consider nominations or proposals specified in the notice of meeting. A special stockholder meeting for any purpose may only be called by our Board of Directors, our Chairman, our Chief Executive Officer or, prior to the date that Platinum no longer beneficially owns a majority of the voting power of all of our capital stock, the holders of a majority of the voting power of our then outstanding voting stock.

Our amended and restated bylaws do not give the Board of Directors the power to approve or disapprove stockholder nominations of candidates or proposals regarding other business to be conducted at a meeting. However, our amended and restated bylaws may have the effect of precluding the conduct of that item of business at a meeting if the proper procedures are not followed. These provisions may discourage or deter a potential third party from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempting to obtain control of our company.

The foregoing provisions of our amended and restated certificate of incorporation, our amended and restated bylaws and the Delaware General Corporation Law may have the effect of deterring or discouraging hostile takeovers or delaying changes in control of the company.

Limitation on Liability and Indemnification of Directors and Officers

Our amended and restated certificate of incorporation and bylaws will limit our directors’ and officers’ liability to the fullest extent permitted under Delaware corporate law. Specifically, our directors and officers will not be liable to us or our stockholders for monetary damages for any breach of fiduciary duty by a director or officer, except for liability:

 

   

for any breach of the director’s or officer’s duty of loyalty to us or our stockholders;

 

   

for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

 

   

under Section 174 of the Delaware General Corporation Law; or

 

   

for any transaction from which a director or officer derives an improper personal benefit.

If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Company shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.

The provision regarding indemnification of our directors and officers in our amended and restated certificate of incorporation will generally not limit liability under state or federal securities laws.

Delaware law and our amended and restated certificate of incorporation and bylaws provide that we will, in certain situations, indemnify any person made or threatened to be made a party to a proceeding by reason of that person’s former or present official capacity with our company against judgments, penalties, fines, settlements and reasonable expenses including reasonable attorney’s fees. Any person is also entitled, subject to certain limitations, to payment or reimbursement of reasonable expenses in advance of the final disposition of the proceeding. In addition, Ryerson Inc. is party to certain indemnification agreements pursuant to which it has agreed to indemnify the employees who are party thereto.

The limitation of liability and indemnification provisions in our amended and restated certificate of incorporation may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit us and our stockholders. In addition, your investment may be adversely affected to the extent that, in a class action or direct suit, we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.

 

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Transfer Agent and Registrar

Our transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC.

Listing

At present, there is no established trading market for our common stock. We have applied to have our common stock listed on the NYSE under the symbol “RYI.”

 

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DESCRIPTION OF CERTAIN INDEBTEDNESS

Ryerson Credit Facility

General

As of December 31, 2012, we are party to the Ryerson Credit Facility, a senior secured asset-based revolving credit facility with Bank of America, N.A. that allows it to borrow up to $1.35 billion of revolving loans, including a Canadian subfacility and a letter of credit subfacility with a maximum availability of $135.0 million.

Availability under the Ryerson Credit Facility is determined by a U.S. and a Canadian borrowing base of specified percentages of Ryerson’s eligible inventories and accounts receivable, but in no event in excess of $1.35 billion. All borrowings under the Ryerson Credit Facility are subject to the satisfaction of customary conditions, including absence of a default and accuracy of representations and warranties. As of December 31, 2012, Ryerson Inc. had outstanding borrowings under the Ryerson Credit Facility of $383.5 million.

Interest and Fees

Borrowings under the Ryerson Credit Facility bear interest at a rate per annum equal to:

 

   

in the case of borrowings in U.S. Dollars, the applicable margin plus, at Ryerson Inc.’s option, either (1) a base rate determined by reference to the prime rate of Bank of America, N.A. or (2) a LIBOR rate determined by reference to the costs of funds for deposits in the currency of such borrowing for the interest period relevant to such borrowing adjusted for certain additional costs; or

 

   

in the case of borrowings in Canadian Dollars, the applicable margin plus, at Ryerson Inc.’s option, either (1) a base rate determined by reference to the Canadian base rate of Bank of America-Canada, (2) a rate determined by reference to Canadian dollar bankers’ acceptances (the “BA rate”) or (3) a Canadian prime rate.

Borrowings under the Ryerson Credit Facility are based on the base rate and Canadian prime rate borrowings plus a spread or LIBOR and BA rate plus a spread. The initial applicable margin may be reduced based on excess availability.

Ryerson Inc. is also required to pay the lenders under the Ryerson Credit Facility a commitment fee in respect of unused commitments ranging from 0.375% to 0.50% per annum based on the average usage of the Ryerson Credit Facility during a rolling three-month period. Ryerson Inc. is also required to pay customary letter of credit and agency fees.

Collateral and Guarantors

Certain of Ryerson Inc.’s existing and future domestic subsidiaries act as co-borrowers. We and our existing and future domestic subsidiaries guarantee the obligations under the Ryerson Credit Facility. The Ryerson Credit Facility is secured by a first-priority security interest in substantially all of Ryerson Holding, Ryerson Inc., and Ryerson Inc.’s current and future domestic subsidiaries’ current assets, including accounts receivable, inventory and related general intangibles and proceeds of the foregoing, and certain other assets (in each case subject to certain exceptions). In addition, one of Ryerson Inc.’s Canadian subsidiaries acts as a borrower under the Canadian subfacility. Obligations under the Canadian subfacility of the Ryerson Credit Facility are also guaranteed by, and secured by a first-priority security interest in the comparable assets of Ryerson Inc.’s Canadian subsidiaries.

Incremental Facility Amounts

The Ryerson Credit Facility also permits Ryerson Inc. to increase the aggregate amount of such facility from time to time in minimum tranches of $100.0 million and up to a maximum aggregate amount of $400.0 million subject to certain conditions and adjustments. The existing lenders under the Ryerson Credit Facility will be entitled, but not obligated, to provide the incremental commitments.

 

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Covenants, Representations and Other Matters

The Ryerson Credit Facility also includes negative covenants restricting or limiting Ryerson Inc.’s ability, and the ability of its subsidiaries, to, among other things:

 

   

incur, assume or permit to exist indebtedness or guarantees;

 

   

incur liens;

 

   

make loans and investments;

 

   

enter into joint ventures;

 

   

declare dividends, make payments on or redeem or repurchase capital stock;

 

   

engage in mergers, acquisitions and other business combinations;

 

   

prepay, redeem or purchase certain indebtedness, including outstanding notes;

 

   

make certain capital expenditures;

 

   

sell assets;

 

   

enter into transactions with affiliates; and

 

   

alter the business that we conduct.

These negative covenants are subject to certain baskets and exceptions.

A minimum fixed charge coverage ratio will be applicable under the Ryerson Credit Facility only if (i) less than 10% of the lesser of (A) the aggregate commitments and (B) the borrowing base under the facility were available on any business day or (ii) if less than $125.0 million under the facility were available at any time.

The Ryerson Credit Facility contains certain customary representations and warranties with respect to, among other things, the organization and qualification of the borrowers, power and authority of the borrowers to enter into the Ryerson Credit Facility, the reliability of each borrower’s financial statements, the solvent financial condition of each borrower and the compliance by each borrower with all applicable laws. A material misrepresentation of any of the representations and warranties contained in the Ryerson Credit Facility will result in an event of default and the lenders under the Ryerson Credit Facility will be entitled to various remedies, including acceleration of amounts due under the Ryerson Credit Facility and all other actions permitted to be taken by secured creditors.

The Ryerson Credit Facility contains events of default with respect to, among other things, default in the payment of principal when due or the payment of interest, fees and other amounts after a specified grace period, material misrepresentations, failure to perform certain specified covenants, certain bankruptcy events, invalidity of certain security agreements or guarantees, material judgments or the occurrence of a change of control of Ryerson. If such an event of default occurs, the lenders under the Ryerson Credit Facility will be entitled to various remedies, as described above.

Amortization and Final Maturity

There is no scheduled amortization under the Ryerson Credit Facility. The principal amount outstanding of the loans under the Ryerson Credit Facility will be due and payable in full at maturity, which occurs on the earlier of (a) April 3, 2018 or (b) August 16, 2017 (60 days prior to the scheduled maturity date of the 2017 Notes), if the 2017 Notes are then outstanding. If at any time the aggregate amount of outstanding loans, unreimbursed letter of credit drawings and undrawn letters of credit under the Ryerson Credit Facility exceeds the lesser of (1) the commitment amount and (2) the borrowing base, Ryerson Inc. will be required to repay outstanding loans or cash collateralize letters of credit in an aggregate amount equal to such excess, with no

 

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reduction of the commitment amount. In addition, Ryerson Inc. will be required to repay outstanding loans or cash collateralize letters of credit with the proceeds from certain asset sales, in such amount as is necessary if excess availability under the Ryerson Credit Facility is less than a predetermined amount. If excess availability under the Ryerson Credit Facility is less than such predetermined amount or certain events of default have occurred under the Ryerson Credit Facility, Ryerson Inc. will be required to repay outstanding loans and cash collateralize letters of credit with the cash we are required to deposit daily in a collection account maintained with the agent under the Ryerson Credit Facility.

The 2017 Notes and 2018 Notes

Senior Secured Notes Due 2017

General

On October 10, 2012, Ryerson Inc. and JT Ryerson issued $600 million in aggregate principal amount of senior secured notes due 2017 (the “2017 Notes”). The 2017 Notes are fully and unconditionally guaranteed on a senior secured basis by each of Ryerson Inc.’s existing and future domestic subsidiaries that are co-borrowers or guarantee obligations under the Ryerson Credit Facility. The 2017 Notes and guarantees are secured by a first-priority lien on substantially all of Ryerson Inc.’s and Ryerson Inc.’s guarantors’ present and future assets located in the United States (other than receivables, inventory, related general intangibles, certain other assets and proceeds thereof), in each case subject to certain exceptions and customary permitted liens. The 2017 Notes and guarantees are secured on a second-priority basis by a lien on the assets that secure Ryerson Inc.’s obligations under the Ryerson Credit Facility including receivables and inventory and related general intangibles, certain other assets and proceeds thereof. This second-priority lien is subject to a first-priority lien securing the Ryerson Credit Facility and other customary liens permitted under such facility, until such facility and obligations are paid in full.

In connection with the issuance of the 2017 Notes, Ryerson Inc. and JT Ryerson entered into a registration rights agreement, pursuant to which Ryerson Inc. agreed to file with the SEC by July 7, 2013, a registration statement with respect to an offer to exchange each of the 2017 Notes for a new issue of debt securities registered under the Securities Act, with terms substantially identical to those of the 2017 Notes and to consummate an exchange offer no later than October 5, 2013. As of the date of this registration statement, Ryerson Inc. has not yet conducted an exchange offer with respect to the 2017 Notes.

From time to time, Ryerson Inc. may in the future repurchase the 2017 Notes in the open market.

Interest

The 2017 Notes bear interest at a fixed rate of 9.000% per annum.

Redemption

The 2017 Notes are redeemable by Ryerson Inc., in whole or in part, at any time on or after April 15, 2015, at specified redemption prices. In addition, Ryerson Inc. may redeem up to 35% of the outstanding 2017 Notes before April 15, 2015 with the net cash proceeds from certain equity offerings at a price equal to 109.000% of the principal amount of the 2017 Notes, plus accrued but unpaid interest. Ryerson Inc. may also redeem some or all of the 2017 Notes before April 15, 2015 at a redemption price equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the redemption date, plus a “make-whole” premium.

Change of Control

If a change of control occurs, Ryerson Inc. is required to make an offer to purchase the 2017 Notes at 101% of their principal amount, plus accrued and unpaid interest.

 

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Covenants

The indenture governing the 2017 Notes contains customary covenants that, among other things, limit, subject to certain exceptions, Ryerson Inc.’s ability, and the ability of its restricted subsidiaries, to:

 

   

incur additional indebtedness;

 

   

pay dividends on its capital stock or repurchase its capital stock;

 

   

make certain investments or other restricted payments;

 

   

create liens or use assets as security in other transactions;

 

   

merge, consolidate or transfer or dispose of substantially all of our assets; and

 

   

engage in transactions with affiliates.

Events of Default

Each of the following constitutes an “Event of Default” under the indenture governing the 2017 Notes:

 

   

default in the payment in respect of the principal of (or premium, if any, on) any 2017 Note at its maturity;

 

   

default in the payment of any interest upon any 2017 Note when it becomes due and payable, and continuance of such default for a period of 30 days;

 

   

failure to perform or comply with the provisions of the indenture governing the 2017 Notes relating to consolidations, mergers, conveyance, transfers or leases involving Ryerson Inc. or its subsidiaries or Ryerson Inc.’s assets or the assets of its subsidiaries;

 

   

except as permitted by the indenture governing the 2017 Notes, any guarantee of a significant subsidiary ceases to be in full force and effect and enforceable in accordance with its terms;

 

   

default in the performance, or breach, of any other covenant or agreement of Ryerson Inc. or any guarantor in the indenture (other than the items discussed directly above) governing the 2017 Notes and continuance of such default or breach for a period of 60 days (or 120 days with respect to a default under the “Provision of Financial Information” covenant contained in the indenture governing the 2017 Notes) after written notice thereof has been given to Ryerson Inc. by the trustee or to Ryerson Inc. and the trustee by holders of at least 25% in aggregate principal amount of the outstanding 2017 Notes;

 

   

a default or defaults under any bonds, debentures, notes or other evidences of debt (other than the 2017 Notes) by Ryerson Inc. or any of its restricted subsidiaries having, individually or in the aggregate, a principal or similar amount outstanding of at least $20 million, which resulted in the acceleration of the maturity of such debt prior to its express maturity or a failure to pay at least $20 million of such debt when due and payable after the expiration of any applicable grace period;

 

   

the entry against Ryerson Inc. or any of its restricted subsidiaries that is a significant subsidiary of a final judgment or final judgments for the payment of money in an aggregate amount in excess of $20 million, by a court or courts of competent jurisdiction, which judgments remain undischarged, unwaived, unstayed, unbonded or unsatisfied for a period of 60 consecutive days;

 

   

certain events in bankruptcy, insolvency or reorganization affecting Ryerson Inc. or any of its significant subsidiaries; or

 

   

unless the collateral securing the 2017 Notes has been released from the notes under the security documents, default by Ryerson Inc. or any of its subsidiaries in the performance of its obligations pursuant to its security documents which adversely affects the enforceability, validity, perfection or priority of the note liens on a material portion of the note collateral granted to the collateral agent for

 

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the benefit of the trustee and the holders of the 2017 Notes, the repudiation or disaffirmation by Ryerson Inc. or any of its subsidiaries of its material obligations under the security documents or the determination in a judicial proceeding that the security documents are unenforceable or invalid against Ryerson Inc. or any of its subsidiaries party thereto for any reason with respect to a material portion of the note collateral (which default, repudiation, disaffirmation or determination is not rescinded, stayed, or waived by the persons having such authority pursuant to the security documents) or otherwise cured within 60 days after Ryerson Inc. receives written notice thereof specifying the occurrence from the trustee or holders of at least 66 2 / 3 % of the outstanding principal amount and demanding that such default be remedied.

Senior Notes Due 2018

General

Also on October 10, 2012, Ryerson Inc. and JT Ryerson issued $300 million in aggregate principal amount of senior notes due 2018 (the “2018 Notes”). The 2018 Notes are fully and unconditionally guaranteed on a senior basis by each of Ryerson Inc.’s existing and future domestic subsidiaries that are co-borrowers or guarantee obligations under the Ryerson Credit Facility.

In connection with the issuance of the 2018 Notes, Ryerson Inc. and JT Ryerson entered into a registration rights agreement, pursuant to which Ryerson Inc. agreed to file with the SEC by July 7, 2013, a registration statement with respect to an offer to exchange each of the 2018 Notes for a new issue of debt securities registered under the Securities Act, with terms substantially identical to those of the 2018 Notes and to consummate an exchange offer no later than October 5, 2013. As of the date of this registration statement, Ryerson Inc. has not yet conducted an exchange offer with respect to the 2018 Notes.

From time to time, Ryerson Inc. may in the future repurchase the 2018 Notes in the open market.

Interest

The 2018 Notes bear interest at a fixed rate of 11.250% per annum.

Redemption

The 2018 Notes are redeemable by Ryerson Inc., in whole or in part, at any time on or after October 15, 2015, at specified redemption prices. In addition, we may redeem up to 35% of the outstanding 2018 Notes before October 15, 2015 with the net cash proceeds from certain equity offerings at a price equal to 111.250% of the principal amount of the 2018 Notes, plus accrued but unpaid interest. We may also redeem some or all of the 2018 Notes before October 15, 2015 at a redemption price equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the redemption date, plus a “make-whole” premium.

Change of Control

If a change of control occurs, Ryerson Inc. is required to make an offer to purchase the 2018 Notes at 101% of their principal amount, plus accrued and unpaid interest.

Covenants

The indenture governing the 2018 Notes contains customary covenants that, among other things, limit, subject to certain exceptions, Ryerson Inc.’s ability, and the ability of its restricted subsidiaries, to:

 

   

incur additional indebtedness;

 

   

pay dividends on its capital stock or repurchase its capital stock;

 

   

make certain investments or other restricted payments;

 

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create liens or use assets as security in other transactions;

 

   

merge, consolidate or transfer or dispose of substantially all of our assets; and

 

   

engage in transactions with affiliates.

Events of Default

Each of the following constitutes an “Event of Default” under the indenture governing the 2018 Notes:

 

   

default in the payment in respect of the principal of (or premium, if any, on) any 2018 Note at its maturity;

 

   

default in the payment of any interest upon any 2018 Note when it becomes due and payable, and continuance of such default for a period of 30 days;

 

   

failure to perform or comply with the provisions of the indenture governing the 2018 Notes relating to consolidations, mergers, conveyance, transfers or leases involving Ryerson Inc. or its subsidiaries or Ryerson Inc.’s assets or the assets of its subsidiaries;

 

   

except as permitted by the indenture governing the 2018 Notes, any guarantee of a significant subsidiary ceases to be in full force and effect and enforceable in accordance with its terms;

 

   

default in the performance, or breach, of any other covenant or agreement of Ryerson Inc. or any guarantor in the indenture (other than the items discussed directly above) governing the 2018 Notes and continuance of such default or breach for a period of 60 days (or 120 days with respect to a default under the “Provision of Financial Information” covenant contained in the indenture governing the 2018 Notes) after written notice thereof has been given to Ryerson Inc. by the trustee or to Ryerson Inc. and the trustee by holders of at least 25% in aggregate principal amount of the outstanding 2018 Notes;

 

   

a default or defaults under any bonds, debentures, notes or other evidences of debt (other than the 2018 Notes) by Ryerson Inc. or any of its restricted subsidiaries having, individually or in the aggregate, a principal or similar amount outstanding of at least $20 million, which resulted in the acceleration of the maturity of such debt prior to its express maturity or a failure to pay at least $20 million of such debt when due and payable after the expiration of any applicable grace period;

 

   

the entry against Ryerson Inc. or any of its restricted subsidiaries that is a significant subsidiary of a final judgment or final judgments for the payment of money in an aggregate amount in excess of $20 million, by a court or courts of competent jurisdiction, which judgments remain undischarged, unwaived, unstayed, unbonded or unsatisfied for a period of 60 consecutive days; or

 

   

certain events in bankruptcy, insolvency or reorganization affecting Ryerson Inc. or any of its significant subsidiaries.

Foreign Debt

As of December 31, 2012, Ryerson China’s total foreign borrowings were $21.4 million, which were owed to banks in Asia at a weighted average interest rate of 4.8% and secured by inventory, property, plant and equipment. At December 31, 2012, Açofran’s total foreign borrowings were $0.5 million, which were owed to foreign banks at a weighted average interest rate of 11.2%. Availability under the foreign credit lines was $21 million at December 31, 2012. Letters of credit issued by our foreign subsidiaries totaled $8 million at December 31, 2012.

 

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SHARES ELIGIBLE FOR FUTURE SALE

Prior to this offering, there was no public market for our common stock, and we cannot predict what effect, if any, market sales of shares of common stock or the availability of shares of common stock for sale will have on the market price of our common stock. Nevertheless, sales of substantial amounts of common stock in the public market, or the perception that such sales could occur, could materially and adversely affect the market price of our common stock and could impair our future ability to raise capital through the sale of our equity or equity-related securities at a time and price that we deem appropriate. None of our common stock is subject to outstanding options or warrants to purchase, or securities convertible into, common stock of Ryerson Holding.

As of April 15, 2013, there were nine holders of record of our common stock. Upon the closing of this offering, we will have outstanding an aggregate of             shares of our common stock. Of the outstanding shares, the shares sold in this offering, including any shares sold in this offering in connection with the exercise by the underwriters of their over-allotment option, will be freely tradable without restriction or further registration under the Securities Act, except that any shares purchased in this offering by our “affiliates,” as that term is defined under Rule 144 of the Securities Act, may be sold only in compliance with the limitations described below. The remaining outstanding shares of common stock that are not sold in this offering, or             shares, will be deemed “restricted securities” as that term is defined under Rule 144. Restricted securities may be sold in the public market only if registered or if they qualify for an exemption from registration under the Securities Act, such as under Rule 144 under the Securities Act, which are summarized below.

Rule 144

In general, under Rule 144 under the Securities Act of 1933, as in effect on the date of this prospectus, a person who is not one of our affiliates at any time during the three months preceding a sale, and who has beneficially owned shares of our common stock for at least six months would be entitled to sell an unlimited number of shares of our common stock provided current public information about us is available and, after one year, an unlimited number of shares of our common stock without restriction. Our affiliates who have beneficially owned shares of our common stock for at least six months are entitled to sell within any three-month period a number of shares that does not exceed the greater of:

 

   

1% of the number of shares of our common stock then outstanding, which will equal approximately             shares immediately after this offering, based on the number of shares of our common stock outstanding upon completion of this offering; or

 

   

the average weekly trading volume of our common stock on the NYSE during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale.

Sales under Rule 144 by our affiliates are also subject to manner of sale provisions and notice requirements and to the availability of current public information about us.

Lock-up Agreements

In connection with this offering, we, our directors, our executive officers and all our stockholders have agreed, subject to certain exceptions, with the underwriters not to dispose of or hedge any shares of our common stock or securities convertible into or exchangeable for shares of common stock during the period from the date of this prospectus continuing through the date 180 days after the date of this prospectus, except with the prior written consent of                                         .                                         has advised us that they have no current intent or arrangement to release any of the shares subject to the lock-up agreements prior to the expiration of the lock-up period. The lock-up agreements permit stockholders to transfer common stock and other securities subject to the lock-up agreements in certain circumstances; any waiver is at the discretion of                                          .

 

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The 180-day restricted period described in the preceding paragraph will be extended if:

 

   

during the last 17 days of the 180-day restricted period we issue an earnings release or announce material news or a material event; or

 

   

prior to the expiration of the 180-day restricted period, we announce that we will release earnings results during the 16-day period beginning on the last day of the 180-day period,

in which case the restrictions described in the preceding paragraph will continue to apply until the expiration of the 18-day period beginning on the date of the issuance of the earnings release or the announcement of the material news or material event.

Taking into account the lock-up agreements described above, and assuming that                         does not release any parties from these agreements, that there is no extension of the lock-up period, that the underwriters do not exercise their over-allotment option, that no parties to the lock-up agreements will purchase shares, and no other individuals will purchase shares, in excess of $1,000,000 in the directed share program, that no stockholders that hold the registration rights described in “Certain Relationships and Related Party Transactions—Investor Rights Agreement” exercise those rights and without giving effect to the terms of the lock-up provisions contained in the investor rights agreement, the following securities will be eligible for sale in the public market at the following times pursuant to the provisions of Rule 144:

 

Measurement Date

  

Aggregate Shares Eligible for

Public Sale

  

Comments

On the date of this prospectus

      Shares sold in this offering.

180 days after the completion of this offering

      Consists of shares eligible for sale under Rule 144.

One year after the completion of this offering

      Consists of shares eligible for sale under Rule 144.

Initial Public Offering Price

Prior to this offering, there has been no public market for our common stock. The initial public offering price will be negotiated between us and the representatives of the underwriters. Among the factors to be considered in these negotiations are:

 

   

the history of, and prospects for, our company and the industry in which we compete;

 

   

our past and present financial performance;

 

   

an assessment of our management;

 

   

the present state of our development;

 

   

the prospects for our future earnings;

 

   

the prevailing conditions of the applicable U.S. securities market at the time of this offering;

 

   

market valuations of publicly traded companies that we and the representative of the underwriters believe to be comparable to us; and

 

   

other factors deemed relevant.

The estimated initial public offering price range set forth on the cover of this preliminary prospectus is subject to change as a result of market conditions and other factors.

 

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MATERIAL U.S. FEDERAL INCOME AND ESTATE TAX CONSIDERATIONS

The following is a general discussion of the material U.S. federal income and estate tax consequences of the ownership and disposition of our common stock by a “non-U.S. holder,” but is not a complete analysis of all the potential U.S. federal income and estate tax consequences relating thereto. For this purpose, you are a “non-U.S. holder” if you are, for U.S. federal income tax purposes:

 

   

a nonresident alien individual,

 

   

a foreign corporation, or

 

   

a foreign estate or trust.

A “non-U.S. holder” does not include an individual who is present in the United States for 183 days or more in the taxable year of disposition and is not otherwise a resident of the United States for U.S. federal income tax purposes. Such an individual is urged to consult his or her own tax advisor regarding the U.S. federal income and estate tax consequences of the ownership and disposition of common stock.

If an entity treated as a partnership for U.S. federal income tax purposes holds common stock, the tax treatment of a partner will generally depend on the status of the partner and upon the activities of the partnership. Accordingly, partnerships that are considering an investment in our common stock and partners in such partnerships should consult their respective tax advisors with respect to the U.S. federal income and estate tax consequences of the ownership and disposition of common stock.

This discussion does not address all aspects of U.S. federal income and estate taxation that may be relevant in light of a non-U.S. holder’s special tax status or special circumstances. U.S. expatriates, insurance companies, tax-exempt organizations, dealers in securities, banks or other financial institutions, “controlled foreign corporations,” “passive foreign investment companies,” corporations that accumulate earnings to avoid U.S. federal income tax and investors that hold common stock as part of a hedge, straddle or conversion transaction are among those categories of potential investors that may be subject to special rules not covered in this discussion. This discussion does not address any U.S. federal tax consequences other than income and estate tax consequences or any tax consequences arising under the laws of any state, local or non-U.S. taxing jurisdiction. Furthermore, the following discussion is based on current provisions of the Internal Revenue Code of 1986, as amended, Treasury Regulations and administrative and judicial interpretations thereof, all as in effect on the date hereof, and all of which are subject to change, possibly with retroactive effect. Accordingly, each non-U.S. holder should consult its tax advisors regarding the U.S. federal, state, local and non-U.S. income, estate and other tax consequences of acquiring, holding and disposing of shares of our common stock.

INVESTORS CONSIDERING THE PURCHASE OF SECURITIES PURSUANT TO THIS OFFERING ARE ENCOURAGED TO CONSULT THEIR OWN TAX ADVISORS REGARDING THE APPLICATION OF THE U.S. FEDERAL INCOME AND ESTATE TAX LAWS TO THEIR PARTICULAR SITUATIONS AND THE APPLICATION OF OTHER FEDERAL TAX LAWS, FOREIGN, STATE AND LOCAL LAWS, AND TAX TREATIES.

Dividends

Payments on common stock will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. Amounts not treated as dividends for U.S. federal income tax purposes will constitute a return of capital and will first be applied against and reduce a holder’s adjusted basis in the common stock (determined on a share-by-share basis), but not below zero, and then the excess, if any, will be treated as gain from the sale of common stock.

As discussed under “Dividend Policy” above, we do no currently anticipate paying any dividends in the foreseeable future. In the event that we do pay dividends, amounts paid to a non-U.S. holder of common stock which are treated as dividends for U.S. federal income tax purposes generally will be subject to U.S. withholding

 

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tax at a rate of 30% of the gross amount of the dividends or such lower rate as may be specified by an applicable tax treaty. In order to receive a reduced treaty rate, a non-U.S. holder generally must provide a valid Internal Revenue Service, or IRS, Form W-8BEN or other successor form certifying qualification for the reduced rate.

Dividends received by a non-U.S. holder that are effectively connected with a U.S. trade or business conducted by the non-U.S. holder are exempt from such withholding tax. In order to obtain this exemption, a non-U.S. holder must provide a valid IRS Form W-8ECI or other applicable form properly certifying such exemption. Such effectively connected dividends, although not subject to withholding tax will generally be subject to regular U.S. federal income tax as if the non-U.S. holder were a U.S. resident, unless an applicable income tax treaty provides otherwise. A non-U.S. corporation receiving effectively connected dividends may also be subject to an additional “branch profits tax” imposed at a rate of 30% (or a lower treaty rate) on the earnings and profits attributable to its effectively connected income.

Gain on Disposition of Common Stock

A non-U.S. holder generally will not be subject to U.S. federal income tax on any gain realized upon the sale or other disposition of common stock unless:

 

   

the gain is “effectively connected” with the non-U.S. holder’s conduct of a trade or business in the United States, or

 

   

we are or have been a U.S. real property holding corporation (“USRPHC”), as defined below, at any time within the five-year period preceding the disposition or the non-U.S. holder’s holding period, whichever period is shorter (the “relevant period”).

Unless an applicable treaty provides otherwise, gain described in the first bullet point above generally will be subject to regular U.S. federal income tax as if the U.S. holder were a U.S. resident and, in the case of non-U.S. holders taxed as corporations, the branch profits tax described above may also apply.

Generally, a corporation is a USRPHC if the fair market value of its U.S. real property interests, as defined in the Code and applicable regulations, equals or exceeds 50% of the aggregate fair market value of its worldwide real property interests and its other assets used or held for use in a trade or business.

We believe that we are not, and currently do not anticipate becoming, a USRPHC. However, there can be no assurance that our current analysis is correct or that we will not become a USRPHC in the future. Even if we are or become a USRPHC, as long as our common stock is regularly traded on an established securities market, such common stock will be treated as U.S. real property interests only if the non-U.S. holder actually or constructively held more than 5% of such regularly traded common stock at some time during the relevant period.

Backup Withholding and Information Reporting

Information returns will be filed with the Internal Revenue Service in connection with payments of dividends and the proceeds from a sale or other disposition of common stock. You may have to comply with certification procedures to establish that you are not a U.S. person in order to avoid information reporting and backup withholding tax requirements. The certification procedures required to claim a reduced rate of withholding under a treaty generally will satisfy the certification requirements necessary to avoid the backup withholding tax as well. The amount of any backup withholding from a payment to you will be allowed as a credit against your U.S. federal income tax liability and may entitle you to a refund, provided that the required information is timely furnished to the Internal Revenue Service.

U.S. Federal Estate Tax

Shares of common stock held (or deemed held) by an individual who is a non-U.S. holder at the time of his or her death generally will be included in such non-U.S. holder’s gross estate for U.S. federal estate tax purposes, unless an applicable estate tax treaty provides otherwise.

 

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Foreign Account Tax Compliance Act

The Foreign Account Tax Compliance Act (“FATCA”) generally imposes a 30% U.S. withholding tax on dividends paid on, and gross proceeds from the sale or other disposition of, our common stock, if paid either to a:

 

   

foreign financial institution (“FFI”) (whether such FFI is the beneficial owner or an intermediary), that does not meet the information reporting requirements of FATCA, or a

 

   

non-financial foreign entity (“NFFE”) (whether such NFFE is the beneficial owner or an intermediary) that is not exempt from the FATCA requirements and does not meet relevant information reporting requirements.

Pursuant to recently issued Treasury regulations, FATCA withholding applies to dividends paid on or after January 1, 2014 and to the gross proceeds from the disposition of stock on or after January 1, 2017. Non-U.S. holders are urged to consult their of tax advisors regarding the impact of FATCA on their ownership and disposition of our common stock.

 

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UNDERWRITING

Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc. and BMO Capital Markets Corp. are acting as book-running managers of this offering and representatives of each of the underwriters named below. Subject to the terms and conditions set forth in a purchase agreement among us, the selling stockholders and the underwriters, we and the selling stockholders have agreed to sell to the underwriters, and each of the underwriters has agreed, severally and not jointly, to purchase from us the number of shares of common stock set forth opposite its name below.

 

Underwriter        Number
of Shares

Merrill Lynch, Pierce, Fenner & Smith

                     Incorporated

    

Deutsche Bank Securities Inc.

    

BMO Capital Markets Corp.

    

J.P. Morgan Securities LLC

    

Jefferies LLC

    

Wells Fargo Securities, LLC

    

KeyBanc Capital Markets Inc.

    

Citigroup Global Markets Inc.

    

Macquarie Capital (USA) Inc.

    

Evercore Group L.L.C.

    
    

 

Total

    
    

 

Subject to the terms and conditions set forth in the purchase agreement, the underwriters have agreed, severally and not jointly, to purchase all of the shares sold under the purchase agreement if any of these shares are purchased. If an underwriter defaults, the purchase agreement provides that the purchase commitments of the nondefaulting underwriters may be increased or the purchase agreement may be terminated.

We and the selling stockholders have agreed to indemnify the underwriters against certain liabilities, including liabilities under the Securities Act and liabilities incurred in connection with the directed share program referred to below, or to contribute to payments the underwriters may be required to make in respect of those liabilities.

The underwriters are offering the shares, subject to prior sale, when, as and if issued to and accepted by them, subject to approval of legal matters by their counsel, including the validity of the shares, and other conditions contained in the purchase agreement, such as the receipt by the underwriters of officer’s certificates and legal opinions. The underwriters reserve the right to withdraw, cancel or modify offers to the public and to reject orders in whole or in part.

Commissions and Discounts

The representative has advised us and the selling stockholders that the underwriters propose initially to offer the shares to the public at the public offering price set forth on the cover page of this prospectus and to dealers at that price less a concession not in excess of $             per share. After the initial offering, the public offering price, concession or any other term of the offering may be changed.

 

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The following table shows the public offering price, underwriting discount and proceeds before expenses to us and the selling stockholders. The information assumes either no exercise or full exercise by the underwriters of their overallotment option.

 

     Per Share      Without Option      With Option  

Public offering price

   $                    $                          $                  

Underwriting discount

   $         $         $     

Proceeds, before expenses, to us.

   $         $         $     

Proceeds, before expenses, to the selling stockholders

   $         $         $     

The expenses of the offering, not including the underwriting discount, are estimated at $4,000,000 and are payable by us and the selling stockholders.

The selling stockholders may be deemed to be underwriters within the meaning of the Securities Act.

Overallotment Option

The selling stockholders have granted an option to the underwriters to purchase up to                  additional shares at the public offering price, less the underwriting discount. The underwriters may exercise this option for 30 days from the date of this prospectus solely to cover any overallotments. If the underwriters exercise this option, each will be obligated, subject to conditions contained in the purchase agreement, to purchase a number of additional shares proportionate to that underwriter’s initial amount reflected in the above table.

No Sales of Similar Securities

We, our executive officers, our directors and all of our stockholders have agreed not to sell or transfer any common stock or securities convertible into, exchangeable for, exercisable for, or repayable with common stock, for 180 days after the date of this prospectus without first obtaining the written consent of                                 . Specifically, we and these other persons have agreed, with certain limited exceptions, not to directly or indirectly

 

   

offer, pledge, sell or contract to sell any common stock,

 

   

sell any option or contract to purchase any common stock,

 

   

purchase any option or contract to sell any common stock,

 

   

grant any option, right or warrant for the sale of any common stock,

 

   

lend or otherwise dispose of or transfer any common stock,

 

   

request or demand that we file a registration statement related to the common stock, or

 

   

enter into any swap or other agreement that transfers, in whole or in part, the economic consequence of ownership of any common stock whether any such swap or transaction is to be settled by delivery of shares or other securities, in cash or otherwise.

This lock-up provision applies to common stock and to securities convertible into or exchangeable or exercisable for or repayable with common stock. It also applies to common stock owned now or acquired later by the person executing the agreement or for which the person executing the agreement later acquires the power of disposition. In the event that either (x) during the last 17 days of the lock-up period referred to above, we issue an earnings release or material news or a material event relating to us occurs or (y) prior to the expiration of the lock-up period, we announce that we will release earnings results or become aware that material news or a material event will occur during the 16-day period beginning on the last day of the lock-up period, the restrictions described above shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.

 

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New York Stock Exchange

We expect the shares to be approved for listing on the NYSE under the symbol “RYI.” In order to meet the requirements for listing on that exchange, the underwriters have undertaken to sell a minimum number of shares to a minimum number of beneficial owners as required by that exchange.

Before this offering, there has been no public market for our common stock. The initial public offering price will be determined through negotiations among us, the selling stockholders and the representative. In addition to prevailing market conditions, the factors to be considered in determining the initial public offering price are

 

   

the valuation multiples of publicly traded companies that the representative believes to be comparable to us,

 

   

our financial information,

 

   

the history of, and the prospects for, our company and the industry in which we compete,

 

   

an assessment of our management, its past and present operations, and the prospects for, and timing of, our future revenues,

 

   

the present state of our development, and

 

   

the above factors in relation to market values and various valuation measures of other companies engaged in activities similar to ours.

An active trading market for the shares may not develop. It is also possible that after the offering the shares will not trade in the public market at or above the initial public offering price.

The underwriters do not expect to sell more than 5% of the shares in the aggregate to accounts over which they exercise discretionary authority.

Price Stabilization, Short Positions and Penalty Bids

Until the distribution of the shares is completed, SEC rules may limit underwriters and selling group members from bidding for and purchasing our common stock. However, the representative may engage in transactions that stabilize the price of the common stock, such as bids or purchases to peg, fix or maintain that price.

In connection with the offering, the underwriters may purchase and sell our common stock in the open market. These transactions may include short sales, purchases on the open market to cover positions created by short sales and stabilizing transactions. Short sales involve the sale by the underwriters of a greater number of shares than they are required to purchase in the offering. “Covered” short sales are sales made in an amount not greater than the underwriters’ overallotment option described above. The underwriters may close out any covered short position by either exercising their overallotment option or purchasing shares in the open market. In determining the source of shares to close out the covered short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase shares through the overallotment option. “Naked” short sales are sales in excess of the overallotment option. The underwriters must close out any naked short position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of our common stock in the open market after pricing that could adversely affect investors who purchase in the offering. Stabilizing transactions consist of various bids for or purchases of shares of common stock made by the underwriters in the open market prior to the completion of the offering.

The underwriters may also impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the representative has repurchased shares sold by or for the account of such underwriter in stabilizing or short covering transactions.

 

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Similar to other purchase transactions, the underwriters’ purchases to cover the syndicate short sales may have the effect of raising or maintaining the market price of our common stock or preventing or retarding a decline in the market price of our common stock. As a result, the price of our common stock may be higher than the price that might otherwise exist in the open market. The underwriters may conduct these transactions on the NYSE, in the over-the-counter market or otherwise.

Neither we nor any of the underwriters make any representation or prediction as to the direction or magnitude of any effect that the transactions described above may have on the price of our common stock. In addition, neither we nor any of the underwriters make any representation that the representative will engage in these transactions or that these transactions, once commenced, will not be discontinued without notice.

Directed Share Program

At our request, the underwriters have reserved up to 5% of the shares of common stock for sale at the initial public offering price to persons who are employees, officers, directors and other parties associated with us through a directed share program. The number of shares of common stock available for sale to the general public will be reduced by the number of directed shares purchased by participants in the program. Any directed shares not purchased will be offered by the underwriters to the general public on the same basis as all other shares of common stock offered. We have agreed to indemnify the underwriters against certain liabilities and expenses, including liabilities under the Securities Act, in connection with the sales of the directed shares. Individuals who purchase shares in excess of $1,000,000 in the directed share program will be subject to a 25-day lock-up period, except that any of our executive officers or directors or any selling stockholders who purchase shares in the directed share program will remain subject to the 180-day lock-up period from the date of this prospectus, as described above.

Electronic Offer, Sale and Distribution of Shares

In connection with the offering, certain of the underwriters or securities dealers may distribute prospectuses by electronic means, such as e-mail, Internet sites or through other online services maintained by one or more of the underwriters and/or securities dealers participating in this offering, or by their affiliates. In those cases, prospective investors may view offering terms online and, depending upon the particular underwriter or securities dealer, prospective investors may be allowed to place orders online. The underwriters may agree with us to allocate a specific number of units for sale to online brokerage account holders. Any such allocation for online distributions will be made by the representative on the same basis as other allocations. Other than the prospectus in electronic format, the information on any underwriter’s or securities dealer’s web site and any information contained in any other web site maintained by an underwriter or securities dealer is not part of the prospectus or the registration statement of which this prospectus forms a part, has not been approved and/or endorsed by us or any underwriter or securities dealer in its capacity as underwriter or securities dealer and should not be relied upon by investors.

Other Relationships

Some of the underwriters and their affiliates have engaged in, and may in the future engage in, investment banking and other commercial dealings in the ordinary course of business with us or our affiliates. They have received, or may in the future receive, customary fees and commissions for these transactions. Certain of the underwriters and/or their affiliates are agents and/or lenders under the Ryerson Credit Facility, all or a portion of which shall be repaid using the proceeds of this offering, and certain affiliates of the underwriters may hold 2017 Notes or 2018 Notes that will be redeemed using the proceeds of this offering. As such, certain of the underwriters and/or their affiliates may receive a portion of the proceeds of this offering.

 

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Notice To Prospective Investors In The European Economic Area

In relation to each member state of the European Economic Area (each, a “Relevant Member State”), including each Relevant Member State that has implemented the 2010 PD Amending Directive with regard to persons to whom an offer of securities is addressed and the denomination per unit of the offer of securities (each, an “Early Implementing Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), no offer of shares will be made to the public in that Relevant Member State (other than offers (the “Permitted Public Offers”) where a prospectus will be published in relation to the shares that has been approved by the competent authority in a Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive), except that with effect from and including that Relevant Implementation Date, offers of shares may be made to the public in that Relevant Member State at any time:

 

  A. to any legal entity which is a qualified investor as defined in the Prospectus Directive;

 

  (a) (in the case of Relevant Member States that have not implemented the 2010 PD Amending Directive), legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities, or any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; and

 

  (b) (in the case of Relevant Member States that have implemented the 2010 PD Amending Directive), persons or entities that are described in points (1) to (4) of Section I of Annex II to Directive 2004/39/EC, and those who are treated on request as professional clients in accordance with Annex II to Directive 2004/39/EC, or recognized as eligible counterparties in accordance with Article 24 of Directive 2004/39/EC unless they have requested that they be treated as non-professional clients; or

 

  B. to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representative[s]; or

 

  C. in any other circumstances falling within Article 3(2) of the Prospectus Directive,

provided that no such offer of shares shall require the Company or the representative[s] to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive.

Each person in a Relevant Member State (other than a Relevant Member State where there is a Permitted Public Offer) who initially acquires any shares or to whom any offer is made will be deemed to have represented, acknowledged and agreed that (A) it is a “qualified investor” within the meaning of the law in that Relevant Member State implementing Article 2(1)(e) of the Prospectus Directive, and (B) in the case of any shares acquired by it as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, the shares acquired by it in the offering have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons in any Relevant Member State other than “qualified investors” as defined in the Prospectus Directive, or in circumstances in which the prior consent of the Subscribers has been given to the offer or resale. In the case of any shares being offered to a financial intermediary as that term is used in Article 3(2) of the Prospectus Directive, each such financial intermediary will be deemed to have represented, acknowledged and agreed that the shares acquired by it in the offer have not been acquired on a non-discretionary basis on behalf of, nor have they been acquired with a view to their offer or resale to, persons in circumstances which may give rise to an offer of any shares to the public other than their offer or resale in a Relevant Member State to qualified investors as so defined or in circumstances in which the prior consent of the representative has been obtained to each such proposed offer or resale.

 

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The Company, the representative and their affiliates will rely upon the truth and accuracy of the foregoing representation, acknowledgement and agreement.

For the purpose of the above provisions, the expression “an offer to the public” in relation to any shares in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer of any shares to be offered so as to enable an investor to decide to purchase any shares, as the same may be varied in the Relevant Member State by any measure implementing the Prospectus Directive in the Relevant Member State and the expression “Prospectus Directive” means Directive 2003/71 EC (and amendments thereto, including the 2010 PD Amending Directive, in the case of Early Implementing Member States) and includes any relevant implementing measure in each Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU.

Notice to Prospective Investors in the United Kingdom

In the United Kingdom, this document is being distributed only to, and is directed only at, and any offer subsequently made may only be directed at persons who are “qualified investors” (as defined in the Prospectus Directive) (i) who have professional experience in matters relating to investments falling within Article 19 (5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the “Order”) and/or (ii) who are high net worth companies (or persons to whom it may otherwise be lawfully communicated) falling within Article 49(2)(a) to (d) of the Order (all such persons together being referred to as “relevant persons”). This document must not be acted on or relied on in the United Kingdom by persons who are not relevant persons. In the United Kingdom, any investment or investment activity to which this document relates is only available to, and will be engaged in with, relevant persons.

Notice to Prospective Investors in Switzerland

The shares may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (“SIX”) or on any other stock exchange or regulated trading facility in Switzerland. This document has been prepared without regard to the disclosure standards for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility in Switzerland. Neither this document nor any other offering or marketing material relating to the shares or the offering may be publicly distributed or otherwise made publicly available in Switzerland.

Neither this document nor any other offering or marketing material relating to the offering, the Company, the shares have been or will be filed with or approved by any Swiss regulatory authority. In particular, this document will not be filed with, and the offer of shares will not be supervised by, the Swiss Financial Market Supervisory Authority FINMA (FINMA), and the offer of shares has not been and will not be authorized under the Swiss Federal Act on Collective Investment Schemes (“CISA”). The investor protection afforded to acquirers of interests in collective investment schemes under the CISA does not extend to acquirers of shares.

Notice to Prospective Investors in Australia

This prospectus is not a formal disclosure document and has not been, nor will be, lodged with the Australian Securities and Investments Commission. It does not purport to contain all information that an investor or their professional advisers would expect to find in a prospectus or other disclosure document (as defined in the Corporations Act 2001 (Australia)) for the purposes of Part 6D.2 of the Corporations Act 2001 (Australia) or in a product disclosure statement for the purposes of Part 7.9 of the Corporations Act 2001 (Australia), in either case, in relation to the securities.

The securities are not being offered in Australia to “retail clients” as defined in sections 761G and 761GA of the Corporations Act 2001 (Australia). This offering is being made in Australia solely to “wholesale clients” for the purposes of section 761G of the Corporations Act 2001 (Australia) and, as such, no prospectus, product disclosure statement or other disclosure document in relation to the securities has been, or will be, prepared.

 

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This prospectus does not constitute an offer in Australia other than to wholesale clients. By submitting an application for our securities, you represent and warrant to us that you are a wholesale client for the purposes of section 761G of the Corporations Act 2001 (Australia). If any recipient of this prospectus is not a wholesale client, no offer of, or invitation to apply for, our securities shall be deemed to be made to such recipient and no applications for our securities will be accepted from such recipient. Any offer to a recipient in Australia, and any agreement arising from acceptance of such offer, is personal and may only be accepted by the recipient. In addition, by applying for our securities you undertake to us that, for a period of 12 months from the date of issue of the securities, you will not transfer any interest in the securities to any person in Australia other than to a wholesale client.

Notice to Prospective Investors in Hong Kong

Our securities may not be offered or sold in Hong Kong, by means of this prospectus or any document other than (i) to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) and any rules made thereunder, or (ii) in circumstances which do not constitute an offer to the public within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong), or (iii) in other circumstances which do not result in the document being a “prospectus” within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong). No advertisement, invitation or document relating to our securities may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere) which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to the securities which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder.

Notice to Prospective Investors in Japan

Our securities have not been and will not be registered under the Financial Instruments and Exchange Law of Japan (the Financial Instruments and Exchange Law) and our securities will not be offered or sold, directly or indirectly, in Japan, or to, or for the benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan), or to others for re-offering or resale, directly or indirectly, in Japan, or to a resident of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Financial Instruments and Exchange Law and any other applicable laws, regulations and ministerial guidelines of Japan.

Notice to Prospective Investors in the Singapore

This document has not been registered as a prospectus with the Monetary Authority of Singapore and in Singapore, the offer and sale of our securities is made pursuant to exemptions provided in sections 274 and 275 of the Securities and Futures Act, Chapter 289 of Singapore (“SFA”). Accordingly, this prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of our securities may not be circulated or distributed, nor may our securities be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor as defined in Section 4A of the SFA pursuant to Section 274 of the SFA, (ii) to a relevant person as defined in section 275(2) of the SFA pursuant to Section 275(1) of the SFA, or any person pursuant to Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA, in each case subject to compliance with the conditions (if any) set forth in the SFA. Moreover, this document is not a prospectus as defined in the SFA. Accordingly, statutory liability under the SFA in relation to the content of prospectuses would not apply. Prospective investors in Singapore should consider carefully whether an investment in our securities is suitable for them.

 

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Where our securities are subscribed or purchased under Section 275 of the SFA by a relevant person which is:

 

  (a) by a corporation (which is not an accredited investor as defined in Section 4A of the SFA) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or

 

  (b) for a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an accredited investor,

shares of that corporation or the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferable for six months after that corporation or that trust has acquired the shares under Section 275 of the SFA, except:

(1) to an institutional investor (for corporations under Section 274 of the SFA) or to a relevant person defined in Section 275(2) of the SFA, or any person pursuant to an offer that is made on terms that such shares of that corporation or such rights and interest in that trust are acquired at a consideration of not less than S$200,000 (or its equivalent in a foreign currency) for each transaction, whether such amount is to be paid for in cash or by exchange of securities or other assets, and further for corporations, in accordance with the conditions, specified in Section 275 of the SFA;

(2) where no consideration is given for the transfer; or

(3) where the transfer is by operation of law.

In addition, investors in Singapore should note that the securities acquired by them are subject to resale and transfer restrictions specified under Section 276 of the SFA, and they, therefore, should seek their own legal advice before effecting any resale or transfer of their securities.

Notice to Prospective Investors in the Dubai International Financial Centre

This prospectus supplement relates to an Exempt Offer in accordance with the Offered Securities Rules of the Dubai Financial Services Authority (“DFSA”). This prospectus supplement is intended for distribution only to persons of a type specified in the Offered Securities Rules of the DFSA. It must not be delivered to, or relied on by, any other person. The DFSA has no responsibility for reviewing or verifying any documents in connection with Exempt Offers. The DFSA has not approved this prospectus supplement nor taken steps to verify the information set forth herein and has no responsibility for the prospectus supplement. The shares to which this prospectus supplement relates may be illiquid and/or subject to restrictions on their resale. Prospective purchasers of the shares offered should conduct their own due diligence on the shares. If you do not understand the contents of this prospectus supplement you should consult an authorized financial advisor.

 

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LEGAL MATTERS

Our counsel, Willkie Farr & Gallagher LLP, New York, New York, will issue an opinion regarding the validity of our common stock offered by this prospectus. Certain legal matters in connection with this offering will be passed upon for the underwriters by Cahill Gordon & Reindel LLP , New York, New York.

EXPERTS

The consolidated financial statements and schedules of Ryerson Holding as of December 31, 2012 and 2011 and for the years ended December 31, 2012, 2011 and 2010 included in this prospectus and registration statement have been audited by Ernst & Young LLP, our independent registered public accounting firm, as set forth in their report thereon appearing elsewhere herein, and have been included in reliance upon their report given on their authority as experts in accounting and auditing.

WHERE YOU CAN FIND MORE INFORMATION

We have filed with the SEC a registration statement on Form S-1 under the Securities Act relating to the shares of our common stock being offered by this prospectus. This prospectus, which constitutes part of that registration statement, does not contain all of the information set forth in the registration statement or the exhibits and schedules which are part of the registration statement. For further information about us and the common stock offered, see the registration statement and the exhibits and schedules thereto. Statements contained in this prospectus regarding the contents of any contract or any other document to which reference is made are not necessarily complete, and, in each instance where a copy of a contract or other document has been filed as an exhibit to the registration statement, reference is made to the copy so filed, each of those statements being qualified in all respects by the reference.

A copy of the registration statement, the exhibits and schedules thereto and any other document we file may be inspected without charge at the public reference facilities maintained by the SEC in 100 F Street, N.E., Washington, D.C. 20549 and copies of all or any part of the registration statement may be obtained from this office upon the payment of the fees prescribed by the SEC. The public may obtain information on the operation of the public reference facilities in Washington, D.C. by calling the SEC at 1-800-SEC-0330. Our filings with the SEC are available to the public from the SEC’s website at www.sec.gov.

Upon the completion of this offering, we will be subject to the information and periodic reporting requirements of the Exchange Act applicable to a company with securities registered pursuant to Section 12 of the Exchange Act. In accordance therewith, we will file proxy statements and other information with the SEC. All documents filed with the SEC are available for inspection and copying at the public reference room and website of the SEC referred to above. Ryerson Inc. maintains a website at www.ryerson.com. You may access our reports, proxy statements and other information free of charge at this website as soon as reasonably practicable after such material is electronically filed with, or furnished to, the SEC. The information on such website is not incorporated by reference and is not a part of this prospectus.

 

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Index to Consolidated Financial Statements

 

     Page  

Ryerson Holding Corporation and Subsidiaries Audited Consolidated Financial Statements

  

Financial Statements

  

Report of Independent Registered Public Accounting Firm

     F-2   

Consolidated Statements of Operations for the years ended December 31, 2012, 2011 and 2010

     F-3   

Consolidated Statements of Comprehensive Income for the years ended December 31, 2012, 2011 and 2010

     F-4   

Consolidated Statements of Cash Flows for the years ended December 31, 2012, 2011 and 2010

     F-5   

Consolidated Balance Sheets at December 31, 2012 and 2011

     F-6   

Consolidated Statements of Stockholders’ Equity for the years ended December  31, 2012, 2011 and 2010

     F-7   

Notes to Consolidated Financial Statements

     F-8   

Financial Statements Schedules

  

I — Condensed Financial Information of Registrant

     F-41   

II — Valuation and Qualifying Accounts

     F-46   

All other schedules are omitted because they are not applicable. The required information is shown in the Financial Statements or Notes thereto.

  

 

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The Board of Directors and Stockholders of Ryerson Holding Corporation

We have audited the accompanying consolidated balance sheets of Ryerson Holding Corporation and Subsidiary Companies as of December 31, 2012 and 2011, and the related consolidated statements of operations and comprehensive income, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2012. Our audits also included the financial statement schedules listed in the index to the consolidated financial statements. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements and schedules based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. We were not engaged to perform an audit of the Company’s internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Ryerson Holding Corporation and Subsidiary Companies at December 31, 2012 and 2011, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2012, in conformity with U.S. generally accepted accounting principles. Also, in our opinion, the related financial statement schedules, when considered in relation to the basic financial statements taken as a whole, present fairly, in all material respects, the information set forth therein.

Ernst & Young LLP

Chicago, Illinois

March 19, 2013 (except for Note 18 and Note 19 as to which the date is             , 2013)

The foregoing report is in the form that will be signed upon completion of the termination of the corporate advisory services agreement and the completion of the            for 1.00 split of the common stock of Ryerson Holding Corporation as described in Note 19 to the consolidated financial statements.

/s/ Ernst & Young LLP

Chicago, Illinois

May 6, 2013

 

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RYERSON HOLDING CORPORATION AND SUBSIDIARY COMPANIES

CONSOLIDATED STATEMENTS OF OPERATIONS

(In millions)

 

     Year Ended December 31  
     2012     2011     2010  

Net sales

   $ 4,024.7      $ 4,729.8      $ 3,895.5   

Cost of materials sold

     3,315.1        4,071.0        3,355.7   
  

 

 

   

 

 

   

 

 

 

Gross profit

     709.6        658.8        539.8   

Warehousing, delivery, selling, general and administrative

     508.9        539.7        506.9   

Restructuring and other charges

     1.1        11.1        12.0   

Gain on insurance settlement

     —          —          (2.6

Impairment charges on fixed assets and goodwill

     1.0        9.3        1.4   

Pension and other postretirement benefits curtailment (gain) loss

     (1.7     —          2.0   
  

 

 

   

 

 

   

 

 

 

Operating profit

     200.3        98.7        20.1   

Other expense:

      

Other income and (expense), net

     (33.5     4.6        (3.2

Interest and other expense on debt

     (126.5     (123.1     (107.5
  

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

     40.3        (19.8     (90.6

Provision (benefit) for income taxes

     (5.5     (11.0     13.1   
  

 

 

   

 

 

   

 

 

 

Net income (loss)

     45.8        (8.8     (103.7

Less: Net income (loss) attributable to noncontrolling interest

     (1.3     (0.7     0.3   
  

 

 

   

 

 

   

 

 

 

Net income (loss) attributable to Ryerson Holding Corporation

   $ 47.1      $ (8.1   $ (104.0
  

 

 

   

 

 

   

 

 

 

Basic and diluted income (loss) per share

   $ 9.41      $ (1.62   $ (20.80
  

 

 

   

 

 

   

 

 

 

See Notes to Consolidated Financial Statements.

 

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RYERSON HOLDING CORPORATION AND SUBSIDIARY COMPANIES

CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

(In millions)

 

     Year Ended
December 31,
 
     2012     2011     2010  

Net income (loss)

   $ 45.8      $ (8.8   $ (103.7

Other comprehensive income (loss), before tax:

      

Foreign currency translation adjustments

     3.9        (1.3     11.1   

Unrealized gain (loss) on available-for-sale investment

     7.7        (9.8     5.4   

Changes in defined benefit pension and other post-retirement benefit plans

     (51.5     (66.7     (19.0
  

 

 

   

 

 

   

 

 

 

Other comprehensive loss

     (39.9     (77.8     (2.5

Total comprehensive income (loss), before tax

     5.9        (86.6     (106.2

Income tax benefit related to items of other comprehensive income

     (2.1     (1.5     (0.7
  

 

 

   

 

 

   

 

 

 

Comprehensive income (loss), after tax

     8.0        (85.1     (105.5

Less: comprehensive income (loss) attributable to the noncontrolling interest

     (1.7     (0.5     0.4   
  

 

 

   

 

 

   

 

 

 

Comprehensive income (loss) attributable to Ryerson Holding Corporation

   $ 9.7      $ (84.6   $ (105.9
  

 

 

   

 

 

   

 

 

 

See Notes to Consolidated Financial Statements.

 

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RYERSON HOLDING CORPORATION AND SUBSIDIARY COMPANIES

CONSOLIDATED STATEMENTS OF CASH FLOWS

(In millions)

 

     Year Ended December 31,  
     2012     2011     2010  

Operating Activities:

      

Net income (loss)

   $ 45.8      $ (8.8   $ (103.7
  

 

 

   

 

 

   

 

 

 

Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities:

      

Depreciation and amortization

     47.0        43.0        38.4   

Deferred income taxes

     (9.2     (11.6     58.8   

Provision for allowances, claims and doubtful accounts

     1.7        3.4        3.0   

Restructuring and other charges

     1.1        11.1        12.0   

Noncash interest expense related to debt discount amortization

     39.0        41.5        30.9   

Impairment charges on fixed assets and goodwill

     1.0        9.3        1.4   

Gain on bargain purchase

     —          (5.8     —     

Pension and other postretirement benefits curtailment (gain) loss

     (1.7     —          2.0   

Loss on retirement of debt

     32.8        0.2        —     

Other items

     2.8        1.2        (0.3

Change in operating assets and liabilities, net of effects of acquisitions:

      

Receivables

     120.8        (1.7     (137.5

Inventories

     (5.8     92.9        (170.9

Other assets

     9.8        10.9        10.1   

Accounts payable

     (38.3     (71.7     102.3   

Accrued liabilities

     (8.4     (14.7     (2.3

Accrued taxes payable/receivable

     (2.4     1.9        (6.0

Deferred employee benefit costs

     (49.5     (46.6     (36.9
  

 

 

   

 

 

   

 

 

 

Net adjustments

     140.7        63.3        (95.0
  

 

 

   

 

 

   

 

 

 

Net cash provided by (used in) operating activities

     186.5        54.5        (198.7
  

 

 

   

 

 

   

 

 

 

Investing Activities:

      

Acquisitions, net of cash acquired

     (5.1     (95.2     (12.0

Decrease in restricted cash

     1.4        16.7        3.9   

Capital expenditures

     (40.8     (47.0     (27.0

Investment in joint venture

     (2.9     —          —     

Increase in cash due to consolidation of joint venture

     3.0        —          —     

Proceeds from sales of property, plant and equipment

     11.6        11.3        5.5   

Other investments

     (2.5     (0.8     (14.8
  

 

 

   

 

 

   

 

 

 

Net cash used in investing activities

     (35.3     (115.0     (44.4
  

 

 

   

 

 

   

 

 

 

Financing Activities:

      

Long-term debt issued

     900.0        —          220.2   

Long-term debt retired

     (829.5     —          —     

Repayment of debt

     —          (11.8     (10.6

Proceeds from credit facility borrowings

     —          —          180.0   

Repayment of credit facility borrowings

     —          —          (180.0

Net proceeds/(repayments) of short-term borrowings

     (149.0     68.5        206.0   

Long-term debt issuance costs

     (18.1     —          (5.8

Credit facility issuance costs

     —          (15.8     —     

Purchase of subsidiary shares from noncontrolling interest

     —          —          (17.5

Net increase (decrease) in book overdrafts

     (11.8     17.0        6.6   

Distributions made to parent

     (35.0     —          (213.8
  

 

 

   

 

 

   

 

 

 

Net cash provided by (used in) financing activities

     (143.4     57.9        185.1   
  

 

 

   

 

 

   

 

 

 

Net increase (decrease) in cash and cash equivalents

     7.8        (2.6     (58.0

Effect of exchange rate changes on cash and cash equivalents

     1.7        1.7        5.6   
  

 

 

   

 

 

   

 

 

 

Net change in cash and cash equivalents

     9.5        (0.9     (52.4

Cash and cash equivalents—beginning of period

     61.7        62.6        115.0   
  

 

 

   

 

 

   

 

 

 

Cash and cash equivalents—end of period

   $ 71.2      $ 61.7      $ 62.6   
  

 

 

   

 

 

   

 

 

 

Supplemental Disclosures

      

Cash paid (received) during the period for:

      

Interest paid to third parties

   $ 67.6      $ 71.5      $ 66.1   

Income taxes, net

     5.2        (3.1     (46.8

See Notes to Consolidated Financial Statements.

 

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RYERSON HOLDING CORPORATION AND SUBSIDIARY COMPANIES

CONSOLIDATED BALANCE SHEETS

(In millions, except shares)

 

     At December 31,     Unaudited
Pro Forma  At
December 31,
 
     2012     2011     2012  

Assets

      

Current assets:

      

Cash and cash equivalents

   $ 71.2      $ 61.7      $ 71.2   

Restricted cash (Note 3)

     3.9        5.3        3.9   

Receivables less provision for allowances, claims and doubtful accounts of $7.1 in 2012 and $7.7 in 2011

     394.1        513.9        394.1   

Inventories (Note 4)

     741.5        732.4        741.5   

Prepaid expenses and other assets

     42.4        41.0        42.4   
  

 

 

   

 

 

   

 

 

 

Total current assets

     1,253.1        1,354.3        1,253.1   

Property, plant and equipment, net of accumulated depreciation (Note 5)

     472.3        479.7        472.3   

Deferred income taxes (Note 17)

     41.0        37.2        41.0   

Other intangible assets (Note 6)

     57.4        62.2        57.4   

Goodwill (Note 7)

     96.6        96.3        96.6   

Deferred charges and other assets

     33.7        28.7        33.7   
  

 

 

   

 

 

   

 

 

 

Total assets

   $ 1,954.1      $ 2,058.4      $ 1,954.1   
  

 

 

   

 

 

   

 

 

 

Liabilities

      

Current liabilities:

      

Accounts payable

   $ 196.3      $ 245.1      $ 196.3   

Accrued liabilities:

      

Salaries, wages and commissions

     32.1        40.2        32.1   

Deferred income taxes (Note 17)

     123.5        132.5        123.5   

Interest on debt

     21.2        10.3        21.2   

Other accrued liabilities

     33.8        52.4        33.8   

Short-term debt (Note 9)

     35.3        52.0     

Current portion of deferred employee benefits

     14.2        15.2        14.2   
  

 

 

   

 

 

   

 

 

 

Total current liabilities

     456.4        547.7     

Long-term debt (Note 9)

     1,270.1        1,264.2     

Deferred employee benefits (Note 10)

     504.4        502.9        504.4   

Taxes and other credits

     15.4        11.2        15.4   
  

 

 

   

 

 

   

 

 

 

Total liabilities

     2,246.3        2,326.0     

Commitments and contingencies (Note 11)

      

Redeemable noncontrolling interest (Note 2)

     1.7        —          1.7   

Equity

      

Ryerson Holding Corporation stockholders’ equity (deficit):

      

Common stock, $0.01 par value; 10,000,000 shares authorized; 5,000,000 shares issued at 2012 and 2011

     —          —          —     

Capital in excess of par value

     189.9        224.9        189.9   

Accumulated deficit

     (234.4     (281.5  

Accumulated other comprehensive loss

     (252.1     (214.7     252.1   
  

 

 

   

 

 

   

 

 

 

Total Ryerson Holding Corporation stockholders’ equity (deficit)

     (296.6     (271.3  

Noncontrolling interest

     2.7        3.7        2.7   
  

 

 

   

 

 

   

 

 

 

Total equity (deficit)

     (293.9     (267.6  
  

 

 

   

 

 

   

 

 

 

Total liabilities and equity

   $ 1,954.1      $ 2,058.4      $ 1,954.1   
  

 

 

   

 

 

   

 

 

 

See Notes to Consolidated Financial Statements.

 

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RYERSON HOLDING CORPORATION AND SUBSIDIARY COMPANIES

CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY (DEFICIT)

(In millions, except shares in thousands)

 

    Ryerson Holding Corporation Stockholders                    
                      Accumulated Other
Comprehensive Income
(Loss)
                   
    Common
Stock
    Capital in
Excess of
Par Value
    Accumulated
Deficit
    Foreign
Currency
Translation
    Benefit Plan
Liabilities
    Unrealized
Gain (Loss)
on
Available-
For-Sale
Investments
    Non-controlling
Interest
    Total
Equity
    Redeemable
Non-
controlling
Interest
 
    Shares     Dollars     Dollars     Dollars     Dollars     Dollars     Dollars     Dollars     Dollars     Dollars  
    (In millions, except shares in thousands)  

Balance at January 1, 2010

    5,000      $ —        $ 443.5      $ (169.4   $ (17.6   $ (118.7   $ —        $ 16.5      $ 154.3      $ —     

Net income (loss)

    —          —          —          (104.0     —          —          —          0.3        (103.7     —     

Foreign currency translation

    —          —          —          —          11.0        —          —          0.1        11.1        —     

Distributions to parent

    —          —          (213.8     —          —          —          —          —          (213.8     —     

Purchase of subsidiary shares from noncontrolling interest

    —          —          (4.8     —          —          —          —          (12.7     (17.5     —     

Changes in defined benefit pension and other post-retirement benefit plans (net of tax benefit of $0.7)

    —          —          —          —          —          (18.3     —          —          (18.3     —     

Unrealized gain on available-for-sale investment

    —          —          —          —          —          —          5.4        —          5.4        —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at December 31, 2010

    5,000      $ —        $ 224.9      $ (273.4   $ (6.6   $ (137.0   $ 5.4      $ 4.2      $ (182.5   $ —     

Net loss

    —          —          —          (8.1     —          —          —          (0.7     (8.8     —     

Foreign currency translation

    —          —          —          —          (1.5     —          —          0.2        (1.3     —     

Changes in defined benefit pension and other post-retirement benefit plans (net of tax benefit of $1.5)

    —          —          —          —          —          (65.2     —          —          (65.2     —     

Unrealized loss on available-for-sale investment

    —          —          —          —          —          —          (9.8     —          (9.8     —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at December 31, 2011

    5,000      $ —        $ 224.9      $ (281.5   $ (8.1   $ (202.2   $ (4.4   $ 3.7      $ (267.6   $ —     

Net income (loss)

    —          —          —          47.1        —          —          —          (1.0     46.1        (0.3

Foreign currency translation

    —          —          —          —          4.3        —          —          —          4.3        (0.4

Distributions to parent

    —          —          (35.0     —          —          —          —          —          (35.0     —     

Changes in defined benefit pension and other post-retirement benefit plans (net of tax benefit of $2.1)

    —          —          —          —          —          (49.4     —          —          (49.4     —     

Unrealized gain on available-for-sale investment

    —          —          —          —          —          —          7.7        —          7.7        —     

Fair value of noncontrolling interest associated with business acquired

    —          —          —          —          —          —          —          —          —          2.4   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at December 31, 2012

    5,000      $ —        $ 189.9      $ (234.4   $ (3.8   $ (251.6   $ 3.3      $ 2.7      $ (293.9   $ 1.7   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See Notes to Consolidated Financial Statements.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

Note 1: Summary of Accounting and Financial Policies

Business Description and Basis of Presentation. Ryerson Holding Corporation (“Ryerson Holding”), a Delaware corporation, is the parent company of Ryerson Inc. (“Ryerson”), a Delaware corporation. Ryerson Holding is 99% owned by affiliates of Platinum Equity, LLC (“Platinum”).

On October 19, 2007, the merger (the “Platinum Acquisition”) of Rhombus Merger Corporation (“Merger Sub”), a Delaware corporation and a wholly-owned subsidiary of Ryerson Holding, with and into Ryerson, was consummated in accordance with the Agreement and Plan of Merger, dated July 24, 2007, by and among Ryerson, Ryerson Holding and Merger Sub (the “Merger Agreement”). Upon the closing of the Platinum Acquisition, Ryerson became a wholly-owned subsidiary of Ryerson Holding.

Ryerson conducts materials distribution operations in the United States through its wholly-owned direct subsidiary Joseph T. Ryerson & Son, Inc. (“JT Ryerson”), a Delaware corporation, in Canada through its indirect wholly-owned subsidiary Ryerson Canada, Inc., a Canadian corporation (“Ryerson Canada”) and in Mexico through its indirect wholly-owned subsidiary Ryerson Metals de Mexico, S. de R.L. de C.V., a Mexican corporation (“Ryerson Mexico”). In addition to our North American operations, we conduct materials distribution operations in China through Ryerson China Limited (“Ryerson China”), formerly named VSC-Ryerson China Limited, a company in which we have a 100% ownership percentage subsequent to the purchase on July 12, 2010 of the remaining 20 percent interest previously owned by Van Shung Chong Holdings Limited (“VSC”) (see Note 2) and in Brazil through Açofran Aços e Metais Ltda (“Açofran”), a company in which we have had a 50% direct ownership percentage since February 17, 2012. Unless the context indicates otherwise, Ryerson Holding, Ryerson, JT Ryerson, Ryerson Canada, Ryerson China, Ryerson Mexico and Açofran together with their subsidiaries, are collectively referred to herein as “Ryerson Holding,” “we,” “us,” “our,” or the “Company.”

Principles of Consolidation. The Company consolidates entities in which it owns or controls more than 50% of the voting shares. All significant intercompany balances and transactions have been eliminated in consolidation. Additionally, variable interest entities that do not have sufficient equity investment to permit the entity to finance its activities without additional subordinated support from other parties or whose equity investors lack the characteristics of a controlling financial interest for which the Company is the primary beneficiary are included in the consolidated financial statements. There were no such variable entities that were required to be consolidated as of December 31, 2012 or 2011.

Business Segments. Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 280, “ Segment Reporting ” (“ASC 280”), establishes standards for reporting information on operating segments in interim and annual financial statements. Our Chief Executive Officer, together with the Operating Committee selected by our Board of Directors, serve as our Chief Operating Decision Maker (“CODM”). Our CODM reviews our financial information for purposes of making operational decisions and assessing financial performance. The CODM views our business globally as metals service centers. We have one operating and reportable segment, metal service centers, in accordance with the criteria set forth in ASC 280.

Use of Estimates . The preparation of financial statements in conformity with Generally Accepted Accounting Principles in the United States requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and related notes to the financial statements. Changes in such estimates may affect amounts reported in future periods.

Equity Investments. Investments in affiliates in which the Company’s ownership is 20% to 50% are accounted for by the equity method. Equity income is reported in “Cost of materials sold” in the Consolidated Statements of Operations. Equity income during the years ended December 31, 2012, 2011 and 2010 totaled $0.2 million, $0.1 million, and zero, respectively.

 

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Table of Contents

Revenue Recognition. Revenue is recognized in accordance with FASB ASC 605, “ Revenue Recognition .” Revenue is recognized upon delivery of product to customers. The timing of shipment is substantially the same as the timing of delivery to customers given the proximity of the Company’s distribution sites to its customers. Revenue is recorded net of returns, allowances, customer discounts and incentives. Sales taxes collected from customers and remitted to governmental authorities are accounted for on a net (excluded from revenues) basis.

Provision for allowances, claims and doubtful accounts . We perform ongoing credit evaluations of customers and set credit limits based upon review of the customers’ current credit information and payment history. The Company monitors customer payments and maintains a provision for estimated credit losses based on historical experience and specific customer collection issues that the Company has identified. Estimation of such losses requires adjusting historical loss experience for current economic conditions and judgments about the probable effects of economic conditions on certain customers. The Company cannot guarantee that the rate of future credit losses will be similar to past experience. Provisions for allowances and claims are based upon historical rates, expected trends and estimates of potential returns, allowances, customer discounts and incentives. The Company considers all available information when assessing the adequacy of the provision for allowances, claims and doubtful accounts.

Shipping and Handling Fees and Costs. Shipping and handling fees billed to customers are classified in “Net Sales” in our Consolidated Statement of Operations. Shipping and handling costs, primarily distribution costs, are classified in “Warehousing, delivery, selling, general and administrative” expenses in our Consolidated Statement of Operations. These costs totaled $87.3 million, $94.8 million and $82.1 million for the years ended December 31, 2012, 2011 and 2010, respectively.

Benefits for Retired Employees. The Company recognizes the funded status of its defined benefit pension and other postretirement plans in the Consolidated Balance Sheets, with changes in the funded status recognized through accumulated other comprehensive income (loss), net of tax, in the year in which the changes occur. The estimated cost of the Company’s defined benefit pension plan and its postretirement medical benefits are determined annually after considering information provided by consulting actuaries. Key factors used in developing estimates of these liabilities include assumptions related to discount rates, rates of return on investments, future compensation costs, healthcare cost trends, benefit payment patterns and other factors. The cost of these benefits for retirees is accrued during their term of employment. Pensions are funded primarily in accordance with the requirements of the Employee Retirement Income Security Act (“ERISA”) of 1974 and the Pension Protection Act of 2006 into a trust established for the Ryerson Pension Plan. Costs for retired employee medical benefits are funded when claims are submitted. Certain salaried employees are covered by a defined contribution plan, for which the cost is expensed in the period earned.

Cash Equivalents. Cash equivalents reflected in the financial statements are highly liquid, short-term investments with original maturities of three months or less that are an integral part of the Company’s cash management portfolio. Checks issued in excess of funds on deposit at the bank represent “book” overdrafts and are reclassified to accounts payable. Amounts reclassified totaled $37.5 million and $49.3 million at December 31, 2012 and 2011, respectively.

Inventory Valuation . Inventories are stated at the lower of cost or market value. We use the last-in, first-out (“LIFO”) method for valuing our domestic inventories. We use the weighted-average cost and the specific cost methods for valuing our foreign inventories.

 

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Property, Plant and Equipment. Property, plant and equipment, including land use rights, are depreciated for financial reporting purposes using the straight-line method over the estimated useful lives of the assets. The provision for depreciation in all periods presented is based on the following estimated useful lives of the assets:

 

Land improvements

     20 years   

Buildings

     45 years   

Machinery and equipment

     15 years   

Furniture and fixtures

     10 years   

Transportation equipment

     6 years   

Land use rights

     50 years   

Expenditures for normal repairs and maintenance are charged against income in the period incurred.

Goodwill. In accordance with FASB ASC 350, “ Intangibles – Goodwill and Other ” (“ASC 350”), goodwill is reviewed at least annually for impairment or whenever indicators of potential impairment exist. We test for impairment of goodwill by assessing various qualitative factors with respect to developments in our business and the overall economy and calculating the fair value of a reporting unit using the discounted cash flow method, as necessary. If we determine that it is more likely than not that the fair value of a reporting unit is less than the carrying value based on our qualitative assessment, we will proceed to the two-step goodwill impairment test. In step one, we compare the fair value of the reporting unit in which goodwill resides to its carrying value. If the carrying amount exceeds the fair value, the second step of the goodwill impairment test is performed to measure the amount of the impairment loss, if any. In the second step, the implied fair value of the goodwill is estimated as the fair value of the reporting unit used in the first step less the fair value of all other net tangible and intangible assets of the reporting unit. If the carrying amount of goodwill exceeds its implied fair value, an impairment loss is recognized in an amount equal to that excess, not to exceed the carrying amount of the goodwill. The fair value of the reporting units are estimated using an average of an income approach and a market approach as this combination is deemed to be the most indicative of fair value in an orderly transaction between market participants.

Long-lived Assets and Other Intangible Assets . Long-lived assets held and used by the Company are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. The Company estimates the future cash flows expected to result from the use of the asset and its eventual disposition. If the sum of the expected future cash flows (undiscounted and without interest charges) is less than the carrying amount of the asset, an impairment is recognized. Any related impairment loss is calculated based upon comparison of the fair value to the carrying value of the asset. Separate intangible assets that have finite useful lives are amortized over their useful lives. An impaired intangible asset would be written down to fair value, using the discounted cash flow method.

Deferred Financing Costs. Deferred financing costs associated with the issuance of debt are being amortized using the effective interest method over the life of the debt.

Income Taxes. Deferred tax assets or liabilities reflect temporary differences between amounts of assets and liabilities for financial and tax reporting. Such amounts are adjusted, as appropriate, to reflect changes in enacted tax rates expected to be in effect when the temporary differences reverse. A valuation allowance is established to offset any deferred tax assets if, based upon the available evidence, it is more likely than not that some or all of the deferred tax assets will not be realized. The determination of the amount of a valuation allowance to be provided on recorded deferred tax assets involves estimates regarding (1) the timing and amount of the reversal of taxable temporary differences, (2) expected future taxable income, (3) the impact of tax planning strategies and (4) the ability to carry back deferred tax assets to offset prior taxable income. In assessing the need for a valuation allowance, the Company considers all available positive and negative evidence, including past operating results, projections of future taxable income and the feasibility of ongoing tax planning strategies. The projections of future taxable income include a number of estimates and assumptions regarding volume, pricing, costs and industry cyclicality.

 

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Significant judgment is required in determining income tax provisions and in evaluating tax positions. In the normal course of business, the Company and its subsidiaries are examined by various federal, state and foreign tax authorities. The Company records the impact of a tax position, if that position is more likely than not to be sustained on audit, based on the technical merits of the position. The Company regularly assesses the potential outcomes of these examinations and any future examinations for the current or prior years in determining the adequacy of our provision for income taxes. The Company continually assesses the likelihood and amount of potential adjustments and adjusts the income tax provision, the current tax liability and deferred taxes in the period in which the facts that give rise to a revision become known.

The Company recognizes the benefit of tax positions when a benefit is more likely than not (i.e. greater than 50% likely) to be sustained on its technical merits. Recognized tax benefits are measured at the largest amount that is more likely than not to be sustained, based on cumulative probability, in final settlement of the position. The Company recognizes interest and penalties related to unrecognized tax benefits as a component of income tax expense.

Earnings Per Share Data. Basic earnings (loss) per share is computed by dividing net earnings (loss) available to common stockholders by the weighted average number of common shares outstanding for the period. Diluted earnings (loss) per share is computed by giving effect to all dilutive potential common shares that were outstanding during the period. Basic earnings (loss) per share excludes the dilutive effect of common stock equivalents such as stock options and warrants, while diluted earnings (loss) per share, assuming dilution, includes such dilutive effects. Subsequent to October 19, 2007, Ryerson Holding does not have any securities or other items that are convertible into common shares, therefore basic and fully diluted EPS are the same.

Foreign Currency. The Company translates assets and liabilities of its foreign subsidiaries, where the functional currency is the local currency, into U.S. dollars at the current rate of exchange on the last day of the reporting period. Revenues and expenses are translated at the average monthly exchange rates prevailing during the year.

For foreign currency transactions, the Company translates these amounts to the Company’s functional currency at the exchange rate effective on the invoice date. If the exchange rate changes between the time of purchase and the time actual payment is made, a foreign exchange transaction gain or loss results which is included in determining net income (loss) for the year. The Company recognized $1.5 million, $0.8 million and $2.7 million of exchange losses for the years ended December 31, 2012, 2011 and 2010, respectively. These amounts are primarily classified in “Other income and (expense), net” in our Consolidated Statements of Operations.

Recent Accounting Pronouncements

In May 2011, the FASB issued Accounting Standards Update (“ASU”) 2011-04, “ Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRSs ” (“ASU 2011-04”). ASU 2011-04 amends ASC 820, “ Fair Value Measurements ” (“ASC 820”), providing a consistent definition and measurement of fair value, as well as similar disclosure requirements between U.S. GAAP and International Financial Reporting Standards. ASU 2011-04 changes certain fair value measurement principles, clarifies the application of existing fair value measurement and expands the ASC 820 disclosure requirements, particularly for Level 3 fair value measurements. The revised guidance is effective for interim and annual periods beginning after December 15, 2011 and early application by public entities is prohibited. We adopted this guidance on January 1, 2012. The adoption did not have a material impact on our financial statements.

In June 2011, the FASB issued ASU 2011-05, “ Comprehensive Income (ASC Topic 220): Presentation of Comprehensive Income ” (“ASU 2011-05”). Under ASU 2011-05, entities are required to present total comprehensive income either in a single, continuous statement of comprehensive income or in two separate but consecutive statements. Under the single-statement approach, entities must include the components of net income, a total for net income, the components of other comprehensive income and a total for comprehensive income. Under the two-statement approach, entities must report an income statement and, immediately

 

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following, a statement of other comprehensive income. The amendments in ASU 2011-05 do not change the items that must be reported in other comprehensive income or when an item of other comprehensive income must be reclassified to net income. ASU 2011-05 should be applied retrospectively. The provisions for this pronouncement are effective for fiscal years, and interim periods within those years, beginning after December 15, 2011, with early adoption permitted. We have adopted this pronouncement for our fiscal year beginning January 1, 2012. The adoption did not have a material impact on our financial statements.

In September 2011, the FASB issued ASU 2011-08, “ Intangibles—Goodwill and Other (Topic 350): Testing Goodwill for Impairment ” (“ASU 2011-08”). ASU 2011-08 allows an entity to make an initial qualitative evaluation, based on the entity’s events and circumstances, to determine whether it is more likely than not that the fair value of a reporting unit is less than its carrying amount. The results of this qualitative assessment determine whether it is necessary to perform the currently required two-step impairment test. The new guidance also expands upon the examples of events and circumstances that an entity should consider between annual impairment tests in determining whether it is more likely than not that the fair value of a reporting unit is less than its carrying amount. The new guidance is effective for annual and interim goodwill impairment tests performed for fiscal years beginning after December 15, 2011 with early adoption permitted. We adopted this guidance prospectively on January 1, 2012. The adoption did not have a material impact on our financial statements.

In February 2013, the FASB issued ASU 2013-2, “ Reporting of Amounts Reclassified Out of Accumulated Other Comprehensive Income. ” This guidance requires an entity to present, either on the face of the financial statements or as a disclosure in the notes, significant amounts reclassified out of accumulated other comprehensive income by the respective line items of net income, but only if the amount reclassified is required under GAAP to be reclassified to net income in its entirety in the same reporting period. For other amounts that are not required under GAAP to be reclassified in their entirety to net income, the guidance requires an entity to cross-reference to other disclosures required under GAAP that provide additional detail about those amounts. This guidance is effective for our fiscal year beginning January 1, 2013. As this standard only impacts presentation and disclosure requirements, its adoption will not have a material impact on our financial statements.

Note 2: Acquisitions

Singer Steel Company

On March 14, 2011, the Company acquired all the issued and outstanding capital stock of Singer Steel Company (“Singer”). Singer is a full-service steel value-added processor with state-of-the-art processing equipment. We believe that Singer’s capabilities strongly enhance Ryerson’s offering in the Midwest and Northeast United States.

The fair value of the consideration totaled $23.6 million on the acquisition date, of which $20.0 million was paid on the date of acquisition and $3.6 million was paid in 2012.

 

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The following table summarizes the fair values of the assets acquired and liabilities assumed at the acquisition date. The Company used a third-party valuation firm to estimate the fair values of the property, plant and equipment and intangible assets. Inventory was valued by the Company using acquisition date fair values of the metals.

 

     At March 14,
2011
 
     (In millions)  

Cash

   $ 0.3   

Restricted cash

     6.5   

Accounts receivable

     7.3   

Inventory

     16.3   

Property, plant, and equipment

     8.2   

Intangible assets

     4.3   

Other assets

     0.2   
  

 

 

 

Total identifiable assets acquired

     43.1   
  

 

 

 

Current liabilities

     11.4   

Deferred tax liabilities

     2.3   
  

 

 

 

Total liabilities assumed

     13.7   
  

 

 

 

Net identifiable assets acquired

     29.4   

Bargain purchase

     (5.8
  

 

 

 

Net assets acquired

   $ 23.6   
  

 

 

 

The fair value of accounts receivables acquired was $7.3 million, with a gross amount of $7.8 million. The Company expected $0.5 million to be uncollectible.

Of the $4.3 million of acquired intangible assets, $2.2 million was assigned to customer relationships with a useful life of 7 years, $1.7 million was assigned to trademarks with a useful life of 5 years and $0.4 million was assigned to a license agreement with a useful life of 7 years.

The transaction resulted in a bargain purchase primarily due to the fair value of acquired intangible assets and higher inventory valuation related to rising metals prices. The gain is included in other income and (expense), net in the Statement of Operations. The Company has recognized $0.4 million in acquisition-related fees, which is included in warehousing, delivery, selling, general and administrative expenses.

Included in the 2011 financial results is $36.1 million of revenue and $9.4 million (includes the $5.8 million bargain purchase gain) of net income from Singer since the acquisition date.

Turret Steel

On December 9, 2011, the Company acquired all the issued and outstanding capital stock of Turret Steel Industries, Inc., Sunbelt-Turret Steel, Inc., Wilcox-Turret Cold Drawn, Inc., and Imperial Trucking Company, LLC (collectively, “Turret”). Turret is a premier distributor of Special Bar Quality Carbon and Alloy bar products. We believe that Turret’s product offerings strongly enhance Ryerson’s strategy of increasing its presence in long and fabricated products.

Ryerson acquired Turret for a cash purchase price of $78.8 million, plus assumption of approximately $6.5 million of debt on the acquisition date. A total of $1.5 million of the $78.8 million cash purchase price was held back and paid to the seller in June 2012. The terms of the agreement also include deferred cash consideration payouts, totaling a maximum of $36.0 million over a period of 5 years, which are contingent on the seller’s continued employment with Ryerson as well as the financial performance of Turret. The deferred cash consideration will be recognized as compensation expense and recorded as it is incurred over the five year period.

 

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The following table summarizes the fair values of the assets acquired and liabilities assumed at the acquisition date. The Company used a third-party valuation firm to estimate the fair values of the property, plant and equipment and intangible assets. Inventory was valued by the Company using acquisition date fair values of the metals.

 

     At December 9,
2011
 
     (In millions)  

Cash

   $ 1.8   

Accounts receivable

     12.0   

Inventory

     26.7   

Property, plant, and equipment

     2.9   

Intangible assets

     45.1   

Goodwill

     25.1   

Other assets

     1.2   
  

 

 

 

Total identifiable assets acquired

     114.8   
  

 

 

 

Current liabilities

     17.5   

Deferred tax liabilities

     18.5   
  

 

 

 

Total liabilities assumed

     36.0   
  

 

 

 

Net assets acquired

   $ 78.8   
  

 

 

 

The fair value of accounts receivables acquired was $12.0 million, with a gross amount of $12.4 million. The Company expected $0.4 million to be uncollectible.

Of the $45.1 million of acquired intangible assets, $27.8 million was assigned to customer relationships with useful lives between 7 and 11 years, $17.0 million was assigned to trademarks with a useful life of 20 years and $0.3 million was assigned to a covenant not to compete with a useful life of 7 years. The Company recognized $25.1 million of goodwill, reflecting management’s expected synergies.

The Company has recognized $0.4 million in acquisition-related fees, which is included in warehousing, delivery, selling, general and administrative expenses.

Included in the 2011 financial results is $5.6 million of revenue and $17.0 million of net income, which includes $16.6 million of tax benefits, from Turret since the acquisition date.

The following unaudited pro forma information presents consolidated results of operations for the year ended December 31, 2012 and 2011 as if the acquisitions of Singer and Turret on March 14, 2011 and December 9, 2011, respectively, had occurred on January 1, 2011:

 

     Pro Forma  
     Year Ended December 31,  
     2012      2011  
     (In millions)  

Net sales

   $ 4,024.7       $ 4,866.8   

Net income (loss) attributable to Ryerson Holding Corporation

     47.1         (23.1

The 2011 supplemental pro forma net income (loss) was adjusted to exclude the $5.8 million bargain purchase gain and $18.0 million of tax benefits realized in 2011 as they are nonrecurring items.

Açofran

On February 17, 2012, the Company acquired 50% of the issued and outstanding capital stock of Açofran, a long products distributor located in São Paulo, Brazil. The Company fully consolidates Açofran based on voting

 

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control. The Company is party to a put option arrangement with respect to the securities that represent the noncontrolling interest of Açofran. The put is exercisable by the minority shareholders outside of the Company’s control by requiring the Company to redeem the minority shareholders’ equity stake in the subsidiary at a put price based on earnings before interest, income tax, depreciation and amortization expense and net debt. The redeemable noncontrolling interest is classified as mezzanine equity and measured at the greater of estimated redemption value at the end of each reporting period or the historical cost basis of the noncontrolling interest adjusted for earnings and foreign currency allocations. The resulting increase or decrease in the estimated redemption amount is adjusted with a corresponding charge against retained earnings, or in the absence of retained earnings, additional paid-in-capital. The acquisition is not material to our consolidated financial statements.

Other Acquisitions

On January 26, 2010, the Company acquired, through its subsidiary JT Ryerson, all of the issued and outstanding capital stock of Texas Steel Processing, Inc. (“TSP”), a steel plate processor based in Houston, Texas. The acquisition is not material to our consolidated financial statements.

On August 4, 2010, the Company acquired, through its subsidiary JT Ryerson, all of the issued and outstanding capital stock of SFI-Gray Steel Inc. (“SFI”), a steel plate processor based in Houston, Texas. The acquisition is not material to our consolidated financial statements.

On July 12, 2010, we acquired VSC’s remaining 20 percent ownership in Ryerson China for $17.5 million. As a result, Ryerson China is now an indirect wholly-owned subsidiary of Ryerson Holding. The acquisition is not material to our consolidated financial statements.

The table below summarizes the effects of the changes in the Company’s ownership interest in Ryerson China on the equity attributable to Ryerson Holding stockholders for the year ended December 31, 2010:

 

Net Loss Attributable to Ryerson Holding and Transfers to the

Noncontrolling Interest

   Year Ended
December 31,
2010
 

Net loss attributable to Ryerson Holding Corporation

   $ (104.0

Transfers to the noncontrolling interest

  

Decrease in Ryerson Holding’s Capital in Excess of Par Value

     (4.8
  

 

 

 

Change in equity from net loss attributable to Ryerson Holding Corporation and transfers to noncontrolling interest

   $ (108.8
  

 

 

 

Note 3: Restricted Cash

As part of one of our note indentures, proceeds from the sale of property, plant, and equipment are deposited in a restricted cash account. Cash can be withdrawn from this restricted account upon meeting certain requirements. The balance in this account was zero and $0.9 million at December 31, 2012 and 2011, respectively. In addition, Ryerson China has a restricted cash balance of $0.1 million and $0.3 million as of December 31, 2012 and 2011, respectively, which is primarily related to letters of credit that can be presented for product material purchases. We also have cash restricted for purposes of covering letters of credit that can be presented for potential insurance claims, which totaled $3.8 million and $4.1 million as of December 31, 2012 and 2011, respectively.

Note 4: Inventories

Inventories were classified at December 31, 2012 and 2011 as follows:

 

     At December 31,  
     2012      2011  
     (In millions)  

In process and finished products

   $ 741.5       $ 732.4   

 

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If current cost had been used to value inventories, such inventories would have been $34 million lower and $29 million higher than reported at December 31, 2012 and 2011, respectively. Approximately 88% of inventories are accounted for under the LIFO method at December 31, 2012 and 2011. Non-LIFO inventories consist primarily of inventory at our foreign facilities using the weighted-average cost and the specific cost methods. Substantially all of our inventories consist of finished products.

The Company has consignment inventory at certain customer locations, which totaled $13.1 million and $15.9 million at December 31, 2012 and 2011, respectively.

Note 5: Property, Plant and Equipment

Property, plant and equipment consisted of the following at December 31, 2012 and 2011:

 

     At December 31,  
     2012     2011  
     (In millions)  

Land and land improvements

   $ 98.3      $ 100.5   

Buildings and leasehold improvements

     197.1        189.1   

Machinery, equipment and other

     334.5        305.9   

Construction in progress

     7.0        15.6   
  

 

 

   

 

 

 

Total

     636.9        611.1   

Less: Accumulated depreciation

     (164.6     (131.4
  

 

 

   

 

 

 

Net property, plant and equipment

   $ 472.3      $ 479.7   
  

 

 

   

 

 

 

The Company recorded $1.0 million, $7.8 million, and $1.4 million of impairment charges in 2012, 2011 and 2010, respectively, related to fixed assets. The impairment charge recorded in 2012 and 2011 related to certain assets held for sale in order to recognize the assets at their fair value less cost to sell in accordance with FASB ASC 360-10-35-43, “ Property, Plant and Equipment—Other Presentation Matters .” The fair values of each property were determined based on appraisals obtained from a third party, pending sales contracts or recent listing agreements with third party brokerage firms. The Company had $3.6 million and $10.0 million of assets held for sale, classified within “Other current assets” as of December 31, 2012 and 2011, respectively.

Note 6: Intangible Assets

The following summarizes the components of intangible assets at December 31, 2012 and 2011:

 

     At December 31, 2012      At December 31, 2011  
       Gross
Carrying
Amount
     Accumulated
Amortization
    Net      Gross
Carrying
Amount
     Accumulated
Amortization
    Net  

Amortized intangible assets

   (In millions)  

Customer relationships

   $ 47.0       $ (9.6   $ 37.4       $ 46.1       $ (5.7   $ 40.4   

Developed technology / product know-how

     1.9         (0.9     1.0         1.9         (0.5     1.4   

Non-compete agreements

     1.4         (0.6     0.8         1.4         (0.3     1.1   

Trademarks

     19.8         (1.9     17.9         19.5         (0.5     19.0   

Licenses

     0.4         (0.1     0.3         0.4         (0.1     0.3   
  

 

 

    

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Total intangible assets

   $ 70.5       $ (13.1   $ 57.4       $ 69.3       $ (7.1   $ 62.2   
  

 

 

    

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Amortization expense related to intangible assets for the years ended December 31, 2012, 2011 and 2010 was $6.0 million, $2.7 million, and $1.7 million, respectively.

 

 

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Intangible assets are amortized over a period between 2 and 20 years. Estimated amortization expense related to intangible assets at December 31, 2012, for each of the years in the five year period ending December 31, 2017 and thereafter is as follows:

 

     Estimated
Amortization Expense
 
     (In millions)  

For the year ended December 31, 2013

   $ 6.1   

For the year ended December 31, 2014

     6.0   

For the year ended December 31, 2015

     5.6   

For the year ended December 31, 2016

     4.8   

For the year ended December 31, 2017

     4.6   

For the years ended thereafter

     30.3   

Note 7: Goodwill

The following is a summary of changes in the carrying amount of goodwill for the years ended December 31, 2012 and 2011:

 

     Carrying
Amount
 
     (In millions)  

Balance at January 1, 2011

   $ 73.3   

Acquisitions and adjustments to purchase price

     24.7   

Impairment charge

     (1.5

Changes due to foreign currency translation

     (0.2
  

 

 

 

Balance at December 31, 2011

   $ 96.3   

Acquisitions

     0.2   

Changes due to foreign currency translation

     0.1   
  

 

 

 

Balance at December 31, 2012

   $ 96.6   
  

 

 

 

In 2011, the Company recognized $25.1 million of goodwill related to the Turret acquisition, of which, $7.9 million is deductible for income tax purposes. The Company made purchase price adjustments of $0.4 million during the year ended December 31, 2011.

In 2012, the Company recognized $0.2 million of goodwill related to the Acofran acquisition, which is not deductible for income tax purposes.

As a result of our 2011 annual goodwill impairment test, the Company concluded that the carrying value of one of its reporting units exceeded its fair value. As required by the second step of the impairment test, the Company performed an allocation of the fair value to all the assets and liabilities of the reporting unit, including identifiable intangible assets, based on their fair values, to determine the implied fair value of goodwill. Accordingly, the Company recorded a goodwill impairment charge of $1.5 million in 2011 for the difference between the carrying value of the goodwill in the reporting unit and its implied fair value. The impairment resulted from a combination of factors, including the global economic downturn, a decline in margins for the reporting unit, which led to reductions in the Company’s projected operating results and estimated future cash flows related to the reporting unit in future periods The fair values of the Company’s other reporting units exceeded their estimated carrying values and therefore goodwill in those reporting units was not impaired. The fair values of the reporting units were estimated using an average of a market approach and an income approach as this combination is deemed to be the most indicative of our fair value in an orderly transaction between market participants and is consistent with the methodology used for the goodwill impairment test in the prior year.

 

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Based on our October 1, 2012 annual goodwill impairment test, we have determined there was no impairment in 2012.

Note 8: Restructuring and Other Charges

The following summarizes restructuring accrual activity for the years ended December 31, 2012, 2011 and 2010:

 

     Employee
Related
Costs
    Tenancy
and Other
Costs
    Total
Restructuring
Costs
 
     (In millions)  

Balance at January 1, 2010

   $ 0.4      $ 0.5      $ 0.9   

Restructuring charges

     12.5        —          12.5   

Cash payments

     (0.6     (0.4     (1.0

Adjustments for pension and other post-retirement termination non-cash charges

     (12.1     —          (12.1

Reclassifications

     (0.1     0.1        —     
  

 

 

   

 

 

   

 

 

 

Balance at December 31, 2010

   $ 0.1      $ 0.2      $ 0.3   

Restructuring charges

     11.1        —          11.1   

Cash payments

     (5.3     (0.2     (5.5

Adjustments for pension and other post-retirement termination non-cash charges

     (1.4     —          (1.4
  

 

 

   

 

 

   

 

 

 

Balance at December 31, 2011

   $ 4.5      $  —        $ 4.5   

Restructuring charges

     1.3        0.2        1.5   

Reduction to reserve

     (0.4     —          (0.4

Cash payments

     (4.4     (0.2     (4.6
  

 

 

   

 

 

   

 

 

 

Balance at December 31, 2012

   $ 1.0      $ —        $ 1.0   
  

 

 

   

 

 

   

 

 

 

2012

In 2012, the Company recorded a charge of $1.3 million related to the closure of one of its facilities. The charge consists of employee-related costs, primarily severance for 42 employees. In the fourth quarter of 2012, the Company paid $0.3 million in employee costs related to this facility closure. The remaining $1.0 million balance is expected to be paid in 2013. In the first quarter of 2013, as part of this facility closure, the Company expects to record tenancy-related costs of approximately $2 million.

During 2012, the Company paid $4.0 million in employee costs and $0.2 million in tenancy costs related to its October 2011 reorganization plan. The Company also recorded a $0.4 million reduction to this reorganization reserve for employee-related costs and recorded a charge of $0.2 million related to tenancy costs. The $0.2 million net credit reduced the reserve for the October 2011 reorganization to zero and was credited to restructuring and other charges in the Consolidated Statements of Operations.

In 2012, the Company paid the remaining $0.1 million of employee costs related to the facility closed in the fourth quarter of 2010.

2011

In October 2011, the Company implemented a reorganization plan that reduced headcount by 292 employees resulting in a restructuring charge of $9.8 million recorded in the fourth quarter. The Company reduced headcount in a continued effort to decentralize functions to its regions as well as to execute

 

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management’s strategy of focusing on long and fabricated product sales. The charge consists of restructuring expenses of $8.4 million for employee-related costs, primarily severance, and additional non-cash pensions and other post-retirement benefit costs totaling $1.4 million. In the fourth quarter of 2011, the Company paid $4.0 million in employee costs related to this restructuring.

In 2011, the Company recorded an additional charge of $1.3 million related to the closure of one of its facilities for which it had recorded a charge of $12.5 million in the fourth quarter of 2010. The charge consists of additional employee-related costs, primarily severance. In 2011, the Company paid $1.3 million in employee costs related to this facility closure.

During 2011, the Company paid the remaining $0.2 million of tenancy and other costs related to the exit plan liability recorded on October 19, 2007.

2010

During 2010, the Company paid $0.7 million related to the exit plan liability recorded on October 19, 2007.

In the fourth quarter of 2010, the Company recorded a $12.5 million charge related to the closure of one of its facilities. The charge consists of restructuring expenses of $0.4 million for employee-related costs, including severance for 66 employees, and additional non-cash pensions and other post-retirement benefits costs totaling $12.1 million. Included in the non-cash pension charge is a pension curtailment loss of $2.0 million. In the fourth quarter of 2010, the Company paid $0.3 million in employee costs related to this facility closure.

Other Charges

In the fourth quarter of 2010, the Company also recorded a charge of $1.5 million for costs related to the retirement of its former Chief Executive Officer, which is recorded within the “Restructuring and other charges” line of the Consolidated Statements of Operations.

Note 9: Debt

Long-term debt consisted of the following at December 31, 2012 and 2011:

 

     At December 31,  
     2012      2011  
     (In millions)  

Ryerson Secured Credit Facility

   $ 383.5       $ 520.0   

9% Senior Secured Notes due 2017

     600.0         —     

11  1 / 4 % Senior Notes due 2018

     300.0         —     

12% Senior Secured Notes due 2015

     —           368.7   

Floating Rate Senior Secured Notes due 2014

     —           102.9   

14  1 / 2 % Senior Discount Notes due 2015

     —           483.0   

Foreign debt

     21.9         32.0   
  

 

 

    

 

 

 

Total debt

     1,305.4         1,506.6   

Less:

     

Unamortized discount on Ryerson Holding Notes

     —           190.4   

Short-term credit facility borrowings

     13.5         20.0   

Foreign debt

     21.8         32.0   
  

 

 

    

 

 

 

Total long-term debt

   $ 1,270.1       $ 1,264.2   
  

 

 

    

 

 

 

 

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The principal payments required to be made on debt during the next five fiscal years are shown below:

 

     Amount  
     (In millions)  

For the year ended December 31, 2013

   $ 21.8   

For the year ended December 31, 2014

     0.1   

For the year ended December 31, 2015

     —     

For the year ended December 31, 2016

     383.5   

For the year ended December 31, 2017

     600.0   

For the years ended thereafter

     300.0   

Ryerson Credit Facility

On March 14, 2011, Ryerson amended and restated its $1.35 billion revolving credit facility agreement (as amended, the “Ryerson Credit Facility”), which extends the maturity date to March 14, 2016. At December 31, 2012, Ryerson had $383.5 million of outstanding borrowings, $24 million of letters of credit issued and $293 million available under the $1.35 billion Ryerson Credit Facility compared to $520.0 million of outstanding borrowings, $29 million of letters of credit issued and $274 million available at December 31, 2011. Total credit availability is limited by the amount of eligible accounts receivable and inventory pledged as collateral under the agreement insofar as the Company is subject to a borrowing base comprised of the aggregate of these two amounts, less applicable reserves. Eligible accounts receivable, at any date of determination, are comprised of the aggregate value of all accounts directly created by a borrower in the ordinary course of business arising out of the sale of goods or the rendition of services, each of which has been invoiced, with such receivables adjusted to exclude various ineligible accounts, including, among other things, those to which a borrower does not have sole and absolute title and accounts arising out of a sale to an employee, officer, director, or affiliate of a borrower. The weighted average interest rate on the borrowings under the Ryerson Credit Facility was 2.6 percent and 2.4 percent at December 31, 2012 and 2011, respectively.

Amounts outstanding under the Ryerson Credit Facility bear interest at a rate determined by reference to the base rate (Bank of America’s prime rate) or a LIBOR rate or, for the Company’s Canadian subsidiary which is a borrower, a rate determined by reference to the Canadian base rate (Bank of America-Canada Branch’s “Base Rate” for loans in U.S. Dollars in Canada) or the BA rate (average annual rate applicable to Canadian Dollar bankers’ acceptances) or a LIBOR rate and the Canadian prime rate (Bank of America-Canada Branch’s “Prime Rate.”). The spread over the base rate and Canadian prime rate is between 0.75% and 1.50% and the spread over the LIBOR and for the bankers’ acceptances is between 1.75% and 2.50%, depending on the amount available to be borrowed. Overdue amounts and all amounts owed during the existence of a default bear interest at 2% above the rate otherwise applicable thereto. The Company also pays commitment fees on amounts not borrowed at a rate between 0.375% and 0.50% depending on the average borrowings as a percentage of the total $1.35 billion agreement during a rolling three month period.

Borrowings under the Ryerson Credit Facility are secured by first-priority liens on all of the inventory, accounts receivable, lockbox accounts and related assets of Ryerson, subsidiary borrowers and certain other U.S. subsidiaries of Ryerson that act as guarantors.

The Ryerson Credit Facility contains covenants that, among other things, restrict Ryerson with respect to the incurrence of debt, the creation of liens, transactions with affiliates, mergers and consolidations, sales of assets and acquisitions. The Ryerson Credit Facility also requires that, if availability under such facility declines to a certain level, Ryerson maintain a minimum fixed charge coverage ratio as of the end of each fiscal quarter.

The Ryerson Credit Facility contains events of default with respect to, among other things, default in the payment of principal when due or the payment of interest, fees and other amounts after a specified grace period, material misrepresentations, failure to perform certain specified covenants, certain bankruptcy events, the

 

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invalidity of certain security agreements or guarantees, material judgments and the occurrence of a change of control of Ryerson. If such an event of default occurs, the lenders under the Ryerson Credit Facility will be entitled to various remedies, including acceleration of amounts outstanding under the Ryerson Credit Facility and all other actions permitted to be taken by secured creditors.

The lenders under the Ryerson Credit Facility have the ability to reject a borrowing request if any event, circumstance or development has occurred that has had or could reasonably be expected to have a material adverse effect on Ryerson. If Ryerson or any significant subsidiaries of the other borrowers becomes insolvent or commences bankruptcy proceedings, all amounts borrowed under the Ryerson Credit Facility will become immediately due and payable.

Proceeds from borrowings under the Ryerson Credit Facility and repayments of borrowings thereunder that are reflected in the Consolidated Statements of Cash Flows represent borrowings under the Company’s revolving credit agreement with original maturities greater than three months. Net proceeds (repayments) under the Ryerson Credit Facility represent borrowings under the Ryerson Credit Facility with original maturities less than three months.

2017 and 2018 Notes

On October 10, 2012, Ryerson and its wholly owned subsidiary, Joseph T. Ryerson & Son, Inc., issued $600 million in aggregate principal amount of their 9% Senior Secured Notes due 2017 (the “2017 Notes”) and $300 million in aggregate principal amount of their 11  1 / 4 % Senior Notes due 2018 (the “2018 Notes” and, together with the 2017 Notes, the “2017 and 2018 Notes”). The 2017 Notes bear interest at a rate of 9% per annum. The 2018 Notes bear interest at a rate of 11.25% per annum. The 2017 Notes are fully and unconditionally guaranteed on a senior secured basis and the 2018 Notes are fully and unconditionally guaranteed on a senior unsecured basis by all of our existing and future domestic subsidiaries that are co-borrowers or guarantee obligations under the Ryerson Credit Facility.

The 2017 Notes and related guarantees are secured by a first-priority lien on substantially all of our and our guarantors’ present and future assets located in the United States (other than receivables, inventory, related general intangibles, certain other assets and proceeds thereof), subject to certain exceptions and customary permitted liens. The 2017 Notes and related guarantees are secured on a second-priority basis by a lien on the assets that secure our obligations under the Ryerson Credit Facility. The 2018 Notes are not secured. The 2017 and 2018 Notes contain customary covenants that, among other things, limit, subject to certain exceptions, our ability, and the ability of our restricted subsidiaries, to incur additional indebtedness, pay dividends on our capital stock or repurchase our capital stock, make investments, sell assets, engage in acquisitions, mergers or consolidations or create liens or use assets as security in other transactions. Subject to certain exceptions, Ryerson may only pay dividends to Ryerson Holding to the extent of 50% of future net income, once prior losses are offset. As a result of these restrictions, the restricted net assets of consolidated subsidiaries exceed 25 percent of consolidated net assets as of December 31, 2012. Restricted net assets as of December 31, 2012 were $262.5 million. See Schedule I for condensed financial information of the parent company.

The 2017 Notes will become redeemable by the Company, in whole or in part, at any time on or after April 15, 2015 and the 2018 Notes will become redeemable, in whole or in part, at any time on or after October 15, 2015, in each case at specified redemption prices. The 2017 and 2018 Notes are redeemable prior to such dates at a redemption price equal to 100% of the principal amount, together with accrued and unpaid interest, if any, to the redemption date, plus a make-whole premium. If a change of control occurs, Ryerson must offer to purchase the 2017 and 2018 Notes at 101% of their principal amount, plus accrued and unpaid interest.

Pursuant to registration rights agreements relating to the 2017 and 2018 Notes, we agreed to file with the SEC by July 7, 2013, registration statements with respect to offers to exchange each of the 2017 and 2018 Notes for new issues of our debt securities registered under the Securities Act, with terms substantially identical to those of the 2017 and 2018 Notes and to consummate such exchange offers no later than October 5, 2013.

 

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The Company used the net proceeds from the 2017 and 2018 Notes (i) to repay in full the 14  1 / 2 Senior Discount Notes due 2015 (“Old Ryerson Holding Notes”), plus accrued and unpaid interest thereon up to, but not including, the repayment date, (ii) to repay in full the Company’s outstanding Floating Rate Senior Secured Notes due November 1, 2014 (“2014 Notes) and 12% Senior Secured Notes due November 1, 2015 (“2015 Notes”) (together with the 2014 Notes, the “Old Ryerson Notes”), plus accrued and unpaid interest thereon up to, but not including, the repayment date, (iii) to repay outstanding indebtedness under the Ryerson Credit Facility and (iv) to pay related fees, expenses and premiums.

Ryerson Holding Notes

As of November 1, 2012, all of the Old Ryerson Holding Notes were repurchased or redeemed and cancelled. The Company recorded a $15.6 million loss on the repurchase and cancellation of debt related to the Old Ryerson Holding Notes within other income and (expense), net on the Consolidated Statements of Operations.

2014 and 2015 Notes

As of November 1, 2012, all of the Old Ryerson Notes were repurchased or redeemed and cancelled. The Company recorded a $17.2 million loss on the repurchase and cancellation of debt related to the Old Ryerson Notes within other income and (expense), net on the Consolidated Statements of Operations.

During 2011, $7.5 million principal amount of the 2015 Notes were repurchased for $7.7 million and retired, resulting in the recognition of a $0.2 million loss within other income and (expense), net on the Consolidated Statements of Operations.

Foreign Debt

At December 31, 2012, Ryerson China’s total foreign borrowings were $21.4 million, which were owed to banks in Asia at a weighted average interest rate of 4.8% secured by inventory and property, plant and equipment. At December 31, 2012, Açofran’s total foreign borrowings were $0.5 million, which were owed to foreign banks at a weighted average interest rate of 11.2%. Of the total foreign borrowings of $32.0 million outstanding at December 31, 2011, $30.1 million was owed to banks in Asia at a weighted average interest rate of 6.2% secured by inventory and property, plant and equipment. Ryerson China also owed $1.9 million at December 31, 2011 to other parties at a weighted average interest rate of 0.9%.

Availability under the foreign credit lines was $21 million and $22 million at December 31, 2012 and 2011, respectively. Letters of credit issued by our foreign subsidiaries totaled $8 million and $11 million at December 31, 2012 and 2011, respectively.

Note 10: Employee Benefits

The Company accounts for its pension and postretirement plans in accordance with FASB ASC 715, “ Compensation—Retirement Benefits ” (“ASC 715”). In addition to requirements for an employer to recognize in its consolidated balance sheet an asset for a plan’s overfunded status or a liability for a plan’s underfunded status and to recognize changes in the funded status of a defined benefit postretirement plan in the year in which the changes occur, ASC 715 requires an employer to measure a plan’s assets and its obligations that determine its funded status as of the end of the employer’s fiscal year.

Prior to January 1, 1998, the Company’s non-contributory defined benefit pension plan covered certain employees, retirees and their beneficiaries. Benefits provided to participants of the plan were based on pay and years of service for salaried employees and years of service and a fixed rate or a rate determined by job grade for all wage employees, including employees under collective bargaining agreements.

 

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Effective January 1, 1998, the Company froze the benefits accrued under its defined benefit pension plan for certain salaried employees and instituted a defined contribution plan. Effective March 31, 2000, benefits for certain salaried employees of J. M. Tull Metals Company and AFCO Metals, subsidiaries that were merged into JT Ryerson, were similarly frozen, with the employees becoming participants in the Company’s defined contribution plan. Salaried employees who vested in their benefits accrued under the defined benefit plan at December 31, 1997 and March 31, 2000, are entitled to those benefits upon retirement. For the years ended December 31, 2012, 2011 and 2010, expense recognized for its defined contribution plans was $6.8 million, $7.0 million and $8.6 million, respectively.

In the fourth quarter of 2010, the Company announced the closure of one of its facilities, which significantly reduced the expected years of future service of active accruing participants in the Company’s defined benefit pension plan. As a result, the Company recorded a pension curtailment loss of $2.0 million in 2010.

In 2012, the Company amended the terms of one of our Canadian post-retirement medical and life insurance plans which effectively eliminated benefits to a group of employees unless these individuals agreed to retire by December 31, 2015. These actions meet the definition of a curtailment under FASB ASC 715-30-15 and resulted in a curtailment gain of $1.7 million for the year ended December 31, 2012.

The Company has other deferred employee benefit plans, including supplemental pension plans, the liability for which totaled $18.5 million and $16.0 million at December 31, 2012 and 2011, respectively.

Summary of Assumptions and Activity

The tables included below provide reconciliations of benefit obligations and fair value of plan assets of the Company plans as well as the funded status and components of net periodic benefit costs for each period related to each plan. The Company uses a December 31 measurement date to determine the pension and other postretirement benefit information. For the year 2010, the Company had an additional measurement date of November 18 for our U.S. pension plan due to the announced closure of one of its facilities as discussed above. The assumptions used to determine benefit obligations at the end of the periods and net periodic benefit costs for the Pension Benefits for U.S. plans were as follows:

 

     Year Ended
December 31,
2012
    Year Ended
December 31,
2011
    November 18 to
December 31,
2010
    January 1 to
November 17,
2010
 

Discount rate for calculating obligations

     4.00     4.90     5.35     N/A   

Discount rate for calculating net periodic benefit cost

     4.90        5.35        5.40        5.80

Expected rate of return on plan assets

     8.75        8.75        8.75        8.75   

Rate of compensation increase

     3.00        3.00        3.00        4.00   

The expected rate of return on U.S. plan assets is 8.20% for 2013.

The assumptions used to determine benefit obligations at the end of the periods and net periodic benefit costs for the Other Postretirement Benefits, primarily health care, for U.S. plans were as follows:

 

     Year Ended December 31,  
     2012     2011     2010  

Discount rate for calculating obligations

     3.60     4.60     5.25

Discount rate for calculating net periodic benefit cost

     4.60        5.25        5.70   

Rate of compensation increase—benefit obligations

     3.00        3.00        3.00   

Rate of compensation increase—net periodic benefit cost

     3.00        3.00        4.00   

 

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The assumptions used to determine benefit obligations at the end of the periods and net periodic benefit costs for the Pension Benefits for Canadian plans were as follows:

 

     Year Ended December 31,  
     2012     2011     2010  

Discount rate for calculating obligations

     4.20     4.75     5.25

Discount rate for calculating net periodic benefit cost

     4.75        5.25        5.75   

Expected rate of return on plan assets

     6.50        7.00        7.00   

Rate of compensation increase

     3.50        3.50        3.50   

The expected rate of return on Canadian plan assets is 6.50% for 2013.

The assumptions used to determine benefit obligations at the end of the periods and net periodic benefit costs for the Other Postretirement Benefits, primarily healthcare, for Canadian plans were as follows:

 

     Year Ended December 31,  
     2012     2011     2010  

Discount rate for calculating obligations

     4.10     4.80     5.25

Discount rate for calculating net periodic benefit cost

     4.80        5.25        5.75   

Rate of compensation increase

     3.50        3.50        3.50   

 

     Year Ended December 31,  
     Pension Benefits     Other Benefits  
     2012     2011     2012     2011  
     (In millions)  

Change in Benefit Obligation

        

Benefit obligation at beginning of year

   $ 856      $ 815      $ 143      $ 176   

Service cost

     3        3        1        1   

Interest cost

     41        42        6        8   

Plan amendments

     —          —          (11     (1

Actuarial (gain) loss

     81        47        6        (29

Special termination benefits

     1        1        —          1   

Effect of changes in exchange rates

     1        (1     1        —     

Curtailment gain

     —          —          (2     —     

Benefits paid (net of participant contributions and Medicare subsidy)

     (53     (51     (14     (13
  

 

 

   

 

 

   

 

 

   

 

 

 

Benefit obligation at end of year

   $ 930      $ 856      $ 130      $ 143   
  

 

 

   

 

 

   

 

 

   

 

 

 

Accumulated benefit obligation at end of year

   $ 925      $ 852        N/A        N/A   
  

 

 

   

 

 

   

 

 

   

 

 

 

Change in Plan Assets

        

Plan assets at fair value at beginning of year

   $ 497      $ 509      $ —        $ —     

Actual return (loss) on plan assets

     69        (4     —          —     

Employer contributions

     46        44        15        15   

Effect of changes in exchange rates

     1        (1     —          —     

Benefits paid (net of participant contributions)

     (53     (51     (15     (15
  

 

 

   

 

 

   

 

 

   

 

 

 

Plan assets at fair value at end of year

   $ 560      $ 497      $ —        $ —     
  

 

 

   

 

 

   

 

 

   

 

 

 

Reconciliation of Amount Recognized

        

Funded status

   $ (370   $ (359   $ (130   $ (143
  

 

 

   

 

 

   

 

 

   

 

 

 

Amounts recognized in balance sheet consist of:

        

Current liabilities

   $ —        $ —        $ (13   $ (14

Non-current liabilities

     (370     (359     (117     (129
  

 

 

   

 

 

   

 

 

   

 

 

 

Net benefit liability at the end of the year

   $ (370   $ (359   $ (130   $ (143
  

 

 

   

 

 

   

 

 

   

 

 

 

 

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Canadian benefit obligations represented $60 million and $55 million of the Company’s total Pension Benefits obligations at December 31, 2012 and 2011, respectively. Canadian plan assets represented $48 million and $46 million of the Company’s total plan assets at fair value at December 31, 2012 and 2011, respectively. In addition, Canadian benefit obligations represented $16 million and $18 million of the Company’s total Other Benefits obligation at December 31, 2012 and 2011, respectively.

Amounts recognized in accumulated other comprehensive income (loss) at December 31, 2012 and 2011 consist of the following:

 

     At December 31,  
     Pension Benefits      Other Benefits  
       2012          2011          2012         2011    
     (In millions)  

Amounts recognized in accumulated other comprehensive income (loss), pre–tax, consists of

          

Net actuarial (gain) loss

   $ 403       $ 355       $ (73   $ (87

Prior service cost (credit)

     1         2         (12     (1
  

 

 

    

 

 

    

 

 

   

 

 

 

Total

   $ 404       $ 357       $ (85   $ (88
  

 

 

    

 

 

    

 

 

   

 

 

 

Net actuarial losses of $13.8 million and prior service costs of $0.2 million for pension benefits and net actuarial gains of $7.3 million and prior service credits of $1.6 million for other postretirement benefits are expected to be amortized from accumulated other comprehensive income (loss) into net periodic benefit cost over the next fiscal year.

Amounts recognized in other comprehensive income (loss) for the years ended December 31, 2012 and 2011 consist of the following:

 

     Year Ended December 31,  
     Pension Benefits     Other Benefits  
         2012         2011         2012         2011  
     (In millions)  

Amounts recognized in other comprehensive income (loss), pre–tax, consists of

        

Net actuarial loss (gain)

   $ 58      $ 98      $ 6      $ (29

Amortization of net actuarial loss (gain)

     (11     (6     8        5   

Prior service credit

                   (11     (1
  

 

 

   

 

 

   

 

 

   

 

 

 

Total recognized in other comprehensive income (loss)

   $ 47      $ 92      $ 3      $ (25
  

 

 

   

 

 

   

 

 

   

 

 

 

For measurement purposes for U.S. plans at December 31, 2012, the annual rate of increase in the per capita cost of covered health care benefits for participants under 65 was 7 percent, grading down to 5 percent in 2020, the level at which it is expected to remain. At December 31, 2012 the rate for participants over 65 was 6.5 percent, grading down to 5 percent in 2018, plus a risk adjustment of 0.6 percent grading down to zero percent in 2062, the level at which it is expected to remain. For measurement purposes for U.S. plans at December 31, 2011, the annual rate of increase in the per capita cost of covered health care benefits was 8.0 percent for all participants, grading down to 5 percent in 2017, the level at which it is expected to remain. For measurement purposes for U.S. plans at December 31, 2010, the annual rate of increase in the per capita cost of covered health care benefits was 8.5 percent for all participants, grading down to 5 percent in 2017, the level at which it is expected to remain.

For measurement purposes for Canadian plans at December 31, 2012, the annual rate of increase in the per capita cost of covered health care benefits was 8 percent per annum, grading down to 4.5 percent in 2033, the level at which it is expected to remain. For measurement purposes for Canadian plans at December 31, 2011, the

 

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annual rate of increase in the per capita cost of covered health care benefits was 12 percent per annum, grading down to 5 percent in 2023, the level at which it is expected to remain. For measurement purposes for Canadian plans at December 31, 2010, the annual rate of increase in the per capita cost of covered health care benefits was 12 percent per annum, grading down to 5 percent in 2023, the level at which it is expected to remain.

The components of the Company’s net periodic benefit cost for the years ended December 31, 2012, 2011 and 2010 are as follows:

 

     Year Ended December 31,  
     Pension Benefits     Other Benefits  
     2012     2011     2010     2012     2011     2010  
     (In millions)  

Components of net periodic benefit cost

            

Service cost

   $ 3      $ 3      $ 3      $ 1      $ 1      $ 1   

Interest cost

     41        42        43        6        8        10   

Expected return on assets

     (45     (47     (46     —          —          —     

Recognized actuarial loss (gain)

     11        6        6        (7     (4     (4

Special termination benefits

     —          1        7        —          1        3   

Curtailment loss (gain)

     —          —          2        (2     —          —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net periodic benefit cost (credit)

   $ 10      $ 5      $ 15      $ (2   $ 6      $ 10   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

The assumed health care cost trend rate has an effect on the amounts reported for the health care plans. For purposes of determining net periodic benefit cost for U.S plans, the annual rate of increase in the per capita cost of covered health care benefits was 8 percent for all participants for the year ended December 31, 2012, grading down to 5 percent in 2017. For purposes of determining net periodic benefit cost for Canadian plans, the annual rate of increase in the per capita cost of covered health care benefits was 8 percent for the year ended December 31, 2012, grading down to 4.5 percent in 2033. A one-percentage-point change in the assumed health care cost trend rate would have the following effects:

 

     1% increase      1% decrease  
     (In millions)  

Effect on service cost plus interest cost

   $ 0.3       $ (0.2

Effect on postretirement benefit obligation

     4.5         (3.6

Pension Trust Assets

The expected long-term rate of return on pension trust assets is 6.50% to 8.20% based on the historical investment returns of the trust, the forecasted returns of the asset classes and a survey of comparable pension plan sponsors.

The Company’s pension trust weighted-average asset allocations at December 31, 2012 and 2011, by asset category are as follows:

 

     Trust Assets at
December 31,
 
     2012     2011  

Equity securities

     64     62

Debt securities

     22        22   

Real Estate

     3        3   

Other

     11        13   
  

 

 

   

 

 

 

Total

     100.0     100.0
  

 

 

   

 

 

 

 

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The Board of Directors of Ryerson has general supervisory authority over the Pension Trust Fund and approves the investment policies and plan asset target allocation. An internal management committee provides on-going oversight of plan assets in accordance with the approved policies and asset allocation ranges and has the authority to appoint and dismiss investment managers. The investment policy objectives are to maximize long-term return from a diversified pool of assets while minimizing the risk of large losses, and to maintain adequate liquidity to permit timely payment of all benefits. The policies include diversification requirements and restrictions on concentration in any one single issuer or asset class. The currently approved asset investment classes are cash; fixed income; domestic equities; international equities; real estate; private equities and hedge funds of funds. Company management allocates the plan assets among the approved investment classes and provides appropriate directions to the investment managers pursuant to such allocations. The approved target ranges and allocations as of the December 31, 2012 measurement date were as follows:

 

     Range     Target  

Equity securities

     35-85     63

Debt securities

     10-30        21   

Real Estate

     0-10        9   

Other

     0-10        7   
    

 

 

 

Total

       100
    

 

 

 

The fair value of Ryerson’s pension plan assets at December 31, 2012 by asset category are as follows. See Note 16 for the definitions of Level 1, 2, and 3 fair value measurements.

 

     Fair Value Measurements at
December 31, 2012
 

Asset Category

   Total      Level 1      Level 2      Level 3  
     (In millions)  

Cash and cash equivalents

   $ 11.1       $ 11.1       $ —         $ —     

Equity securities:

           

US large cap

     121.0         —           121.0         —     

US small/mid cap

     45.4         —           45.4         —     

Canadian large cap

     6.4         —           6.4         —     

Canadian small cap

     1.6         —           1.6         —     

Other international companies

     183.1         —           183.1         —     

Fixed income securities:

           

Investment grade debt

     122.7         —           122.7         —     

Other types of investments:

           

Commodity funds

     1.5         —           1.5         —     

Multi-strategy funds

     26.7         —           —           26.7   

Private equity funds

     22.5         —           —           22.5   

Real estate

     17.7         —           17.0         0.7   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 559.7       $ 11.1       $ 498.7       $ 49.9   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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The hierarchy classification for common collective trust plan assets in 2011 totaling $151.5 million has been adjusted from Level 1 to Level 2 due to our ownership at the fund level rather than at the individual security level. The fair value of Ryerson’s pension plan assets at December 31, 2011 by asset category are as follows:

 

     Fair Value Measurements at
December 31, 2011
 

Asset Category

   Total      Level 1      Level 2      Level 3  
     (In millions)  

Cash and cash equivalents

   $ 31.6       $ 31.6       $ —         $ —     

Equity securities:

           

US large cap

     138.9         —           138.9         —     

US small/mid cap

     44.3         —           44.3         —     

Canadian large cap

     12.0         12.0         —           —     

Canadian small cap

     1.0         1.0         —           —     

Other international companies

     112.0         13.4         98.6         —     

Fixed income securities:

           

Investment grade debt

     111.1         19.0         92.1         —     

Other types of investments:

           

Multi-strategy funds

     2.7         —           —           2.7   

Private equity funds

     28.3         —           —           28.3   

Real estate

     15.3         —           12.8         2.5   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 497.2       $ 77.0       $ 386.7       $ 33.5   
  

 

 

    

 

 

    

 

 

    

 

 

 

The pension assets classified as Level 2 investments in both 2012 and 2011 are part of common collective trust investments.

 

     Fair Value Measurements Using Significant Unobservable Inputs
(Level 3)
 
     Multi-
Strategy
    Hedge funds    
    Private Equity
    Funds    
        Real Estate             Total      
     (In millions)  

Beginning balance at January 1, 2010

   $ 19.2      $ 29.8      $ 21.4      $ 70.4   

Actual return on plan assets:

        

Relating to assets still held at the reporting date

     0.2        2.4        0.7        3.3   

Relating to assets sold during the period

     0.7        0.9        3.7        5.3   

Purchases, sales, and settlements

     (14.1     (1.6     (22.0     (37.7
  

 

 

   

 

 

   

 

 

   

 

 

 

Ending balance at December 31, 2010

   $ 6.0      $ 31.5      $ 3.8      $ 41.3   

Actual return on plan assets:

        

Relating to assets still held at the reporting date

     0.2        0.3        0.2        0.7   

Relating to assets sold during the period

     —          0.7        (0.2     0.5   

Purchases

     —          1.4        —          1.4   

Sales

     (3.5     (5.6     (1.3     (10.4
  

 

 

   

 

 

   

 

 

   

 

 

 

Ending balance at December 31, 2011

   $ 2.7      $ 28.3      $ 2.5      $ 33.5   

Actual return on plan assets:

        

Relating to assets still held at the reporting date

     1.7        0.5        (0.3     1.9   

Relating to assets sold during the period

     (0.5     2.4        0.8        2.7   

Purchases

     25.0        0.5        —          25.5   

Sales

     (2.2     (9.2     (2.3     (13.7
  

 

 

   

 

 

   

 

 

   

 

 

 

Ending balance at December 31, 2012

   $ 26.7      $ 22.5      $ 0.7      $ 49.9   
  

 

 

   

 

 

   

 

 

   

 

 

 

 

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Securities listed on one or more national securities exchanges are valued at their last reported sales price on the date of valuation. If no sale occurred on the valuation date, the security is valued at the mean of the last “bid” and “ask” prices on the valuation date.

Corporate and government bonds which are not listed or admitted to trading on any securities exchanges are valued at the average mean of the last bid and ask prices on the valuation date based on quotations supplied by recognized quotation services or by reputable broker dealers.

The non-publicly traded securities, other securities or instruments for which reliable market quotations are not available are valued at each investment manager’s discretion. Valuations will depend on facts and circumstances known as of the valuation date and application of certain valuation methods.

Contributions

The Company contributed $45.9 million, $43.9 million, and $46.6 million for the years ended December 31, 2012, 2011 and 2010, respectively, to improve the funded status of the plans. The Company anticipates that it will have a minimum required pension contribution funding of approximately $48 million in 2013.

Estimated Future Benefit Payments

 

     Pension
Benefits
     Other
Benefits
 
     (In millions)  

2013

   $ 55.6       $ 13.3   

2014

     56.0         12.4   

2015

     56.4         11.9   

2016

     56.9         11.3   

2017

     57.2         10.6   

2018-2022

     289.8         43.1   

Multiemployer Pension and Other Postretirement Plans

Ryerson participates in two multiemployer pension plans covering 73 employees at 5 locations. Total contributions to the plans were $0.5 million, $0.4 million, and $0.4 million for the years ended December 31, 2012, 2011, and 2010, respectively. Ryerson’s contributions represent less than 5% of the total contributions to the plans. Ryerson maintains positive employee relations at all locations. During 2012, the Company exited and reentered the pension plan at one of the covered locations in an effort to reduce the overall pension liability. The transaction resulted in a withdrawal liability of $0.6 million as of December 31, 2012 which will be paid over a period of 25 years. The Company’s participation in these plans is not material to our financial statements.

Note 11: Commitments and Contingencies

Lease Obligations & Other

The Company leases buildings and equipment under noncancellable operating leases expiring in various years through 2025. Future minimum rental commitments are estimated to total $133.2 million, including approximately $26.6 million in 2013, $21.6 million in 2014, $18.9 million in 2015, $16.4 million in 2016, $12.7 million in 2017 and $37.0 million thereafter.

Rental expense under operating leases totaled $32.6 million, $30.5 million, and $25.6 million for the years ended December 31, 2012, 2011 and 2010, respectively.

To fulfill contractual requirements for certain customers in 2012, the Company has entered into certain fixed-price noncancellable contractual obligations. These purchase obligations which will all be paid in 2013 aggregated to $32.9 million at December 31, 2012.

 

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Concentrations of Various Risks

The Company’s financial instruments consist of cash and cash equivalents, accounts receivable, available-for-sale investments, derivative instruments, accounts payable, and notes payable. In the case of cash, accounts receivable and accounts payable, the carrying amount on the balance sheet approximates the fair values due to the short-term nature of these instruments. The available-for-sale investments in common stock are adjusted to fair value each period with unrealized gains and losses recorded within accumulated other comprehensive income. The derivative instruments are marked to market each period. The fair value of notes payable is disclosed in Note 16.

The Company’s financial instruments that are exposed to concentrations of credit risk consist primarily of derivative financial instruments and trade accounts receivable. Our derivative financial instruments are contracts placed with major financial institutions. Credit is generally extended to customers based upon an evaluation of each customer’s financial condition, with terms consistent in the industry and no collateral required. Concentrations of credit risk with respect to trade accounts receivable are limited due to the large number of customers and their dispersion across geographic areas.

The Company has signed supply agreements with certain vendors which may obligate the Company to make cash deposits based on the spot price of aluminum at the end of each month. These cash deposits offset amounts payable to the vendor when inventory is received. We made no cash deposits for the year ended December 31, 2012. We have no exposure as of December 31, 2012.

Approximately 14% of our total labor force is covered by collective bargaining agreements. There are collective bargaining agreements that will expire in fiscal 2013, which cover less than 1% of our total labor force. We believe that our overall relationship with our employees is good.

Litigation

From time to time, we are named as a defendant in legal actions incidental to our ordinary course of business. We do not believe that the resolution of these claims will have a material adverse effect on our financial position, results of operations or cash flows. We maintain liability insurance coverage to assist in protecting our assets from losses arising from or related to activities associated with business operations.

On December 27, 2011, Nancy Hoffman, Mark Hoffman, and Karen Hoffman (collectively, the “plaintiffs”) filed a sixth amended complaint in the Circuit Court of Cook County, Illinois naming JT Ryerson and three other entities as defendants (collectively, the “defendants”) in a lawsuit ( Nancy Hoffman, et.al. v. Dorlan Crane, et.al. ). That complaint asserted negligence and loss of consortium counts against the defendants for personal injuries allegedly suffered by plaintiffs resulting from a motor vehicle accident. On February 10, 2012, a jury returned a verdict against the defendants and awarded damages totaling $27.7 million for which the defendants are purportedly jointly and severally liable. On August 28, 2012, our post-trial motion was denied. On September 24, 2012, we filed our Notice of Appeal to the Appellate Court of Illinois, First Judicial District. Any potential loss ranges from zero to $27.7 million plus interest. We believe that any loss will be covered by insurance. At this time, the Company cannot predict the likely outcome of this matter.

In October 2011, the United States Environmental Protection Agency named us as one of more than 100 businesses that may be a potentially responsible party for the Portland Harbor Superfund Site, (“Portland Harbor”). We do not currently have sufficient information available to us to determine the total cost of any required investigation or remediation of the Portland Harbor site. Management cannot predict the ultimate outcome of this matter or estimate a range of potential loss at this time.

During the year ended December 31, 2010, the Company received $2.6 million related to the settlement of an insurance claim. Based on a 2003 agreement between Ispat International N.V. and Ispat Inland, Inc.

 

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(collectively, “Ispat”) and Ryerson, Ryerson assigned its environmental insurance policy issued by Kemper Environmental Ltd (“Kemper”) to Ispat and Ispat agreed to use commercially reasonable efforts to pursue certain claims against Kemper. Ryerson received a letter from ArcelorMittal, the successor in interest by merger to Ispat, in 2010 stating it had reached a settlement with Kemper Environmental Ltd. relating to a 2005 claim and that Ryerson would receive $2.6 million as its agreed upon share of the settlement. The Company received the $2.6 million in 2010 and in accordance with ASC 450-30, the Company recognized the gain upon its realization.

There are various claims and pending actions against the Company. The amount of liability, if any, for those claims and actions at December 31, 2012 is not determinable but, in the opinion of management, such liability, if any, will not have a material adverse effect on the Company’s financial position, results of operations or cash flows.

Note 12: Related Parties

The Company pays an affiliate of Platinum an annual monitoring fee of up to $5.0 million pursuant to a corporate advisory services agreement. The monitoring fee was $5.0 million for the years ended December 31, 2012, 2011 and 2010.

We declared and made a distribution of $35.0 million and $213.8 million to our stockholders in December 2012 and January 2010, respectively.

Note 13: Sales by Product

The Company derives substantially all of its sales from the distribution of metals. The following table shows the Company’s percentage of sales by major product line:

 

     Year Ended December 31,  

Product Line

   2012     2011     2010  
     (Percentage of Sales)  

Carbon Steel Flat

     25     27     29

Carbon Steel Plate

     13        11        8   

Carbon Steel Long

     15        10        9   

Stainless Steel Flat

     15        18        21   

Stainless Steel Plate

     4        4        4   

Stainless Steel Long

     4        4        3   

Aluminum Flat

     14        15        15   

Aluminum Plate

     3        3        3   

Aluminum Long

     4        4        4   

Other

     3        4        4   
  

 

 

   

 

 

   

 

 

 

Total

     100     100     100
  

 

 

   

 

 

   

 

 

 

No customer accounted for more than 2 percent of Company sales for the years ended December 31, 2012, 2011 and 2010. The top ten customers accounted for less than 10 percent of its sales for the year ended December 31, 2012. A significant majority of the Company’s sales are attributable to its U.S. operations and a significant majority of its long-lived assets are located in the United States. The only operations attributed to foreign countries relate to the Company’s subsidiaries in Canada, China, Mexico and Brazil, which in aggregate comprised 13 percent of the Company’s sales during the year ended December 31, 2012 and 14 percent during the years ended December 31, 2011 and 2010; Canadian, Chinese, Mexican and Brazilian assets were 16 percent, 15 percent and 15 percent of total Company assets at December 31, 2012, 2011 and 2010, respectively.

 

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Note 14: Other Matters

Equity Investment

Automated Laser Fabrication Co., LLC . In 2011, the Company invested $0.8 million in Automated Laser Fabrication Co., LLC (“ALF”) for a 38 percent equity interest. ALF is a steel processing company located in Streetsboro, Ohio. The Company accounts for this investment under the equity method of accounting. The Company’s investment in this joint venture is not considered material to the Company’s consolidated financial position or results of operations.

Note 15: Compensation Plan

Participation Plan

In 2009, Ryerson Holding adopted the 2009 Participation Plan (as amended and restated, the “Plan”). The purpose of the Plan is to provide incentive compensation to key employees of the Company by granting performance units. The value of the performance units is related to the appreciation in the value of the Company from and after the date of grant and the performance units vest over a period specified in the applicable award agreement, which typically vest over 44 months. The Plan may be altered, amended or terminated by the Company at any time. All performance units will terminate upon termination of the Plan or expiration on February 15, 2014. Participants in the Plan may be entitled to receive compensation for their vested units if certain performance-based “qualifying events” occur during the participant’s employment with the Company or during a short period following the participant’s death.

There are two “qualifying events” defined in the Plan: (1) A “qualifying sale event” in which there is a sale of some or all of the stock of Ryerson Holding then held by Ryerson Holding’s principal stockholders and (2) A “qualifying distribution” in which Ryerson Holding pays a cash dividend to its principal stockholders. Upon the occurrence of a Qualifying Event, participants with vested units may receive an amount equal to the difference between: (i) the value (as defined by the Plan) of the units on the date of the qualifying event, and (ii) the value of the units assigned on the date of grant. No amounts are due to participants until the total cash dividends and net proceeds from the sale of common stock to Ryerson Holding’s principal stockholder exceeds $875 million. Upon termination, with or without cause, units are forfeited, except in the case of death, as described in the Plan. As of December 31, 2012, 87,500,000 units have been authorized and granted, 50,312,500 units have been forfeited and 37,187,500 units have vested as of the date hereof. The Company is accounting for this Plan in accordance with FASB ASC 718, “ Compensation—Stock Compensation ” (“ASC 718”). Since the occurrence of future “qualifying events” is not determinable or estimable, no liability or expense has been recognized to date. The fair value of the performance units are based upon cash dividends to and net proceeds from sales of common stock of Ryerson Holding by its principal stockholders through the end of each period that have occurred or are probable. The fair value of the performance units on their grant date in 2009 and at December 31, 2012, 2011 and 2010, which included cash distributions of $35.0 million in 2012, $213.8 million in 2010 and $56.5 million in 2009, was zero.

Note 16: Derivatives and Fair Value Measurements

Derivatives

The Company is exposed to certain risks relating to its ongoing business operations. The primary risks managed by using derivative instruments are interest rate risk, foreign currency risk, and commodity price risk. Interest rate swaps are entered into to manage interest rate risk associated with the Company’s floating-rate borrowings. We use foreign currency exchange contracts to hedge our Canadian subsidiaries’ variability in cash flows from the forecasted payment of currencies other than the functional currency. From time to time, we may enter into fixed price sales contracts with our customers for certain of our inventory components. We may enter into metal commodity futures and options contracts periodically to reduce volatility in the price of metals. We may also enter into natural gas price swaps to manage the price risk of forecasted purchases of natural gas. The Company currently does not account for its derivative contracts as hedges but rather marks them to market with a

 

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corresponding offset to current earnings. The Company regularly reviews the creditworthiness of its derivative counterparties and does not expect to incur a significant loss from the failure of any counterparties to perform under any agreements.

The following table summarizes the location and fair value amount of our derivative instruments reported in our consolidated balance sheet as of December 31, 2012 and 2011:

 

   

Asset Derivatives

   

Liability Derivatives

 
   

December 31, 2012

   

December 31, 2011

   

December 31, 2012

    December 31, 2011  
   

Balance
Sheet
Location

  Fair Value    

Balance
Sheet
Location

  Fair Value    

Balance
Sheet
Location

  Fair Value     Balance
Sheet
Location
  Fair Value  
    (In millions)  

Derivatives not designated as hedging instruments under ASC 815

               

Foreign exchange contracts

  —       —        —       —        Other accrued liabilities     —        Other accrued
liabilities
  $ 0.1   

Commodity contracts

  Prepaid expenses and other current assets   $ 0.2      Prepaid expenses and other current assets   $ 0.1      Other accrued liabilities     —        Other accrued
liabilities
    1.0   
   

 

 

     

 

 

     

 

 

     

 

 

 

Total derivatives

    $ 0.2        $ 0.1        $        $ 1.1   
   

 

 

     

 

 

     

 

 

     

 

 

 

As of December 31, 2012 and 2011, the Company’s foreign currency exchange contracts had a U.S. dollar notional amount of $0.7 million and $4.9 million, respectively. As of December 31, 2012 and 2011, the Company had 182 tons and 276 tons, respectively, of nickel futures or option contracts related to forecasted purchases. As of December 31, 2012 and 2011, the Company had 1,300 tons and 5,780 tons, respectively, of hot roll steel coil option contracts related to forecasted purchases. The Company has aluminum price swaps related to forecasted purchases, which had a notional amount of 80 tons and 1,210 tons as of December 31, 2012 and 2011, respectively.

The following table summarizes the location and amount of gains and losses reported in our consolidated statement of operations for the years ended December 31, 2012, 2011 and 2010:

 

Derivatives not designated as hedging

instruments under ASC 815

  

Location of Gain/(Loss)

Recognized in Income on

Derivative

   Amount of Gain/(Loss)
Recognized in Income on Derivatives
 
      Year Ended December 31,  
      2012      2011     2010  
          (In millions)  

Interest rate contracts

   Interest and other expense on debt    $ —         $ —        $ (1.1

Foreign exchange contracts

   Other income and (expense), net      0.1         0.2        (0.3

Commodity contracts

   Cost of materials sold      1.3         (1.9     (0.3

Natural gas commodity contracts

   Warehousing, delivery, selling, general and administrative      —           (0.1     (0.1
     

 

 

    

 

 

   

 

 

 

Total

      $ 1.4       $ (1.8   $ (1.8
     

 

 

    

 

 

   

 

 

 

 

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Fair Value Measurements

As required by ASC 820-10-65-1, the Company adopted the nonrecurring fair value measurement disclosures for nonfinancial assets and liabilities. To increase consistency and comparability in fair value measurements, ASC 820 establishes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value into three levels as follows:

 

  1.   Level 1—quoted prices (unadjusted) in active markets for identical assets or liabilities that the Company has the ability to access as of the reporting date.

 

  2.   Level 2—inputs other than quoted prices included within Level 1 that are directly observable for the asset or liability or indirectly observable through corroboration with observable market data.

 

  3.   Level 3—unobservable inputs, such as internally-developed pricing models for the asset or liability due to little or no market activity for the asset or liability.

The following table presents assets and liabilities measured and recorded at fair value on our Consolidated Balance Sheets on a recurring basis and their level within the fair value hierarchy as of December 31, 2012:

 

     At December 31, 2012  
     Level
1
     Level
2
     Level
3
 
     (In millions)  

Assets

        

Cash equivalents:

        

Commercial paper

   $ 28.3         —           —     
  

 

 

    

 

 

    

 

 

 

Prepaid and other current assets:

        

Common stock – available-for-sale investment

   $ 20.7       $ —         $ —     
  

 

 

    

 

 

    

 

 

 

Mark-to-market derivatives:

        

Commodity contracts

   $ —         $ 0.2       $ —     
  

 

 

    

 

 

    

 

 

 

The following table presents assets and liabilities measured and recorded at fair value on our Consolidated Balance Sheets on a recurring basis and their level within the fair value hierarchy as of December 31, 2011:

 

     At December 31, 2011  
     Level 1      Level 2      Level 3  
     (In millions)  

Assets

        

Cash equivalents:

        

Commercial paper

     13.1         —           —     

Money market mutual fund

     2.8         —           —     
  

 

 

    

 

 

    

 

 

 

Total cash equivalents

   $ 15.9       $ —         $ —     
  

 

 

    

 

 

    

 

 

 

Prepaid and other current assets:

        

Common stock—available-for-sale investment

   $ 10.4       $ —         $ —     
  

 

 

    

 

 

    

 

 

 

Mark-to-market derivatives:

        

Commodity contracts

   $ —         $ 0.1       $ —     
  

 

 

    

 

 

    

 

 

 

Liabilities

        

Mark-to-market derivatives:

        

Foreign exchange contracts

     —           0.1         —     

Commodity contracts

     —           1.0         —     
  

 

 

    

 

 

    

 

 

 

Total liability derivatives

   $ —         $ 1.1       $ —     
  

 

 

    

 

 

    

 

 

 

 

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The fair value of each derivative contract is determined using Level 2 inputs and the market approach valuation technique, as described in ASC 820. The Company has various commodity derivatives to lock in nickel prices for varying time periods. The fair value of these derivatives is determined based on the spot price each individual contract was purchased at and compared with the one-month daily average actual spot price on the London Metals Exchange for nickel on the valuation date. The Company also has commodity derivatives to lock in hot roll coil and aluminum prices for varying time periods. The fair value of these derivatives is determined based on the spot price each individual contract was purchased at and compared with the one-month daily average actual spot price on the New York Mercantile Exchange for the commodity on the valuation date. In addition, the Company has numerous foreign exchange contracts to hedge our Canadian subsidiaries’ variability in cash flows from the forecasted payment of currencies other than the functional currency, the Canadian dollar. The Company defines the fair value of foreign exchange contracts as the amount of the difference between the contracted and current market value at the end of the period. The Company estimates the current market value of foreign exchange contracts by obtaining month-end market quotes of foreign exchange rates and forward rates for contracts with similar terms. The Company uses the exchange rates provided by Reuters. Each contract term varies in the number of months, but on average is between 3 to 12 months in length.

The following table presents assets and liabilities measured and recorded at fair value on our Consolidated Balance Sheets on a non-recurring basis and their level within the fair value hierarchy as of December 31, 2012:

 

     At December 31, 2012  
     Level 1      Level 2      Level 3  
     (In millions)  

Assets

        

Other current assets—assets held for sale (Note 5)

   $ —         $ 3.6       $ —     

The following table presents assets and liabilities measured and recorded at fair value on our Consolidated Balance Sheets on a non-recurring basis and their level within the fair value hierarchy as of December 31, 2011:

 

     At December 31, 2011  
     Level 1      Level 2      Level 3  
     (In millions)  

Assets

        

Other current assets—assets held for sale (Note 5)

   $ —         $ 10.0       $ —     

The carrying and estimated fair values of the Company’s financial instruments at December 31, 2012 and 2011 were as follows:

 

     At December 31, 2012      At December 31, 2011  
     Carrying
Amount
     Fair Value      Carrying
Amount
     Fair Value  
     (In millions)  

Cash and cash equivalents

   $ 71.2       $ 71.2       $ 61.7       $ 61.7   

Restricted Cash

     3.9         3.9         5.3         5.3   

Receivables less provision for allowances, claims and doubtful accounts

     394.1         394.1         513.9         513.9   

Accounts payable

     196.3         196.3         245.1         245.1   

Long-term debt, including current portion

     1,305.4         1,296.4         1,316.2         1,225.7   

The estimated fair value of the Company’s cash and cash equivalents, receivables less provision for allowances, claims and doubtful accounts and accounts payable approximate their carrying amounts due to the short-term nature of these financial instruments. The estimated fair value of the Company’s long-term debt and the current portions thereof is determined by using quoted market prices of Company debt securities (Level 2 inputs).

 

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Available-For-Sale Investments

The Company has classified investments made during 2010 and 2012 as available-for-sale at the time of their purchase. Investments classified as available-for-sale are recorded at fair value with the related unrealized gains and losses included in accumulated other comprehensive income. Management evaluates investments in an unrealized loss position on whether an other-than-temporary impairment has occurred on a periodic basis. Factors considered by management in assessing whether an other-than-temporary impairment has occurred include: the nature of the investment; whether the decline in fair value is attributable to specific adverse conditions affecting the investment; the financial condition of the investee; the severity and the duration of the impairment; and whether we intend to sell the investment or will be required to sell the investment before recovery of its amortized cost basis. When it is determined that an other-than-temporary impairment has occurred, the investment is written down to its market value at the end of the period in which it is determined that an other-than-temporary decline has occurred. As of December 31, 2012, the investment was in a gross unrealized gain position. Realized gains and losses are recorded within the statement of operations upon sale of the security and are based on specific identification.

The Company’s available-for-sale securities as of December 31, 2012 can be summarized as follows:

 

     At December 31, 2012  
     Cost      Gross Unrealized
Gains
     Gross
Unrealized
Losses
     Fair Value  
     (In millions)  

Common stock

   $ 17.4       $ 3.3       $  —         $ 20.7   

The Company’s available-for-sale security as of December 31, 2011 can be summarized as follows:

 

     At December 31, 2011  
     Cost      Gross Unrealized
Gains
     Gross
Unrealized
Losses
    Fair Value  
     (In millions)  

Common stock

   $ 14.8       $  —        $ (4.4   $ 10.4   

There is no maturity date for this investment and there have been no sales for the years ended December 31, 2012, 2011 and 2010.

Note 17: Income Taxes

The elements of the provision (benefit) for income taxes were as follows:

 

     Year Ended December 31,  
     2012     2011     2010  
     (In millions)  

Income (loss) before income tax:

      

U.S.

   $ 47.5      $ (14.8   $ (84.1

Foreign

     (7.2     (5.0     (6.5
  

 

 

   

 

 

   

 

 

 
   $ 40.3      $ (19.8   $ (90.6
  

 

 

   

 

 

   

 

 

 

Current income taxes:

      

Federal

   $      $ (5.3   $ (46.6

Foreign

     0.6        5.4        1.5   

State

     3.1        0.5        (0.6
  

 

 

   

 

 

   

 

 

 
     3.7        0.6        (45.7

Deferred income taxes

     (9.2     (11.6     58.8   
  

 

 

   

 

 

   

 

 

 

Total tax provision (benefit)

   $ (5.5   $ (11.0   $ 13.1   
  

 

 

   

 

 

   

 

 

 

 

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Income taxes differ from the amounts computed by applying the federal tax rate as follows:

 

     Year Ended December 31,  
     2012     2011     2010  
     (In millions)  

Federal income tax expense (benefit) computed at statutory tax rate of 35%

   $ 14.1      $ (6.9   $ (31.7

Additional taxes or credits from:

      

State and local income taxes, net of federal income tax effect

     3.0        2.0        (0.4

Non-deductible expenses and non-taxable income

     1.9        (1.1     0.7   

Domestic production activities

     —          —          2.1   

Foreign income not includable in federal taxable income

     0.3        5.8        5.5   

Effect of acquisition related elections and settlements (1)

     (7.1     —          —     

Valuation allowance changes (net) (2)

     (19.2     (11.7     36.5   

All other, net

     1.5        0.9        0.4   
  

 

 

   

 

 

   

 

 

 

Total income tax provision (benefit)

   $ (5.5   $ (11.0   $ 13.1   
  

 

 

   

 

 

   

 

 

 

 

(1)   Includes an $8.5 million deferred tax benefit related to a tax election corresponding with the acquisition of Turret, for which an offsetting valuation allowance was also recorded in 2012.
(2)   The 2012 change in valuation allowance includes a benefit from the use of U.S. federal and state net operating loss carryforwards totaling approximately $4 million.

The components of the deferred income tax assets and liabilities arising under FASB ASC 740, “ Income Taxes ” (“ASC 740”) were as follows:

 

     At December 31,  
     2012     2011  
     (In millions)  

Deferred tax assets:

    

AMT tax credit carryforwards

   $ 30      $ 30   

Post-retirement benefits other than pensions

     49        54   

Federal and foreign net operating loss carryforwards

     64        64   

State net operating loss carryforwards

     12        12   

Pension liability

     143        139   

Other deductible temporary differences

     16        22   

Less: valuation allowances

     (147     (152
  

 

 

   

 

 

 
   $ 167      $ 169   
  

 

 

   

 

 

 

Deferred tax liabilities:

    

Fixed asset basis difference

   $ 109      $ 114   

Inventory basis difference

     130        131   

Other intangibles

     11        19   
  

 

 

   

 

 

 
     250        264   
  

 

 

   

 

 

 

Net deferred tax liability

   $ (83   $ (95
  

 

 

   

 

 

 

The Company recognized a total net tax benefit of $19.2 million related to 2012 changes in valuation allowance, including a $15.2 million tax benefit as a result of the release of valuation allowance related to certain state deferred tax assets recorded at one of its subsidiaries, JT Ryerson, at December 31, 2012. As described in Note 1, the Company assesses the need for a valuation allowance considering all available positive and negative evidence, including past operating results, projections of future taxable income and the feasibility of ongoing tax planning strategies. The fourth quarter of 2012 was the first quarter in which JT Ryerson had sustained an operating profit in both the preceding cumulative three fiscal year period and in each of its two preceding fiscal

 

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years, providing objective evidence of JT Ryerson’s ability to earn future profits. Combined with JT Ryerson’s projections of future income providing additional subjective evidence of JT Ryerson’s ability to earn future profits and management’s judgment, the Company determined that these deferred tax assets were more likely than not realizable and accordingly the valuation allowance was no longer required.

The Company will continue to maintain a valuation allowance on definite-lived U.S. federal and state (excluding JT Ryerson) deferred tax assets until such time as in management’s judgment, considering all available positive and negative evidence and consistent with its determinations regarding JT Ryerson described above, the Company determines that these deferred tax assets are more likely than not realizable.

The Company had available at December 31, 2012, federal AMT credit carryforwards of approximately $30 million, which may be used indefinitely to reduce regular federal income taxes.

The Company’s deferred tax assets also include $56 million related to U.S. federal net operating loss (“NOL”) carryforwards which expire in 18 years, $12 million related to state NOL carryforwards which expire generally in 3 to 15 years and $8 million related to foreign NOL carryforwards which expire in 1 to 5 years, available at December 31, 2012.

Earnings from the Company’s foreign subsidiaries are considered to be indefinitely reinvested and, accordingly, no provision for U.S. federal and state income taxes or foreign withholding tax has been made in our Consolidated Financial Statements related to the indefinitely reinvested earnings. At December 31, 2012, the Company had approximately $34 million of undistributed foreign earnings on which no U.S. tax expense has been recorded. A distribution of these non-U.S. earnings in the form of dividends or otherwise would subject the Company to both U.S. federal and state income taxes, as adjusted for tax credits and foreign withholding taxes. A determination of the amount of any unrecognized deferred income tax liability on the undistributed earnings is predominately dependent on the determination of the available tax credits. The ability to benefit from the tax credits is dependent on a number of currently unknown factors including the timing of future distributions, the mix of distributions and the amount of non-U.S. source income in future years. Modeling the many future potential scenarios is therefore not practical.

The Company’s foreign subsidiaries in Canada and China held approximately $51 million in cash and short term investments at the end of 2012 that, if repatriated, would cause the Company to accrue additional U.S. income taxes. The Company does not intend to repatriate these funds.

The Company accounts for uncertain income tax positions in accordance with ASC 740. A reconciliation of the beginning and ending amount of unrecognized tax benefits is as follows:

 

     Unrecognized
Tax Benefits
 
     (In millions)  

Unrecognized tax benefits balance at January 1, 2010

   $ 5.0   

Gross increases—tax positions in current periods

     1.6   

Settlements and closing of statute of limitations

     (0.2
  

 

 

 

Unrecognized tax benefits balance at December 31, 2010

   $ 6.4   

Gross increases—tax positions in current periods

     1.5   

Settlements and closing of statute of limitations

     (0.9
  

 

 

 

Unrecognized tax benefits balance at December 31, 2011

   $ 7.0   

Gross increases—tax positions in current periods

     2.0   
  

 

 

 

Unrecognized tax benefits balance at December 31, 2012

   $ 9.0   
  

 

 

 

 

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Ryerson and its subsidiaries are subject to U.S. federal income tax as well as income tax of multiple state and foreign jurisdictions. The Company has substantially concluded all U.S. federal income tax matters for years through 2009. Substantially all state and local income tax matters have been concluded through 2006. However, a change by a state in subsequent years would result in an insignificant change to the Company’s state tax liability. The Company has substantially concluded foreign income tax matters through 2006 for all significant foreign jurisdictions.

We recognize interest and penalties related to uncertain tax positions in income tax expense. As of December 31, 2012 and 2011, we had approximately $1.0 million and $0.7 million of accrued interest related to uncertain tax positions, respectively. Total amount of unrecognized tax benefits that would affect our effective tax rate if recognized is $9.0 million and $3.8 million as of December 31, 2012 and 2011, respectively. Although a larger portion of the unrecognized tax benefit may affect the effective tax rate, currently, the benefit would be in the form of a deferred tax asset fully offset by a valuation allowance.

Note 18: Earnings per Share

On July 16, 2007, Ryerson Holding was capitalized with 5,000,000 shares of common stock by Platinum Equity, LLC. All shares outstanding are common shares and have equal voting, liquidation and preference rights.

Basic earnings per share (“EPS”) attributable to Ryerson Holding’s common stock is determined based on earnings for the period divided by the weighted average number of common shares outstanding during the period. Diluted EPS attributable to Ryerson Holding’s common stock considers the effect of potential common shares, unless inclusion of the potential common shares would have an antidilutive effect. Subsequent to October 19, 2007, Ryerson Holding does not have any securities or other items that are convertible into common shares, therefore basic and fully diluted EPS are the same.

The following table sets forth the calculation of basic and diluted earnings (loss) per share:

 

     Year Ended December 31,  

Basic and diluted earnings (loss) per share

       2012              2011             2010      
     (In millions, except per share data)  

Net income (loss) available to common stockholders

   $ 47.1       $ (8.1   $ (104.0
  

 

 

    

 

 

   

 

 

 

Average shares of common stock outstanding

     5.0         5.0        5.0   
  

 

 

    

 

 

   

 

 

 

Basic and diluted earnings (loss) per share

   $ 9.41       $ (1.62   $ (20.80
  

 

 

    

 

 

   

 

 

 

Note 19: Subsequent Events

JT Ryerson, one of our subsidiaries, is party to a corporate advisory services agreement with Platinum Advisors, an affiliate of Platinum, pursuant to which Platinum Advisors provides JT Ryerson certain business, management, administrative and financial advice. On                     , JT Ryerson’s Board of Directors approved the termination of this services agreement contingent on the closing of the initial public offering. As consideration for terminating the monitoring fee payable thereunder, JT Ryerson will pay Platinum Advisors $         million. The Company will recognize the termination fee within Warehousing, delivery, selling, general and administrative expense upon the closing of the initial public offering. The unaudited pro forma balance sheet presents the effect of funding the termination payment to the principal stockholder. The unaudited pro forma balance sheet is presented for informational purposes only in accordance with Staff Accounting Bulletin Topic 1.B.3.

On                     , our Board of Directors approved a              for 1.00 stock split of the Company’s common stock to be effected prior to the closing of this offering. Per share and share amounts presented herein have been adjusted for all periods presented to give retroactive effect to the              for 1.00 stock split.

 

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SUPPLEMENTARY FINANCIAL DATA (UNAUDITED)

RYERSON HOLDING CORPORATION AND SUBSIDIARY COMPANIES

SUMMARY BY QUARTER

(In millions)

 

     Net Sales      Gross
Profit
     Income (Loss)
Before
Income
Taxes
    Net Income
(Loss)
    Net Income
(Loss)
Attributable
to Ryerson
Holding
Corporation
    Basic  and
Diluted
Earnings

(Loss) per
Common
Share
 

2011

              

First Quarter (1)

   $ 1,187.0       $ 156.7       $ (2.8   $ (1.6   $ (1.7   $ (0.34

Second Quarter (2)

     1,289.0         163.9         (10.2     (18.0     (18.0     (3.60

Third Quarter (3)

     1,218.8         173.7         2.6        (0.9     (0.9     (0.18

Fourth Quarter (4)

     1,035.0         164.5         (9.4     11.7        12.5        2.50   
  

 

 

    

 

 

    

 

 

   

 

 

   

 

 

   

 

 

 

Year

   $ 4,729.8       $ 658.8       $ (19.8   $ (8.8   $ (8.1   $ (1.62
  

 

 

    

 

 

    

 

 

   

 

 

   

 

 

   

 

 

 

2012

              

First Quarter

   $ 1,121.6       $ 190.8       $ 27.5      $ 24.9      $ 25.0      $ 4.99   

Second Quarter (5)

     1,090.6         184.0         19.8        15.4        15.6        3.13   

Third Quarter

     962.2         180.5         18.6        16.0        16.4        3.29   

Fourth Quarter (6)

     850.3         154.3         (25.6     (10.5     (9.9     (2.00
  

 

 

    

 

 

    

 

 

   

 

 

   

 

 

   

 

 

 

Year

   $ 4,024.7       $ 709.6       $ 40.3      $ 45.8      $ 47.1      $ 9.41   
  

 

 

    

 

 

    

 

 

   

 

 

   

 

 

   

 

 

 

 

(1)   Included in the first quarter 2011 results is a $5.8 million gain on bargain purchase related to our Singer acquisition and a $1.1 million write off of debt issuance costs associated with our prior credit facility upon entering into an amended revolving credit facility on March 14, 2011.
(2)   Included in the second quarter 2011 results is an impairment charge of $2.5 million related to certain assets held for sale to recognize the assets at their fair value less cost to sell.
(3)   Included in the third quarter 2011 results is an impairment charge of $2.2 million related to certain assets held for sale to recognize the assets at their fair value less cost to sell.
(4)   Included in the fourth quarter 2011 results is an impairment charge of $3.1 million related to certain assets held for sale to recognize the assets at their fair value less cost to sell and an impairment charge of $1.5 million related to goodwill. The fourth quarter also includes a $9.8 million restructuring charge related to a reorganization plan implemented to reduce headcount. The fourth quarter also included an income tax benefit of $21.1 million, primarily related to benefits relating to the purchase accounting impact of the Turret acquisition.
(5)   Included in the second quarter 2012 results is an impairment charge of $0.9 million related to certain assets held for sale to recognize the assets at their fair value less cost to sell.
(6)   Included in the fourth quarter 2012 results is an impairment charge of $0.1 million related to certain assets held for sale to recognize the assets at their fair value less cost to sell, $1.1 million restructuring charges primarily for employee-related costs resulting from a facility closure, a $32.8 million loss on the redemption of the Old Ryerson Notes and Ryerson Holding Notes, and a $1.7 million curtailment gain related to an amendment of a Canadian post-retirement medical and life insurance plan. The fourth quarter also included an income tax benefit of $15.2 million related to the release of valuation allowance associated with certain state deferred tax assets.

 

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SCHEDULE I—CONDENSED FINANCIAL INFORMATION OF REGISTRANT

RYERSON HOLDING CORPORATION

(Parent Company Only)

STATEMENTS OF OPERATIONS

(In millions)

 

     Year ended December 31,  
     2012     2011     2010  

Administrative and other expenses

   $ (1.0   $ (0.1   $ (1.5

Other income and (expense), net

     (15.6     —          —     

Interest and other expense on debt

     (40.1     (43.0     (32.3

Equity in income (loss) of subsidiaries

     103.8        35.0        (70.8
  

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

     47.1        (8.1     (104.6

Benefit for income taxes

     —          —          (0.6
  

 

 

   

 

 

   

 

 

 

Net income (loss)

   $ 47.1      $ (8.1   $ (104.0
  

 

 

   

 

 

   

 

 

 

 

 

See Notes to Condensed Financial Statements.

 

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SCHEDULE I—CONDENSED FINANCIAL INFORMATION OF REGISTRANT

RYERSON HOLDING CORPORATION

(Parent Company Only)

STATEMENTS OF COMPREHENSIVE INCOME

(In millions)

 

     Year Ended December 31,  
     2012     2011     2010  

Net income (loss)

   $ 47.1      $ (8.1   $ (104.0

Other comprehensive income (loss), before tax:

      

Foreign currency translation adjustments

     4.3        (1.5     11.0   

Unrealized gain (loss) on available-for-sale investment

     7.7        (9.8     5.4   

Changes in defined benefit pension and other post-retirement benefit plans

     (51.5     (66.7     (19.0
  

 

 

   

 

 

   

 

 

 

Other comprehensive loss

     (39.5     (78.0     (2.6

Total comprehensive income (loss), before tax

     7.6        (86.1     (106.6

Income tax benefit related to items of other comprehensive income

     (2.1     (1.5     (0.7
  

 

 

   

 

 

   

 

 

 

Comprehensive income (loss), after tax

   $ 9.7      $ (84.6   $ (105.9
  

 

 

   

 

 

   

 

 

 

See Notes to Condensed Financial Statements.

 

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SCHEDULE I—CONDENSED FINANCIAL INFORMATION OF REGISTRANT

RYERSON HOLDING CORPORATION

(Parent Company Only)

STATEMENTS OF CASH FLOWS

(In millions)

 

     Year ended December 31,  
     2012     2011     2010  

Operating Activities:

      

Net income (loss)

   $ 47.1      $ (8.1   $ (104.0

Adjustments to reconcile net income (loss) to net

      

cash provided by (used in) operating activities:

      

Equity in (earnings) losses of subsidiaries

     (103.8     (35.0     70.8   

Noncash interest expense related to debt discount amortization

     39.0        41.5        30.9   

Loss on retirement of debt

     15.6        —         —     

Decrease in receivables from subsidiaries

     0.6        0.7        3.5   

Decrease in other assets

     1.0        0.9        2.0   

Decrease in accounts payable

     —          —          (0.7

Increase (decrease) in accrued liabilities

     0.5        —          (2.8
  

 

 

   

 

 

   

 

 

 

Net adjustments

     (47.1     8.1        103.7   
  

 

 

   

 

 

   

 

 

 

Net cash provided by (used in) operating activities

     —          —          (0.3
  

 

 

   

 

 

   

 

 

 

Investing Activities:

      

Dividends received from subsidiaries

     379.9        —          —     
  

 

 

   

 

 

   

 

 

 

Net cash provided by investing activities

     379.9        —          —     
  

 

 

   

 

 

   

 

 

 

Financing activities:

      

Long-term debt issued

     —          —          220.2   

Long-term debt retired

     (344.9     —          —     

Long-term debt issuance costs

     —          —          (5.8

Distributions made

     (35.0     —          (213.8
  

 

 

   

 

 

   

 

 

 

Net cash provided by (used in) financing activities

     (379.9 )     —          0.6   
  

 

 

   

 

 

   

 

 

 

Net increase (decrease) in cash and cash equivalents

     —          —          0.3   

Cash and cash equivalents—beginning of period

     0.4        0.4        0.1   
  

 

 

   

 

 

   

 

 

 

Cash and cash equivalents—end of period

   $ 0.4      $ 0.4      $ 0.4   
  

 

 

   

 

 

   

 

 

 

See Notes to Condensed Financial Statements.

 

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SCHEDULE I—CONDENSED FINANCIAL INFORMATION OF REGISTRANT

RYERSON HOLDING CORPORATION

(Parent Company Only)

BALANCE SHEETS

(In millions, except shares)

 

     At December 31,  
     2012     2011  

Assets

    

Current assets:

    

Cash and cash equivalents

   $ 0.4      $ 0.4   

Receivable from subsidiaries

     11.4        11.7   
  

 

 

   

 

 

 

Total current assets

     11.8        12.1   

Investment in subsidiaries

     —          5.9   

Deferred charges and other assets

     —          3.3   
  

 

 

   

 

 

 

Total assets

   $ 11.8      $ 21.3   
  

 

 

   

 

 

 

Liabilities

    

Accrued liabilities

   $ 0.5      $ —     
  

 

 

   

 

 

 

Total current liabilities

     0.5        —     

Long-term debt

     —          292.6   

Dividends in excess of investment in subsidiaries

     307.9        —     
  

 

 

   

 

 

 

Total liabilities

     308.4        292.6   

Stockholders’ equity (deficit)

    

Common stock, $0.01 par value; 10,000,000 shares authorized; 5,000,000 shares issued at 2012 and 2011

     —          —     

Capital in excess of par value

     189.9        224.9   

Accumulated deficit

     (234.4     (281.5

Accumulated other comprehensive loss

     (252.1     (214.7
  

 

 

   

 

 

 

Total stockholders’ equity (deficit)

     (296.6     (271.3
  

 

 

   

 

 

 

Total liabilities and stockholders’ equity

   $ 11.8      $ 21.3   
  

 

 

   

 

 

 

See Notes to Condensed Financial Statements.

 

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Table of Contents

SCHEDULE I—CONDENSED FINANCIAL INFORMATION OF REGISTRANT

RYERSON HOLDING CORPORATION

(Parent Company Only)

NOTES TO FINANCIAL STATEMENTS

(In millions)

Note 1: Basis of presentation

In the parent company only financial statements, the Company’s investment in subsidiaries is stated at cost plus equity in undistributed earnings of subsidiaries since the date of acquisition. The Company’s share of net income of its unconsolidated subsidiaries is included in consolidated income using the equity method. The parent company only financial statements should be read in conjunction with the Company’s consolidated financial statements.

Note 2: Debt

As of November 1, 2012, all of the Ryerson Holding Notes were repurchased or redeemed and cancelled. The Company recorded a $15.6 million loss on the repurchase and cancellation of debt related to the Ryerson Holding Notes within other income and (expense), net on the Consolidated Statements of Operations.

Note 3: Guarantee

Ryerson Holding has guaranteed $35 million of loans made between three of its wholly-owned subsidiaries. These loans are payable on demand.

Note 4: Dividends from subsidiaries

Cash dividends paid to Ryerson Holding Corporation from the Company’s consolidated subsidiaries were $379.9 million for the year ended December 31, 2012. No cash dividends were paid for the years ended December 31, 2011 and 2010.

 

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RYERSON HOLDING CORPORATION AND SUBSIDIARY COMPANIES

SCHEDULE II—VALUATION AND QUALIFYING ACCOUNTS

For the Years Ended December 31, 2012, 2011 and 2010

(In millions)

 

    Provision for Allowances  
    Balance at
Beginning
of Period
    Acquisition
of Business
    Additions
Charged
(Credited)
to Income
    Additions
Charged
to Other
Comprehensive
Income
    Deductions
from
Reserves
    Balance
at End
of Period
 

Year ended December 31, 2012

           

Allowance for doubtful accounts

  $ 7.7      $ —        $ 1.7      $ —        $ (2.3 )(A)    $ 7.1   

Valuation allowance—deferred tax assets

    151.7        1.2 (B)      (19.2     13.6        —          147.3   

Year ended December 31, 2011

           

Allowance for doubtful accounts

  $ 8.7      $ —        $ 3.4      $ —        $ (4.4 )(A)    $ 7.7   

Valuation allowance—deferred tax assets

    136.6        —          (11.7     26.8        —          151.7   

Year ended December 31, 2010

           

Allowance for doubtful accounts

  $ 10.5      $ —        $ 3.0      $ —        $ (4.8 )(A)    $ 8.7   

Valuation allowance—deferred tax assets

    98.8        —          36.5        4.4        (3.1 )(C)      136.6   

NOTES:

(A)   Bad debts written off during the year
(B)   Reserve of $1.2 million was acquired in acquisition of Açofran
(C)   Change in net deferred tax assets for which a valuation allowance was fully provided

 

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LOGO

 

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LOGO   LOGO   LOGO

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Table of Contents

 

 

Until                     , 2013 (25 days after the date of this prospectus), all dealers that buy, sell or trade our common stock, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers’ obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.

             Shares

 

LOGO

Ryerson Holding Corporation

Common Stock

 

 

P R O S P E C T U S

 

 

BofA Merrill Lynch

Deutsche Bank Securities

BMO Capital Markets

J.P. Morgan

Jefferies

Wells Fargo Securities

KeyBanc Capital Markets

Citigroup

Macquarie Capital

Evercore Partners

 

 

 

 

 

                , 2013

 

 

 


Table of Contents

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 13. Other Expenses of Issuance and Distribution.

The following table sets forth the costs and expenses, other than the underwriting discounts and commissions, payable by Ryerson Holding Corporation (“Ryerson Holding”) in connection with the sale of common stock being registered. All amounts shown are estimates, except the SEC registration fee, the FINRA filing fee and the NYSE application fee.

 

Item

   Amount to be Paid  

SEC Registration Fee

   $ 56,548   

FINRA Filing Fee

     49,206   

NYSE Fee

     250,000   

Legal and Accounting Fees and Expenses

     2,350,000   

Printing Expenses

     310,000   

Transfer Agent and Registrar Fees

     3,500   

Directors’ and Officers’ Liability Insurance Premium

     900,000   

Miscellaneous

     80,746   
  

 

 

 

Total

   $ 4,000,000   
  

 

 

 

 

Item 14. Indemnification of Directors and Officers.

Our amended and restated certificate of incorporation will limit our directors’ and officers’ liability to the fullest extent permitted under Delaware corporate law. Specifically, our directors and officers will not be liable to us or our stockholders for monetary damages for any breach of fiduciary duty by a director or officer, except for liability:

 

   

for any breach of the director’s or officer’s duty of loyalty to us or our stockholders;

 

   

for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

 

   

under Section 174 of the Delaware General Corporation Law; or

 

   

for any transaction from which a director or officer derives an improper personal benefit.

If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of our directors and officers shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.

The provision regarding indemnification of our directors and officers in our amended and restated certificate of incorporation will generally not limit liability under state or federal securities laws.

Delaware law and our amended and restated certificate of incorporation provide that we will, in certain situations, indemnify any person made or threatened to be made a party to a proceeding by reason of that person’s former or present official capacity with our company against judgments, penalties, fines, settlements and reasonable expenses including reasonable attorney’s fees. Any person is also entitled, subject to certain limitations, to payment or reimbursement of reasonable expenses in advance of the final disposition of the proceeding. In addition, certain employment agreements to which we are a party provide for the indemnification of our employees who are party thereto.

We also maintain a directors’ and officers’ insurance policy pursuant to which our directors and officers are insured against liability for actions taken in their capacities as directors and officers.

 

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Item 15. Recent Sales of Unregistered Securities.

On January 29, 2010, Ryerson Holding completed an offering of $483 million aggregate principal amount at maturity of 14 1 / 2 % Senior Discount Notes due 2015 to qualified institutional buyers in reliance on Rule 144A under the Securities Act of 1933, as amended. Banc of America Securities LLC and UBS Securities LLC were the Joint Book-Running Managers in connection with the sale of the notes. Ryerson Holding received net proceeds from the offering in the amount of approximately $215 million and the initial purchasers’ discount was 2.25% of the gross proceeds received by Ryerson Holding from the sale of the notes. Pursuant to a registration rights agreement, Ryerson Holding agreed to file with the SEC by October 26, 2010, a registration statement with respect to an offer to exchange each of the Ryerson Holding Notes for a new issue of Ryerson Holding’s debt securities registered under the Securities Act, with terms substantially identical to those of the Ryerson Holding Notes and to consummate an exchange offer no later than February 23, 2011. Ryerson Holding completed the exchange offer on December 7, 2010. As a result of completing the exchange offer, Ryerson Holding satisfied its obligations under the registration rights agreement covering the Ryerson Holding Notes.

On October 10, 2012 Ryerson Inc. and JT Ryerson (the “Co-issuers”) completed offerings of (i) $600 million aggregate principal amount at maturity of 9% senior secured notes due 2017 (the “2017 Notes”) and (ii) $300 million aggregate principal amount at maturity of 11.25% senior notes due 2018 (the “2018 Notes”) to qualified institutional buyers in reliance on Rule 144A under the Securities Act of 1933, as amended. Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC, BMO Capital Markets Corp., Jefferies LLC, UBS Securities LLC and Wells Fargo Securities, LLC were the Joint Book-Running Managers in connection with the sale of the 2017 Notes and 2018 Notes. KeyBanc Capital Markets Inc., Macquarie Capital (USA) Inc., PNC Capital Markets LLC and Stephens Inc acted as co-managers in connection with the sale of the 2017 Notes and 2018 Notes. The Co-issuers received net proceeds from the offerings in the amount of $900 million. No initial purchasers’ discount was paid in connection with the issuance of the 2017 Notes and 2018 Notes.

Pursuant to registration rights agreements with respect to the 2017 Notes and 2018 Notes, the Co-issuers agreed to file with the SEC by July 7, 2013, a registration statement with respect to an offer to exchange each of the 2017 Notes and 2018 Notes for a new issue of debt securities registered under the Securities Act, with terms substantially identical to those of the 2017 Notes and 2018 Notes, respectively, and to consummate an exchange offer no later than October 5, 2013. As of the date of this registration statement, an exchange offer with respect to the 2017 Notes and 2018 Notes has not occurred.

 

Item 16. Exhibits and Financial Statement Schedules.

 

  (a) Exhibits

See Exhibit Index attached to this registration statement, which is incorporated by reference herein.

 

  (b) Financial Statement Schedules

See the following attached Financial Statement Schedules:

(1) Schedule I—Condensed financial information of Ryerson Holding Corporation (F-44); and

(2) Schedule II—Valuation and qualifying accounts (page F-49)

All other schedules are omitted since the required information is not present or is not present in amounts sufficient to require submission of the schedules.

 

Item 17. Undertakings.

(a) The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

 

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(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to our amended and restated certificate of incorporation or bylaws, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

(c) The undersigned registrant hereby undertakes that:

(1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective; and

(2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Amendment No. 15 to its Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, in the State of New York, on this 6th day of May, 2013.

 

RYERSON HOLDING CORPORATION
By:   / S /    E DWARD J. L EHNER
Name:   Edward J. Lehner
Title:   Executive Vice President and Chief Financial Officer

Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 15 to its Registration Statement on Form S-1 has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

  

Title

 

Date

*

Michael C. Arnold

  

Chief Executive Officer and President

  May 6, 2013

/ S /    E DWARD J. L EHNER        

Edward J. Lehner

  

Executive Vice President and Chief Financial Officer

  May 6, 2013

*

Erich S. Schnaufer

  

Chief Accounting Officer (Principal Accounting Officer)

  May 6, 2013

*

Robert L. Archambault

  

Director

  May 6, 2013

*

Eva M. Kalawski

  

Director

  May 6, 2013

*

Jacob Kotzubei

  

Director

  May 6, 2013

*

Mary Ann Sigler

  

Director

  May 6, 2013
*By:   

/ S /    E DWARD J. L EHNER

Attorney-in-Fact

    

 

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INDEX TO EXHIBITS

 

Exhibit
Number

  

Exhibit Description

1.1    Form of Purchase Agreement.††
2.1    Agreement and Plan of Merger, dated July 24, 2007, by and among Ryerson Holding Corporation (f/k/a Rhombus Holding Corporation), Rhombus Merger Corporation and Ryerson Inc.(a)
3.1    Form of Amended and Restated Certificate of Incorporation of Ryerson Holding Corporation.*
3.2    Form of Amended and Restated Bylaws of Ryerson Holding Corporation.*
4.1    Form of Common Stock Certificate of Ryerson Holding Corporation.††
4.2    Amended and Restated Stockholders’ Agreement, dated as of March 31, 2009, by and among Rhombus Holding Corporation, Platinum Equity Capital Partners, L.P., Platinum Equity Capital Partners-A, L.P., Platinum Equity Capital Partners-PF, L.P., Platinum Equity Capital Partners II, L.P., Platinum Equity Capital Partners-A II, L.P., Platinum Equity Capital Partners-PF II, L.P., Platinum Rhombus Principals, LLC, and the stockholders party thereto.††
4.3    Amendment to Amended and Restated Stockholders’ Agreement, dated as of April 1, 2009, by and among Rhombus Holding Corporation, Platinum Equity Capital Partners, L.P., Platinum Equity Capital Partners-A, L.P., Platinum Equity Capital Partners-PF, L.P., Platinum Equity Capital Partners II, L.P., Platinum Equity Capital Partners-A II, L.P., Platinum Equity Capital Partners-PF II, L.P., Platinum Rhombus Principals, LLC, Moelis Capital Partners Opportunity Fund I, LP and Moelis Capital Partners Opportunity Fund I-A, LP.††
4.4    Form of Investor Rights Agreement, by and among Ryerson Holding Corporation, Platinum Equity Capital Partners, L.P., Platinum Equity Capital Partners-PF, L.P., Platinum Equity Capital Partners-A, L.P., Platinum Equity Capital Partners II, L.P., Platinum Equity Capital Partners-PF II, L.P., Platinum Equity Capital Partners-A II, L.P. and Platinum Rhombus Principals, LLC.*
5.1    Opinion of Willkie Farr & Gallagher LLP regarding the validity of the securities being registered.††
10.1    Credit Agreement, dated as of October 19, 2007, by and among Rhombus Merger Corporation, Joseph T. Ryerson & Son, Inc., Banc of America Securities LLC, as sole lead arranger and book manager, Ryerson Canada, Inc., as Canadian borrower, Wachovia Capital Finance Corporation (Central), as co-documentation agents, Wells Fargo Foothill, LLC, General Electric Capital Corporation, as co-syndication agents, ABN AMRO Bank N.V., Bank of America, N.A. (acting through its Canada branch), as Canadian agent, Bank of America, N.A., as administrative agent, and the lenders named therein.(a)
10.2    Amendment No. 1, dated as of March 14, 2011, to the Credit Agreement, dated as of October 19, 2007, by and among Rhombus Merger Corporation, Joseph T. Ryerson & Son, Inc., Bank of America Securities LLC, as sole lead arranger and book manager, Ryerson Canada, Inc., as Canadian borrower, Wachovia Capital Finance Corporation (Central), as co-documentation agents, Wells Fargo Foothill, LLC, General Electric Capital Corporation, as co-syndication agents, ABN AMRO Bank N.V., Bank of America, N.A. (acting through its Canada branch), as Canadian agent, Bank of America, N.A., as administrative agent, and the lenders named therein.(c)
10.3    Guarantee and Security Agreement, dated as of October 19, 2007, by and among Rhombus Merger Corporation, the pledgors and guarantors party thereto and Bank of America, N.A., as administrative agent.(a)
10.4
   Intercreditor Agreement, dated as of October 19, 2007, by and among Bank of America, N.A., as ABL collateral agent and Wells Fargo Bank, National Association, as notes collateral agent.(a)


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Exhibit
Number

  

Exhibit Description

10.5    General Security Agreement, dated October 19, 2007, by and between Ryerson Canada, Inc. and Bank of America, N.A., as Canadian Agent.(a)
10.6    Offer Letter Agreement, dated November 9, 2010, by and between Ryerson Inc. and Michael C. Arnold.(c)
10.7    Indemnification Agreement, dated July 24, 2007, by and between Ryerson Inc. and Terence R. Rogers.(a)
10.8    Ryerson Nonqualified Savings Plan.(b)
10.9    Offer Letter Agreement, dated June 29, 2012, between Ryerson Inc. and Edward J. Lehner.(d)
10.10    Rhombus Holding Corporation Amended and Restated 2009 Participation Plan.††
10.11    Ryerson Annual Incentive Plan (as amended through June 14, 2007).††
10.12    Ryerson Holding Corporation 2013 Stock Incentive Plan.*
10.13    Amendment No. 3, dated as of April 3, 2013, to the Credit Agreement, dated as of October 19, 2007, by and among Rhombus Merger Corporation, Joseph T. Ryerson & Son, Inc., Bank of America Securities LLC, as sole lead arranger and book manager, Ryerson Canada, Inc., as Canadian borrower, Wachovia Capital Finance Corporation (Central), as co-documentation agents, Wells Fargo Foothill, LLC, General Electric Capital Corporation, as co-syndication agents, ABN AMRO Bank N.V., Bank of America, N.A. (acting through its Canada branch), as Canadian agent, Bank of America, N.A., as administrative agent, and the lenders named therein.*
21.1    List of Subsidiaries of Ryerson Holding Corporation.††
23.1    Consent of Ernst & Young LLP.*
23.2    Consent of Willkie Farr & Gallagher LLP (included in Exhibit 5.1).††
24.1    Power of Attorney.††
99.1    Consent of Kirk K. Calhoun.††

 

  * Filed herewith.
†† Previously filed.
(a) Incorporated by reference to Ryerson Inc.’s Form S-4 filed on July 3, 2008 (File No. 333-152102).
(b) Incorporated by reference to Ryerson Inc.’s Form S-4/A-2 filed on February 24, 2009 (File No. 333-152102).
(c) Incorporated by reference to Ryerson Holding Corporation’s Annual Report on Form 10-K for the year ended December 31, 2010 filed on March 15, 2011 (File No. 001-34735).
(d) Incorporated by reference to Ryerson Inc.’s Form 8-K filed on July 3, 2012 (File No. 001-09117).

Exhibit 3.1

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

RYERSON HOLDING CORPORATION

* * * * * * * *

RYERSON HOLDING CORPORATION, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

1.    The name of the corporation is Ryerson Holding Corporation. Ryerson Holding Corporation was originally incorporated under the name Rhombus Holding Corporation, and the original Certificate of Incorporation of the corporation was filed with the Secretary of State of the State of Delaware on July 16, 2007. The original Certificate of Incorporation of the corporation was amended and/or restated as of December 31, 2007 and January 4, 2010 (as amended and/or restated, the “ Certificate of Incorporation ”).

2.    Pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware, this Amended and Restated Certificate of Incorporation restates and integrates and further amends the provisions of the Certificate of Incorporation of Ryerson Holding Corporation.

3.    This Amended and Restated Certificate of Incorporation was duly adopted by the unanimous written consent of the Board of Directors of Ryerson Holding Corporation and approved by the stockholders of Ryerson Holding Corporation in accordance with the applicable provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware.

4.    This Amended and Restated Certificate of Incorporation shall become effective immediately upon filing with the Secretary of State of the State of Delaware (such time of effectiveness, the “ Effective Time ”).

5.    The text of the Certificate of Incorporation of Ryerson Holding Corporation shall, at the Effective Time, be amended and restated in its entirety to read as follows:


ARTICLE I

The name of the corporation is Ryerson Holding Corporation (the “ Corporation ”).

ARTICLE II

The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, in the county of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.

ARTICLE III

The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware as now in effect or hereafter amended (the “ DGCL ”).

ARTICLE IV

The total number of shares of all classes of stock which the Corporation shall have authority to issue is 107 million shares, which shall consist of: (i) 100 million shares of common stock, par value $0.01 per share (the “ Common Stock ”); and (ii) 7 million shares of undesignated preferred stock, par value $0.01 per share (the “ Preferred Stock ”). Subject to the rights, if any, of the holders of any outstanding series of Preferred Stock, the number of authorized shares of any of the Common Stock or the Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of any of the Common Stock or the Preferred Stock voting separately as a class shall be required therefor.

The Preferred Stock may be issued from time to time in one or more series, each of which series shall have such distinctive designation or title and such number of shares as shall be fixed by the Board of Directors of the Corporation (the “ Board of Directors ”) prior to the issuance of any shares thereof. Each such series of Preferred Stock shall have such voting powers, full or limited, or no voting powers, and such preferences and relative, participating optional or other special rights and such qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions providing for the issue of such series of Preferred Stock as may be adopted from time to time by the Board of Directors prior to the issuance of any shares thereof pursuant to the authority hereby expressly vested in it. The Board of Directors is further authorized to increase or decrease (but not below the number of shares outstanding) the number of shares of any series of Preferred Stock subsequent to the issuance of shares of that series. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status of which they had prior to the adoption of the resolution originally fixing the number of shares of such series.

 

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The Common Stock shall have the designations, powers, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, as hereinafter set forth in this Article IV.

1.     Dividends . Subject to the preferences applicable to any series of Preferred Stock outstanding at any time, and the terms set forth in this Amended and Restated Certificate of Incorporation, the holders of shares of Common Stock shall be entitled to receive such dividends and other distributions in cash, property or shares of stock of the Corporation as may be declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefor.

2.     Liquidation Rights . Upon the dissolution, liquidation or winding up of the Corporation, subject to the rights, if any, of the holders of any outstanding series of Preferred Stock, the holders of shares of Common Stock shall be entitled to receive the assets of the Corporation available for distribution to its stockholders ratably in proportion to the number of shares held by them.

3.     Voting Rights . Except as required by law, each holder of Common Stock shall be entitled, with respect to each share of Common Stock held by such holder on the applicable record date, to one (1) vote in person or by proxy on all matters submitted to a vote of the holders of Common Stock, including, without limitation, in connection with the election of directors to the Board of Directors (it being understood that in respect of the election of directors, no stockholder shall be entitled to cumulate votes on behalf of any candidate), whether voting separately as a class or otherwise. Notwithstanding the foregoing, and except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Amended and Restated Certificate of Incorporation (including any Certificate of Designations relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series of Preferred Stock are entitled, either separately or together with the holders of one or more other such series of Preferred Stock, to vote thereon pursuant to this Amended and Restated Certificate of Incorporation (including any Certificate of Designations relating to any series of Preferred Stock) or pursuant to the DGCL.

4.     Action By Written Consent . Prior to the first date (such date, the “ Trigger Date ”) on which Platinum Equity Capital Partners, L.P., Platinum Equity Capital Partners-PF, L.P., Platinum Equity Capital Partners-A, L.P., Platinum Equity Capital Partners II, L.P., Platinum Equity Capital Partners-PF II, L.P., Platinum Equity Capital Partners-A II, L.P. and Platinum Rhombus Principals, LLC, together with any of their Affiliates (as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended) (collectively, “ Platinum ”) no longer collectively beneficially own a majority of the voting power of all the shares of the Corporation, any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of stock of the Corporation entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. On and following the Trigger Date, subject to the rights of holders of any series of Preferred Stock with respect to such series of Preferred Stock, any action required or permitted to be taken by the stockholders of the Corporation must be taken at a duly held annual or special meeting of stockholders and may not be taken by any consent in writing of such stockholders.

 

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ARTICLE V

1.     Management by Board of Directors . The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authorities expressly conferred upon the Board of Directors by statute or this Amended and Restated Certificate of Incorporation, the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law, this Amended and Restated Certificate of Incorporation or the bylaws required to be exercised or done by the stockholders. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, if any, the number of directors of the Corporation shall be fixed from time to time by resolution of the Board of Directors.

2.     Staggered Board of Directors . Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, if any, at the Effective Time, the Board of Directors shall be divided into three classes: Class I, Class II and Class III. The number of directors in each class shall be as nearly equal as possible. At the Effective Time, the Board of Directors, by resolution, shall divide the directors into the initial classes. To the extent any additional directors are appointed prior to the Corporation’s first annual meeting of stockholders after the Effective Time, the Board of Directors, by resolution, shall determine the class of such additional directors. The directors in Class I shall be elected for a term expiring at the first annual meeting of stockholders after the Effective Time, the directors in Class II shall be elected for a term expiring at the second annual meeting of stockholders after the Effective Time, and the directors in Class III shall be elected for a term expiring at the third annual meeting of stockholders after the Effective Time. Commencing at the first annual meeting of stockholders after the Effective Time, and at each annual meeting of stockholders thereafter, directors elected to succeed those directors whose terms expire in connection with such annual meeting of stockholders shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election. Except as the DGCL may otherwise require, in the interim between Annual Meetings of Stockholders or Special Meetings of Stockholders called for the election of directors and/or the removal of one or more directors and the filling of any vacancy in connection therewith, newly created directorships and any vacancies in the Board of Directors, including unfilled vacancies resulting from the removal of directors for Cause (as defined in paragraph (3)), may be filled by the vote of a majority of the remaining directors in office, although less than a quorum (as defined in the Corporation’s bylaws), or by the sole remaining director. All directors shall hold office until the expiration of their respective terms of office and until their successors shall have been elected and qualified. A director elected to fill a vacancy resulting from the death, resignation or removal of a director shall serve for the remainder of the full term of the director whose death, resignation or removal shall have created such vacancy and until his or her successor shall have been elected and qualified. Notwithstanding any other provision of this Amended and Restated Certificate of Incorporation that might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the stock of the Corporation required by law or this Amended and Restated Certificate of Incorporation, on and following the Trigger Date, the affirmative vote of the holders of at least 66 2/3% of the voting power of the then outstanding voting stock of the Corporation, voting together as a single class, shall be required for the stockholders of the Corporation to alter, amend or repeal this Article V.

 

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3.     Removal of Directors . A director may be removed from office only for Cause (as hereinafter defined) and only by the affirmative vote of the stockholders of the Corporation holding at least a majority of the outstanding stock of the Corporation entitled to vote in an election of directors to the Board of Directors at meetings of stockholders at which directors are elected or a special meeting of the stockholders. To the fullest extent permitted by applicable law, for purposes of this Amended and Restated Certificate of Incorporation, “ Cause ” shall mean (x) a final conviction of a felony involving fraud or moral turpitude or (y) willful misconduct that is materially and demonstrably injurious economically to the Corporation or its subsidiaries. For purposes of the definition of “Cause,” no act, or failure to act, by a director shall be considered “willful” unless committed in bad faith and without a reasonable belief that the act or failure to act was in the best interest of the Corporation or any subsidiary of the Corporation.

4.     Elections of Directors . Elections of directors need not be by written ballot.

5.     Special Meetings of the Stockholders . Special meetings of the stockholders for any purpose may be called, and business to be considered at any such meeting may be proposed, at any time exclusively by the Board of Directors, by the Chairman of the Board of Directors or by the Chief Executive Officer; provided, however, that prior to the Trigger Date, such special meetings of the stockholders may also be called by the holders of the majority of the voting power of the then outstanding voting stock of the Corporation, voting together as a single class. At a special meeting no business shall be transacted and no corporate action shall be taken other than that stated in the notice of the meeting.

ARTICLE VI

In furtherance and not in limitation of the powers conferred by statute, the bylaws of the Corporation may be made, altered, amended or repealed by the stockholders of the Corporation entitled to vote thereon or by a majority of the entire Board of Directors; provided, however, that notwithstanding any other provision of this Amended and Restated Certificate of Incorporation that might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the stock of the Corporation required by law or this Amended and Restated Certificate of Incorporation, on and following the Trigger Date, the affirmative vote of the holders of at least 66 2/3% of the voting power of the then outstanding voting stock of the Corporation, voting together as a single class, shall be required for the stockholders of the Corporation to alter, amend or repeal Article II, Sections 2 and 4, Article III, Sections 3, 4 and 5 and Article IX of the bylaws and this Article VI.

ARTICLE VII

1.    The Corporation shall indemnify to the fullest extent permitted under and in accordance with the laws of the State of Delaware any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that the person is or was a director or officer of the

 

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Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.

2.    The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that the person is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity by the Corporation for such expenses which the Court of Chancery or such other court shall deem proper.

3.    Expenses (including attorneys’ fees) incurred in defending any civil, criminal, administrative or investigative action, suit or proceeding shall (in the case of any action, suit or proceeding against a director of the Corporation) or may (in the case of any action, suit or proceeding against an officer, trustee, employee or agent of the Corporation) be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors upon receipt of an undertaking by or on behalf of a person so indemnified to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation as authorized in this Article VII.

4.    The indemnification and other rights set forth in this Article VII shall not be exclusive of any provisions with respect thereto in the bylaws of the Corporation or any other contract or agreement between the Corporation and any officer, director, employee or agent of the Corporation. The Corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against liability under this Article VII and applicable law, including the DGCL.

 

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5.    Neither the amendment nor repeal of this Article VII, nor the adoption of any provision of this Amended and Restated Certificate of Incorporation inconsistent with this Article VII, shall eliminate or reduce the effect of this Article VII in respect of any matter occurring before such amendment, repeal or adoption of an inconsistent provision or in respect of any cause of action, suit or claim relating to any such matter which would have given rise to a right of indemnification or right to the reimbursement of expenses pursuant to this Article VII if such provision had not been so amended or repealed or if a provision inconsistent therewith had not been so adopted.

6.    No director shall be personally liable to the Corporation or any stockholder for monetary damages for breach of fiduciary duty as a director; provided , however , that the foregoing shall not eliminate or limit the liability of a director:

(a)    for any breach of the director’s duty of loyalty to the Corporation or its stockholders;

(b)    for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

(c)    under Section 174 of the DGCL; or

(d)    for any transaction from which the director derived an improper personal benefit.

If the DGCL is amended after the date hereof to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.

ARTICLE VIII

To the fullest extent permitted by applicable law, the Corporation, on behalf of itself and its subsidiaries, renounces any interest or expectancy of the Corporation and its subsidiaries in any business opportunity, transaction or other matter in which Platinum or any private fund that it manages or advises (other than the Corporation and its subsidiaries), their officers, directors, partners, employees or other agents who serve as a director of the Corporation, and any portfolio company in which such entities or persons has an equity interest (other than the Corporation and its subsidiaries) (each, a “ Specified Party ”) participates or desires or seeks to participate and that involves any aspect of the metals business or industry, unless any such business opportunity, transaction or matter is (a) offered to such Specified Party in its capacity as a director of the Corporation and with respect to which no other Specified Party (other than a director of the Corporation) independently previously received notice or otherwise previously identified such business opportunity, transaction or matter or (b) identified by such Specified Party solely through the disclosure of information by the Corporation or on the Corporation’s behalf, even if the opportunity is one that the Corporation or its subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the

 

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opportunity to do so and each such Specified Party shall have no duty to communicate or offer such business opportunity to the Corporation and, to the fullest extent permitted by applicable law, shall not be liable to the Corporation or any of its subsidiaries or any stockholder for breach of any fiduciary or other duty, as a director or officer or controlling stockholder or otherwise, by reason of the fact that such Specified Party pursues or acquires such business opportunity, directs such business opportunity to another person or fails to present such business opportunity, or information regarding such business opportunity, to the Corporation or its subsidiaries.

ARTICLE IX

The Corporation reserves the right to amend this Amended and Restated Certificate of Incorporation in any manner permitted by the DGCL and, subject to the terms of this Amended and Restated Certificate of Incorporation, all rights and powers conferred herein on stockholders, directors, officers and other persons, if any, are subject to this reserved power.

ARTICLE X

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by applicable law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the Corporation’s Amended and Restated Certificate of Incorporation or bylaws or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in the shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article X.

[The Remainder of This Page is Intentionally Left Blank]

 

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IN WITNESS WHEREOF, Ryerson Holding Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by_________________, its _______________, this __ day of ________, 2013.

 

RYERSON HOLDING CORPORATION
By:    
Name:  
Title:  

 

1

Exhibit 3.2

 

AMENDED AND RESTATED

BYLAWS

OF

RYERSON HOLDING CORPORATION

ARTICLE I.

OFFICES.

The registered office of RYERSON HOLDING CORPORATION (the “ Corporation ”) shall be located in the State of Delaware and shall be at such address as shall be set forth in the Amended and Restated Certificate of Incorporation of the Corporation (as amended (including by any certificate of designations) or amended and restated from time to time, the “ Certificate of Incorporation ”). The registered agent of the Corporation at such address shall be as set forth in the Certificate of Incorporation. The Corporation may also have such other offices at such other places, within or without the State of Delaware, as the Board of Directors of the Corporation (the “ Board of Directors ”) may from time to time designate or the business of the Corporation may require.

ARTICLE II.

STOCKHOLDERS.

Section 1. Annual Meeting . The annual meeting of stockholders for the election of directors and the transaction of any other business shall be held on such date and at such time and in such place, if any, either within or without the State of Delaware, as shall from time to time be designated by the Board of Directors. At the annual meeting, any business may be transacted and any corporate action may be taken, whether stated in the notice of meeting or not, except as otherwise expressly provided by statute, the Certificate of Incorporation or these Bylaws.

Section 2. Special Meetings . Special meetings of the stockholders of the Corporation may be called only in the manner set forth in the Certificate of Incorporation.

Section 3. Notice of Meetings . Notice of the time and place of any stockholders’ meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given to each stockholder entitled to vote thereat at the stockholder’s address as it appears upon the records of the Corporation at least ten (10) days but not more than sixty (60) days before the day of the meeting. Notice of any adjourned meeting need not be given except by announcement at the meeting so adjourned, unless otherwise ordered in connection with such adjournment. Such further notice, if any, shall be given as may be required by law.

Section 4. Notice of Stockholder Business at Annual Meeting .


(a) At an annual meeting of the stockholders, only such business shall be conducted as shall have been brought before the meeting (i) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (ii) by or at the direction of a majority of the members of the Board of Directors, or (iii) by any stockholder of the Corporation who is a stockholder of record at the time of giving of notice provided for in paragraph (b) of this Section 4, who shall be entitled to vote at such meeting, and who complies with the notice procedures set forth in paragraph (b) of this Section 4.

(b) For business to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of paragraph (a) of this Section 4, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation at the Corporation’s principal executive offices and such business must be a proper subject for stockholder action under the General Corporation Law of the State of Delaware (the “ DGCL ”). To be timely, a stockholder’s notice must be delivered to or mailed and received at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the first anniversary of the preceding year’s annual meeting; provided , however , that in the event that the date of the annual meeting is changed by more than thirty (30) days from such anniversary date, notice by the stockholder, to be timely, must be delivered to or mailed and received at the principal executive offices of the Corporation no later than the close of business on the tenth (10 th ) day following the earlier of (i) the date on which notice of the date of the meeting was mailed and (ii) the date on which public disclosure of the meeting date was made. A stockholder’s notice to the Secretary with respect to business to be brought at an annual meeting shall set forth (1) the nature of the proposed business with reasonable particularity, including the exact text of any proposal to be presented for adoption, and the reasons for conducting that business at the annual meeting, (2) with respect to each such stockholder, that stockholder’s name and address (as they appear on the records of the Corporation), business address and telephone number, residence address and telephone number, and the number of shares of each class of capital stock of the Corporation beneficially owned by that stockholder, (3) any material interest of the stockholder in the proposed business, (4) a description of all arrangements or understandings between such stockholder and any other person or persons (including their names) in connection with the proposal of such business by such stockholder and (5) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting.

(c) Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at an annual meeting except in accordance with the procedures set forth in this Section 4. The chairman of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the procedures prescribed in these Bylaws, and if the chairman should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Nothing in this Section 4 shall relieve a stockholder who proposes to conduct business at an annual meeting from complying with all applicable requirements, if any, of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and the rules and regulations thereunder.

 

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(d) Notwithstanding the foregoing terms of this Article II, Section 4, any stockholder wishing to nominate a person for election to the Board of Directors at any annual meeting of stockholders must comply with the terms set forth in Article III, Section 3 hereof.

Section 5. Quorum . Any number of stockholders, together holding at least a majority of the capital stock of the Corporation issued and outstanding and entitled to vote, who shall be present in person or represented by proxy at any meeting duly called, shall constitute a quorum for the transaction of all business, except as otherwise provided by law, by the Certificate of Incorporation or by these Bylaws.

Section 6. Adjournment of Meetings . If less than a quorum shall be in attendance at the time for which a meeting shall have been called, the meeting may adjourn from time to time upon a determination to so adjourn the meeting by the chairman of the meeting or by a majority in voting power of the stockholders present or represented by proxy and entitled to vote, in each case without notice other than by announcement at the meeting until a quorum shall attend. Any meeting at which a quorum is present may also be adjourned in like manner and for such time or upon such call as may be determined by the chairman of the meeting or a majority vote of the stockholders present or represented by proxy and entitled to vote. At any adjourned meeting at which a quorum shall be present, any business may be transacted and any corporate action may be taken which might have been transacted at the meeting as originally called.

Section 7. Voting List . The Secretary shall prepare and make available, at least ten (10) days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of ten (10) days prior to the meeting, on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with notice of the meeting, or during ordinary business hours, at the principal executive offices of the Corporation. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who may be present.

Section 8. Voting . Each stockholder entitled to vote at any meeting may vote either in person or by proxy, but no proxy shall be voted on or after three (3) years from its date, unless said proxy provides for a longer period. Except as otherwise provided by the Certificate of Incorporation, each stockholder entitled to vote shall at every meeting of the stockholders be entitled to one (1) vote for each share of stock registered in his, her or its name on the record of stockholders. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. In respect of all other matters, when a quorum is present, and except as otherwise provided by statute, the Certificate of Incorporation or these Bylaws, such matters shall be determined by the affirmative vote of the majority of shares present in person or by proxy and entitled to vote on the subject matter.

Section 9. Record Date of Stockholders . The Board of Directors is authorized to fix in advance a date not exceeding sixty (60) days nor less than ten (10) days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the

 

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allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining the consent of stockholders for any purposes, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting, and any adjournment thereof, or entitled to receive payment of any such dividend, or to any such allotment of rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock, or to give such consent, and, in such case, only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting, and any adjournment thereof, or to receive payment of such dividend, or to receive such allotment of rights, or to exercise such rights, or to give such consent, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation, after such record date fixed as aforesaid.

Section 10. Action Without Meeting . Prior to the first date (such date, the “ Trigger Date ”) on which Platinum Equity Capital Partners, L.P., Platinum Equity Capital Partners-PF, L.P., Platinum Equity Capital Partners-A, L.P., Platinum Equity Capital Partners II, L.P., Platinum Equity Capital Partners-PF II, L.P., Platinum Equity Capital Partners-A II, L.P. and Platinum Rhombus Principals, LLC, together with any of their Affiliates (as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended) (collectively, “ Platinum ”) no longer collectively beneficially own a majority of the voting power of all the shares of the Corporation, any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of stock of the Corporation entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal executive offices, or to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. On and following the Trigger Date, subject to the rights of holders of any series of Preferred Stock (as defined in the Certificate of Incorporation) with respect to such series of Preferred Stock, any action required or permitted to be taken by the stockholders of the Corporation must be taken at a duly held annual or special meeting of stockholders and may not be taken by any consent in writing of such stockholders.

Section 11. Remote Meetings . If authorized by the Board of Directors in its sole discretion, and subject to such guidelines and procedures as the Board of Directors may adopt, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication:

 

  (a) participate in a meeting of stockholders; and

(b) be deemed present in person and vote at a meeting of stockholders whether such meeting is to be held at a designated place or solely by means of remote communication; provided , that (i) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (ii) the Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.

 

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In the case of any annual meeting of stockholders or any special meeting of stockholders called upon order of the Board of Directors, the Board of Directors may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communications as authorized by this Section 11.

Section 12. Conduct of Meetings . The Chairman of the Board of Directors, or if there be none, or in the Chairman’s absence, the Chief Executive Officer, or in the Chief Executive Officer’s absence, the President or any other person designated by the Board of Directors, or in the case the Board of Directors fails to designate a person, the person chosen by the holders of a majority of the capital stock entitled to vote who are present, shall preside at all annual or special meetings of stockholders. The chairman of the meeting shall preside over and conduct the meeting in a fair and reasonable manner, and all questions of procedure or conduct of the meeting shall be decided solely by the chairman of the meeting. The chairman of the meeting shall have all power and authority vested in a presiding officer by law or practice to conduct an orderly meeting. Among other things, the chairman of the meeting shall have the power to: adjourn or recess the meeting; to silence or expel persons to ensure the orderly conduct of the meeting; to declare motions or persons out of order; to prescribe rules of conduct and an agenda for the meeting; to impose reasonable time limits on questions and remarks by any stockholder; to limit the number of questions a stockholder may ask; to limit the nature of questions and comments to one subject matter at a time as dictated by any agenda for the meeting; to limit the number of speakers or persons addressing the chairman of the meeting or the meeting; to determine when the polls will close; to limit the attendance at the meeting to stockholders of record, beneficial owners of stock who present letters from the record holders confirming their status as beneficial owners and the proxies of such record and beneficial holders; and to limit the number of proxies a stockholder may name. The Secretary or, in the absence of the Secretary, an assistant Secretary shall act as the secretary of the meeting, but in the absence of the Secretary and any assistant Secretary, the chairman of the meeting may appoint any person to act as the secretary of the meeting.

Section 13. Requests for Stockholder List and Corporation Records . Stockholders shall have those rights afforded under the DGCL to inspect a list of stockholders and other related records and make copies or extracts therefrom. Such request shall be in writing in compliance with Section 220 of the DGCL. To the fullest extent permitted by applicable law, any stockholder making such request must agree that any information so inspected, copied or extracted by the stockholder shall be kept confidential, that any copies or extracts of such information shall be returned to the Corporation and that such information shall only be used for the purpose stated in the request. Information so requested shall be made available for inspecting, copying or extracting at the principal executive offices of the Corporation. Each stockholder desiring a photostatic or other duplicate copies of any such information requested shall make arrangements to provide such duplicating or other equipment necessary in the city where the Corporation’s principal executive offices are located. Alternative arrangements with respect to this Section 13 may be permitted in the discretion of the Chief Executive Officer of the Corporation or by a vote of the Board of Directors.

 

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Section 14. Inspectors . The Corporation shall, in advance of any meeting of stockholders, appoint one or more inspectors, who may be employees of the Corporation, to act at such meeting or any adjournment thereof. If any of the inspectors so appointed fails to appear or act, the chairman of the meeting may appoint one or more alternate inspectors. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his or her ability. The inspectors shall determine the number of shares of capital stock of the Corporation outstanding and the voting power of each, the number of shares represented at the meeting, the existence of a quorum, and the validity and effect of proxies and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the results, and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the chairman of the meeting, the inspectors shall make a report in writing of any challenge, request or matter determined by them and shall execute a certificate of any fact found by them. No director or candidate for the office of director shall act as an inspector of an election of directors. Inspectors need not be stockholders.

ARTICLE III.

DIRECTORS.

Section 1. Number and Qualifications . Subject to the terms of the Certificate of Incorporation, the Board of Directors shall consist of not less than three (3) nor more than fifteen (15) directors as may be fixed from time to time by resolution of the Board of Directors. The directors need not be stockholders.

Section 2. Election of Directors . At the time set forth in the Certificate of Incorporation (the “ Effective Time ”), and subject to the terms set forth in the Certificate of Incorporation, the Board of Directors shall be divided into three classes: Class I, Class II and Class III. The number of directors in each class shall be as nearly equal as possible. At the Effective Time, the Board of Directors, by resolution, shall divide the directors into the initial classes. To the extent any additional directors are appointed prior to the Corporation’s first annual meeting of stockholders after the Effective Time, the Board of Directors, by resolution, shall determine the class of such additional directors. The directors in Class I shall be elected for a term expiring at the first annual meeting of stockholders after the Effective Time, the directors in Class II shall be elected for a term expiring at the second annual meeting of stockholders after the Effective Time, and the directors in Class III shall be elected for a term expiring at the third annual meeting of stockholders after the Effective Time. Commencing at the first annual meeting of stockholders after the Effective Time, and at each annual meeting of stockholders thereafter, directors elected to succeed those directors whose terms expire in connection with such annual meeting of stockholders shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election.

Section 3. Nomination of Director Candidates .

(a) Nominations of persons for election to the Board of Directors at a meeting of stockholders may be made (i) by or at the direction of the Board of Directors or a committee thereof or (ii) by any stockholder of the Corporation who is a stockholder of record at the time of giving of notice provided for in paragraph (b) of this Section 3, who shall be entitled to vote for the election of the director so nominated and who complies with the notice procedures set forth in paragraph (b) of this Section 3.

 

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(b) Nominations by stockholders shall be made pursuant to timely notice in writing to the Secretary of the Corporation at the Corporation’s principal executive offices. To be timely, a stockholder’s notice shall be delivered to or mailed and received at the principal executive offices of the Corporation: (i) in the case of an annual meeting, not less than ninety (90) days nor more than one hundred twenty (120) days prior to the first anniversary of the preceding year’s annual meeting; provided , however , that in the event that the date of the annual meeting is changed by more than thirty (30) days from such anniversary date, notice by the stockholder to be timely must be delivered to or mailed and received at the principal executive offices of the Corporation not later than the close of business on the tenth (10 th ) day following the earlier of (A) the date on which notice of the date of the meeting was mailed and (B) the date on which public disclosure of the meeting date was made; and (ii) in the case of a special meeting at which directors are to be elected, not later than the close of business on the tenth (10 th ) day following the earlier of (x) the date on which notice of the date of the meeting was mailed and (y) the date on which public disclosure of the meeting date was made. Such notice shall set forth (i) as to each nominee for election as a director, all information relating to such person that would be required to be disclosed in solicitations of proxies for election of directors or that otherwise would be required, in each case pursuant to Regulation 14A under the Exchange Act (including such person’s written consent to serving as a director if elected and, if applicable, to being named in the proxy statement as a nominee), and (ii) if the nomination is submitted by a stockholder of record, (A) the name and address, as they appear on the records of the Corporation, of such stockholder of record and the name and address of the beneficial owner, if different, on whose behalf the nomination is made, (B) the class and number of shares of the Corporation which are beneficially owned and owned of record by such stockholder of record and such beneficial owner, (C) a description of all arrangements or understandings between such stockholder and each proposed nominee and any other person or persons (including their names) pursuant to which the nominations are to be made by such stockholder, (D) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice and (E) any other information relating to such stockholder that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Regulation 14A under the Exchange Act. At the request of the Board of Directors, any person nominated by the Board of Directors for election as a director shall furnish the Secretary of the Corporation with the information required to be set forth in the stockholder’s notice of nomination which pertains to the nominee.

(c) No person shall be eligible to serve as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 3. The election of any director in violation of this Section 3 shall be void and of no force or effect. The chairman of the meeting shall, if the facts warrant, determine that a nomination was not made in accordance with the procedures so prescribed by these Bylaws, and if the chairman should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. Notwithstanding the foregoing provisions of this Section 3, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 3.

 

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Section 4. Removal and Resignation of Directors . Any director or the entire Board of Directors may be removed only in the circumstances set forth in the Certificate of Incorporation, either at meetings of stockholders at which directors are elected or at a special meeting of the stockholders, and the office of such director shall forthwith become vacant. Any director may resign at any time. Such resignation shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the Chief Executive Officer or the Secretary. The acceptance of a resignation shall not be necessary to make it effective, unless so specified therein.

Section 5. Filling of Vacancies . Any vacancy among the directors, occurring from any cause whatsoever, may be filled by a majority of the remaining directors or a sole remaining director, though less than a quorum; provided , however , that the stockholders removing any director may at the same meeting fill the vacancy caused by such removal; and provided further , that if the directors fail to fill any such vacancy, the stockholders may at any special meeting called for that purpose fill such vacancy. In case of any increase in the number of directors, the additional directors may be elected by the directors in office before such increase. Any person elected to fill a vacancy shall hold office, subject to the terms of the Certificate of Incorporation, for a term that shall coincide with the term of the class to which such director shall have been elected and until his or her successor is elected and qualified.

Section 6. Regular Meetings . The Board of Directors shall hold an annual meeting for the purpose of organization and the transaction of any business immediately after the annual meeting of the stockholders, provided a quorum of directors is present. Other regular meetings may be held at such times as may be determined from time to time by resolution of the Board of Directors.

Section 7. Special Meetings . Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, if any, by the Chief Executive Officer or by any two directors.

Section 8. Notice and Place of Meetings . Meetings of the Board of Directors may be held at the principal executive offices of the Corporation or at such other place as shall be stated in the notice of such meeting. Notice of any special meeting, and, except as the Board of Directors may otherwise determine by resolution, notice of any regular meeting shall be mailed to each director addressed to the director at his or her residence or usual place of business at least two (2) days before the day on which the meeting is to be held, or if sent to the director at such place by facsimile, telegraph, cable or other means of electronic transmission, or delivered personally or by telephone, not later than the day before the day on which the meeting is to be held. No notice of the annual meeting of the Board of Directors shall be required if it is held immediately after the annual meeting of the stockholders and if a quorum is present.

Section 9. Business Transacted at Meetings, etc. Any business may be transacted and any corporate action may be taken at any regular or special meeting of the Board of Directors at which a quorum shall be present, whether such business or proposed action be stated in the notice of such meeting or not, unless special notice of such business or proposed action shall be required by statute.

 

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Section 10. Quorum . A majority of the Board of Directors at any time in office shall constitute a quorum. At any meeting at which a quorum is present, the vote of a majority of the members present shall be the act of the Board of Directors unless the act of a greater number is specifically required by law or by the Certificate of Incorporation or these Bylaws. The members of the Board of Directors shall act only as the Board of Directors and the individual members thereof shall not have any powers as such.

Section 11. Compensation . The Board of Directors shall have the authority to fix the form and amount of compensation paid to directors, including fees and reimbursement of expenses incurred in connection with attendance at regular or special meetings of the Board of Directors or any committee thereof. Nothing herein contained shall preclude any director from serving the Corporation in any other capacity, as an officer, agent or otherwise, and receiving compensation therefor.

Section 12. Action Without a Meeting . Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the minutes of the proceedings of the Board of Directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

Section 13. Meetings Through Use of Communications Equipment . Members of the Board of Directors, or any committee designated by the Board of Directors, shall, except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, have the power to participate in and act at a meeting of the Board of Directors, or any committee, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at the meeting.

ARTICLE IV.

COMMITTEES.

Section 1. Audit Committee . Unless not required by the New York Stock Exchange, or such other national securities exchange or stock market on which the Company’s securities may be listed, and federal securities and other laws, rules and regulations, the Board of Directors shall have an Audit Committee comprised of such directors as may be determined from time to time by the Board of Directors; provided , however , that the composition and charter of the Audit Committee shall comply, to the extent required, with the requirements of the New York Stock Exchange, or such other national securities exchange or stock market on which the Company’s securities may be listed, and federal securities and other laws, rules and regulations. The Audit Committee shall have the powers and perform the duties set forth in the audit committee charter adopted by the Board of Directors.

 

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Section 2. Compensation Committee . Unless not required by the New York Stock Exchange, or such other national securities exchange or stock market on which the Company’s securities may be listed, and federal securities and other laws, rules and regulations, the Board of Directors shall have a Compensation Committee comprised of such directors as may be determined from time to time by the Board of Directors; provided , however , that the composition and charter of the Compensation Committee shall comply, to the extent required, with the requirements of the New York Stock Exchange, or such other national securities exchange or stock market on which the Company’s securities may be listed, and federal securities and other laws, rules and regulations. The Compensation Committee shall have the powers and perform the duties set forth in the compensation committee charter adopted by the Board of Directors.

Section 3. Nominating and Corporate Governance Committee . Unless not required by the New York Stock Exchange, or such other national securities exchange or stock market on which the Company’s securities may be listed, and federal securities and other laws, rules and regulations, the Board of Directors shall have a Nominating and Corporate Governance Committee comprised of such directors as may be determined from time to time by the Board of Directors; provided , however , that the composition and charter of the Nominating and Corporate Governance Committee shall, to the extent required, comply with the requirements of the New York Stock Exchange, or such other national securities exchange or stock market on which the Company’s securities may be listed, and federal securities and other laws, rules and regulations. The Nominating and Corporate Governance Committee shall have the powers and perform the duties set forth in the nominating and corporate governance committee charter adopted by the Board of Directors.

Section 4. Executive Committee . The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate two or more of their number to constitute an Executive Committee to hold office at the pleasure of the Board of Directors, which Committee shall, during the intervals between meetings of the Board of Directors, have and exercise all of the powers of the Board of Directors, other than such powers as are granted to the Audit Committee, the Compensation Committee or the Nominating and Corporate Governance Committee, in the management of the business and affairs of the Corporation, subject only to such restrictions or limitations as the Board of Directors may from time to time specify, or as limited by §141(c)(2) of the DGCL.

Section 5. Other Committees . Other committees, whose members need not be directors, may be appointed by the Board of Directors or the Executive Committee, which committees shall hold office for such time and have such powers and perform such duties as may from time to time be assigned to them by the Board of Directors or the Executive Committee.

Section 6. Removal . Subject to the requirements of the New York Stock Exchange, or such other national securities exchange or stock market on which the Company’s securities may be listed, and federal securities and other laws, rules and regulations, each to the extent applicable, any member of any committee of the Board of Directors may be removed at any time, with or without cause, by the Board of Directors (or, in the case of a committee appointed by the Executive Committee, the Executive Committee), and any vacancy in a committee occurring from any cause whatsoever may be filled by the Board of Directors (or, in the case of a committee appointed by the Executive Committee, the Executive Committee). Any person

 

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ceasing to be a director as a result of his or her removal pursuant to this Article IV, Section 6 shall ipso facto cease to be a member of any committee, including the Audit Committee, Compensation Committee, Nominating and Corporate Governance Committee and Executive Committee.

Section 7. Resignation . Any member of a committee may resign at any time. Such resignation shall be made in writing or by electronic transmission and shall take effect at the time specified therein, or, if no time be specified, at the time of its receipt by the Chief Executive Officer or Secretary. The acceptance of a resignation shall not be necessary to make it effective unless so specified therein.

Section 8. Quorum . Unless otherwise specified in the applicable committee charter, a majority of the members of a committee shall constitute a quorum. The act of a majority of the members of a committee present at any meeting at which a quorum is present shall be the act of such committee. The members of a committee shall act only as a committee, and the individual members thereof shall not have any powers as such.

Section 9. Record of Proceedings, etc. Each committee shall keep a record of its acts and proceedings, and shall report the same to the Board of Directors when and as required by the Board of Directors.

Section 10. Organization, Meetings, Notices, etc. A committee may hold its meetings at the principal executive offices of the Corporation, or at any other place which a majority of the committee may at any time agree upon. Each committee may make such rules as it may deem expedient for the regulation and carrying on of its meetings and proceedings. Unless otherwise ordered by the Executive Committee, any notice of a meeting of such committee may be given by the Secretary of the Corporation or by the chairman of the committee and shall be sufficiently given if mailed to each member at his or her residence or usual place of business at least two (2) days before the day on which the meeting is to be held, or if sent to the member at such place by telegraph, cable, facsimile transmission or other means of electronic transmission, or delivered personally or by telephone not later than twenty-four (24) hours before the time at which the meeting is to be held.

ARTICLE V.

OFFICERS.

Section 1. Number . The officers of the Corporation shall be a Chief Executive Officer, a President, a Chief Financial Officer, a Secretary, a Treasurer and such other officers as may be appointed from time to time by the Board of Directors. Such other officers shall be elected or appointed in such manner, have such duties and hold their offices for such terms as may be determined from time to time by the Board of Directors. Any number of offices may be held by the same person.

Section 2. Election, Term of Office and Qualifications . Each officer of the Corporation shall hold office until his or her successor shall have been duly chosen and shall qualify or until his or her earlier death, resignation or removal in the manner hereinafter provided. Except as otherwise provided by law, any number of offices may be held by the same person.

 

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Section 3. Removal of Officers . Any officer of the Corporation may be removed from office, with or without cause, by a vote of a majority of the Board of Directors, but such removal shall be without prejudice to the contract rights, if any, of the person so removed, but the election of any officer shall not of itself create any contractual rights.

Section 4. Resignation . Any officer of the Corporation may resign at any time. Such resignation shall be made in writing or by electronic transmission and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the Chief Executive Officer or Secretary. The acceptance of a resignation shall not be necessary in order to make it effective, unless so specified therein.

Section 5. Filling of Vacancies . A vacancy in any office shall be filled by the Board of Directors or by the authority appointing the predecessor in such office.

Section 6. Compensation . The compensation of the officers shall be fixed by the Board of Directors, or by any committee upon whom power in that regard may be conferred by the Board of Directors.

Section 7. Chairman of the Board of Directors . The Chairman of the Board of Directors, if any, shall be a director and shall preside at all meetings of the stockholders and the Board of Directors, and shall have such power and perform such duties as may from time to time be assigned to him or her by the Board of Directors.

Section 8. Chief Executive Officer . In the absence of the Chairman of the Board of Directors, or if there be none, the Chief Executive Officer shall preside at all meetings of the stockholders and the Board of Directors. The Chief Executive Officer shall have power to call special meetings of the stockholders or of the Board of Directors or of the Executive Committee at any time. The Chief Executive Officer shall be the chief executive officer of the Corporation, and, subject to the direction of the Board of Directors, shall be responsible for the general direction of the business, affairs and property of the Corporation, and of its several officers, and shall have and exercise all such powers and discharge such duties as usually pertain to the office of Chief Executive Officer.

Section 9. President . In the absence of the Chairman of the Board of Directors and the Chief Executive Officer, or if there be none, the President shall preside at all meetings of the stockholders and the Board of Directors. The President shall assist the Chief Executive Officer and, subject to the direction of the Board of Directors and the Chief Executive Officer, shall be responsible for the general direction of the business, affairs and property of the Corporation, and of its several officers, and shall have and exercise all such powers and discharge such duties as usually pertain to the office of President.

Section 10. Chief Financial Officer . Subject to the direction of the Board of Directors and the Chief Executive Officer, the Chief Financial Officer will have and exercise all the powers and discharge the duties as usually pertain to the office of Chief Financial Officer or that are assigned to him or her by the Board of Directors or the Chief Executive Officer.

 

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Section 11. Vice-Presidents . The vice-president, or vice-presidents if there are more than one, will have and exercise all the powers and discharge the duties as may be assigned to them by the Board of Directors, the Chief Executive Officer or the President.

Section 12. Secretary . The Secretary will keep the minutes of all meetings of the stockholders and all meetings of the Board of Directors and any committee in books maintained for that purpose. The Secretary will perform the duties and have all other powers that are incident to the office of Secretary or that are assigned to him or her by the Board of Directors, the Chief Executive Officer or the President.

Section 13. Treasurer . The Treasurer will have custody of all the funds and securities of the Corporation which may be delivered into his or her possession. The Treasurer may endorse on behalf of the Corporation for collection, checks, notes and other obligations, and will deposit the same to the credit of the Corporation in a depository or depositories of the Corporation, and may sign all receipts and vouchers for payments made to the Corporation. The Treasurer will enter or cause to be entered regularly in the books of the Corporation kept for that purpose, full and accurate accounts of all monies received and paid on account of the Corporation and whenever required by the Board of Directors will render statements of the accounts. The Treasurer will perform the duties and have all other powers that are incident to the office of Treasurer or that are assigned to him or her by the Board of Directors, the Chief Executive Officer or the President.

ARTICLE VI.

CAPITAL STOCK.

Section 1. Issue of Certificates of Stock . The shares of capital stock of the Corporation may be certificated or uncertificated, as provided under the DGCL. Certificates of capital stock shall be in such form as shall be approved by the Board of Directors. The certificates shall be numbered in the order of their issue and shall be signed by the Chairman of the Board of Directors, the Chief Executive Officer, President or one of the vice-presidents, and the Secretary or an assistant Secretary or the Treasurer or an assistant Treasurer; provided , however , that where such certificates are signed by a transfer agent or an assistant transfer agent or by a transfer clerk acting on behalf of the Corporation and a registrar, the signature of any such Chairman of the Board of Directors, the Chief Executive Officer, President, vice-president, Secretary, assistant Secretary, Treasurer or assistant Treasurer may be by facsimile. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, have not ceased to be such officer or officers of the Corporation.

Section 2. Registration and Transfer of Shares . The name of each person owning a share of the capital stock of the Corporation shall be entered on the books of the Corporation together with the number of shares held by him, her or it, the numbers of the certificates, if any, covering such shares and the dates of issue of such shares. The shares of stock of the

 

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Corporation held in certificated form shall be transferable on the books of the Corporation by the holders thereof in person, or by their duly authorized attorneys or legal representatives, on surrender and cancellation of certificates for a like number of shares, accompanied by an assignment or power of transfer endorsed thereon or attached thereto, duly executed, and with such proof of the authenticity of the signature as the Corporation or its agents may reasonably require. The shares of stock of the Corporation that are not held in certificated form shall be transferable on the books of the Corporation by the holders thereof in person, or by their duly authorized attorneys or legal representatives, on delivery of an assignment or power of transfer. A record shall be made of each transfer. The Board of Directors may make other and further rules and regulations concerning the transfer and registration of certificates for stock and may appoint a transfer agent or registrar or both and may require all certificates of stock to bear the signature of either or both.

Notwithstanding anything to the contrary in these Bylaws, at all times that the Corporation’s stock is listed on a stock exchange, the shares of the stock of the Corporation shall comply with all direct registration system eligibility requirements established by such exchange, including any requirement that shares of the Corporation’s stock be eligible for issue in book-entry form. All issuances and transfers of shares of the Corporation’s stock shall be entered on the books of the Corporation with all information necessary to comply with such direct registration system eligibility requirements, including the name and address of the person to whom the shares of stock are issued, the number of shares of stock issued and the date of issue. The Board of Directors shall have the power and authority to make such rules and regulations as it may deem necessary or proper concerning the issue, transfer and registration of shares of stock of the Corporation in both the certificated and uncertificated form.

Section 3. Lost, Destroyed and Mutilated Certificates . The holder of any stock of the Corporation held in certificated form shall immediately notify the Corporation of any loss, theft, destruction or mutilation of the certificates therefor. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it and alleged to have been lost, stolen or destroyed, and the Board of Directors may, in its discretion, require the owner of the lost, stolen or destroyed certificate, or the owner’s legal representatives, to give the Corporation a bond, in such sum not exceeding double the value of the stock and with such surety or sureties as they may require, to indemnify it against any claim that may be made against it by reason of the issue of such new certificate and against all other liability in the premises.

Section 4 Beneficial Owners . The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such shares on the part of any other person except as required by law.

ARTICLE VII.

DIVIDENDS, SURPLUS, ETC.

Section 1. General Discretion of Directors . The Board of Directors shall have power to fix and vary the amount to be set aside or reserved as working capital of the Corporation, or as reserves, or for other proper purposes of the Corporation, and, subject to the requirements of the Certificate of Incorporation, to determine whether any part of the surplus or net profits of the Corporation shall be declared as dividends and paid to the stockholders, and to fix the date or dates for the payment of dividends.

 

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ARTICLE VIII.

MISCELLANEOUS PROVISIONS.

Section 1. Fiscal Year . The fiscal year of the Corporation shall be the calendar year or such other fiscal year as the Board of Directors from time to time by resolution shall determine.

Section 2. Corporate Seal . The Corporation shall have no seal.

Section 3. Notices . Except as otherwise expressly provided, any notice required to be given by these Bylaws will be sufficient if given by depositing the same in a post office or letter box in a sealed postpaid wrapper addressed to the person entitled to the notice at his or her address, as the same appears upon the books of the Corporation, or by telegraphing or cabling the same to that person at that address, or by electronic mail at his or her electronic mail address on record with the Corporation or by facsimile transmission to a number designated upon the books of the Corporation, if any; and the notice will be deemed to be given at the time it is mailed, telegraphed or cabled, sent by electronic mail or sent by facsimile.

Section 4. Waiver of Notice . Any stockholder or director may at any time waive, whether such waiver is mailed, telegraphed or cabled or sent by electronic mail or facsimile, any notice required to be given under these Bylaws, and if any stockholder or director shall be present at any meeting his or her presence shall constitute a waiver of such notice, unless, at the beginning of the meeting, the stockholder (or his or her proxy) or director objects to holding the meeting or transacting business at the meeting or objects to considering a specific matter before it is voted upon.

Section 5. Use of Electronic Transmission . The Corporation is authorized to use “electronic transmissions” as defined in the DGCL to the full extent allowed by the DGCL, including, but not limited to, the purposes of notice, proxies, waivers, resignations and any other purpose for which electronic transmissions are permitted.

Section 6. Checks, Drafts, etc . All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers, agent or agents of the Corporation, and in such manner, as shall from time to time be designated by resolution of the Board of Directors.

Section 7. Deposits . All funds of the Corporation shall be deposited from time to time to the credit of the Corporation in such bank or banks, trust companies or other depositories as the Board of Directors may select, and, for the purpose of such deposit, checks, drafts, warrants and other orders for the payment of money which are payable to the order of the Corporation, may be endorsed for deposit, assigned and delivered by any officer of the Corporation, or by such agents of the Corporation as the Board of Directors, the Chief Executive Officer or the President may authorize for that purpose.

 

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Section 8. Voting Stock of Other Corporations . Except as otherwise ordered by the Board of Directors or the Executive Committee, the Chief Executive Officer, the President, the Chief Financial Officer, the Secretary or the Treasurer shall have full power and authority on behalf of the Corporation to attend and to act and to vote at any meeting of the stockholders of any corporation or other form of business entity of which the Corporation is a stockholder or otherwise holds an interest and to execute a proxy to any other person to represent the Corporation at any such meeting, and at any such meeting the Chief Executive Officer, the President, the Chief Financial Officer, the Secretary or the Treasurer or the holder of any such proxy, as the case may be, shall possess and may exercise any and all rights and powers incident to ownership of such stock or other interest and which, as owner thereof, the Corporation might have possessed and exercised if present. The Board of Directors or the Executive Committee may from time to time confer like powers upon any other person or persons.

Section 9. Indemnification of Officers and Directors . Without limiting the terms set forth in the Certificate of Incorporation, the Corporation shall indemnify any and all of its directors or officers, including former directors or officers, and any employee, who shall serve as an officer or director of any corporation or other form of business entity at the request of this Corporation, to the fullest extent permitted under and in accordance with the laws of the State of Delaware.

ARTICLE IX.

AMENDMENTS.

In furtherance and not in limitation of the powers conferred by statute, these Bylaws may be made, altered, amended or repealed by the stockholders of the Corporation or by a majority of the entire Board of Directors; provided , however , that notwithstanding any other provision of the Certificate of Incorporation that might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the stock of the Corporation required by law or the Certificate of Incorporation, from and after the Trigger Date, the affirmative vote of the holders of at least 66 2/3% of the voting power of the then outstanding voting stock of the Corporation, voting together as a single class, shall be required for the stockholders of the Corporation to alter, amend or repeal Article II, Sections 2 and 4, Article III, Sections 3, 4 and 5 and this Article IX of these Bylaws.

Dated: __________, 2013

*    *    *    *    *

 

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Exhibit 4.4

INVESTOR RIGHTS AGREEMENT

THIS INVESTOR RIGHTS AGREEMENT (this “ Agreement ”) is entered into as of                     , 2013, by and among (i) Ryerson Holding Corporation, a Delaware corporation (the “ Company ”), (ii) Platinum Equity Capital Partners, L.P., a Delaware limited partnership (“ PE ”), (iii) Platinum Equity Capital Partners-PF, L.P., a Delaware limited partnership (“ PE-PF ”), (iv) Platinum Equity Capital Partners-A, L.P., a Delaware limited partnership (“ PE-A ”), (v) Platinum Equity Capital Partners II, L.P., a Delaware limited partnership (“ PE II ”), (vi) Platinum Equity Capital Partners-PF II, L.P., a Delaware limited partnership (“ PE-PF II ”), (vii) Platinum Equity Capital Partners-A II, L.P., a Delaware limited partnership (“ PE-A II ”), and (viii) Platinum Rhombus Principals, LLC, a Delaware limited liability company (“ Rhombus Principals ”, and together with PE, PE-PF, PE-A, PE II, PE-PF II and PE-A II, “ Platinum ”). Certain terms used herein are defined in Section 4 .

W I T N E S S E T H:

WHEREAS, the parties hereto wish to agree to certain rights with respect to the registration of securities held by Platinum under the Securities Act of 1933, as amended (the “ Securities Act ”).

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. Demand Registration Rights.

(a) Unless Section 3 herein is otherwise applicable, at any time after the date that is one hundred and eighty (180) days after the closing of the Company’s first underwritten public offering of its Shares (other than a registration (1) relating to employee benefit plans or (2) solely relating to shares to be sold under Rule 145 or a similar provision under the Securities Act), if Platinum requests in writing that the Company file a registration statement under the Securities Act for a firm commitment underwritten public offering of not less than 10% of Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price of such offering, net of underwriting discounts and commissions, exceeds $20,000,000), the Company shall, within 10 days of receiving the written request for registration, use its commercially reasonable efforts to so register under the Securities Act such Registrable Securities requested to be registered. The Company shall not be obligated to effect more than two such demand registrations requested by Platinum.

(b) If the Company includes in any registration required under this Section 1 a number of shares other than Platinum’s Registrable Securities that exceeds the number of Platinum’s Registrable Securities to be included, then such registration, as to Platinum, shall be deemed to be a registration under Section 2 instead of this Section 1 . In all other cases where the Company includes in such registration any shares other than Platinum’s Registrable Securities, such registration shall remain subject to this Section 1 , provided that in no event shall other shares (of persons other than the Company) be included if such inclusion would (i) prevent Platinum from registering all Registrable Securities requested by it or (ii) adversely affect the offering price of Platinum’s Registrable Securities in such registration.


(c) It is a condition precedent to the obligations of the Company to take any action pursuant to this Section 1 that Platinum furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of such securities as shall be reasonably and customarily required to effect the registration of its Registrable Securities.

2. Piggyback Registration Rights.

(a) Whenever the Company proposes to register any equity securities for its own or others’ account under the Securities Act (other than a registration (1) relating to employee benefit plans or (2) solely relating to shares to be sold under Rule 145 or a similar provision under the Securities Act), the Company shall give Platinum prompt written notice of its intent to do so. Upon the written request of Platinum given within 10 business days after receipt of such notice, the Company shall include in such registration all Registrable Securities that Platinum shall request; provided that the Company shall have the right to postpone, delay, cancel, withdraw or terminate any registration made under this Section 2 , whether or not Platinum has elected to include such securities in such registration.

(b) If the Company is advised in writing in good faith by any managing underwriter of the securities being offered pursuant to any registration statement under this Section 2 that, because of marketing considerations, the number of shares to be sold by the Company and Platinum is greater than the number of such shares that can be offered without adversely affecting the offering, then the equity securities proposed to be included in such registration shall be registered in accordance with the following priorities: (i) all shares sought to be registered by the Company will be registered first and (ii) all of the shares sought to be sold by Platinum shall be registered second, and in the case of (ii), such number of shares to be sold shall, if necessary, be reduced to a number deemed satisfactory by such managing underwriter.

3. Form S-3 Registration Rights. Following the closing of the Company’s first underwritten public offering of its Shares (other than a registration (1) relating to employee benefit plans or (2) solely relating to shares to be sold under Rule 145 or a similar provision under the Securities Act), the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 for secondary sales. After the Company has qualified for the use of Form S-3, Platinum shall have the right to request an unlimited number of registrations on Form S-3 (such requests shall be in writing and shall state the number of shares of Registrable Securities to be disposed of and the intended method of disposition of shares by Platinum), provided , however , that the Company shall have no obligation to effect a registration under this Section 3 (i) unless the aggregate offering price of the Registrable Securities requested to be sold pursuant to such registration is expected to be equal to or greater than $5,000,000 or (ii) within one hundred and eighty (180) days of the effective date of the most recent registration pursuant to this Section 3 in which Platinum’s Registrable Securities could have been included for sale or distribution. Upon receipt of any request for registration pursuant to this Section 3 , the Company shall file a Form S-3 Registration Statement with the Commission and, as soon as practicable, use its commercially reasonable efforts to effect such registration and all related qualifications and compliances as may be requested and as would permit or facilitate the sale and distribution

 

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of all Registrable Securities as are specified in such request. If the Company qualifies to do so, it shall file an automatic Registration Statement on Form S-3 in response to any request for registration pursuant to this Section 3 . In the case of an underwritten offering under this Section 3 , the price, underwriting discount and other financial terms for the Registrable Securities shall be determined by Platinum.

4. Definitions.

(a) As used herein, “ Affiliate ” shall have the meaning given to it in Rule 405 promulgated under the Securities Act.

(b) As used herein, “ Person ” means any natural person or any corporation, limited liability company, partnership, trust or other entity.

(c) As used herein, “ Qualified Transferee ” means (i) any Affiliate of Platinum, (ii) for purposes of Section 1 and Section 2 only, the Company’s 1% stockholder as of the date hereof or (iii) any Person who acquires at least 5% of the Registrable Securities held by Platinum, provided that, a Qualified Transferee shall agree to be bound by and subject to the terms and conditions of this Agreement.

(d) As used herein, “ Registrable Securities ” means all Shares held by Platinum or a Qualified Transferee at any time, including without limitation any Shares of the Company acquired (or which may be acquired upon the exercise or conversion of securities for or into Shares of the Company) by Platinum or a Qualified Transferee pursuant to any preemptive right, right of first offer or otherwise, and any other Shares issued in respect of any of such securities (as a result of stock splits, stock dividends, stock combinations, reclassifications, recapitalizations or other similar events); provided , however , that such securities shall cease to be Registrable Securities upon any sale thereof pursuant to an effective registration statement under the Securities Act or that are sold pursuant to Rule 144 under the Securities Act.

(e) As used herein, “ Shares ” means the shares of Common Stock, par value $0.01 per share, in the Company outstanding from time to time.

5. Black-Out Periods. Notwithstanding anything in this Agreement to the contrary, if the Company shall furnish to Platinum initiating a registration pursuant to Section 1 or Section 3 a certificate signed by the President, Chief Executive Officer or Chief Financial Officer of the Company within 5 business days of receiving notice from Platinum under Section  1 or Section  3 stating that in the good faith judgment of the Board of Directors of the Company (a) it would be materially detrimental to the Company and its stockholders for such registration statement to become effective or to remain effective as long as such registration would otherwise be required to remain effective or (b) it would materially interfere with a significant acquisition, corporate reorganization or other similar transaction involving the Company for such registration statement to become effective or to remain effective as long as such registration would otherwise be required to remain effective, then the Company shall have the right to defer the filing of such registration statement for a period (the “ Black Out Period ”) of not more than 90 days after delivery by the Company of the certificate referred to above. Notwithstanding the foregoing, the Company may not exercise the right to initiate a Black Out Period more than three times in any 12-month period totaling no more than 120 days in any 12-month period.

 

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6. Selection of Underwriter. The underwriter(s) of any offering shall be selected by the Company, subject in the case of an underwritten offering effected under Section 1 or Section 3 hereof to approval by Platinum, which approval will not be unreasonably withheld.

7. Registration Procedures. If and whenever the Company is required by the provisions of this Agreement to use its commercially reasonable efforts to effect the registration of any of the Registrable Securities under the Securities Act, the Company shall:

(a) promptly file with the United States Securities and Exchange Commission (the “ Commission ”) a registration statement (and, in the case of a registration under Section 1 or Section 3, within 60 days of any request thereunder), in form and substance required by the Securities Act, with respect to such Registrable Securities and use its commercially reasonable efforts to cause that registration statement to become effective;

(b) prepare and file with the Commission any amendments and supplements to the registration statement and the prospectus included in the registration statement as may be necessary to keep the registration statement effective, in the case of a firm commitment underwritten public offering, until completion of the distribution of all securities described therein and, in the case of any other offering, until the earlier of (i) the sale of all Registrable Securities covered thereby or (ii) 180 days after the effective date thereof (and in the case of a registration under Section 1 , 365 days);

(c) furnish to Platinum such reasonable numbers of copies of the prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as Platinum may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by it;

(d) register or qualify the Registrable Securities covered by the registration statement under the securities or Blue Sky laws of such states as Platinum shall reasonably request, and do any and all other acts and things that may be necessary or desirable to enable Platinum to consummate the public sale or other disposition in such states of the Registrable Securities owned by Platinum; provided , however , that the Company shall not be required in connection with this paragraph (d) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction;

(e) in connection with each registration covering an underwritten public offering, enter (and each participating holder agrees to enter) into a written agreement with the managing underwriter in such form and containing such provisions (including, if the underwriter so requests, customary contribution provisions on the part of the Company) as are customary in the securities business for such an arrangement between such underwriter and companies of the Company’s size and investment stature. Platinum shall also enter into and perform all its obligations under such an agreement;

(f) at the reasonable request of Platinum pursuant to Section 1 , on the date on which such Registrable Securities are sold to the underwriter, provide (i) a legal opinion of the Company’s counsel addressed to such underwriters and (ii) a letter from the Company’s independent certified public accountants, each in customary form and substance;

 

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(g) whenever the Company is registering any securities under the Securities Act and Platinum is selling securities under such registration, (i) keep Platinum advised of the initiation, progress and completion of such registration and (ii) allow Platinum and Platinum’s counsel to comment on the registration statement;

(h) make available for inspection by Platinum, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by Platinum or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Platinum or any such underwriter, attorney, accountant or agent in connection with such registration statement;

(i) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earning statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

(j) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction, the Company will use its commercially reasonable efforts promptly to obtain the withdrawal of such order; and

(k) as of the effective date of any registration statement relating thereto, cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed, and, if not so listed, to be listed on the New York Stock Exchange or the Nasdaq National Market.

8. Expenses. The Company will pay all expenses incurred in complying with this Agreement, including, without limitation, all registration and filing fees, exchange listing fees, printing expenses, transfer taxes, fees and expenses of counsel for the Company and the fees and expenses of one counsel selected by Platinum to represent them, state securities or Blue Sky fees and expenses, and the expense of any special audits incident to or required by any such registration, but excluding underwriting discounts and selling commissions relating to the sale of the Registrable Securities. The obligation of the Company to bear expenses described in this Section 8 shall apply irrespective of whether a registration becomes effective, is withdrawn or suspended, is converted to another form of registration and irrespective of when any of the foregoing shall occur.

9. Notification. The Company shall promptly notify Platinum of any event that results in the prospectus included in such registration statement or such registration statement, as then in effect, containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. At the request of Platinum, the Company will as soon as possible prepare and furnish to Platinum a reasonable number of copies of a supplement or

 

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amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made.

10. Indemnification and Contribution.

(a) Indemnification by the Company. The Company shall indemnify and hold harmless Platinum, its officers, directors, managers, stockholders, partners and Affiliates, each underwriter of the Registrable Securities being sold by Platinum, and each controlling person of any of the foregoing, against any and all claims, losses, damages, expenses and liabilities, joint or several (including any investigation, legal or other expenses incurred in connection with, and any amounts paid in settlement of, any action, suit or proceeding or any claim asserted), as the same are incurred, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular, or other document delivered or made available to investors relating to such Registrable Securities (or in any related registration statement or any amendment or supplement thereto) or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act, the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), or any other applicable law, rule or regulation, applicable to the Company and relating to action or inaction required of the Company in connection with any registration, qualification or compliance contemplated by this Agreement, and will reimburse Platinum, each of its officers, directors, managers, members, partners and Affiliates, and each such underwriter and controlling person for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability, expense or action, whether or not resulting in liability; provided , however , that the Company will not be liable in any such case to the extent that any such claim, loss, damage, expense or liability arises out of or is based on any untrue statement or omission based upon and in conformity with written information furnished to the Company by Platinum or such underwriter and stated to be specifically for use therein; provided , further , that the indemnity contained in this Section 10(a) will not apply to amounts paid in settlement of any such claim, loss, damage, expense or liability if such settlement is effected without the consent of the Company (which consent will not be unreasonably withheld).

(b) Indemnification by the Holders of Registrable Securities. Platinum shall indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the registration statement, each underwriter of the Registrable Securities, each other participating holder of Registrable Securities, its officers, directors, managers, stockholders, partners and Affiliates, and each controlling person of any of the foregoing, against all claims, losses, damages, expenses and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular, or other document delivered or made available to investors relating to such Registrable Securities (or in any related registration statement or any amendment or supplement thereto) or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company and each such director, officer, manager, stockholder, other participating holder, partner, Affiliate or controlling person referred to above for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage,

 

6


expense, liability or action, whether or not resulting in liability; provided , however , that Platinum will not be liable in any such case except to the extent that any such claim, loss, damage, expense or liability arises out of any untrue statement or omission based upon and in conformity with written information furnished to the Company by Platinum and stated to be specifically for use therein, and provided , further , that no holder of Registrable Securities will be liable under this Section 10(b) for losses, costs, damages or expenses exceeding in the aggregate the net proceeds paid to Platinum in such offering; provided , further , that the indemnity contained in this Section 10(b) will not apply to amounts paid in settlement of any such claim, loss, damage or liability if such settlement is effected without the consent of Platinum (which consent will not be unreasonably withheld).

(c) Procedures for Indemnification. Each party entitled to indemnification under Sections 10(a) or 10(b) (the “ Indemnified Party ”) shall give notice to the party required to provide indemnification (the “ Indemnifying Party ”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided , that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld or delayed); and, provided , further , that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement unless the Indemnifying Party is materially prejudiced thereby. The Indemnified Party may participate in such defense at such party’s expense; provided , however , that the Indemnifying Party shall pay such expenses if the Indemnified Party shall believe in good faith that representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceeding. No Indemnifying Party, in the defense of any such claim or litigation shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect of such claim or litigation, and no Indemnified Party shall consent to entry of any judgment or settle such claim or litigation without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld or delayed.

(d) Contribution. If the indemnification provided for in Sections 10(a) or 10(b) is unavailable to any Indemnified Party thereunder in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to in such subsections, then each Person that would have been an Indemnifying Party thereunder shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other. The relative fault shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission, or whether such losses, claims, damages or liabilities (or actions in respect thereof) arose out of the action or failure to act of one or more of such parties. Notwithstanding the foregoing, (i) Platinum will not be required to contribute any amount in

 

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excess of the net proceeds paid to Platinum of all Registrable Securities sold by Platinum pursuant to such registration statement except in the case of fraud by Platinum, and (ii) no Person guilty of fraudulent misrepresentation, within the meaning of Section 10(f) of the Securities Act, shall be entitled to contribution from any Person who is not guilty of such fraudulent misrepresentation.

11. Reports Under Exchange Act. With a view to making available to Platinum the benefits of Rule 144 promulgated under the Securities Act and any other rule or regulation of the Commission that may at any time permit Platinum to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company agrees to use its commercially reasonable efforts to satisfy the requirements of all such rules and regulations (including the requirements for public information, registration under the Exchange Act and timely reporting to the Commission) at the earliest possible date (but in any event not later than 90 days) after the effective date of the registration statement for its first registered public offering. The Company will furnish to Platinum, within 5 business days, whenever requested, a written statement as to its compliance with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, a copy of its most recent annual or quarterly report, and such other reports and information filed by the Company as Platinum may reasonably request in writing in connection with the lawful sale of Registrable Securities without registration.

12. Registration Rights of Others. The Company will not, without the prior written consent of Platinum, grant to any Person (other than in connection with an assignment made pursuant to Section 16 ) the right to (a) require the Company to initiate the registration of any securities or (b) require the Company to include in any registration securities owned by such Person, unless under the terms of such arrangement Platinum may include securities in such registration only to the extent that the inclusion thereof does not limit the number of Registrable Securities included therein or adversely affect the offering price thereof. The Company represents and warrants that it has not granted any Person the right to require the Company to initiate the registration of any securities or include in any registration any securities owned by any Person.

13. Adjustments Affecting Registrable Securities. Except as otherwise provided herein, the Company will not effect a stock split or dividend or a combination of shares or take any similar action, or permit any similar change to occur, with respect to its Shares which would materially and adversely affect the ability of Platinum to include Registrable Securities in a registration undertaken pursuant to this Agreement or which would adversely affect the marketability of such Registrable Securities in any such registration (including, without limitation, effecting a stock split or a combination of shares) in any material respect.

14. Lock-Up Agreement. Platinum agrees that in connection with the initial public offering of the Shares of the Company, upon the request of the managing underwriter in such offering, Platinum will not (i) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any of the Company’s securities held by Platinum (other than those included in such registration), or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Company’s securities held by Platinum, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Shares of the

 

8


Company or other securities, in cash or otherwise, without the prior written consent of such underwriter, for such period of time as may be requested by such underwriter (which period shall commence as of the effective date of such registration and end no later than 180 days after the effective date of such registration).

15. Board Nomination Rights.

(a) Nomination of Directors . Platinum shall have the right to nominate for election to the board of directors of the Company (the “ Board ”):

 

  (i) no fewer than that number of directors that would constitute a majority of the number of directors that the Company would have if there were no vacancies on the Board, so long as Platinum collectively beneficially owns at least 30% of the then outstanding capital stock of the Company; provided that nothing in this paragraph (i) of this Section 15(a) shall be construed to limit the right of Platinum to nominate directors to a number of such directors that is less than the number of directors Platinum would be entitled to nominate pursuant to applicable law and the Company’s certificate of incorporation and bylaws;

 

  (ii) up to two (2) directors, so long as Platinum collectively beneficially owns at least 15% of the then outstanding capital stock of the Company but less than 30% of the then outstanding capital stock of the Company; and

 

  (iii) one (1) director, so long as Platinum collectively beneficially owns at least 5% of the then outstanding capital stock of the Company but less than 15% of the then outstanding capital stock of the Company.

In the event the size of the Board is increased or decreased at any time, Platinum’s nomination rights under this Section 15(a) shall be proportionately increased or decreased, respectively, rounded up to the nearest whole number. Furthermore, in the event that within one hundred eighty (180) days of the date of this Agreement, the Board increases its size, Platinum shall have the right to nominate for election to the Board directors to fill such newly created directorships, and if Platinum exercises such right, the Company shall appoint such nominees to the Board.

(b) Election of Directors . The Company shall take all action within its power to cause all nominees nominated pursuant to Section 15(a) to be included in the slate of nominees recommended by the Board to the Company’s stockholders for election as directors at each annual meeting of the stockholders of the Company (and/or in connection with any election by written consent) and the Company shall use all reasonable best efforts to cause the election of each such nominee, including soliciting proxies in favor of the election of such nominees.

(c) Replacement of Directors . In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of a director nominated pursuant to Section 15(a) or designated pursuant to this Section 15(c) , or in the event of the failure of any such nominee to be elected, Platinum shall have the right to designate a replacement to fill such vacancy. The Company shall take all action within its power to cause such vacancy to be filled by the replacement so designated, and the Board shall promptly elect such designee to the Board. Upon the written request of Platinum, the Company shall take all

 

9


actions necessary to remove, with or without cause, any director previously nominated pursuant to Section 15(a) or designated pursuant to this Section 15(c) , and to elect any replacement director designated by Platinum as provided in the first sentence of this Section 15(c) .

(d) Committees . So long as Platinum collectively beneficially owns at least 15% of the outstanding capital stock of the Company, the Company shall take all action within its power to cause any committee of the Board to include in its membership at least one of Platinum’s nominees, except to the extent that such membership would violate applicable securities laws or stock exchange or stock market rules.

(e) No Limitation . The provisions of this Section 15 are intended to provide Platinum with the minimum Board representation rights set forth herein. Nothing in this Agreement shall prevent the Company from having a greater number of nominees or designees of Platinum on the Board than otherwise provided herein.

(f) Laws and Regulations . Nothing in this Section 15 shall be deemed to require that any party hereto, or any Affiliate thereof, act or be in violation of any applicable provision of law, regulation, legal duty or requirement or stock exchange or stock market rule.

16. Notices. All notices, demands, requests or other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered in person, or by United States mail, certified or registered with return receipt requested, or by nationally recognized overnight courier service, to the addresses of the respective parties set forth on the signature pages hereto (or, if the address of a holder of Registrable Securities is not included therein, at the address of such holder on the Company’s books and records).

17. Assignment; Successors and Assigns. The Company may not assign this Agreement or any of its rights hereunder, or delegate the performance of any of its obligations hereunder, except with the consent of Platinum. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns including, without limitation, any Qualified Transferee (such that any Person that acquires Registrable Securities from a party hereto shall be bound by (and have the benefit of) the provisions of this Agreement to the same extent as the transferor of such securities).

18. Survival. This Agreement, including without limitation the obligations of the parties under Section 10 , shall survive until the expiration of the applicable statute of limitations and in the case of Platinum, in no event, longer than 5 years after the sale of all of its Registrable Securities; provided that for so long as Platinum collectively beneficially owns at least 5% of the then outstanding capital stock of the Company, Section 15 may not be terminated without the prior written consent of Platinum.

19. Severability; Governing Law; Venue. If any provision of this Agreement is rendered void, invalid or unenforceable by any court of law for any reason, such invalidity or unenforceability shall not void or render invalid or unenforceable any other provision of this Agreement. This Agreement and the rights and obligations of the parties hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of Delaware, without regard to its choice of law principles. Any legal action or proceeding with respect to this Agreement will be brought exclusively in the courts of the State of Delaware or of the United

 

10


States of America for the District of Delaware, and any appellate court from any thereof, and, by execution and delivery of this Agreement, each of the Company and Platinum hereby (i) accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts and (ii) consents that any such action or proceeding may be brought exclusively in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same. Each of the Company and Platinum irrevocably consents to the service of process of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by certified mail, postage prepaid, to the Company or Platinum, as the case may be, at its notice address specified in Section 15 , such service to become effective thirty (30) days after such mailing.

20. Amendments; Waivers. This Agreement shall be amended, modified or waived only with the written consent of (a) the Company and (b) Platinum. No failure to exercise or delay in exercising any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy.

21. Counterparts. This Agreement may be executed in one or more counterparts, and with counterpart signature pages (including signature pages delivered by facsimile), each of which shall be an original, but all of which together shall constitute one in the same Agreement.

22. No Strict Construction; Entire Agreement. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and the other documents and agreements contemplated herein. This Agreement contains the entire understanding of the parties and supersedes all prior agreements and understandings between the parties with respect to its subject matter. In the event an ambiguity or question of intent or interpretation arises under any provision of this Agreement or any other document or agreement contemplated herein, this Agreement and such other documents and agreements shall be construed as if drafted jointly by the parties thereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authoring any of the provisions of this Agreement or any other documents or agreements contemplated herein.

[SIGNATURE PAGES FOLLOW]

 

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The parties hereto have executed and delivered this Agreement as of the date first above written.

 

COMPANY:
RYERSON HOLDING CORPORATION
By:  

 

  Name:
  Title:

[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]


STOCKHOLDERS:
PLATINUM EQUITY CAPITAL PARTNERS, L.P.
By:  

Platinum Equity Partners, LLC,

its general partner

By:  

Platinum Equity Investment Holdings, LLC,

its senior managing member

By:  

 

Name:   Mary Ann Sigler
Title:   Vice President
PLATINUM EQUITY CAPITAL PARTNERS-PF, L.P.
By:  

Platinum Equity Partners, LLC,

its general partner

By:  

Platinum Equity Investment Holdings, LLC,

its senior managing member

By:  

 

Name:   Mary Ann Sigler
Title:   Vice President
PLATINUM EQUITY CAPITAL PARTNERS-A, L.P.
By:  

Platinum Equity Partners, LLC,

its general partner

By:  

Platinum Equity Investment Holdings, LLC,

its senior managing member

By:  

 

Name:   Mary Ann Sigler
Title:   Vice President

[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]


PLATINUM EQUITY CAPITAL PARTNERS II, L.P.
By:  

Platinum Equity Partners II, LLC,

its general partner

By:  

Platinum Equity Investment Holdings II, LLC,

its senior managing member

By:  

 

Name:   Mary Ann Sigler
Title:   Vice President
PLATINUM EQUITY CAPITAL PARTNERS-PF II, L.P.
By:  

Platinum Equity Partners II, LLC,

its general partner

By:  

Platinum Equity Investment Holdings II, LLC,

its senior managing member

By:  

 

Name:   Mary Ann Sigler
Title:   Vice President
PLATINUM EQUITY CAPITAL PARTNERS-A II, L.P.
By:  

Platinum Equity Partners II, LLC,

its general partner

By:  

Platinum Equity Investment Holdings II, LLC,

its senior managing member

By:  

 

Name:   Mary Ann Sigler
Title:   Vice President

[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]


PLATINUM RHOMBUS PRINCIPALS, LLC
By:  

Platinum Equity Investment Holdings II, LLC,

its senior managing member

By:  

 

Name:   Mary Ann Sigler
Title:   Vice President

[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]

Exhibit 10.12

RYERSON HOLDING CORPORATION 2013 STOCK INCENTIVE PLAN

 

  1. Purpose.

The purpose of the Plan is to assist the Company in attracting, retaining, motivating, and rewarding certain key employees, officers, directors, and consultants of the Company and its Subsidiaries, and promoting the creation of long-term value for stockholders of the Company by closely aligning the interests of such individuals with those of such stockholders. The Plan authorizes the award of Stock-based incentives to Eligible Persons to encourage such persons to expend their maximum efforts in the creation of stockholder value.

 

  2. Definitions.

For purposes of the Plan, the following terms shall be defined as set forth below:

(a) “ Award ” means any Option, Restricted Stock, Restricted Stock Unit, Stock Appreciation Right, Performance Award, or other Stock-based award granted under the Plan.

(b) “ Board ” means the Board of Directors of the Company.

(c) “ Cause ” means, in the absence of an employment agreement between a Participant and the Employer otherwise defining Cause, (i) a Participant’s conviction of or indictment for any crime (whether or not involving the Company or its Subsidiaries) (A) constituting a felony or (B) that has, or could reasonably be expected to result in, an adverse impact on the performance of the Participant’s duties to the Employer, or otherwise has, or could reasonably be expected to result in, an adverse impact to the business or reputation of the Company or its Subsidiaries; (ii) conduct of the Participant, in connection with his or her employment, that has, or could reasonably be expected to result in, material injury to the business or reputation of the Company or its Subsidiaries; (iii) any material violation of the policies of the Company or its Subsidiaries, including, but not limited to those relating to sexual harassment, the disclosure or misuse of confidential information, or others set forth in the manuals or statements of policy of the Company or its Subsidiaries; or (iv) willful neglect in the performance of the Participant’s duties for the Employer or willful or repeated failure or refusal to perform such duties; provided , however , that if, subsequent to the Participant’s voluntary Termination for any reason or involuntary Termination by the Company or a Subsidiary without Cause, it is discovered that the Participant’s employment could have been terminated for Cause, such Participant’s employment shall be deemed to have been terminated for Cause. In the event there is an employment agreement between a Participant and the Employer defining Cause, “ Cause ” shall have the meaning provided in such agreement, and a Termination by the Employer for Cause hereunder shall not be deemed to have occurred unless all applicable notice and cure periods in such employment agreement are complied with.

(d) “ Change in Control ” means:

(i) a change in ownership or control of the Company effected through a transaction or series of transactions (other than an offering of Stock to the general


public through a registration statement filed with the Securities and Exchange Commission) whereby any “person” (as defined in Section 3(a)(9) of the Exchange Act) or any two or more persons deemed to be one “person” (as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than the Company or any of its Subsidiaries, or an employee benefit plan maintained by the Company or any of its Subsidiaries, directly or indirectly acquire “beneficial ownership” (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company possessing more than fifty percent (50%) of the total combined voting power of the Company’s securities outstanding immediately after such acquisition;

(ii) the date upon which individuals who, as of the Effective Date, constitute the Board (the “ Incumbent Board ”), cease for any reason to constitute at least a majority of the Board; provided, however , that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then constituting the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board; or

(iii) the sale or disposition, in one or a series of related transactions, of all or substantially all of the assets of the Company to any “person” (as defined in Section 3(a)(9) of the Exchange Act) or to any two or more persons deemed to be one “person” (as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) other than the Subsidiaries.

(e) “ Code ” means the Internal Revenue Code of 1986, as amended from time to time, including regulations thereunder and successor provisions and regulations thereto.

(f) “ Committee ” means the Board or such other committee appointed by the Board consisting of two or more individuals.

(g) “ Company ” means Ryerson Holding Corporation, a Delaware corporation.

(h) “ Disability ” means, in the absence of any employment agreement between a Participant and the Employer otherwise defining Disability, the permanent and total disability of such Participant within the meaning of Section 22(e)(3) of the Code. In the event there is an employment agreement between a Participant and the Employer defining Disability, “Disability” shall have the meaning provided in such agreement.

(i) “ Disqualifying Disposition ” means any disposition (including any sale) of Stock acquired upon the exercise of an Incentive Stock Option made within the period that ends either (i) two years after the date the Participant was granted the Incentive Stock Option or (ii) one year after the date the Participant acquired Stock by exercising the Incentive Stock Option.

(j) “ Effective Date ” means             , 2013.

 

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(k) “ Eligible Person ” means (i) each employee of the Company or of any of its Subsidiaries, including each such person who may also be a director of the Company and/or its Subsidiaries; (ii) each non-employee director of the Company and/or its Subsidiaries; (iii) each other person who provides substantial services to the Company and/or its Subsidiaries and who is designated as eligible by the Committee; and (iv) any person who has been offered employment or service by the Company or its Subsidiaries; provided , that such prospective service provider may not receive any payment or exercise any right relating to an Award until such person has commenced employment or service with the Company or its Subsidiaries. An employee on an approved leave of absence may be considered as still in the employ of the Company or its Subsidiaries for purposes of eligibility for participation in the Plan.

(l) “ Employer ” means either the Company or a Subsidiary by which the Participant is principally employed or to which the Participant provides services, as applicable (in each case determined without regard to any transfer of an Award).

(m) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, including rules thereunder and successor provisions and rules thereto.

(n) “ Expiration Date ” means the date upon which the term of an Option expires, as determined under Section 5(b) hereof.

(o) “ Fair Market Value ” means, as of any date when the Stock is listed on one or more national securities exchanges, the closing price reported on the principal national securities exchange on which such Stock is listed and traded on the date of determination. If the Stock is not listed on an exchange, or representative quotes are not otherwise available, the Fair Market Value shall mean the amount determined by the Board in good faith, and in a manner consistent with Section 409A of the Code, to be the fair market value per share of Stock.

(p) “ Incentive Stock Option ” means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.

(q) “ Incumbent Board ” shall have the meaning set forth in Section 2(e)(ii) hereof.

(r) “ Nonqualified Stock Option ” means an Option not intended to qualify as an Incentive Stock Option.

(s) “ Option ” means a conditional right, granted to a Participant under Section 5 hereof, to purchase Stock at a specified price during specified time periods. Certain Options granted under the Plan are intended to qualify as Incentive Stock Options.

(t) “ Option Agreement ” means a written agreement between the Company and a Participant evidencing the terms and conditions of an individual Option grant.

(u) “ Participant ” means an Eligible Person who has been granted an Award under the Plan, or if applicable, such other person or entity who holds an Award.

 

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(v) “ Performance Award ” means an Award granted to a Participant under Section 7 hereof, which is subject to the achievement of Performance Objectives during a Performance Period. A Performance Award shall be designated as a “Performance Share” or a “Performance Unit” at the time of grant.

(w) “ Performance Award Agreement ” means a written agreement between the Company and a Participant evidencing the terms and conditions of an individual Performance Award grant.

(x) “ Performance Objectives ” means the performance objectives established pursuant to this Plan for Participants who have received Performance Awards.

(y) “ Performance Period ” means the period designated for the achievement of Performance Objectives.

(z) “ Plan ” means this Ryerson Holding Corporation 2013 Stock Incentive Plan.

(aa) “ Qualified Member ” means a member of the Committee who is a “Non-Employee Director” within the meaning of Rule 16b-3 and an “outside director” within the meaning of Treasury Regulation 1.162-27(c) under Code Section 162(m).

(bb) “ Qualifying Retirement ” means the Termination by a Participant who has (i) attained age 65 and has completed ten or more years of service with the Company or its Subsidiaries, or (ii) had such Termination approved by the Board as a Qualifying Retirement under the Plan.

(cc) “ Qualifying Committee ” shall have the meaning set forth in Section 3(b) hereof.

(dd) “ Restricted Stock ” means Stock granted to a Participant under Section 6 hereof that is subject to certain restrictions and to a risk of forfeiture.

(ee) “ Restricted Stock Agreement ” means a written agreement between the Company and a Participant evidencing the terms and conditions of an individual Restricted Stock grant.

(ff) “ Restricted Stock Unit ” means a notional unit representing the right to receive one share of Stock (or the cash value of one share of Stock, if so determined by the Committee) on a specified settlement date.

(gg) “ Securities Act ” means the Securities Act of 1933, as amended from time to time, including rules thereunder and successor provisions and rules thereto.

(hh) “ Stock ” means the Company’s Common Stock, par value $0.01 per share, and such other securities as may be substituted for such stock pursuant to Section 9 hereof.

 

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(ii) “ Stock Appreciation Right ” means a conditional right to receive an amount equal to the value of the appreciation in the Stock over a specified period. Except in the event of extraordinary circumstances, as determined in the sole discretion of the Committee, or pursuant to Section 9(b) below, Stock Appreciation Rights shall be settled in Stock.

(jj) “ Subsidiary ” means each direct and indirect subsidiary of the Company.

(kk) “ Termination ” means the termination of a Participant’s employment or service, as applicable, with the Employer; provided , however , that, if so determined by the Committee at the time of any change in status in relation to the Employer ( e.g. , a Participant ceases to be an employee and begins providing services as a consultant, or vice versa), such change in status will not be deemed to be a Termination hereunder. Unless otherwise determined by the Committee, in the event that any Employer ceases to be a Subsidiary (by reason of sale, divesture, spin-off or other similar transaction), unless a Participant’s employment or service is transferred to another entity that would constitute an Employer immediately following such transaction, such Participant shall be deemed to have suffered a Termination hereunder as of the date of the consummation of such transaction.

 

  3. Administration.

(a) Authority of the Committee . Except as otherwise provided below, the Plan shall be administered by the Committee. The Committee shall have full and final authority, in each case subject to and consistent with the provisions of the Plan, to (i) select Eligible Persons to become Participants; (ii) grant Awards; (iii) determine the type, number of shares of Stock subject to, and other terms and conditions of, and all other matters relating to, Awards; (iv) prescribe Award agreements (which need not be identical for each Participant) and rules and regulations for the administration of the Plan; (v) construe and interpret the Plan and Award agreements and correct defects, supply omissions, or reconcile inconsistencies herein and therein; (vi) suspend the right to exercise Awards during any period that the Committee deems appropriate to comply with applicable securities laws, and thereafter extend the exercise period of an Award by an equivalent period of time; and (vii) make all other decisions and determinations as the Committee may deem necessary or advisable for the administration of the Plan. Any action of the Committee shall be final, conclusive, and binding on all persons, including, without limitation, the Company, its Subsidiaries, Eligible Persons, Participants, and beneficiaries of Participants.

(b) Manner of Exercise of Committee Authority . At any time that a member of the Committee is not a Qualified Member, (i) any action of the Committee relating to an Award intended by the Committee to qualify as “performance-based compensation” within the meaning of Section 162(m) of the Code may be taken by a subcommittee, designated by the Committee or the Board, composed solely of two or more Qualified Members (a “ Qualifying Committee ”); and (ii) any action relating to an Award granted or to be granted to a Participant who is then subject to Section 16 of the Exchange Act in respect of the Company may be taken either by such a Qualifying Committee, or by the Committee but with each such member who is not a Qualified Member abstaining or recusing himself from such action; provided , that upon such abstention or recusal, the Committee remains composed of two or more Qualified Members. Any action authorized by such a Qualifying Committee or by the Committee upon the

 

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abstention or recusal of such non-Qualified Member(s) shall be deemed to be the action of the Committee for purposes of the Plan. The express grant of any specific power to the Committee, and the taking of any action by the Committee, shall not be construed as limiting any power or authority of the Committee.

(c) Delegation . To the extent permitted by applicable law, the Committee may delegate to officers or employees of the Company or any of its Subsidiaries, or committees thereof, the authority, subject to such terms as the Committee shall determine, to perform such functions, including but not limited to administrative functions, as the Committee may determine appropriate. The Committee may appoint agents to assist it in administering the Plan. Notwithstanding the foregoing or any other provision of the Plan to the contrary, any Award granted under the Plan to any person or entity who is not an employee of the Company or any of its Subsidiaries (including any non-employee director of the Company or any Subsidiary) or to any person who is subject to Section 16 of the Exchange Act shall be expressly approved by the Committee or Qualifying Committee in accordance with subsection (b) above.

(d) Section 409A . The Committee shall take into account compliance with Section 409A of the Code in connection with any grant of an Award under the Plan, to the extent applicable.

 

  4. Shares Available Under the Plan.

(a) Number of Shares Available for Delivery . Subject to adjustment as provided in Section 9 hereof, the total number of shares of Stock reserved and available for delivery in connection with Awards under the Plan shall be [    ], all of which may be issued or transferred upon exercise or settlement of Incentive Stock Options. Shares of Stock delivered under the Plan shall consist of authorized and unissued shares or previously issued shares of Stock reacquired by the Company on the open market or by private purchase.

(b) Share Counting Rules . The Committee may adopt reasonable counting procedures to ensure appropriate counting, avoid double counting (as, for example, in the case of tandem or substitute awards) and make adjustments if the number of shares of Stock actually delivered differs from the number of shares previously counted in connection with an Award. To the extent that an Award expires or is canceled, forfeited, settled in cash, or otherwise terminated without a delivery to the Participant of the full number of shares to which the Award related, the undelivered shares will again be available for grant. Shares withheld in payment of the exercise price or taxes relating to an Award and shares equal to the number surrendered in payment of any exercise price or taxes relating to an Award shall be deemed to constitute shares not delivered to the Participant and shall be deemed to again be available for Awards under the Plan; provided , however , that such shares shall not become available for issuance hereunder if either (i) the applicable shares are withheld or surrendered following the termination of the Plan, or (ii) at the time the applicable shares are withheld or surrendered, it would constitute a material revision of the Plan subject to stockholder approval under any then-applicable rules of the national securities exchange on which the Stock is listed.

(c) 162(m) Limitation . Notwithstanding anything to the contrary herein, during any time that the Company is subject to Section 162(m) of the Code, the maximum

 

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number of shares of Stock with respect to which Options, Performance Awards, and Stock Appreciation Rights (to the extent granted as an Award under the Plan) may be granted to any individual in any one year shall not exceed the maximum number of shares of Stock available for issue hereunder, as such number may change from time to time.

 

  5. Options.

(a) General . Options may be granted to Eligible Persons in such form and having such terms and conditions as the Committee shall deem appropriate; provided , however , that Incentive Stock Options may only be granted to Eligible Persons who are employed by the Employer. The provisions of separate Options shall be set forth in an Option Agreement, which agreements need not be identical.

(b) Term . The term of each Option shall be set by the Committee at the time of grant; provided , however , that no Option granted hereunder shall be exercisable after the expiration of ten (10) years from the date it was granted.

(c) Exercise Price . The exercise price per share of Stock for each Option shall be set by the Committee at the time of grant; provided, however , that if an Option is intended (i) to not be considered “nonqualified deferred compensation” within the meaning of Section 409A of the Code, (ii) to qualify as “performance-based compensation” within the meaning of Section 162(m) of the Code and regulations thereunder, or (iii) to be an Incentive Stock Option, in each case, the applicable exercise price shall not be less than the Fair Market Value, subject to subsection (h) below in the case of any Incentive Stock Option.

(d) Payment for Stock . Payment for shares of Stock acquired pursuant to Options granted hereunder shall be made in full, upon exercise of the Options, (i) in immediately available funds in United States dollars, or by certified or bank cashier’s check; (ii) by delivery of a notice of “net exercise” to the Company, pursuant to which the Participant shall receive the number of shares of Stock underlying the Options so exercised reduced by the number of shares of Stock equal to the aggregate exercise price of the Options divided by the Fair Market Value on the date of exercise; (iii) by delivery of shares of Stock having a value equal to the exercise price; or (iv) by any other means approved by the Committee. Anything herein to the contrary notwithstanding, if the Committee determines that any form of payment available hereunder would be in violation of Section 402 of the Sarbanes-Oxley Act of 2002, such form of payment shall not be available.

(e) Vesting . Options shall vest and become exercisable in such manner, on such date or dates, or upon the achievement of performance or other conditions, in each case, as may be determined by the Committee and set forth in the Option Agreement; provided, however , that notwithstanding any such vesting dates, the Committee may in its sole discretion accelerate the vesting of any Option, which acceleration shall not affect the terms and conditions of any such Option other than with respect to vesting. Unless otherwise specifically determined by the Committee, the vesting of an Option shall occur only while the Participant is employed or rendering services to the Employer, and all vesting shall cease upon a Participant’s Termination with the Employer for any reason. If an Option is exercisable in installments, such installments or portions thereof which become exercisable shall remain exercisable until the Option expires.

 

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(f) Transferability of Options . An Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable during the lifetime of the Participant only by the Participant. Notwithstanding the foregoing, Nonqualified Stock Options shall be transferable to the extent provided in the Option Agreement or otherwise determined by the Committee.

(g) Termination of Employment or Service . Except as may otherwise be provided by the Committee in the Option Agreement:

(i) In the event of a Participant’s Termination with the Employer prior to the Expiration Date for any reason other than (A) by the Employer for Cause, (B) by reason of the Participant’s death or Disability, or (C) by reason of a Qualifying Retirement, (1) all vesting with respect to such Participant’s Options shall cease, (2) all of such Participant’s unvested Options shall expire as of the date of such Termination, and (3) all of such Participant’s vested Options shall remain exercisable until the earlier of the Expiration Date and the date that is ninety (90) days after the date of such Termination.

(ii) In the event of a Participant’s Termination with the Employer prior to the Expiration Date by reason of such Participant’s death or Disability, (A) all vesting with respect to such Participant’s Options shall cease, (B) all of such Participant’s unvested Options shall expire as of the date of such Termination, and (C) all of such Participant’s vested Options shall expire on the earlier of the Expiration Date and the date that is twelve (12) months after the date of such Termination due to death or Disability of the Participant. In the event of a Participant’s death, such Participant’s Options shall remain exercisable by the person or persons to whom a Participant’s rights under the Options pass by will or the applicable laws of descent and distribution until their expiration, but only to the extent the Options were vested by such Participant at the time of such Termination due to death.

(iii) In the event of a Participant’s Termination with the Employer prior to the Expiration Date by reason of a Qualifying Retirement, (A) all of such Participant’s Options shall continue to vest in accordance with their original vesting schedule as if no such termination had occurred, and (B) such Options shall remain exercisable until the Expiration Date.

(iv) In the event of a Participant’s Termination with the Employer prior to the Expiration Date by the Employer for Cause, all of such Participant’s Options (whether or not vested) shall immediately expire as of the date of such Termination.

(h) Special Provisions Applicable to Incentive Stock Options .

(i) No Incentive Stock Option may be granted to any Participant who, at the time the option is granted, owns directly, or indirectly within the meaning of Section 424(d) of the Code, stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of any parent or subsidiary thereof, unless such Incentive Stock Option (A) has an exercise price of at least one hundred ten percent (110%) of the Fair Market Value on the date of the grant of such Option and (B) cannot be exercised more than five (5) years after the date it is granted.

 

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(ii) To the extent the aggregate Fair Market Value (determined as of the date of grant) of Stock for which Incentive Stock Options are exercisable for the first time by any Participant during any calendar year (under all plans of the Company and its Subsidiaries) exceeds $100,000, such excess Incentive Stock Options shall be treated as Nonqualified Stock Options.

(iii) Each Participant who receives an Incentive Stock Option must agree to notify the Company in writing immediately after the Participant makes a Disqualifying Disposition of any Stock acquired pursuant to the exercise of an Incentive Stock Option.

 

  6. Restricted Stock.

(a) General . Restricted Stock granted hereunder shall be in such form and shall contain such terms and conditions as the Committee shall deem appropriate. The terms and conditions of each Restricted Stock grant shall be evidenced by a Restricted Stock Agreement, which agreements need not be identical. Subject to the restrictions set forth in Section 6(b), except as otherwise set forth in the applicable Restricted Stock Agreement, the Participant shall generally have the rights and privileges of a stockholder as to such Restricted Stock, including the right to vote such Restricted Stock. Unless otherwise set forth in a Participant’s Restricted Stock Agreement, cash dividends and stock dividends, if any, with respect to the Restricted Stock shall be withheld by the Company for the Participant’s account, and shall be subject to forfeiture to the same degree as the shares of Restricted Stock to which such dividends relate. Except as otherwise determined by the Committee, no interest will accrue or be paid on the amount of any cash dividends withheld.

(b) Restrictions on Transfer . In addition to any other restrictions set forth in a Participant’s Restricted Stock Agreement, until such time that the Restricted Stock has vested pursuant to the terms of the Restricted Stock Agreement, which vesting the Committee may in its sole discretion accelerate at any time, the Participant shall not be permitted to sell, transfer, pledge, or otherwise encumber the Restricted Stock. Notwithstanding anything contained herein to the contrary, the Committee shall have the authority to remove any or all of the restrictions on the Restricted Stock whenever it may determine that, by reason of changes in applicable laws or other changes in circumstances arising after the date of the Restricted Stock Award, such action is appropriate.

(c) Termination of Employment or Service . Except as may otherwise be provided by the Committee in the Restricted Stock Agreement, in the event of a Participant’s Termination with the Employer for any reason prior to the time that such Participant’s Restricted Stock has vested, (i) all vesting with respect to such Participant’s Restricted Stock shall cease, and (ii) as soon as practicable following such Termination, the Company shall repurchase from the Participant, and the Participant shall sell, all of such Participant’s unvested shares of Restricted Stock at a purchase price equal to the original purchase price paid for the Restricted Stock, or if the original purchase price is equal to $0, such unvested shares of Restricted Stock shall be forfeited by the Participant to the Company for no consideration as of the date of such Termination.

 

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  7. Performance Awards.

(a) General . The Board may from time to time authorize grants of Performance Awards to Participants upon such terms and conditions as the Board may determine in accordance with provisions of this Section 7. The terms and conditions of each Performance Award grant shall be evidenced by a Performance Award Agreement, which agreements need not be identical.

(b) Value of Performance Units and Performance Shares . Each Performance Unit shall have an initial value that is established by the Committee at the time of grant. Each Performance Share shall have an initial value equal to the Fair Market Value of the Stock on the date of grant. In addition to any other non-performance terms included in the Performance Award Agreement, the Committee shall set the applicable Performance Objectives in its discretion which, depending on the extent to which they are met, will determine the value and/or number of Performance Units or Performance Shares, as the case may be, that will be paid out to the Participant.

(c) Earning of Performance Units and Performance Shares . Upon the expiration of the applicable Performance Period, the holder of Performance Units or Performance Shares, as the case may be, shall be entitled to receive payout on the value and number of the applicable Performance Units or Performance Shares earned by the Participant over the Performance Period, to be determined as a function of the extent to which the corresponding performance goals have been achieved and any other non-performance terms met.

(d) Form and Timing of Payment of Performance Units and Performance Shares . Payment of earned Performance Units and Performance Shares shall be as determined by the Committee and as evidenced in the Performance Award Agreement. Subject to the terms of the Plan, the Committee, in its sole discretion, may pay earned Performance Units and Performance Shares in the form of cash, Stock, or other Awards (or in a combination thereof) equal to the value of the earned Performance Units or Performance Shares, as the case may be, at the close of the applicable Performance Period, or as soon as practicable after the end of the Performance Period. Any Stock may be granted subject to any restrictions deemed appropriate by the Committee. The determination of the Committee with respect to the form of payout of such Awards shall be set forth in the Performance Award Agreement pertaining to the grant of the Performance Award.

(e) Nontransferability . Except as otherwise provided in a Performance Award Agreement or otherwise at any time by the Committee, Performance Units and Performance Shares may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. Further, except as otherwise provided in a Performance Award Agreement or otherwise determined at any time by the Committee, a Participant’s rights under the Plan shall be exercisable during his lifetime only by such Participant.

 

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(f) Termination of Employment or Service . Except as may otherwise be provided by the Committee in the Performance Award Agreement, if, prior to the time that the applicable Performance Period has expired, a Participant undergoes a Termination with the Employer for any reason, all of such Participant’s Performance Awards shall be forfeited by the Participant to the Company for no consideration.

(g) Performance Objectives .

(i) Each Performance Award shall specify the Performance Objectives that must be achieved before such Award shall become vested and payable. The Company also may specify a minimum acceptable level of achievement below which no payment will be made and may set forth a formula for determining the amount of any payment to be made if performance is at or above such minimum acceptable level but falls short of the maximum achievement of the specified Performance Objectives.

(ii) Performance Objectives may be described in terms of Company-wide objectives or objectives that are related to the performance of an individual Participant or the Employer, division, department, or function within the Company or the Participant’s Employer. Performance Objectives may be measured on an absolute or relative basis. Relative performance may be measured by comparison to a group of peer companies or to a financial market index. Performance Objectives shall be limited to specified levels of or increases in one or more of the following: return on equity; diluted earnings per share; net earnings; total earnings; earnings growth; return on capital; working capital turnover; return on assets; earnings before interest and taxes; earnings before interest, taxes, depreciation, and amortization; sales; sales growth; gross margin; return on investment; increase in the fair market value per share; share price (including but not limited to, growth measures and total stockholder return); operating profit; cash flow (including, but not limited to, operating cash flow and free cash flow); cash flow return on investment (which equals net cash flow divided by total capital); inventory turns; financial return ratios; total return to stockholders; market share; earnings measures/ratios; economic value added; balance sheet measurements including (but not limited to receivable turnover); internal rate of return; and expense targets.

(iii) The Committee shall adjust Performance Objectives and the related minimum acceptable level of achievement if, in the sole judgment of the Committee, events or transactions have occurred after the applicable date of grant of a Performance Award that are unrelated to the performance of the Company and/or Participant and result in a distortion of the Performance Objectives or the related minimum acceptable level of achievement. Potential transactions or events giving rise to adjustment include but are not limited to (i) restructurings, discontinued operations, extraordinary items or events, and other unusual or non-recurring charges; (ii) an event either not directly related to the operations of the Company or not within the reasonable control of the Company’s management; and (iii) a change in tax law or accounting standards required by generally accepted accounting principles.

 

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  8. Other Stock-Based Awards.

The Committee is authorized, subject to limitations under applicable law, to grant to Participants such other Awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Stock, as deemed by the Committee to be consistent with the purposes of the Plan, including, without limitation, Restricted Stock Units and Stock Appreciation Rights. The Committee may also grant Stock as a bonus, or may grant other awards in lieu of obligations of the Company or a Subsidiary to pay cash or deliver other property under this Plan or under other plans or compensatory arrangements, subject to such terms as shall be determined by the Committee. The terms and conditions applicable to such Awards shall be determined by the Committee and evidenced by Award agreements, which agreements need not be identical.

 

  9. Adjustment for Recapitalization, Merger, etc.

(a) Capitalization Adjustments . The aggregate number of shares of Stock that may be granted or purchased pursuant to Awards (as set forth in Section 4 hereof), the number of shares of Stock covered by each outstanding Award, and the price per share thereof in each such Award shall be equitably and proportionally adjusted or substituted, as determined by the Committee, as to the number, price, or kind of a share of Stock or other consideration subject to such Awards (i) in the event of changes in the outstanding Stock or in the capital structure of the Company by reason of stock dividends, stock splits, reverse stock splits, recapitalizations, reorganizations, mergers, consolidations, combinations, exchanges, or other relevant changes in capitalization occurring after the date of grant of any such Award (including any Corporate Event, as defined below); (ii) in connection with any extraordinary dividend declared and paid in respect of shares of Stock, whether payable in the form of cash, stock, or any other form of consideration; or (iii) in the event of any change in applicable laws or circumstances that results in or could result in, in either case, as determined by the Committee in its sole discretion, any substantial dilution or enlargement of the rights intended to be granted to, or available for, Participants in the Plan.

(b) Corporate Events . Notwithstanding the foregoing, except as may otherwise be provided in an Award agreement, in connection with (i) a merger or consolidation involving the Company in which the Company is not the surviving corporation; (ii) a merger or consolidation involving the Company in which the Company is the surviving corporation but the holders of shares of Stock receive securities of another corporation and/or other property, including cash; (iii) a Change in Control; or (iv) the reorganization or liquidation of the Company (each, a “ Corporate Event ”), the Committee may, in its discretion, provide for any one or more of the following:

(1) that such Awards be assumed or substituted in connection with such Corporate Event, in which case, the Awards shall be subject to the adjustment set forth in subsection (a) above, and to the extent such Awards are Performance Awards or other Awards that vest subject to the achievement of performance criteria, such Performance Objectives or similar performance criteria shall be appropriately adjusted to reflect the Corporate Event;

 

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(2) that the vesting of any Awards shall be accelerated, subject to the consummation of such Corporate Event;

(3) that any or all vested and/or unvested Awards be cancelled as of the consummation of such Corporate Event, and that Participants holding vested Awards (including any Awards that would vest upon the Corporate Event but for such cancellation) so cancelled will receive a payment in respect of cancellation of their Awards based on the amount of the per-share consideration being paid for the Stock in connection with such Corporate Event, less, in the case of Options, Stock Appreciation Rights, and other Awards subject to exercise, the applicable exercise price; provided, however , that holders of Options, Stock Appreciation Rights, and other Awards subject to exercise shall only be entitled to consideration in respect of cancellation of such Awards if the per-share consideration less the applicable exercise price is greater than zero (and to the extent the per-share consideration is less than or equal to the applicable exercise price, such Awards shall be cancelled for no consideration); and

(4) that Awards (other than Awards that are “stock rights” within the meaning of Section 409A of the Code) be replaced with a cash incentive program that preserves the value of the Awards so replaced (determined as of the consummation of the Corporate Event), with subsequent payment of cash incentives subject to the same vesting conditions as applicable to the Awards so replaced, and payment to be made within thirty (30) days of the applicable vesting date.

Payments to holders pursuant to clause (3) above shall be made in cash or, in the sole discretion of the Committee, in the form of such other consideration necessary for a Participant to receive property, cash, or securities (or combination thereof) as such Participant would have been entitled to receive upon the occurrence of the transaction if the Participant had been, immediately prior to such transaction, the holder of the number of shares of Stock covered by the Award at such time (less any applicable exercise price). In addition, in connection with any Corporate Event, prior to any payment or adjustment contemplated under this subsection (b), the Committee may require a Participant to (i) represent and warrant as to the unencumbered title to his Awards, (ii) bear such Participant’s pro rata share of any post-closing indemnity obligations, and be subject to the same post-closing purchase price adjustments, escrow terms, offset rights, holdback terms, and similar conditions as the other holders of Stock; and (iii) deliver customary transfer documentation as reasonably determined by the Committee.

(c) Fractional Shares . Any adjustment provided under this Section 9 may provide for the elimination of any fractional share that might otherwise become subject to an Award.

 

  10. Use of Proceeds.

The proceeds received from the sale of Stock pursuant to the Plan shall be used for general corporate purposes.

 

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  11. Rights and Privileges as a Stockholder.

Except as otherwise specifically provided in the Plan, no person shall be entitled to the rights and privileges of stock ownership in respect of shares of Stock that are subject to Awards hereunder until such shares have been issued to that person.

 

  12. Employment or Service Rights.

No individual shall have any claim or right to be granted an Award under the Plan or, having been selected for the grant of an Award, to be selected for a grant of any other Award. Neither the Plan nor any action taken hereunder shall be construed as giving any individual any right to be retained in the employ or service of the Company or a Subsidiary.

 

  13. Compliance With Laws.

The obligation of the Company to deliver Stock upon vesting and/or exercise of any Award shall be subject to all applicable laws, rules, and regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of any Award to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling any shares of Stock pursuant to an Award unless such shares have been properly registered for sale with the Securities and Exchange Commission pursuant to the Securities Act or unless the Company has received an opinion of counsel, satisfactory to the Company, that such shares may be offered or sold without such registration pursuant to an available exemption therefrom and the terms and conditions of such exemption have been fully complied with. The Company shall be under no obligation to register for sale or resale under the Securities Act any of the shares of Stock to be offered or sold under the Plan or any shares of Stock issued upon exercise or settlement of Awards. If the shares of Stock offered for sale or sold under the Plan are offered or sold pursuant to an exemption from registration under the Securities Act, the Company may restrict the transfer of such shares and may legend the Stock certificates representing such shares in such manner as it deems advisable to ensure the availability of any such exemption.

 

  14. Withholding Obligations.

As a condition to the vesting and/or exercise of any Award, the Committee may require that a Participant satisfy, through deduction or withholding from any payment of any kind otherwise due to the Participant, or through such other arrangements as are satisfactory to the Committee, the minimum amount of all federal, state, and local income and other taxes of any kind required or permitted to be withheld in connection with such vesting and/or exercise. The Committee, in its discretion, may permit shares of Stock to be used to satisfy tax withholding requirements, and such shares shall be valued at their Fair Market Value as of the settlement date of the Award; provided, however , that the aggregate Fair Market Value of the number of shares of Stock that may be used to satisfy tax withholding requirements may not exceed the minimum statutorily required withholding amount with respect to such Award.

 

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  15. Amendment of the Plan or Awards.

(a) Amendment of Plan . The Board at any time, and from time to time, may amend the Plan; provided , however , that the Board shall not, without stockholder approval, make any amendment to the Plan that requires stockholder approval pursuant to applicable law or the applicable rules of the national securities exchange on which the Stock is principally listed.

(b) Amendment of Awards . The Board or the Committee, at any time, and from time to time, may amend the terms of any one or more Awards; provided, however , that the rights under any Award shall not be impaired by any such amendment unless the Participant consents in writing (it being understood that no action taken by the Board or the Committee that is expressly permitted under the Plan, including, without limitation, any actions described in Section 9 hereof, shall constitute an amendment of an Award for such purpose). Notwithstanding the foregoing, subject to the limitations of applicable law, if any, and without an affected Participant’s consent, the Board or the Committee may amend the terms of any one or more Awards if necessary to bring the Award into compliance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued or amended after the Effective Date.

(c) No Repricing of Awards without Stockholder Approval . Notwithstanding subsection (a) or (b) above, or any other provision of the Plan, repricing of Awards shall not be permitted without stockholder approval. For this purpose, a “ repricing ” means any of the following (or any other action that has the same effect as any of the following): (i) changing the terms of an Award to lower its exercise price (other than on account of capital adjustments resulting from share splits, etc., as described in Section 9(a)); (ii) any other action that is treated as “ repricing ” under generally accepted accounting principals; and (iii) repurchasing for cash or canceling an Award in exchange for another Award at a time when its exercise price is greater than the Fair Market Value of the underlying Stock, unless the cancellation and exchange occurs in connection with an event set forth in Section 9(b).

 

  16. Termination or Suspension of the Plan.

The Board may suspend or terminate the Plan at any time. Unless sooner terminated, the Plan shall terminate on the day before the tenth (10 th ) anniversary of the date the Plan is adopted by the Board. No Awards may be granted under the Plan while the Plan is suspended or after it is terminated.

 

  17. Effective Date of the Plan.

The Plan is effective as of the Effective Date.

 

  18. Miscellaneous.

(a) Certificates . Stock acquired pursuant to Awards granted under the Plan may be evidenced in such a manner as the Committee shall determine. If certificates representing Stock are registered in the name of the Participant, the Committee may require that such certificates bear an appropriate legend referring to the terms, conditions, and restrictions

 

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applicable to such Stock, that the Company retain physical possession of the certificates, and that the Participant deliver a stock power to the Company, endorsed in blank, relating to the Stock. Notwithstanding the foregoing, the Committee may determine, in its sole discretion, that the Stock shall be held in book entry form rather than delivered to the Participant pending the release of any applicable restrictions.

(b) Clawback/Recoupment Policy . Notwithstanding anything contained herein to the contrary, all Awards granted under the Plan shall be and remain subject to any incentive compensation clawback or recoupment policy currently in effect or as may be adopted by the Board, and in each case, as may be amended from time to time. Any such policy adoption or amendment shall in no event require the prior consent of any Participant.

(c) Participants Outside of the United States . The Committee may modify the terms of any Award under the Plan made to or held by a Participant who is then a resident or primarily employed outside of the United States in any manner deemed by the Committee to be necessary or appropriate in order that such Award shall conform to laws, regulations, and customs of the country in which the Participant is then a resident or primarily employed, or so that the value and other benefits of the Award to the Participant, as affected by foreign tax laws and other restrictions applicable as a result of the Participant’s residence or employment abroad, shall be comparable to the value of such Award to a Participant who is a resident or primarily employed in the United States. An Award may be modified under this Section 18(b) in a manner that is inconsistent with the express terms of the Plan, so long as such modifications will not contravene any applicable law or regulation or result in actual liability under Section 16(b) of the Exchange Act for the Participant whose Award is modified. Additionally, the Committee may adopt such procedures and sub-plans as are necessary or appropriate to permit participation in the Plan by Eligible Persons who are foreign nationals or employed outside the United States.

(d) No Liability of Committee Members . No member of the Committee shall be personally liable by reason of any contract or other instrument executed by such member or on his behalf in his capacity as a member of the Committee or for any mistake of judgment made in good faith, and the Company shall indemnify and hold harmless each member of the Committee and each other employee, officer, or director of the Company to whom any duty or power relating to the administration or interpretation of the Plan may be allocated or delegated, against all costs and expenses (including counsel fees) and liabilities (including sums paid in settlement of a claim) arising out of any act or omission to act in connection with the Plan unless arising out of such person’s own fraud or willful misconduct; provided, however , that approval of the Board shall be required for the payment of any amount in settlement of a claim against any such person. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled under the Company’s certificate or articles of incorporation or by-laws, each as may be amended from time to time, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.

(e) Payments Following Accidents or Illness . If the Committee shall find that any person to whom any amount is payable under the Plan is unable to care for his affairs because of illness or accident, or is a minor, or has died, then any payment due to such person or his estate (unless a prior claim therefor has been made by a duly appointed legal representative)

 

- 16 -


may, if the Committee so directs the Company, be paid to his spouse, child, relative, an institution maintaining or having custody of such person, or any other person deemed by the Committee to be a proper recipient on behalf of such person otherwise entitled to payment. Any such payment shall be a complete discharge of the liability of the Committee and the Company therefor.

(f) Governing Law . The Plan shall be governed by and construed in accordance with the internal laws of the State of Delaware without reference to the principles of conflicts of laws thereof.

(g) Funding . No provision of the Plan shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or otherwise to segregate any assets, nor shall the Company maintain separate bank accounts, books, records, or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. Participants shall have no rights under the Plan other than as unsecured general creditors of the Company, except that insofar as they may have become entitled to payment of additional compensation by performance of services, they shall have the same rights as other employees under general law.

(h) Reliance on Reports . Each member of the Committee and each member of the Board shall be fully justified in relying, acting or failing to act, and shall not be liable for having so relied, acted, or failed to act in good faith, upon any report made by the independent public accountant of the Company and its Subsidiaries and upon any other information furnished in connection with the Plan by any person or persons other than such member.

(i) Titles and Headings . The titles and headings of the sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control.

*        *        *

 

- 17 -

Exhibit 10.13

EXECUTION VERSION

AMENDMENT NO. 3 , dated as of April 3, 2013 (this “ Amendment ”), to the Credit Agreement dated as of October 19, 2007, as amended and restated as of March 14, 2011, and as further amended as of September 25, 2012, among RYERSON INC., a Delaware corporation (the “ Borrower ”), Joseph T. Ryerson & Son, Inc., a Delaware corporation (“ Ryerson & Son ”), Sunbelt-Turret Steel, Inc., a Pennsylvania corporation (“ Sunbelt-Turret ”), Turret Steel Industries, Inc., a Pennsylvania corporation (“ Turret Steel ”), Imperial Trucking Company, LLC, a Pennsylvania limited liability company (“ Imperial Trucking ”), Wilcox-Turret Cold Drawn, Inc., a Wisconsin corporation (“ Wilcox-Turret ”) and Ryerson Canada, Inc., a Canadian corporation (“ Ryerson Canada ” and, together with Ryerson and Ryerson & Son, the “ Borrowers ”), the lending institutions parties hereto, BANK OF AMERICA, N.A., as administrative agent (the “ Administrative Agent ”), Bank of America, N.A. (acting through its Canada branch), as Canadian agent, Bank of America, N.A., Wells Fargo Capital Finance, LLC and General Electric Capital Corporation as collateral agents, General Electric Capital Corporation, JPMorgan Chase Bank, N.A. and Wells Fargo Capital Finance, LLC, as co-syndication agents, Merrill Lynch, Pierce, Fenner & Smith Incorporated, General Electric Capital Corporation and Wells Fargo Securities, LLC, as joint lead arrangers and joint bookrunners, and BMO Harris Bank, N.A., Deutsche Bank Securities Inc. and U.S. Bank National Association, as documentation agents (as amended, restated, modified and supplemented from time to time, the “ Credit Agreement ”); capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.

WHEREAS, the Borrowers desire to amend the Credit Agreement and the U.S. Security Agreement on the terms set forth herein;

WHEREAS, Section 13.9.1 of the Credit Agreement provides that the Obligors and the Administrative Agent (with the consent of, and at the direction of, the Required Lenders (or in certain cases, the consent and direction of all Lenders)) may amend the Credit Agreement and the other Credit Documents, including the U.S. Security Agreement;

WHEREAS, effective as of the Amendment No. 3 Effective Date (as defined below) each Lender consenting (each a “ Consenting Lender ”) to the Amendment has agreed to the amendment of the Credit Agreement as set forth in Exhibit A hereto.

NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1. Amendment to Credit Agreement .

(i) The Credit Agreement is, effective as of the Amendment No. 3 Effective Date (as defined below), hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text ) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text ) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto.


(ii) The following existing U.S. Subsidiary Guarantors are hereby redesignated as U.S. Borrowers: Sunbelt-Turret Steel, Inc., Turret Steel Industries, Inc., Imperial Trucking Company, LLC and Wilcox-Turret Cold Drawn, Inc. In furtherance of the foregoing, the Consenting Lenders authorize the Obligors, the Administrative Agent and the Collateral Agents, if necessary, to make such further amendments to the Credit Documents as necessary to effect such redesignation and to establish a procedure for designating U.S. Subsidiaries as U.S. Borrowers in the future.

Section 2. Amendment to U.S. Guarantee and Security Agreement . The U.S. Security Agreement is, effective as of the Amendment No. 3 Effective Date, hereby amended:

(i) by adding the following sentence at the end of the introductory paragraph:

The term “Subsidiary Guarantors” as used herein shall include all U.S. Subsidiaries of Ryerson that constitute U.S. Subsidiary Guarantors or U.S. Borrowers under the Credit Agreement.

(ii) by replacing the definition of “Excluded Assets” with the following:

Excluded Assets ” shall mean

(a) any (i) permit, license, contract, agreement or other asset issued by a Governmental Authority to any Pledgor, or (ii) any contract, license or other agreement or instrument to which any Pledgor is a party, in each case, only to the extent and for so long as the terms of such permit, license, contract, agreement or other asset issued by a Governmental Authority to any Pledgor, or such contract, license or other agreement or instrument to which any Pledgor is a party, or in all cases any Requirement of Law applicable thereto, validly prohibits the creation by such Pledgor of a security interest in such permit, license, contract, agreement or other instrument or asset in favor of the Administrative Agent (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity);

(b) assets of the Pledgors located outside of the United States to the extent a lien in such assets cannot be created and perfected under United States federal or state law;

(c) any collateral as to which the Administrative Agent has determined in its sole discretion that the collateral value thereof is insufficient to justify the difficulty, time and/or expense of obtaining a perfected security interest therein;

(d) the Collateral Account (as such term is defined in the Senior Notes Indenture);

(e) any Receivables resulting from the sale or disposition of Notes Collateral; and

 

-2-


(f) Receivables Transaction Assets related to a Qualified Account Debtor to the extent they relate to a Permitted Receivables Transaction;

provided , however , that Excluded Assets shall not include any Proceeds, substitutions or replacements of any Excluded Assets referred to in clauses (a) through (f) (unless such Proceeds, substitutions or replacements would constitute an Excluded Asset referred to in clauses (a) through (f)).;

(iii) by adding the following defined term:

Qualified ECP Guarantor ” means, in respect of any Swap Obligation, each U.S. Obligor that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.; and

(iii) by adding the following Section12.16 dealing with Guarantors that are not “eligible contract participants” (as defined below):

Section12.16. Certain Interest Rate Contracts . Notwithstanding any provision herein or in any other Loan Document to the contrary, each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other U.S. Obligor to honor all of its obligations under this Guaranty in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 12.16 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 12.16 , or otherwise under this Guaranty, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force and effect until a repayment in full of all U. S. Obligations. Each Qualified ECP Guarantor intends that this Section 12.16 constitute, and this Section 12.16 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other U.S. Obligor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act

Section 3. Representations and Warranties, No Default . The Borrowers hereby represent and warrant that as of the Amendment No. 3 Effective Date, after giving effect to the amendments set forth in this Amendment, (i) no Default or Event of Default exists and is continuing and (ii) all representations and warranties contained in the Credit Agreement are true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects as of such earlier date ( provided that representations and warranties that are qualified by materiality are true and correct (after giving effect to any qualification therein) in all respects on and as of the date hereof).

 

-3-


Section 4. Effectiveness . Section 1 and Section 2 of this Amendment shall become effective on the date (such date, if any, the “ Amendment No. 3 Effective Date ”) that the following conditions have been satisfied:

(i) Consents . The Administrative Agent shall have received executed signature pages hereto from each Obligor and Lenders constituting the Required Lenders.

(ii) Fees . The Borrowers shall pay (i) any amendment fees payable to each Consenting Lender, in each case on the Amendment No. 3 Effective Date and (ii) all expenses (including the reasonable fees, disbursements and other charges of Cahill Gordon & Reindel LLP and Norton Rose LLP, counsel for the Administrative Agent) for which invoices have been presented on or prior to the Amendment No. 3 Effective Date shall have been paid.

(iii) Fees . Merrill Lynch, Pierce, Fenner & Smith Incorporated shall have received all fees required to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Amendment No. 3 Effective Date.

(iv) Corporate and Other Proceedings . The Administrative Agent shall have received (i) copies of resolutions of the board of directors of each Obligor approving and authorizing the execution, delivery and performance of the Amendment and the Credit Agreement as amended by the Amendment, certified as of the Amendment No. 3 Effective Date by the corporate secretary or an assistant secretary of such Obligor as being in full force and effect without modification or amendment, (ii) copies of the Organization Documents of each Obligor and each of its Subsidiaries, and all amendments thereto, certified by the Secretary of State or other appropriate official of the jurisdiction of organization of such Obligor or its Subsidiary and (iii) good standing certificates for each Obligor and each of its Subsidiaries, issued by the Secretary of State or other appropriate official of the jurisdiction of organization of such Obligor or Subsidiary and each jurisdiction where the conduct of such Obligor’s or Subsidiary’s business activities or ownership of its Property necessitates qualification.

(v) Opinions of Counsel . Administrative Agent and Canadian Agent, as applicable, shall have received a favorable, written opinion of Bingham McCutchen LLP, Blake, Cassels and Graydon LLP, Eva Kalawski, the general counsel to Platinum, and the respective local counsel to Obligors and Administrative Agent (in each case, as the Administrative Agent shall reasonably require), covering, to Administrative Agent’s reasonable satisfaction, the matters reasonably requested by the Administrative Agent.

(vi) Swingline Loans . Borrowers shall have repaid all U.S. Swingline Loans and Canadian Swingline Loans (including accrued and unpaid interest thereon), if any, that are outstanding immediately prior to giving effect to the Amendment.

(vii) Credit Extension Conditions . The conditions to all credit extensions in Section 11.2 of the Credit Agreement shall be satisfied.

 

-4-


Section 5. Counterparts . This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or any other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

Section 6. Applicable Law . THIS AMENDMENT HAS BEEN NEGOTIATED, EXECUTED AND DELIVERED AND SHALL BE DEEMED TO HAVE BEEN MADE IN NEW YORK, NEW YORK. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF).

Section 7. Headings . The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

Section 8. Effect of Amendment . Except as expressly set forth herein, (i) this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, any other Agent or the Borrowers, in each case under the Credit Agreement, the U.S. Security Agreement or any other Credit Document, and (ii) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or the U.S. Security Agreement or any other provision of either such agreement or any other Credit Document. Each and every term, condition, obligation, covenant and agreement contained in the Credit Agreement, the U.S. Security Agreement or any other Credit Document is hereby ratified and re-affirmed in all respects and shall continue in full force and effect and nothing herein can or may be construed as a novation thereof. Each Obligor reaffirms its obligations under the Credit Documents to which it is party and the validity, enforceability and perfection of the Liens granted by it pursuant to the Security Documents. This Amendment shall constitute a Credit Document for purposes of the Credit Agreement and from and after the Amendment No. 2 Effective Date, all references to the Credit Agreement in any Credit Document and all references in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, shall, unless expressly provided otherwise, refer to the Credit Agreement as amended by this Amendment and all references to the U.S. Security Agreement in any Credit Document and all references in the U.S. Security Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the U.S. Security Agreement, shall, unless expressly provided otherwise, refer to the U.S. Security Agreement as amended by this Amendment. Each of the Obligors hereby consents to this Amendment and confirms that all obligations of such Obligor under the Credit Documents to which such Obligor is a party shall continue to apply to the Credit Agreement and the U.S. Security Agreement, each as amended hereby.

 

-5-


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

RYERSON INC.
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
JOSEPH T. RYERSON & SON, INC.
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
RYERSON CANADA, INC.
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
EPE, LLC
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
J.M. TULL METALS COMPANY, INC.
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
RCJV HOLDINGS, INC.
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President

 

[Signature Page to Amendment]


RDM HOLDINGS, INC.
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
RYERSON HOLDING CORPORATION
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
RYERSON AMERICAS, INC.
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
RYERSON INTERNATIONAL MATERIAL MANAGEMENT SERVICES, INC.
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
RYERSON INTERNATIONAL TRADING, INC.
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
RYERSON INTERNATIONAL, INC.
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President

 

 

[Signature Page to Amendment]


RYERSON PAN-PACIFIC LLC
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
RYERSON PROCUREMENT CORPORATION
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
TURRET HOLDING CORPORATION
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
RYERSON HOLDINGS (BRAZIL), LLC
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
TURRET STEEL INDUSTRIES, INC.
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
SUNBELT-TURRET STEEL, INC.
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President

 

 

[Signature Page to Amendment]


IMPERIAL TRUCKING COMPANY, LLC
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President
WILCOX-TURRET COLD DRAWN, INC.
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President

 

AGREED TO AND ACKNOWLEDGED
AS OF THIS              DAY OF                     , 2013
TURRET STEEL CANADA, ULC
By:   /s/ Mary Ann Sigler
  Name: Mary Ann Sigler
  Title:   Vice President

 

 

[Signature Page to Amendment]


BANK OF AMERICA, N.A., as Administrative Agent and a U.S. Revolver Lender
By:   /s/ Stephen King
  Name: Stephen King
  Title:   Senior Vice President

 

[Signature Page to Amendment]


BANK OF AMERICA, N.A., as Issuing Bank
By:   /s/ Stephen King
  Name: Stephen King
  Title:   Senior Vice President

 

[Signature Page to Amendment]


BANK OF AMERICA, N.A., (acting through its Canada branch), as Canadian Agent
By:   /s/ Medina Sales de Andrade
  Name: Medina Sales de Andrade
  Title:   Vice President

 

[Signature Page to Amendment]


BANK OF AMERICA, N.A., (acting through its Canada branch), as Lender
By:   /s/ Medina Sales de Andrade
  Name: Medina Sales de Andrade
  Title:   Vice President

 

[Signature Page to Amendment]


U.S. BANK, N.A. as Issuing Bank
By:   /s/ Carol Anderson
  Name: Carol Anderson
  Title:   Vice President

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:

WELLS FARGO CAPITAL FINANCE, LLC,

as a Collateral Agent, Syndication Agent, and as a Lender

By:   /s/ Matt Harbour
  Name: Matt Harbour
  Title:   Senior Vice President
By:    
  Name:
  Title:

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
Wells Fargo Foothill Canada ULC
By:   /s/ Carmela Massari
  Name: Carmela Massari
  Title:   Senior Vice President
By:    
  Name:
  Title:

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
Wells Fargo Capital Finance Corporation Canada
By:   /s/ Carmela Massari
  Name: Carmela Massari
  Title:   Senior Vice President
By:    
  Name:
  Title:

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
JPMORGAN CHASE BANK, N.A.
By:   /s/ David A. Lehner
  Name: David A. Lehner
  Title:   Authorized Officer

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
PNC Bank, National Association
By:   /s/ Timothy Canon
Name: Timothy Canon
Title:   Vice President

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
GENERAL ELECTRIC CAPITAL CORPORATION, as Collateral Agent
By:   /s/ Michael R. Todorow
Name: Michael R. Todorow
Title:   Duly Authorized Signatory

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
GE CAPITAL BANK
(Name of Institution)
By:   /s/ Woodrow Broaders Jr.
  Name: Woodrow Broaders Jr.
  Title:   Duly Authorized Signatory

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
 
GE Canada Finance Holding Company
By:   /s/ Richard Zem
  Name: Richard Zem
  Title:   Duly Authorized Signatory
By:    
  Name:
  Title:

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
US Bank, National Association, Canada Branch
(Name of Institution)
By:   /s/ Joseph Rauhala
  Name: Joseph Rauhala
  Title:   Principal Officer

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
U.S. Bank National Association
(Name of Institution)
By:   /s/ Kelli Lattanzio
  Name: Kelli Lattanzio
  Title:   Assistant Vice President

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
UBS Loan Finance LLC
(Name of Institution)
By:   /s/ Joselin Fernandes
  Name: Joselin Fernandes
  Title:    Associate Director
By:   /s/ David Urban
  Name: David Urban
  Title:    Associate Director

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:

 

KEYBANK NATIONAL ASSOCIATION
By:   /s/ Andrew Blickensderfer
  Name: Andrew Blickensderfer
  Title: Assistant Vice President

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:

 

Union Bank, Canada Branch
By:   /s/ Anne Collins
  Name: Anne Collins
  Title:   Vice President

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:

 

Union Bank, N.A.
By:   /s/ Steven A. Narsutis
  Steven A. Narsutis
  Vice President

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:

 

HSBC Bank USA, National Association
(Name of Institution)
By:   /s/ Kambiz Ghorashi
  Name: Kambiz Ghorashi
  Title:   Vice President

 

RESTRICTED - [Signature Page to Amendment]


The undersigned hereby consents to the Amendment:

 

Bank of Montreal
(Name of Institution)
By:   /s/ William J. Kennedy
  Name: William J. Kennedy
  Title:   Vice President
By:    
  Name: Sean Gallaway
  Title:   Vice President

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:

 

Bank of Montreal
(Name of Institution)
By:    
  Name:
  Title:
By:   /s/ Sean Gallaway
  Name: Sean Gallaway
  Title:   Vice President

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:

 

Siemens Financial Services, Inc.
(Name of Institution)
By:   /s/ James Tregillies
  Name: James Tregillies
  Title: Vice President
By:   /s/ Paul Ramseur
  Name: Paul Ramseur
  Title:   Vice President/Head of Risk Mgt.

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
Citibank, N.A.
(Name of Institution)
By:   /s/ Brendan Mackay
  Name: Brendan Mackay
  Title:   Director

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
Citizens Bank
(Name of Institution)
By:   /s/ John Zimbo
  Name: John Zimbo
  Title:   First Vice President

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
Regions Bank
By:   /s/ Kevin R. Rogers
  Kevin R. Rogers
  Attorney-in-Fact

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
 
Canadian Imperial Bank of Commerce
By:   /s/ Jomo Russell
  Name: Jomo Russell
  Title:   Authorized Signatory
By:   /s/ Joseph Arnone
  Name: Joseph Arnone
  Title:   Authorized Signatory

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
CIBC Inc.
(Name of Institution)
By:   /s/ Dominic Sorresso
  Name: Dominic Sorresso
  Title:   Authorized Signatory
By:   /s/ Eoin Roche
  Name: Eoin Roche
  Title:   Authorized Signatory

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
 
SunTrust Bank
By:   /s/ Lynn Trapanese
  Name: Lynn Trapanese
  Title:   Director

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
THE BANK OF NOVA SCOTIA
By:   /s/ Laura Gimena
  Name: Laura Gimena
  Title:   Director

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
COMPASS BANK
By:   /s/ Mitchell Sanders
Name: Mitchell Sanders
Title:   Credit Products Officer

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
City National Bank
By:   /s/ David Knoblauch
  Name: David Knoblauch
  Title:   Vice President

 

[Signature Page to Amendment]


The undersigned hereby consents to the Amendment:
Deutsche Bank AG New York Branch
(Name of Institution)
By:   /s/ Marcus M. Tarkington
  Name: Marcus M. Tarkington
  Title:   Director
By:   /s/ Michael Getz
  Name: Michael Getz
  Title:   Vice President

 

[Signature Page to Amendment]


EXHIBIT A

 

 

 

AMENDED AND RESTATED CREDIT AGREEMENT

Dated: October 19, 2007

and as Amended and Restated by Amendment No. 1 on March 14, 2011,

as further amended on September 25, 2012

and as further Amended and Restated as of April 3, 2013

among

THE FINANCIAL INSTITUTIONS PARTY HERETO,

as Lenders,

and

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

and

BANK OF AMERICA, N.A. (acting through its Canada branch) , as Canadian Agent,

and

GENERAL ELECTRIC CAPITAL CORPORATION,

JPMORGAN CHASE BANK, N.A.,

and

WELLS FARGO CAPITAL FINANCE, LLC

as Co-Syndication Agents,

and

BMO HARRIS BANK, N.A.,

DEUTSCHE BANK SECURITIES INC.,

and

U.S. BANK NATIONAL ASSOCIATION

as Co-Documentation Agents,

and

BANK OF AMERICA, N.A.,

WELLS FARGO CAPITAL FINANCE, LLC

and

GENERAL ELECTRIC CAPITAL CORPORATION,

as Collateral Agents,

RYERSON INC.

JOSEPH T. RYERSON & SON, INC. ,

SUNBELT-TURRET STEEL, INC.,

IMPERIAL TRUCKING COMPANY, LLC,

TURRET STEEL INDUSTRIES, INC.,

and

WILCOX-TURRET COLD DRAWN, INC.,

as U.S. Borrowers,

and

 


RYERSON CANADA, INC. ,

as Canadian Borrower,

and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

GENERAL ELECTRIC CAPITAL CORPORATION

and

WELL FARGO SECURITIES, LLC

as Joint Lead Arrangers and Joint Bookrunners

 

 

 

 

ii


EXHIBIT A

TABLE OF CONTENTS

 

            Page  
SECTION 1.   

GENERAL DEFINITIONS

     1   
1.1   

Defined Terms

     1   
1.2   

Accounting Terms

     45   
1.3   

Other Terms

     46   
1.4   

Certain Matters of Construction

     46   
1.5   

Currency Equivalents Generally

     47   
1.6   

Collateral Agents

     47   
SECTION 2.   

THE COMMITMENTS AND CREDIT EXTENSIONS

     47   
2.1   

The Loans

     47   
2.2   

Borrowings, Conversions and Continuations of Loans

     48   
2.3   

Letters of Credit

     50   
2.4   

Swing Line Loans

     58   
2.5   

Out-of-Formula Loans

     62   
2.6   

Use of Proceeds

     62   
2.7   

[Reserved]

     62   
2.8   

Administrative Agent Advances

     63   
2.9   

Increase in Commitments

     63   
2.10   

Evidence of Debt

     64   
SECTION 3.   

INTEREST, FEES AND CHARGES

     64   
3.1   

Interest

     64   
3.2   

Fees

     65   
3.3   

Reimbursement Obligations

     66   
3.4   

Bank Charges

     67   
3.5   

Illegality

     67   
3.6   

Increased Costs; Capital Adequacy

     67   
3.7   

Mitigation

     68   
3.8   

Funding Losses

     68   
3.9   

Maximum Interest

     68   
3.10   

Computation of Interest and Fees

     69   
3.11   

Replacement of Lenders

     69   
SECTION 4.   

LOAN ADMINISTRATION

     70   
4.1   

Payments Generally; Administrative Agent’s Clawback

     70   
4.2   

Defaulting Lender

     71   
4.3   

Special Provisions Governing LIBOR Loans

     72   
4.4   

Borrower Agent

     73   
4.5   

U.S. Revolver Loans to Constitute One Obligation

     73   
SECTION 5.   

PAYMENTS

     73   
5.1   

General Payment Provisions

     73   
5.2   

Repayment of Loans

     74   
5.3   

Termination or Reduction of Commitments

     76   
5.4   

Payment of Other Obligations

     77   
5.5   

Marshaling; Payments Set Aside

     77   
5.6   

Post-Default Allocation of Payments and Collections

     77   
5.7   

Application of Payments and Collateral Proceeds

     78   
5.8   

Loan Accounts

     78   
5.9   

Gross Up for Taxes

     79   
5.10   

Foreign Lenders

     80   


5.11   

Nature and Extent of Each Borrower’s Liability

     81   
SECTION 6.   

TERM AND TERMINATION OF COMMITMENTS

     82   
6.1   

Term Date of Commitments

     82   
6.2   

Termination

     82   
SECTION 7.   

[RESERVED]

     83   
SECTION 8.   

COLLATERAL ADMINISTRATION

     83   
8.1   

General Provisions

     83   
8.2   

Administration of Accounts

     84   
8.3   

Administration of Inventory

     86   
8.4   

Borrowing Base Certificates

     86   
SECTION 9.   

REPRESENTATIONS AND WARRANTIES

     87   
9.1   

General Representations and Warranties

     87   
9.2   

Reaffirmation of Representations and Warranties

     94   
9.3   

Survival of Representations and Warranties

     94   
SECTION 10.   

COVENANTS AND CONTINUING AGREEMENTS

     94   
10.1   

Affirmative Covenants

     94   
10.2   

Negative Covenants

     99   
10.3   

Financial Covenants

     106   
SECTION 11.   

CONDITIONS PRECEDENT

     107   
11.1   

Conditions Precedent to Initial Credit Extensions on the Closing Date

     107   
11.2   

Conditions Precedent to All Credit Extensions

     108   
11.3   

Inapplicability of Conditions

     109   
11.4   

Limited Waiver of Conditions Precedent

     109   
SECTION 12.   

EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT

     109   
12.1   

Events of Default

     109   
12.2   

Acceleration of Obligations; Termination of Commitments

     111   
12.3   

Other Remedies

     112   
12.4   

Setoff

     113   
12.5   

Remedies Cumulative; No Waiver

     113   
SECTION 13.   

AGENTS

     114   
13.1   

Appointment, Authority and Duties of Agents

     114   
13.2   

Agreements Regarding Collateral and Field Examination Reports

     116   
13.3   

Reliance by Agent

     117   
13.4   

Action upon Default

     117   
13.5   

Ratable Sharing

     117   
13.6   

Indemnification of Agent Indemnitees

     117   
13.7   

Limitation on Responsibilities of Agent

     118   
13.8   

Successor Agent and Co-Agents

     118   
13.9   

Consents, Amendments and Waivers; Out-of-Formula Loans

     119   
13.10   

Due Diligence and Non-Reliance

     121   
13.11   

Representations and Warranties of Lenders

     121   
13.12   

The Required Lenders

     121   
13.13   

Several Obligations

     121   
13.14   

Administrative Agent and Collateral Agents in Their Individual Capacities

     122   
13.15   

No Third Party Beneficiaries

     122   
13.16   

Notice of Transfer

     122   
13.17   

Replacement of Certain Lenders

     122   
13.18   

Remittance of Payments and Collections

     122   

 

ii


13.19   

No Reliance on Agents’ Customer Identification Program

     123   
13.20   

USA PATRIOT Act

     123   
13.21   

Hedging Arrangements

     123   
SECTION 14.   

BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS

     123   
14.1   

Successors and Assigns

     123   
14.2   

Treatment of Certain Information; Confidentiality

     127   
SECTION 15.   

MISCELLANEOUS

     128   
15.1   

Power of Attorney

     128   
15.2   

General Indemnity

     128   
15.3   

Survival of All Indemnities

     129   
15.4   

[Reserved]

     129   
15.5   

Severability

     129   
15.6   

Cumulative Effect; Conflict of Terms

     129   
15.7   

Execution in Counterparts

     129   
15.8   

Consent

     129   
15.9   

Notices

     129   
15.10   

Performance of Obligors’ Obligations

     129   
15.11   

Credit Inquiries

     130   
15.12   

Time of Essence

     130   
15.13   

Indulgences Not Waivers

     130   
15.14   

Entire Agreement; Exhibits and Schedules

     130   
15.15   

Interpretation

     130   
15.16   

Obligations of Lenders Several

     130   
15.17   

Advertising and Publicity

     130   
15.18   

Governing Law; Consent to Forum

     130   
15.19   

Waivers by Borrowers

     131   
15.20   

Waiver of Consumer Rights

     132   
15.21   

Limitation of Liability

     132   
15.22   

No Advisory or Fiduciary Responsibility

     132   
15.23   

Judgment Currency

     132   
15.24   

USA Patriot Act Notice

     133   
15.25   

Effectiveness of the Acquisition

     133   
15.26   

Canadian Anti-Money Laundering Legislation

     133   
15.27   

Addition of U.S. Borrowers

     133   

 

iii


EXHIBIT A

LIST OF EXHIBITS AND SCHEDULES 1

 

Exhibit A    Form of U.S. Revolver Note
Exhibit B    Form of Canadian Revolver Note
Exhibit C    Form of U.S. Borrower Joinder Agreement
Exhibit D    Form of Notice of Borrowing
Exhibit E    Form of Compliance Certificate
Exhibit F    Opinion Letter Requirements
Exhibit G    Form of Assignment and Acceptance
Exhibit H    Forms of Non-Bank Certificate
Exhibit I    [Reserved]
Exhibit J    [Reserved]
Exhibit K    Form of Borrowing Base Certificate
Exhibit L    [Reserved]
Exhibit M-1    Form of U.S. Guarantee and Security Agreement
Exhibit M-2    Form of Canadian Guarantee and Security Agreement
Exhibit N    Form of Intercreditor Agreement
Schedule 1    Commitments
Schedule 2    Notice Addresses
Schedule 3    Consolidated EBITDA and Consolidated Fixed Charges
Schedule 4    Existing Letters of Credit
Schedule 5    Joint Ventures Constituting Permitted Affiliates
Schedule 6    Hedging Agreements
Schedule 8.1.1    Borrowers’ Business Locations
Schedule 8.1.2    Borrowers’ Insurance
Schedule 9.1.1    Jurisdictions in which Borrowers and each Subsidiary is Authorized to do Business
Schedule 9.1.4    Capital Structure of Borrowers
Schedule 9.1.5    Filing Offices
Schedule 9.1.12    Patents, Trademarks, Copyrights and Licenses
Schedule 9.1.15    Contracts Restricting Borrowers’ Right to Incur Debts
Schedule 9.1.16    Litigation
Schedule 9.1.18    Capitalized and Operating Leases
Schedule 9.1.22    Environmental Matters
Schedule 9.1.24    Bank Accounts
Schedule 9.1.27    Canadian Pension Plans
Schedule 9.1.28    Insurance Exceptions
Schedule 10.1.3    Certain Financial Statements
Schedule 10.1.11    Post Closing Matters
Schedule 10.2.3(viii)    Permitted Debt
Schedule 10.2.3(xiv)    Certain Letters of Credit
Schedule 10.2.4    Transactions with Affiliates
Schedule 10.2.5    Permitted Liens
Schedule 10.2.12    Investments

 

1

The original Exhibits and Schedules are not being amended except for Exhibits A and B, new Exhibits C and H and Schedules 9.1.1, 9.1.5, 9.1.12, 9.1.15, 9.1.22 and 9.1.27. The remaining Exhibits and Schedules are listed for the reader’s convenience.


AMENDED AND RESTATED CREDIT AGREEMENT

THIS AMENDED AND RESTATED CREDIT AGREEMENT is made on October 19, 2007 (as amended and restated on March 14, 2011, as further amended on September 25, 2012, and as further amended and restated on April 3, 2013, this “ Agreement ”), by and among RYERSON INC. , a Delaware corporation (individually “ Ryerson ” and, in its capacity as the representative of the other Borrowers pursuant to Section 4.4 hereof, “ Borrower Agent ”), JOSEPH T. RYERSON & SON, INC. , a Delaware corporation (“ Ryerson & Son ”), SUNBELT-TURRET STEEL, INC. , a Pennsylvania corporation (“ Sunbelt-Turret ”), TURRET STEEL INDUSTRIES, INC. , a Pennsylvania corporation (“ Turret Steel ”), IMPERIAL TRUCKING COMPANY, LLC , a Pennsylvania limited liability company (“ Imperial Trucking ”), WILCOX-TURRET COLD DRAWN, INC. , a Wisconsin corporation (“ Wilcox-Turret ”) and RYERSON CANADA, INC. , a Canadian corporation (“ Ryerson Canada ”); the various financial institutions listed on the signature pages hereof and their respective successors and permitted assigns which become “Lenders” as provided herein; BANK OF AMERICA, N.A. , a national banking association, in its capacity as administrative agent for the Lenders pursuant to Section 13 hereof (together with its successors in such capacity, “ Administrative Agent ”), BANK OF AMERICA, N.A. , a national banking association, acting through its Canada branch (together with its successors in such capacity, “ Canadian Agent ” and, collectively with Administrative Agent, the “ Agents ”), GENERAL ELECTRIC CAPITAL CORPORATION, JPMORGAN CHASE BANK, N.A. and WELLS FARGO CAPITAL FINANCE, LLC, in their capacities as syndication agents for the Lenders pursuant to Section 13 hereof (together with their respective successors in such capacity, “ Syndication Agents ”), BMO HARRIS BANK, N.A., DEUTSCHE BANK SECURITIES INC. and U.S. BANK NATIONAL ASSOCIATION in their capacities as documentation agents for the Lenders pursuant to Section 13 hereof (together with their respective successors in such capacity, “ Documentation Agents ”) and BANK OF AMERICA, N.A. , GENERAL ELECTRIC CAPITAL CORPORATION and WELLS FARGO CAPITAL FINANCE, LLC as co-collateral agents (the “ Collateral Agents ”).

W I T N E S S E T H :

WHEREAS, Ryerson, Ryerson & Son, Ryerson Canada, the lenders party thereto, the Administrative Agent and the Canadian Agent are parties to Credit Agreement, dated as of October 19, 2007, as amended and restated as of March 14, 2011 and as further amended on September 25, 2012 (the “ Original Credit Agreement ”);

WHEREAS, each of the Lenders has consented to the amendment and restatement of the Original Credit Agreement on the terms set forth in that certain Amendment No. 3 dated as of April 3, 2013 (the “ Amendment ”);

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby severally acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

SECTION 1. GENERAL DEFINITIONS

1.1 Defined Terms . Capitalized terms used in this Agreement shall have the following respective meanings (unless otherwise defined herein):

Account – shall have the meaning ascribed to “account” in the UCC (or, with respect to any Account of a Canadian Loan Party, the PPSA), and shall include any and all rights of an Obligor to payment for goods sold or leased or for services rendered that are not evidenced by an Instrument or Chattel Paper, whether or not they have been earned by performance.

Account Debtor – means a Person who is or becomes obligated under or on account of an Account.

Accounts Formula Amount – means, on any date of determination thereof, (a) with respect to any U.S. Borrower, an amount equal to 85% of the net amount of Eligible Accounts for such U.S. Borrower on such date and (b) with respect to Canadian Borrower and any Canadian Subsidiary Guarantor, an amount equal to 85% of the net amount of Eligible Accounts for Canadian Borrower and any Canadian Subsidiary Guarantors, taken together,


on such date. As used herein, the phrase “net amount of Eligible Accounts” shall mean the value of such Eligible Accounts on any date less, without duplication, (x) at all times any and all returns, rebates, discounts (which may, at Administrative Agent’s option, be calculated on shortest terms), credits, allowances or Taxes (including sales, excise or other Taxes but excluding franchise and other Taxes imposed on, or measured by reference to, income) at any time issued, owing, claimed by Account Debtors, granted, outstanding or payable in connection with, or any interest accrued on the amount of, such Accounts at such date (calculated without duplication of (1) deductions taken pursuant to the exclusion of “Ineligible Accounts” as described in the definition of “Eligible Accounts” or (2) items included within the Dilution Reserve) and (y) at Administrative Agent’s discretion solely after the occurrence and during the continuation of a Cash Dominion Event, the aggregate amount of all cash received in respect of such Accounts (excluding, to the extent it can be traced as such, cash received and identifiable with respect to Ineligible Accounts) but not yet applied to reduce the amount of such Accounts.

Acquired Accounts Eligibility Requirement – means, with respect to any Accounts acquired in connection with a Business Acquisition, the requirement that (i) a collateral review of the acquired Accounts shall have been performed by Administrative Agent or its representatives (the fees and expenses associated with such review to be paid by Borrowers in accordance with Section 3.2.2) ) and (ii) Administrative Agent shall have notified Borrower Agent that it is satisfied in its reasonable Credit Judgment with the scope and results of such collateral review; it being understood that each of Borrower Agent and Administrative Agent will use reasonable efforts to satisfy the Acquired Accounts Eligibility Requirement as promptly as reasonably practicable following consummation of the relevant Business Acquisition.

Acquired Inventory Eligibility Requirement – means, with respect to any Inventory acquired in connection with a Business Acquisition, the requirement that (i) a collateral review of such acquired Inventory shall have been performed by Administrative Agent or its representatives (the fees and expenses associated with such review to be paid by Borrowers in accordance with Section 3.2.2 ), (ii) Administrative Agent shall have received an appraisal prepared by an independent third party of such acquired Inventory (the fees and expenses associated with such appraisal to be paid by Borrowers in accordance with Section 3.2.2 ), and (iii) Administrative Agent shall have notified the Borrower Agent that it is satisfied in its reasonable Credit Judgment with the scope and results of such collateral review and such appraisal; it being understood that each of Borrower Agent and Administrative Agent will use reasonable efforts to satisfy the Acquired Inventory Eligibility Requirement as promptly as reasonably practicable following consummation of the relevant Business Acquisition.

Acquisition – has the meaning set forth in the recitals to this Agreement.

Adjusted LIBOR Rate – means for any Interest Period with respect to a LIBOR Loan, the per annum rate of interest (rounded upward, if necessary, to the nearest 1/100th of 1%), determined by Administrative Agent at approximately 11:00 a.m. (London time) two Business Days prior to commencement of such Interest Period, for a term comparable to such Interest Period, equal to (a) the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Reuters (or other commercially available source designated by Administrative Agent); or (b) if BBA LIBOR is not available for any reason, the interest rate at which U.S. Dollar deposits in the approximate amount of the LIBOR Loan would be offered by Bank of America’s London branch to major banks in the London interbank Eurodollar market. If the Board of Governors imposes a Reserve Percentage with respect to LIBOR deposits, then the Adjusted LIBOR Rate shall be the foregoing rate, divided by 1 minus the Reserve Percentage.

Administrative Agent – means Bank of America in its capacity as administrative agent under any of the Credit Documents, or any successor administrative agent.

Administrative Agent’s Office – means Administrative Agent’s addresses (including the address of Canadian Agent) and, as appropriate, accounts as set forth on Schedule 2 , or such other addresses or accounts as Administrative Agent may from time to time notify to the Borrowers and the Lenders.

Administrative Questionnaire – means an Administrative Questionnaire in a Form supplied by Administrative Agent.

 

2


Affiliate – means a Person: (i) which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, another Person; (ii) which beneficially owns or holds

10% or more of the Voting Securities of a Person; or (iii) 10% or more of the Voting Securities of which are beneficially owned or held by another Person or a Subsidiary of another Person. For purposes hereof, (i) “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of Voting Securities, by contract or otherwise, and (ii) for avoidance of doubt, Parent, its Subsidiaries and the Joint Ventures constitute Affiliates of each Borrower.

Affiliate Loan – means a loan or other extension of credit from a Borrower to a Permitted Affiliate (including the guarantee of any Debt of such Permitted Affiliate) at any time the Affiliate Loan Conditions are satisfied and that is for the sole purpose of working capital, capital expenditures or other general corporate purposes (other than acquisitions or Investments by such Permitted Affiliate) consistent with past practice of such Permitted Affiliate but not for the purpose of a loan, investment or distribution by such Permitted Affiliate to another Person.

Affiliate Loan Conditions – means the following conditions, the satisfaction of each of which is a condition to the authority of a Borrower to make an Affiliate Loan: (i) no Default or Event of Default shall exist or result therefrom and (ii) after giving effect to the Affiliate Loan and all other Affiliate Loans made during the most recently ended twelve-month period pursuant to Section 10.2.12(i) , the aggregate principal amount of such Affiliate Loans made during such twelve-month period would not exceed $50,000,000.

Agent Advances – has the meaning set forth in Section 2.8 .

Agent Indemnitees – means Administrative Agent in its capacity as collateral and administrative agent for the Lenders under the Credit Documents and all of Administrative Agent’s affiliates and current and future officers, directors and agents; Collateral Agents in their capacity as collateral agents for the Lenders under the Credit Agreement and all of Collateral Agents’ respective affiliates and current and future officers, directors and agents; Syndication Agents in their capacity as co-syndication agents for the Lenders under the Credit Documents and all of Syndication Agents’ respective affiliates and current and future officers, directors and agents; Co-Documentation Agents for the Original Credit Agreement in their capacity as co-documentation agent for the Lenders under the Credit Documents and all of such Co-Documentation Agents’ respective affiliates and current and future officers, directors and agents; the Documentation Agent for this Agreement in its capacity as documentation agent for the Lenders under the Credit Documents and all of such Documentation Agent’s respective affiliates and current and future officers and Canadian Agent in its capacity as Canadian Agent and all of Canadian Agent’s affiliates and current and future officers, directors and agents.

Agent Professionals – means attorneys, accountants, appraisers, business valuation experts, environmental engineers or consultants, turnaround consultants and other professionals or experts retained by each Agent, any Collateral Agent or MLPFSI.

Agents – has the meaning set forth in the preamble to the Agreement and “ Agent ” means any one of them.

Agreement – means this Agreement and all Exhibits and Schedules hereto as amended, restated, modified or supplemented from time to time in accordance with the terms hereof.

Amendment No. 1 – means Amendment No. 1 to the Original Credit Agreement.

Amendment No. 1 Effective Date – has the meaning given in Amendment No. 1.

Amendment No. 2 – means Amendment No. 2 to the Credit Agreement dated as of September 25, 2012.

Amendment No. 2 Effective Date – has the meaning given in Amendment No. 2.

Amendment No. 3 – has the meaning set forth in the recitals to this Agreement.

Amendment No. 3 Effective Date – has the meaning given in Amendment No. 3.

 

3


Applicable Law – means all laws, treaties having the effect of law, rules and regulations applicable to the Person, conduct, transaction, covenant, Credit Document or Material Contract in question, including all applicable common law and equitable principles; all provisions of all applicable state, provincial, local, territorial, federal and foreign constitutions, statutes, rules, regulations, ordinances and orders of Governmental Authorities; and all orders, judgments and decrees of all courts and arbitrators.

Applicable Margin – means a percentage based upon the Average Availability for the immediately preceding Fiscal Quarter, and shall be increased or (if no Default or Event of Default exists) decreased on such date and the first calendar day of each subsequent Fiscal Quarter based upon the Average Availability for the immediately preceding Fiscal Quarter as follows:

 

Level

  

Average

Availability for the

immediately

preceding Fiscal

Quarter

   U.S. Base Rate
Loans
    U.S. LIBOR
Loans
    Canadian Base
Rate Loans
    BA Rate Loans
and Canadian
LIBOR Loans
    Canadian Prime
Rate Loans
 

I

   Less than $325,000,000      1.00     2.00     1.00     2.00     1.00

II

   If equal to or greater than $325,000,000 but less than $650,000,000      0.75     1.75     0.75     1.75     0.75

III

   If equal to or greater than $650,000,000      0.50     1.50     0.50     1.50     0.50

Average Availability shall be calculated by the Administrative Agent based on the Administrative Agent’s records. If the financial statements and the Borrowing Base Certificate of Borrowers are not received by Administrative Agent by the date required pursuant to Section 8.4 of this Agreement, the Applicable Margin shall be determined as if the Average Availability for the immediately preceding Fiscal Quarter is at Level I until such time as such financial statements and Borrowing Base Certificate are received and any Event of Default resulting from a failure to timely deliver such financial statements or Borrowing Base Certificate is waived in writing by the Required Lenders.

Notwithstanding the foregoing, beginning on the Amendment No. 3 Effective Date until the completion of the second full Fiscal Quarter after the Amendment No. 3 Effective Date, the Applicable Margin shall be determined as if the Average Availability for the immediately preceding Fiscal Quarter was Level II. After the second full Fiscal Quarter after the Amendment No. 3 Effective Date, the Applicable Margin shall be determined in accordance with the above.

Applicable Percentage – means (a) in respect of the U.S. Revolver Commitment, with respect to any U.S. Revolver Lender at any time, the percentage (carried out to the ninth decimal place) of the aggregate U.S. Revolver Commitment represented by such U.S. Revolver Lender’s U.S. Revolver Commitment at such time, and (b) in respect of the Canadian Revolver Commitment, with respect to any Canadian Revolver Lender at any time, the percentage (carried out to the ninth decimal place) of the aggregate Canadian Revolver Commitment represented by that Lender’s Canadian Revolver Commitment at such time. If the commitment of each Lender to make Loans and the obligation of the Issuing Bank to make L/C Credit Extensions have been terminated pursuant to Section 12.2 , or if the Commitments have otherwise expired, then the Applicable Percentage of each Lender in respect of the applicable Facility shall be determined based on the Applicable Percentage of that Lender in respect of such Facility most recently in effect prior to such termination or expiration, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of that Lender on Schedule 1 or in the Assignment and Acceptance pursuant to which that Lender becomes a party hereto, as applicable.

 

4


Applicable Test Period – means, as of the last day of each calendar month, the immediately preceding twelve calendar month period.

Applicable Unused Line Fee Margin – means with respect to each fiscal quarter (or such shorter period pursuant to Section 3.2.1 ), a percentage equal to (i) 0.25% per annum, if the Average Revolver Balance during the immediately preceding three-month period is greater than 50% of the average daily aggregate amount of the Commitments outstanding during such period, or (ii) 0.375% per annum, if the Average Revolver Balance during the immediately preceding three-month period is less than or equal to 50% of the average daily aggregate amount of the Commitments outstanding during such period.

Approved Fund – means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate or branch of a Lender or (c) an entity or an Affiliate or branch of an entity that administers or manages a Lender and, in the case of an Approved Fund that becomes or is to become a Canadian Revolver Lender or a U.S. Revolver Lender, has the capability to fund revolving loans.

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

Assignment and Acceptance – means an assignment and acceptance entered into by a Lender and an Eligible Assignee and accepted by Administrative Agent, in the form of Exhibit G .

Authorized Employee – means (i) a Senior Officer or (ii) any other person designated as an Authorized Employee in writing to the Administrative Agent by a Senior Officer.

Availability – determined as of any date, means the sum of (i) U.S. Availability, (ii) Canadian Availability and (iii) solely for the purpose of calculating Availability under the definition of “Payment Conditions,” the amount (not to exceed $25,000,000 or the U.S. Dollar Equivalent thereof) equal to (x) cash on any date of determination held by any Canadian Loan Party and maintained in an account of a Canadian Lender, subject to a Control Agreement, which cash can be repatriated to the U.S. within one Business Day (y) multiplied by 0.80.

Availability Reserve – means on any date of determination thereof and with respect to the U.S. Borrowing Base or Canadian Borrowing Base, as the case may be, an amount equal to the sum of the following (without duplication): (i) the Inventory Reserves; (ii) all amounts of past due rent, fees or other charges owing at such time by U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, (a) to any landlord of any premises where any of the Collateral is located or (b) to any repairman, mechanic or other Person (other than a landlord, Outside Processor or Third-Party Warehouseman) who is in possession of any Collateral or has asserted any Lien or claim thereto; (iii) any amounts which U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, are obligated to pay pursuant to the provisions of any of the Credit Documents that Administrative Agent or any Lender elects to pay for the account of U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, in accordance with authority contained in any of the Credit Documents; (iv) the aggregate amount of reserves established by the Collateral Agents in their reasonable Credit Judgment in respect of Bank Product Debt (other than Cash Management Services); (v) the aggregate amount of all liabilities and obligations that are secured by Liens upon any of the Collateral that are senior in priority to the applicable, Agent’s Liens if such Liens are not Permitted Liens ( provided that the imposition of a reserve hereunder on account of such Liens shall not be deemed a waiver of the Event of Default that arises from the existence of such Liens); (vi) the Dilution Reserve; (vii) Canadian Priority Payables Reserve; (viii) at any time, the amount that Ryerson may become obligated to pay at such time pursuant to the indenture governing or otherwise in respect of the Ryerson Convertible Notes (excluding interest or other fees that have not yet accrued) and (ix) notwithstanding anything in this “Availability Reserve” definition to the contrary, such other or additional reserves, in such amounts and with respect to such matters, as the Collateral Agents in their reasonable Credit Judgment may elect to impose from time to time.

 

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Average Availability – means on any date of determination, the amount of Availability during a stipulated consecutive Business Day period, calendar day period or Fiscal Quarter period divided by the number of Business Days or calendar days, as the case may be, in such period.

Average Revolver Balance – means for any period, the amount obtained by adding the aggregate of the unpaid balance of Loans and L/C Obligations at the end of each day for the period in question and by dividing such sum by the number of days in such period.

BA Rate – means, for the Interest Period of each BA Rate Loan, the rate of interest per annum equal to the average annual rate applicable to Canadian Dollar bankers’ acceptances having an identical or comparable term as the proposed BA Rate Loan displayed and identified as such on the display referred to as the “CDOR Page” (or any display substituted therefor) of Reuters Monitor Money Rates Service as at approximately 10:00 a.m. Toronto time on such day (or, if such day is not a Business Day, as of 10:00 a.m. Toronto time on the immediately preceding Business Day), plus five (5) basis points; provided that if such rate does not appear on the CDOR Page at such time on such date, the rate for such date will be the annual discount rate (rounded upward to the nearest whole multiple of 1/100 of 1%) as of 10:00 a.m. Toronto time on such day at which a Canadian chartered bank listed on Schedule 1 of the Bank Act (Canada) as selected by Administrative Agent is then offering to purchase Canadian Dollar bankers’ acceptances accepted by it having such specified term (or a term as closely as possible comparable to such specified term), plus five (5) basis points.

BA Rate Loan – means any Canadian Revolver Loan denominated in Canadian Dollars bearing interest at a rate determined by reference to the BA Rate.

Bank Indemnitees – means Bank of America and all of its affiliates and current and future officers, directors and agents.

Bank of America – means Bank of America, N.A., a national banking association, and its successors and assigns.

Bank of America-Canada Branch – means Bank of America, N.A. (acting through its Canada branch).

Bank Product Debt – means Debt and any other obligations and liabilities of an Obligor, whether now existing or hereafter arising, arising under any Bank Products.

Bank Products – means any of the following products, services or facilities extended to any Borrower or another Obligor by Bank of America, any Lender or any other Person who at the date of entering into such products, services or facilities was an Affiliate (including Merrill Lynch Commodities, Inc.) or branch of Bank of America or a Lender, as applicable: (a) Cash Management Services; (b) products under Hedging Agreements; provided that the Hedging Agreements on Schedule 6 hereto shall be deemed to be “Bank Products” for purposes of this Agreement and the U.S. Security Documents; (c) commercial credit card and merchant card services; and (d) other banking products or services (including purchase cards and stored value cards) as may be requested by any Borrower or another Obligor, other than Letters of Credit.

Bankruptcy Code – means title 11 of the United States Code.

BIA – means the Bankruptcy and Insolvency Act (Canada).

Board of Governors – means the Board of Governors of the Federal Reserve System.

Borrower Agent – has the meaning set forth in the preamble to the Agreement.

Borrowers – means U.S. Borrowers and Canadian Borrower; each a “ Borrower .”

 

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Borrowing – means a borrowing consisting of Loans of one Type made on the same day by Lenders or a conversion of a Loan or Loans of one Type from Lenders on the same day.

Borrowing Base Certificate – means a certificate, in the form attached hereto as Exhibit K or in a form otherwise requested by Administrative Agent from time to time, by which Borrowers shall certify to Administrative Agent and Lenders, with such frequency as Administrative Agent may request, the amount of the U.S. Borrowing Base and the Canadian Borrowing Base, in each case, as of the date of the certificate and the calculation of such amount.

Business Acquisition – means (a) an Investment by a Borrower or any of its Subsidiaries in Equity Interests (including warrants, options or other rights to acquire such equity interests) of any Person (other than a Borrower or any of its Subsidiaries) or (b) an acquisition by a Borrower or any of its Subsidiaries of the property and assets of any Person (other than a Borrower or any of its Subsidiaries) that constitute all or substantially all the assets of such Person or any division or other business unit of such Person; provided that neither of the following shall be considered a Business Acquisition: (i) an acquisition of real property or (ii) an acquisition of a Person if all or substantially all of such Person’s assets are real property. As used in clause (a) of this definition, the phrase “a Borrower or any of its Subsidiaries” shall refer to each Borrower and all of its Subsidiaries, including any such Subsidiary created and invested in by a Borrower or any of its Subsidiaries after the Closing Date.

Business Day – means

(a) in respect of transactions not involving the Canadian Revolver, any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, Charlotte, North Carolina, Los Angeles, California, Chicago, Illinois or New York, New York;

(b) in respect of transactions involving the Canadian Revolver, any day that is both (x) described in clause (a) above and (y) upon which Canadian Agent’s head office in the province of Ontario is open for business; and

(c) in either event, in respect of transactions involving any LIBOR Loan, a day of the type described in clause (a) or clause (b), as the case may be, which is also a day on which dealings in U.S. Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

Canadian Availability – means on any date, the U.S. Dollar Equivalent Amount of the amount that Canadian Borrower is entitled to borrow as Canadian Revolver Loans on such date, such amount being the difference derived when the aggregate principal amount of Canadian Revolver Outstandings (including any amounts that Canadian Agent or Canadian Revolver Lenders may have paid for the account of Canadian Borrower and the Canadian Subsidiary Guarantors pursuant to any of the Credit Documents and that have not been reimbursed by Canadian Borrower and the Canadian Subsidiary Guarantors) is subtracted from the lesser of (x) the aggregate Canadian Revolver Commitment then in effect and (y) the Canadian Borrowing Base on such date. If the amount outstanding is equal to or greater than the lesser of (x) the aggregate Canadian Revolver Commitment then in effect and (y) the Canadian Borrowing Base on such date, Canadian Availability is zero.

Canadian Base Rate – means, for any day, the rate of interest in effect for such day as publicly announced from time to time by Bank of America-Canada Branch as its “Base Rate” for loans in U.S. Dollars in Canada. The “Canadian Base Rate” is a rate set by Bank of America-Canada Branch based upon various factors including Bank of America-Canada Branch’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America-Canada Branch shall take effect at the opening of business on the day specified in the public announcement of such change.

Canadian Base Rate Loan – means any Canadian Revolver Loan denominated in U.S. Dollars bearing interest computed by reference to the Canadian Base Rate.

 

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Canadian Benefit Plans – means all employee benefit plans, programs or arrangements of any nature or kind whatsoever that are not Canadian Pension Plans and are maintained or contributed to by, or to which there is or may be an obligation to contribute by, any Borrower or its Subsidiaries in respect of its employees or former employees in Canada.

Canadian Borrower – means Ryerson Canada.

Canadian Borrowing Base – means, on any date of determination thereof, an amount equal to (i) the sum of the Accounts Formula Amount attributable to any Canadian Loan Party plus the Inventory Formula Amount attributable to any Canadian Loan Party on such date minus (ii) the Availability Reserve to the extent attributable to any Canadian Loan Party in the Collateral Agents’ discretion on such date ( provided that after the Closing Date, the Collateral Agents may adjust the apportionment of the Availability Reserve between the U.S. Revolver and the Canadian Revolver in its discretion).

Canadian Defined Benefit Plan – means a Canadian Pension Plan which is a “registered pension plan”, as defined in subsection 248(1) of the Income Tax Act (Canada) and which contains a “defined benefit provision”, as defined in subsection 147.1(1) of the Income Tax Act (Canada).

Canadian Dollar or Cdn$ – means Canadian dollars, the lawful currency of Canada.

Canadian Guarantees – means (a) the Guarantee dated March 2, 2012 executed by Turret Steel Canada, ULC in favor of the Canadian Agent, (b) the Guarantees of each of 862809 Ontario Inc. and Ryerson Canada Finance ULC in favor of the Canadian Agent dated as of the Amendment No. 3 Effective Date and (c) at any time after the Amendment No. 3 Effective Date, any guarantee executed by any Canadian Subsidiary which becomes a Canadian Subsidiary Guarantor.

Canadian L/C Obligations – means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Canadian Letters of Credit plus the aggregate of all amounts owing by Canadian Borrower for any drawings under Canadian Letters of Credit, including all L/C Borrowings relating to Canadian Letters of Credit. For purposes of computing the amount available to be drawn under any outstanding Canadian Letter of Credit, the amount of such Canadian Letter of Credit shall be determined in accordance with Section 1.5 . For all purposes of this Agreement, if on any date of determination a Canadian Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Canadian Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

Canadian L/C Sublimit – means an amount equal to $50,000,000. The Canadian L/C Sublimit is part of, and not in addition to, the Canadian Revolver.

Canadian Letter of Credit – means a Letter of Credit issued hereunder by the Issuing Bank for the account of Canadian Borrower.

Canadian LIBOR Loan – means a Canadian Revolver Loan denominated in U.S. Dollars, bearing interest computed by reference to the applicable Adjusted LIBOR Rate.

Canadian Loan Parties — means the Canadian Borrower and the Canadian Subsidiary Guarantors.

Canadian Obligations – means all (a) principal of and premium, if any, on the Canadian Revolver Loans and Canadian Swingline Loans, (b) Canadian L/C Obligations and other obligations of Canadian Loan Parties with respect to Canadian Letters of Credit, (c) interest, expenses, fees and other sums payable by Canadian Loan Parties under Credit Documents in connection with the foregoing, (d) obligations of Canadian Loan Parties under any indemnity for Claims relating to the foregoing, (e) Extraordinary Expenses relating to the foregoing, (f) Bank Product Debt of the Canadian Borrower or any Canadian Subsidiary Guarantors and (g) other Debts, obligations and liabilities of any kind relating to the foregoing owing by Canadian Loan Parties pursuant to the Credit Documents, whether now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several.

 

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Canadian Obligors – means the Canadian Loan Parties and the U.S. Obligors.

Canadian Out-of-Formula Condition – has the meaning set forth in Section 2.5.2 of this Agreement.

Canadian Out-of-Formula Loan – means a Canadian Revolver Loan made or existing when a Canadian Out-of-Formula Condition exists or the amount of any Canadian Revolver Loan which, when funded, results in a Canadian Out-of-Formula Condition.

Canadian Payment Account – means the Canadian Dollar account and the U.S. Dollar account maintained by Canadian Agent to which all monies from time to time deposited to a Dominion Account constituting proceeds of Collateral considered in calculating the Canadian Borrowing Base are forwarded.

Canadian Pension Plans – means each plan, program or arrangement which is required to be registered as a pension plan under any applicable pension benefits standards or tax statute or regulation in Canada (or any province or territory thereof) maintained or contributed to by, or to which there is or may be an obligation to contribute by, any Borrower or its Subsidiaries in respect of its Canadian employees or former employees.

Canadian Plan Termination Event – means (a) the withdrawal of Canadian Borrower or any other Canadian Subsidiary from a Canadian Defined Benefit Plan which is “multi-employer pension plan”, as defined under applicable pension standards legislation, during a plan year; or (b) the filing of a notice of intent to terminate in whole or in part a Canadian Defined Benefit Plan or the filing of an amendment with the applicable Governmental Authority which terminates a Canadian Defined Benefit Plan, in whole or in part; or (c) the institution of proceedings by any Governmental Authority to terminate a Canadian Defined Benefit Plan in whole or in part or have a replacement administrator appointed to administer a Canadian Defined Benefit Plan; or (d) any other event or condition or declaration or application which results in the termination or winding up of a Canadian Defined Benefit Plan, in whole or in part, or the appointment by any Governmental Authority of a replacement administrator to administer a Canadian Defined Benefit Plan.

Canadian Prime Rate – means, for any day, a fluctuating rate of interest per annum equal to the rate of interest in effect for such day as publicly announced from time to time by Bank of America-Canada Branch as its “Prime Rate.” The “Canadian Prime Rate” is a rate set by Bank of America-Canada Branch based upon various factors including Bank of America-Canada Branch’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America-Canada Branch shall take effect at the opening of business on the day specified in the public announcement of such change.

Canadian Prime Rate Loan – means any Canadian Revolver Loan denominated in Canadian Dollars bearing interest computed by reference to the Canadian Prime Rate.

Canadian Priority Payables – means, at any time, with respect to Canadian Borrower:

(a) the amount past due and owing by Canadian Borrower and any Canadian Subsidiary Guarantors, or the accrued amount for which each of Canadian Borrower and any Canadian Subsidiary Guarantors has an obligation to remit to a Governmental Authority or other Person pursuant to any applicable law, rule or regulation, in respect of (i) pension fund obligations; (ii) unemployment insurance; (iii) goods and services taxes, sales taxes, harmonized sales taxes, employee income taxes and other taxes payable or to be remitted or withheld; (iv) workers’ compensation; (v) wages, vacation pay, severance pay or amounts payable under the Wage Earner Protection Program Act (Canada); and (vi) other like charges and demands; in each case, in respect of which any Governmental Authority or other Person may claim a security interest, hypothec, prior claim, lien, trust or other claim ranking or capable of ranking in priority to or pari passu with one or more of the Liens granted in the Security Documents; and

 

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(b) the aggregate amount of any other liabilities of Canadian Borrower and any Canadian Subsidiary Guarantors (i) in respect of which a trust (statutory or deemed) has been or may be imposed on any Collateral to provide for payment or (ii) which are secured by a security interest, hypothec, prior claim, pledge, lien, charge, right or claim on any Collateral, in each case, pursuant to any applicable law, rule or regulation and which trust, security interest, hypothec, prior claim, pledge, lien, charge, right or claim ranks or is capable of ranking in priority to or pari passu with one or more of the Liens granted in the Security Documents.

Canadian Priority Payables Reserve – means, on any date of determination for any Canadian Loan Party, a reserve established from time to time by Administrative Agent in its reasonable Credit Judgment in such amount as Administrative Agent may determine reflects the unpaid or unremitted Canadian Priority Payables by any Canadian Loan Party, which would give rise to a Lien with priority under Applicable Law over the Lien of Agents for the benefit of the Secured Parties.

Canadian Resident – means a Person that is (i) resident in Canada for the purposes of the Income Tax Act (Canada) and if not resident in Canada and is not deemed to be a resident of Canada for purposes of the Income Tax Act (Canada), such Person deals at arms’ length with Canadian Borrower and any Canadian Subsidiary Guarantors for purposes of the Income Tax Act (Canada), and (ii) not prohibited by Applicable Law, including the Bank Act (Canada) from having a Canadian Revolver Commitment, or making any Canadian Revolver Loans or having any Canadian LC Obligations under the Credit Documents.

Canadian Revolver – means, at any time, the aggregate amount of the Canadian Revolver Commitments at such time.

Canadian Revolver Borrowing – means a borrowing consisting of simultaneous Canadian Revolver Loans of the same Type and, in the case of Canadian LIBOR Loans and BA Rate Loans, having the same Interest Period made by each of the Canadian Revolver Lenders pursuant to Section 2.1.2 .

Canadian Revolver Commitment – means, as to each Canadian Revolver Lender, its obligation to (a) make Canadian Revolver Loans to Canadian Borrower pursuant to Section 2.1.2 , (b) purchase participations in Canadian L/C Obligations and (c) purchase participations in Canadian Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount in U.S. Dollars set forth opposite such Lender’s name on Schedule 1 under the caption “Canadian Revolver Commitment” or opposite such caption in the Assignment and Acceptance pursuant to which that Lender becomes a party hereto, as applicable, as such amount in U.S. Dollars may be adjusted from time to time in accordance with this Agreement. The aggregate Canadian Revolver Commitment on the Amendment No. 2 Effective Date is $135,000,000.

Canadian Revolver Lender – means a branch or an Affiliate of a U.S. Revolver Lender which (i) also has a Canadian Revolver Commitment and (ii) unless an Event of Default has occurred and remains continuing, is a Canadian Resident.

Canadian Revolver Loan – has the meaning specified in Section 2.1.2 and shall include any Canadian Out-of-Formula Loan, unless the context otherwise requires.

Canadian Revolver Note – means a Canadian Revolver Note to be executed by Canadian Borrower in favor of each Canadian Revolver Lender in the form of Exhibit B attached hereto, which shall be in the face amount of such Canadian Revolver Lender’s Canadian Revolver Commitment and which shall evidence all Canadian Revolver Loans made by such Canadian Revolver Lender to Canadian Borrower pursuant to this Agreement.

Canadian Revolver Outstandings – means the aggregate Outstanding Amount of all Canadian Revolver Loans (including any Canadian Out-of-Formula Loans), Canadian L/C Obligations and Canadian Swing Line Loans.

Canadian Revolver Percentage – means with respect to any Canadian Revolver Lender at any time, such Canadian Revolver Lender’s Applicable Percentage in respect of the Canadian Revolver at such time.

 

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Canadian Secured Parties – means Canadian Agent, Canadian Revolver Lenders, Issuing Bank, as the issuer of Canadian Letters of Credit, and any Canadian Revolver Lender or any of their branches or Affiliates as the obligee with respect to any Bank Product Debt.

Canadian Security Agreement – means the general security agreement substantially in the form of Exhibit M-2 executed and delivered by each Canadian Loan Party and Canadian Agent on or before the Closing Date as amended, supplemented or otherwise modified in accordance with the terms hereof and thereof.

Canadian Security Documents – means the Canadian Security Agreement, the Canadian Guarantees and each other security agreement, deed of hypothec, instrument or other document executed and delivered pursuant to this Agreement or any other Credit Document by Canadian Obligors in favor of Canadian Agent or Canadian Revolver Lenders to secure the Canadian Obligations or any guarantee thereof.

Canadian Subsidiary – shall mean any direct or indirect Subsidiary of the Parent which is incorporated or otherwise organized under the laws of Canada or any province or territory thereof.

Canadian Subsidiary Guarantor – means each Canadian Subsidiary (other than Canadian Borrower) and each Person that, at any time after the date hereof becomes a Canadian Subsidiary; it being understood that none of the Canadian Borrower or any Canadian Subsidiary Guarantor shall guarantee any of the U.S. Obligations.

Canadian Swing Line – means the revolving credit facility made available by the Swing Line Lender to Canadian Borrower pursuant to Section 2.4.2 .

Canadian Swing Line Borrowing – means a borrowing of a Canadian Swing Line Loan pursuant to Section 2.4.2 .

Canadian Swing Line Loan – has the meaning specified in Section 2.4.2 .

Canadian Swing Line Sublimit – means an amount equal to the lesser of (a) $20,000,000 and (b) the aggregate Canadian Revolver Commitment. The Canadian Swing Line Sublimit is part of, and not in addition to, the Canadian Revolver.

Capital Expenditures – means expenditures made or liabilities incurred for the acquisition of any assets or improvements, replacements, substitutions or additions thereto which have a useful life of more than one (1) year, including the total principal portion of Capitalized Lease Obligations.

Capitalized Lease Obligation – means any obligations under a lease to the extent the same are required to be capitalized for financial reporting purposes in accordance with GAAP.

Cash Collateral – means cash or Cash Equivalents, and any interest earned thereon, that are deposited with Administrative Agent in accordance with this Agreement for the Pro Rata benefit of U.S. Revolver Lenders or Canadian Revolver Lenders as security for the U.S. Obligations or Canadian Obligations, as the case may be.

Cash Collateral Account – means a demand deposit, money market or other account established by Administrative Agent at such financial institution as Administrative Agent may select in its reasonable Credit Judgment, which account shall be in Administrative Agent’s name and subject to Administrative Agent’s Liens for the Pro Rata benefit of the applicable Lenders.

Cash Collateralize – means the delivery of cash to the applicable Agent, as security for the payment of Obligations, in an amount equal to (a) with respect to U.S. L/C Obligations and Canadian L/C Obligations, 105% of the aggregate U.S. L/C Obligations and Canadian L/C Obligations, and (b) with respect to any inchoate or contingent Obligations (including Obligations arising under Bank Products) arising from claims that have been asserted, Administrative Agent’s good faith estimate of the amount due or to become due, including all fees and other amounts relating to such Obligations. “ Cash Collateralization ” has a correlative meaning.

 

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Cash Dominion Event – means the period commencing on the day that (x) an Event of Default occurs and ending on the first day after such Event of Default has been cured or (y) a Trigger Event occurs and in each case Administrative Agent or Canadian Agent, as the case may be, provides notice (including, without limitation, at the request of the Collateral Agents) of the occurrence of any such event to each bank at which a Dominion Account is maintained (with a copy to Borrower Agent) and ending on the first day after the commencement of such Cash Dominion Event that Availability has been greater than $150,000,000 on each day during the immediately preceding 45 consecutive days.

Cash Equivalents – means

(a) any investment in direct obligations of the United States of America or any agency thereof or, in the case of a Canadian Subsidiary, of Canada or any province or territory thereof;

(b) investments in time deposit accounts, certificates of deposit and money market deposits maturing within 180 days of the date of acquisition thereof issued by (i) any Lender or a bank or trust company which is organized under the laws of the United States of America, Canada, any State, province or territory thereof or any other foreign country recognized by the United States of America and which bank or trust company has capital, surplus and undivided profits aggregating in excess of $500,000,000 (or the foreign currency equivalent thereof) and whose long-term debt is rated “A” (or such similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Exchange Act of 1934, as amended) or (ii) any money market fund sponsored by a registered broker dealer or mutual fund distributor;

(c) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (a) above entered into with a Lender or a bank meeting the qualifications described in clause (b) above;

(d) investments in commercial paper, maturing not more than 90 days after the date of acquisition, issued by a corporation (other than an Affiliate of a Borrower) organized and in existence under the laws of the United States of America, Canada (or any province or territory thereof) or any foreign country recognized by the United States of America, which commercial paper has a rating at any time as of which any investment therein is made of “P-1” (or higher) by Moody’s or “A-1” (or higher) by S&P;

(e) investments in securities with maturities of six months or less from the date of acquisition issued or fully guaranteed by the United States of America or any state, commonwealth or territory of the United States of America or, in the case of a Canadian Subsidiary, Canada or any province or territory of Canada, or, in each case by any political subdivision or taxing authority thereof, and rated at least “A” by S&P or “A” by Moody’s;

(f) overnight investments with banks rated “B” or better by Fitch, Inc.; and

(g) investments in money market funds investing substantially all their assets in investments permitted under clauses (a) through (f) above.

Cash Management Services – means any services provided from time to time by Bank of America, any Lender or any of their respective Affiliates or branches to any Borrower or other Obligor in connection with operating, collections, payroll, trust, or other depository or disbursement accounts, including automated clearinghouse, e-payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository, information reporting, lockbox and stop payment services.

CCAA – means the Companies’ Creditors Arrangement Act (Canada), as amended or otherwise modified from time to time and any rule or regulation issued thereunder.

CERCLA – means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq ., and its implementing regulations.

 

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Change of Control – means the occurrence of one of the following events:

(a) at any time prior to the consummation of a Qualifying IPO, Platinum ceases to own, in the aggregate, directly or indirectly, beneficially and of record, at least 50% of the then outstanding Voting Securities of Parent;

(b) on or after the consummation of a Qualifying IPO, any “person,” or “group,” as such term is defined in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (other than an underwriter temporarily holding Voting Securities of Parent pursuant to an offering of such securities) (an “ Acquiring Person ”), is or becomes the “beneficial owner” (defined in Rules 13(d)-3 and 13(d)-5 of the Securities Act of 1933, as amended), directly or indirectly, of 30% or more of the outstanding Voting Securities of Parent; provided that the occurrence of any of the foregoing events in this clause (b) shall not constitute a “Change of Control” if (i) the percentage of Voting Securities held by such Acquiring Person is less than the percentage of the outstanding Voting Securities of Parent directly or indirectly, beneficially and of record, then beneficially owned by Platinum and Platinum has the right to appoint at least a majority of the board of directors of Parent or (ii) Platinum directly or indirectly, beneficially and of record, then beneficially owns at least 50% of the Voting Securities of Parent; or

(c) individuals who constitute the board of directors of Parent on the Closing Date (the “ Incumbent Board ”) cease for any reason to constitute at least a majority thereof; provided that any person becoming a director subsequent to the Closing Date whose election, or nomination for election by Parent’s shareholders, was approved by a vote of at least three-fourths of the directors comprising the Incumbent Board of Parent (either by a specific vote or by approval of the proxy statement of Parent in which such person is named as a nominee for directors, without objection to such nomination) shall be, for the purpose of this clause (c), considered as though such person were a member of the Incumbent Board of Parent.

Change in Law – the occurrence, after the Closing Date, of (a) the adoption or taking effect of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority; or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority. Notwithstanding anything to the contrary (x), the Dodd-Frank Wall Street Reform and Consumer Protection Act, and all requests, rules, guidelines and directives promulgated thereunder and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, in each case, are deemed to have been introduced or adopted after the Closing Date.

Chattel Paper – shall have the meaning given to “chattel paper” in the UCC or, with respect to any Chattel Paper of a Canadian Loan Party, the PPSA.

China Facility – means a credit facility or facilities of Ryerson China Limited and its subsidiaries that do not exceed in the aggregate at any one time outstanding the lesser of $100,000,000 and 10% of the Total Borrowing Base. Notwithstanding anything to the contrary in this Agreement, no Lender shall have an obligation to participate in the China Facility, which decision shall be made in the sole discretion of each Lender.

China Intercreditor Agreement – means an intercreditor agreement consistent with Section 10.2.5(xix) by and between Administrative Agent and the administrative agent or agents under the China Facility.

Claims – means all liabilities, obligations, losses, damages, penalties, judgments, proceedings, interest, costs and expenses of any kind (including remedial response costs, reasonable attorneys’ fees and Extraordinary Expenses) at any time (including after Full Payment of the Obligations, resignation or replacement of Administrative Agent, Canadian Agent, or replacement of any Lender) incurred by or asserted against any Indemnitee in any way relating to (a) any Loans, Letters of Credit, Credit Documents, or the use thereof or transactions relating thereto, (b) any action taken or omitted to be taken by any Indemnitee in connection with any Credit Documents, (c) the existence or perfection of any Liens, or realization upon any Collateral, (d) exercise of any rights or remedies under any Credit Documents or Applicable Law, or (e) failure by any Obligor to perform or observe any terms of any Credit Document, in each case including all costs and expenses relating to any investigation, litigation, arbitration or other proceeding (including an Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a party thereto.

 

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Closing Date – means October 19, 2007.

Code – means the Internal Revenue Code of 1986, as amended.

Co-Documentation Agent – has the meaning given to such term in the Original Credit Agreement.

Collateral – means all Property described in the U.S. Security Agreement and the Canadian Security Agreement as security for the payment or performance of any of the Obligations; and all other Property and interests in Property that now or hereafter secure (or are intended to secure) the payment and performance of any of the Obligations.

Collateral Agents – means Bank of America, N.A., General Electric Capital Corporation and Wells Fargo Capital Finance, LLC.

Commitment – means the U.S. Revolver Commitments and Canadian Revolver Commitments and each U.S. Lender’s commitment to acquire participations in any Agent Advances.

Commitment Maturity Date – means the date that is the soonest to occur of (i) the Maturity Date; (ii) as to a Facility, the date on which either Borrowers or Administrative Agent terminates the U.S. Revolver Commitments or Canadian Revolver Commitments, as the case may be, pursuant to Section 6.2 of this Agreement; or (iii) the date on which the commitments of the Lenders to make Loans and the obligation of the Issuing Bank to make L/C Credit Extensions are terminated pursuant to Section 12.2 of this Agreement.

Commodity Exchange Act – means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

Compliance Certificate – means a Compliance Certificate to be provided by Borrowers to Administrative Agent in accordance with, and in the form annexed as Exhibit E to, this Agreement, and the supporting schedules to be annexed thereto.

Consolidated – means the consolidation in accordance with GAAP of the accounts or other items as to which such term applies.

Consolidated Adjusted Net Earnings – means with respect to any fiscal period, the net income (or loss) for such fiscal period of Borrowers and their Subsidiaries, all as reflected on the financial statement of Borrowers supplied to Administrative Agent and Lenders pursuant to Section 10.1.3 hereof, but excluding (without duplication and to the extent otherwise included in such net income (or loss)): (i) any gain or loss arising from the sale of fixed assets; (ii) any gain arising from any write-up (or loss arising from any write-down) of fixed assets, Investments or general intangibles during such period; (iii) net earnings of a Joint Venture or any other entity in which a Borrower or a Subsidiary has an ownership interest except to the extent actually distributed to Borrowers or their Subsidiaries in cash; (iv) any portion of the net earnings of any Subsidiary which for any reason is unavailable for payment of Distributions in cash to a Borrower or its Subsidiary; (v) the earnings of any Person to which any assets of a Borrower or its Subsidiary shall have been sold, transferred or disposed of, or into which a Borrower or its Subsidiary shall have merged, or been a party to any consolidation or other form of reorganization, prior to the date of such transaction; (vi) management fees paid or payable to Platinum or its Affiliates, not to exceed $5,000,000 in the aggregate in any Fiscal Year; (vii) any gain arising from the acquisition of any securities of a Borrower or its Subsidiary; (viii) any non-cash gain or non-cash loss arising from extraordinary or non-recurring items net of any Taxes (without duplication); (ix) facility closure and severance costs and charges in Fiscal Year 2007 and in Fiscal Year 2008; (x) restructuring expenses and charges in Fiscal Year 2007 and in Fiscal Year 2008; (xi) acquisition integration expenses and charges in Fiscal Year 2007 and in Fiscal Year 2008; (xii) systems implementation expenses related to Ryerson’s SAP platform in Fiscal Year 2007 and in Fiscal Year 2008; provided that the aggregate amount excluded from net income pursuant to clauses (ix) through (xii) in calculating Consolidated Adjusted Net Earnings

 

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shall not exceed $45,000,000 in the aggregate during the period from the Closing Date through Fiscal Year 2008; (xiii) public company costs, merger and proxy related expenses, workers compensation reserve adjustments, legal settlements (including amounts paid in Fiscal Year 2007 (a) with respect to the shareholders class action proceedings relating to the Acquisition and (b) the Champagne Metals litigation; provided that the aggregate amount excluded from net income pursuant to clauses (a) and (b) do not exceed $5,000,000) and other historical costs associated with closed facilities, in each case, to the extent such costs were incurred prior to the Closing Date; and (xiv) any non-cash items of income or expense resulting from the application of purchase price accounting by reason of the consummation of the Acquisition, including amortization of any such items over several periods, all as determined in accordance with GAAP.

Consolidated EBITDA – means for any fiscal period of Borrowers and their Subsidiaries, on a Consolidated basis (without duplication), an amount equal to the sum for such fiscal period of (i) Consolidated Adjusted Net Earnings, plus (ii) provision for taxes based on or determined by reference to income, plus (iii) Consolidated Interest Expense, plus (iv) depreciation, amortization and other non-cash charges (other than any such other non-cash charges that represent an accrual or reserve for potential cash items in any future period), plus (v) cash distributions received by Borrowers or their Subsidiaries from a Joint Venture or any other entity in which a Borrower has an ownership interest in excess of the net income of such entity otherwise included in Consolidated Adjusted Net Earnings, plus or minus (vi) LIFO expense or income; in the case of each of clauses (ii) through (v) to the extent deducted (and not added back) in calculating Consolidated Adjusted Net Earnings and in the case of clause (vi) to the extent any such expense is deducted (and not added back) or income is included, in each case in Consolidated Adjusted Net Earnings.

Consolidated Fixed Charge Coverage Ratio – means for any period of Borrowers and their Subsidiaries, on a Consolidated basis, the ratio of (i) Consolidated EBITDA for such period minus Unfinanced Capital Expenditures for such period to (ii) (without duplication of any items subtracted from Consolidated EBITDA in clause (i) of this definition) Consolidated Fixed Charges for such period.

The Consolidated Fixed Charge Coverage Ratio shall be calculated to give pro forma effect ((i) in accordance with GAAP and Regulation S-X promulgated under the Securities Act of 1933, as amended, or (ii) to give effect to operating expense reductions resulting from the Business Acquisition or disposition of assets for which pro forma effect is being given to the extent all steps have been completed to effect such cost savings and such cost savings are quantifiable or (iii) as otherwise reasonably satisfactory to Administrative Agent) to give effect to any Business Acquisition, disposition of assets (other than those expressly permitted under Sections 10.2.9(i) , (ii) , (iii) , (iv), (v), (vi)  and (vii) ), incurrence of Debt (other than Debt incurred hereunder) and permanent repayment of Debt, in each case consummated at any time on or after the first day of the Applicable Test Period and prior to the date of determination as if each such Business Acquisition, incurrence or permanent repayment of Debt had been effected on the first day of such period and as if each such disposition of assets had been consummated on the day prior to the first day of such period.

Consolidated Fixed Charges – means for any fiscal period of Borrowers and their Subsidiaries, on a Consolidated basis, the sum of Borrowers’ and their Subsidiaries’ (i) cash interest expense in respect of their Funded Debt, plus (ii) scheduled payments of principal on their Funded Debt paid during such period (excluding the Loans), plus (iii) cash income taxes paid plus (iv) Distributions.

Notwithstanding anything to the contrary contained herein and subject to adjustment as provided in the second paragraph under “Consolidated Fixed Charge Coverage Ratio,” with respect to Business Acquisitions, dispositions of assets and incurrence and permanent repayment of Debt in each case consummated after the Closing Date, Consolidated Fixed Charges shall be the amounts set forth on Schedule 3 hereto for the periods shown therein.

Consolidated Interest Expense – means for any period, the total interest expense of Borrowers and their Subsidiaries during such period, determined on a Consolidated basis in accordance with GAAP.

Contingent Obligation – means with respect to any Person, any obligation of such Person arising from any guaranty, indemnity or other assurance of payment or performance of any Debt, lease, dividend or other obligation (“ primary obligations ”) of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including (i) the direct or indirect guaranty, endorsement (other than for collection or deposit in the

 

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Ordinary Course of Business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (ii) the obligation to make take-or-pay or similar payments, if required, regardless of non-performance by any other party or parties to an agreement, (iii) any obligation of such Person, whether or not contingent, (A) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (B) to advance or supply funds (1) for the purchase or payment of any such primary obligations or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (C) to purchase Property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (D) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation with respect to which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto (assuming such Person is required to perform thereunder), as determined by such Person in good faith.

Control – means “control,” as such term is defined in Section 9-104 or 9-106, as applicable, of the UCC.

Control Agreement – means an agreement in favor of Administrative Agent that shall be in form reasonably satisfactory to Administrative Agent or Canadian Agent, as applicable, establishing Administrative Agent’s or Canadian Agent’s, as applicable, Control with respect to, and such Administrative Agent’s or Canadian Agent’s Lien on, any deposit account for the benefit of the Secured Parties.

Controlled Investment Affiliates – means funds or partnerships managed by Platinum Equity Advisors, LLC but not including any of their operating portfolio companies.

Credit Documents – means this Agreement, the Other Agreements and the Security Documents.

Credit Judgment – means Administrative Agent’s or each Collateral Agent’s, as applicable, judgment exercised in good faith, based upon its consideration of any factor that it believes (a) could adversely affect the quantity, quality, mix or value of Collateral (including any Applicable Law that may inhibit collection of an Account), the enforceability or priority of Administrative Agent’s Liens, or the amount that Administrative Agent, the Collateral Agents and Lenders could receive in liquidation of any Collateral; (b) suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) materially increases the likelihood of any Insolvency Proceeding involving an Obligor; or (d) creates or could reasonably be expected to result in a Default or Event of Default. In exercising such judgment, Administrative Agent or a Collateral Agent, as applicable, may consider any factors that could increase the credit risk of lending to Borrowers or the security of the Collateral.

Current – means with respect to applicable accounts payable of Borrowers and their Subsidiaries, means such payables are current in accordance with Borrowers’ past payment practices as determined by Administrative Agent in its reasonable Credit Judgment.

Current Assets – means at any date, the amount at which all of the current assets of a Person would be properly classified as current assets shown on a balance sheet at such date in accordance with GAAP except that amounts due from Affiliates and investments in Affiliates shall be excluded therefrom.

CWA – means the Clean Water Act (33 U.S.C. §§ 1251 et seq .).

Debt – means, as applied to a Person, without duplication, debt (i) arising from the lending of money by any other Person to such Person; (ii) whether or not in any such case arising from the lending of money by another Person to such Person, (A) which is represented by notes payable or drafts accepted that evidence extensions of credit, (B) which constitutes obligations evidenced by bonds, debentures, notes or similar instruments, or (C) upon which interest charges are customarily paid (other than accounts payable) or that was issued or assumed as

 

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full or partial payment for Property (other than accounts payable); (iii) that constitutes a Capitalized Lease Obligation; (iv) reimbursement obligations with respect to letters of credit or guaranties of letters of credit; and (v) obligations of such Borrower under any guaranty of obligations that would constitute Debt under clauses (i) through (iii) hereof, if owed directly by such Person. The Debt of a Person shall include any recourse Debt of any partnership or joint venture in which such Person is a general partner or joint venturer.

Debtor Relief Laws – means the Bankruptcy Code, the BIA, the CCAA, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, winding up, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States, Canada or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Default – means an event or condition the occurrence of which would, with the lapse of time or the giving of notice, or both, become an Event of Default.

Default Rate – means on any date, a rate per annum that is equal to (i) in the case of each U.S. Revolver Loan or U.S. L/C Obligation outstanding on such date, two percent (2%) in excess of the rate otherwise applicable to such U.S. Revolver Loan or U.S. L/C Obligation on such date, (ii) in the case of each Canadian Revolver Loan or Canadian L/C Obligation outstanding on such date, two percent (2%) in excess of the rate otherwise applicable to such Canadian Revolver Loan or Canadian L/C Obligations on such date and (iii) in the case of any of the other Obligations outstanding on such date, two percent (2%) in excess of the highest Applicable Margin for (A) with respect to Obligations denominated in U.S. Dollars, U.S. Revolver Loans that are U.S. Base Rate Loans plus the U.S. Base Rate in effect on such date and (B) with respect to Obligations denominated in Canadian Dollars, Canadian Revolver Loans that are Canadian Prime Rate Loans plus the Canadian Prime Rate in effect on such date.

Defaulting Lender – means, subject to Section 4.2 , any Lender that (a) has failed to fund any portion of the U.S. Revolver Loans, the Canadian Revolver Loans, participations in U.S. L/C Obligations or Canadian L/C Obligations, participations in U.S. Out-of-Formula Loans or Canadian Out-of-Formula Loans, participations in Canadian Swing Line Loans or U.S. Swing Line Loans or participations in Agent Advances required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to Administrative Agent, Canadian Agent, any Collateral Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, (c) has notified the Borrower, or Administrative Agent or any Lender in writing that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit, (d) has failed, within three Business Days after request by Administrative Agent, to confirm in a manner satisfactory to Administrative Agent that it will comply with its funding obligations, or (e) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority.

Dilution Percentage – means, at any time:

(a) with respect to any U.S. Borrower, an amount (expressed as a percentage) equal to (i) the sum (without duplication) of all deductions, credit memos, returns, adjustments, allowances, bad-debt write-offs and other non-cash credits which are recorded (or should be recorded in the reasonable determination of Administrative Agent) by all U.S. Borrowers to reduce their accounts receivable, divided by (ii) the sum of aggregate gross billings of all U.S. Borrowers, in each case for the 12 fiscal months of Borrower Agent then most recently ended as shown in the monthly Borrowing Base Certificate most recently delivered pursuant to Section 8.4 ; and

(b) with respect to Canadian Borrower, an amount (expressed as a percentage) equal to (i) the sum (without duplication) of all deductions, credit memos, returns, adjustments, allowances, bad-debt write-offs and other non-cash credits which are recorded (or should be recorded in the reasonable

 

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determination of Administrative Agent) by Canadian Borrower and any Canadian Subsidiary Guarantors to reduce its accounts receivable, divided by (ii) the aggregate gross billings of Canadian Borrower and any Canadian Subsidiary Guarantors, in each case for the 12 fiscal months of Borrower Agent then most recently ended as shown in the monthly Borrowing Base Certificate most recently delivered pursuant to Section 8.4 .

Dilution Reserve – of U.S. Borrowers together, or Canadian Borrower and any Canadian Subsidiary Guarantors together, at any time means an amount equal to the product of (a) the positive result, if any, of the Dilution Percentage for the U.S. Borrowers together, or Canadian Borrower and any Canadian Subsidiary Guarantors together, as applicable, at such time minus 5% multiplied by (b) the Eligible Accounts of the U.S. Borrowers together, or Canadian Borrower and any Canadian Subsidiary Guarantors together, as applicable, at such time.

Distribution – means in respect of any entity, (i) any direct or indirect payment of any dividends or other distributions on Equity Interests of the entity (except distributions in such Equity Interests); (ii) any purchase, redemption or other acquisition or retirement for value of any Equity Interests of the entity or any Affiliate of the entity unless made contemporaneously from the net proceeds of the sale of Equity Interests; (iii) any other direct or indirect distribution, advance or repayment of Debt to a holder of Equity Interests; and (iv) payment by any Borrower or any of its Subsidiaries of management fees to Platinum.

Documentation Agent – has the meaning set forth in the preamble to this Agreement

Domestic In-Transit Inventory – means Inventory that has been purchased by an Obligor and that is in-transit to or from (a) in the case of a U.S. Borrower, (i) a Vendor from a location within the continental United States to a U.S. Borrower or a location designated by a U.S. Borrower that is in the continental United States or (ii) between two facilities operated by any U.S. Borrower in the continental United States and (b) in the case of Canadian Borrower and any Canadian Subsidiary Guarantors, (i) a Vendor from a location within Canada to Canadian Borrower or any Canadian Subsidiary Guarantor or a location designated by Canadian Borrower or any Canadian Subsidiary Guarantor that is in Canada or (ii) between two facilities operated by Canadian Borrower or any Canadian Subsidiary Guarantor in Canada.

Dominion Account – means a special account established by Borrowers at Bank of America or Bank of America – Canada Branch, and over which Administrative Agent or Canadian Agent, as applicable, shall have sole and exclusive access and control for withdrawal purposes.

Eligible Account – means at any date of determination thereof (a) with respect to any U.S. Borrower, the aggregate value (determined on a basis consistent with GAAP and Borrower Agent’s current and historical accounting practices) of all Qualified Accounts of the U.S. Borrowers at such date; and (b) with respect to Canadian Borrower and any Canadian Subsidiary Guarantors, the aggregate value (determined on a basis consistent with GAAP and Borrower Agent’s current and historical accounting practices) of all Qualified Accounts of Canadian Borrower and any Canadian Subsidiary Guarantors at such date, in each case adjusted on any date of determination to exclude, without duplication, the amount of Ineligible Accounts of the U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors (as applicable) (calculated in accordance with the definition of “Ineligible Accounts” herein or in the revised definition of “Ineligible Accounts” then most recently furnished to Borrower Agent by Administrative Agent in writing).

Eligible Assignee – means a Person that is a Lender or a United States based Affiliate of a Lender; a commercial bank, finance company, insurance company or other financial institution, in each case that is organized under the laws of the United States or any state, has total assets in excess of $2,500,000,000, extends credit of the type contemplated herein in the ordinary course of its business and whose becoming an assignee would not constitute a prohibited transaction under Section 4975 of ERISA or any other Applicable Law ( provided that no Canadian Revolver Lender may assign its rights or obligations hereunder to a Lender or Approved Fund that is not a Canadian Revolver Lender) and is acceptable to Administrative Agent in its reasonable Credit Judgment and, unless a Default or an Event of Default pursuant to Section 12.1.1 or 12.1.10 exists, Borrower Agent (such approval by Borrower Agent, when required, not to be unreasonably withheld, conditioned or delayed and to be deemed given by Borrower Agent if no objection is received by the assigning Lender and Administrative Agent from Borrower Agent within five (5) Business Days after notice of such proposed assignment has been provided by the assigning Lender as set forth in Section 14.1 of this Agreement); and, at any time that an Event of Default exists, any other Person acceptable to Administrative Agent in its reasonable Credit Judgment.

 

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Eligible In-Transit Inventory – means, on any date, In-Transit Inventory that meets the requirements of clause (a)(ii) or (b)(ii) of the definition of “Domestic In-Transit Inventory.”

Eligible Inventory – means , at any date of determination thereof, an amount equal to:

(a) with respect to any U.S. Borrower, the aggregate Value (as reflected on the perpetual inventory system of the applicable Borrower) at such date of all Qualified Inventory owned by such U.S. Borrower and located in any jurisdiction in the United States of America in which the Lien on such Qualified Inventory granted to Agents would be perfected by appropriate UCC financing statements that have been filed (or delivered to Administrative Agent for filing pursuant to Section 11.1.3 or 10.1.13 ) naming such Borrower as “debtor” and Administrative Agent, for the benefit of the U.S. Secured Parties as “secured party”; and

(b) with respect to Canadian Borrower and Canadian Subsidiary Guarantors, the aggregate Value (as reflected on the perpetual inventory system of Canadian Borrower and, if applicable, Canadian Subsidiary Guarantors) at such date of all Qualified Inventory owned by Canadian Borrower and the Canadian Subsidiary Guarantors and located in any jurisdiction in Canada as to which Qualified Inventory appropriate personal property security filings have been made (or delivered to Canadian Agent for filing pursuant to Section 11.1.3 or 10.1.13 ),

in each case, adjusted on any date of determination to exclude, without duplication, the amount of Ineligible Inventory of the U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors (as applicable) (calculated in accordance with the definition of “Ineligible Inventory” herein or in the revised definition of “Ineligible Inventory” then most recently furnished to the Borrower Agent by Administrative Agent in writing).

End Date – means the first day where Availability on each day during the immediately preceding 45 consecutive days was at least $150,000,000.

Enforcement Action – means any action to enforce any Obligations or Credit Documents or to realize upon any Collateral (whether by judicial action, self-help, notification of Account Debtors, exercise of setoff or recoupment, or otherwise).

Engagement and Fee Letter – means the Engagement and Fee Letter dated March 5, 2013 among Bank of America, MLPFSI and Ryerson.

Environment – means ambient air, indoor air, surface water and groundwater (including potable water), the land surface or subsurface strata and natural resources such as wetlands, flora and fauna.

Environmental Claim – means any claim, notice, demand, order, action, suit or proceeding alleging actual or potential liability for investigation, Response or corrective action, damages to natural resources, personal injury, property damage, fines, penalties or other costs resulting from or arising out of (i) the presence, Release or threatened Release of Hazardous Material at any Property or (ii) any violation of Environmental Law, and shall include any claim seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from or arising out of the presence, Release or threatened Release of Hazardous Material or alleged injury or threat of injury to health (to the extent related to Hazardous Material) or the Environment.

Environmental Laws – means the common law and all federal, state, provincial, territorial, local and foreign laws, rules, regulations, codes, ordinances, orders, judgments and consent decrees, now or hereafter in effect, that relate to the protection or pollution of the Environment or human health (to the extent related to exposure to Hazardous Materials), including those relating to the use, recycling, manufacture, distribution, handling, storage, treatment, transport, Release or threat of Release of Hazardous Materials, whether now or hereafter in effect, including the CERCLA, the RCRA and the CWA.

 

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Environmental Notice – means a written notice from any Governmental Authority or any other Person of an alleged noncompliance with or liability under any Environmental Laws, including any complaints, citations, demands or request from any Governmental Authority for correction or remediation of any asserted violation of any Environmental Laws or any investigations concerning any asserted violation of any Environmental Laws.

Equipment – means all of U.S. Borrowers’ or Canadian Borrower’s and any Canadian Subsidiary Guarantors’ (as applicable) machinery, apparatus, equipment, fittings, furniture, fixtures, motor vehicles and other tangible personal Property (other than Inventory) of every kind and description, whether now owned or hereafter acquired by the applicable U.S. Borrowers or Canadian Borrower and Canadian Subsidiary Guarantors and wherever located, and all parts, accessories and special tools therefor, all accessions thereto, and all substitutions and replacements thereof.

Equity Contributions – has the meaning set forth in the recitals to this Agreement.

Equity Interest – means the interest of (i) a shareholder in a corporation, (ii) a partner (whether general or limited) in a partnership (whether general, limited or limited liability), (iii) a member in a limited liability company, or (iv) any other Person having any other form of equity security or ownership interest.

Equivalent Amount – has the meaning set forth in Section 1.5 .

ERISA – means the Employee Retirement Income Security Act of 1974 and all rules and regulations from time to time promulgated thereunder.

ERISA Event – means (a) a Reportable Event with respect to a Pension Plan, (b) a complete or partial withdrawal by any Borrower, or by any Person for which any Borrower may have any direct or indirect liability from a Plan, or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA, (c) a complete or partial withdrawal by any Borrower, or by any Person for which any Borrower may have any direct or indirect liability from a Multi-employer Plan, the receipt by any Borrower, or by any Person for which any Borrower may have any direct or indirect liability of any notice concerning the imposition of withdrawal liability (as defined in Part 1 of Subtitle E of Title N of ERISA) or notification that a Multi-employer Plan is, or is expected to be, insolvent or in reorganization, (d) the filing of a notice of intent to terminate a Pension Plan, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multi-employer Plan ( provided that, with respect to any such Multi-employer Plan, the Borrower, or any Person for which any Borrower may have any direct or indirect liability has received written notice of such action or proceeding), (e) the occurrence of an event or condition which could reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan, (f) with respect to a Pension Plan, the failure to satisfy the minimum funding standard of Section 412 of the Code and Section 302 of ERISA, whether or not waived, (g) the failure to make by its due date a required contribution under Section 412(m) of the Code (or Section 430(j) of the Code, as amended by the Pension Protection Act of 2006) with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan, (h) the filing pursuant to Section 412 of the Code of an application for a waiver of the minimum funding standard with respect to any Pension Plan, (i) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could result in liability to the Borrowers or any Subsidiary or (j) the incurrence of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower or any Person for which any Borrower may have a direct or indirect obligation to pay such liability.

Event of Default – has the meaning set forth in Section 12.1 of this Agreement.

Excluded Swap Obligation – means, with respect to any U.S. Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such U.S. Guarantor of, or the grant by such U.S. Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such U.S. Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guarantee of such U.S. Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

 

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Excluded Taxes – with respect to Administrative Agent, Canadian Agent, any Lender, Issuing Bank or any other recipient of a payment to be made by or on account of any Obligation, (a) Taxes imposed on or measured by reference to its overall net income (however denominated), franchise Taxes imposed in lieu of overall net income taxes, branch profits or similar Taxes, and, solely in the case of Canada, capital Taxes, in each case imposed on it by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located; (b) in the case of a Foreign Lender with respect to a Loan to U.S. Borrowers, any United States federal withholding Tax that (i) is imposed on amounts payable to such Foreign Lender to the extent imposed pursuant to Applicable Law in effect at the time such Foreign Lender becomes a party to this Agreement (or designates a new Lending Office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new Lending Office (or assignment), to receive additional amounts from any U.S. Obligor with respect to such withholding tax pursuant to Section 5.9 , (ii) is imposed pursuant to FATCA, or (iii) is attributable to such Foreign Lender’s failure to comply with Section 5.10 (i.e., failure to deliver a form that it is legally eligible to deliver), (c) in the case of a Foreign Lender with respect to a Loan to Canadian Borrower, any Canadian federal withholding Tax that is attributable to such Foreign Lender’s failure to comply with Section 5.10 (i.e., failure to deliver a form that it is legally eligible to deliver) and (d) in the case of a loan to Canadian Borrower, Canadian federal withholding Tax imposed on (i) a payment to a recipient (or beneficial owner) with which the applicable payor does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)), (ii) a payment by virtue of all or any portion of such payment being deemed to be a dividend paid to the recipient (or beneficial owner) of such payment pursuant to subsection 214(16) of the Income Tax Act (Canada), or (iii) a payment in respect of a debt or other obligation to pay an amount to a person with whom the applicable payor is not dealing at arm’s length within the meaning of the Income Tax Act (Canada).

Existing Letters of Credit – means the letters of credit set forth on Schedule 4 .

Extraordinary Expenses – means all costs, expenses, fees (including fees incurred to Agent Professionals) or advances that Administrative Agent or Canadian Agent may suffer or incur, whether prior to or after the occurrence of a Default or an Event of Default, and whether prior to, after or during the pendency of an Insolvency Proceeding of a Borrower, on account of or in connection with (i) the audit, inspection, repossession, storage, repair, appraisal, insuring, completion of the fabrication of, preparing for sale, advertising for sale, selling, collecting or otherwise preserving or realizing upon any Collateral; (ii) the defense of Administrative Agent’s and Canadian Agent’s Lien upon any Collateral or the priority thereof or any adverse claim with respect to the Loans, any Letter of Credit, the Credit Documents or the Collateral asserted by any Obligor, any receiver, interim receiver or trustee for any Borrower or any creditor or representative of creditors of any Obligor; (iii) the settlement or satisfaction of any Liens upon any Collateral (whether or not such Liens are Permitted Liens); (iv) the collection or enforcement of any of the Obligations; (v) the negotiation, documentation, and closing of any restructuring or forbearance agreement with respect to the Credit Documents or Obligations; (vi) the enforcement of any of the provisions of any of the Credit Documents; (vii) the preparation, negotiation, syndication and execution of this Agreement and the other Credit Documents and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees and expenses of Cahill Gordon & Reindel LLP and local and foreign counsel in each relevant jurisdiction or (viii) any payment under a guaranty, indemnity or other payment agreement provided by an Agent or (with Administrative Agent’s consent) any Lender, which is reimbursable to an Agent or such Lender by Obligors pursuant to Section 3.8 of this Agreement. Such costs, expenses and advances may include transfer fees, taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, legal fees, appraisal fees, brokers’ fees and commissions, auctioneers’ fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to employees of any Borrower or independent contractors in liquidating any Collateral, travel expenses, all other fees and expenses payable or reimbursable by Obligors under any of the Credit Documents, and all other fees and expenses associated with the enforcement of rights or remedies under any of the Credit Documents, but excluding compensation paid to employees (including inside legal counsel who are employees) of an Agent.

 

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Facility – means the aggregate U.S. Revolver or the Canadian Revolver, as the context may require.

FATCA – means Sections 1471 through 1474 of the Code as in effect on the date hereof (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), any current or future Treasury Regulations or other official administrative guidance issued thereunder, and any agreements entered into pursuant to current Section 1471(b)(1) of the Code or any amended or successor version described above.

Federal Funds Rate – means for any period, a fluctuating interest rate per annum equal for each date during such period 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) in Atlanta, Georgia by the Federal Reserve Bank of Atlanta, or if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Administrative Agent from three (3) federal funds brokers of recognized standing selected by Administrative Agent.

Fee Letter – means the Fee Letter dated July 21, 2007 among Bank of America, MLPFSI and Parent.

Financed Capital Expenditures – means Capital Expenditures that are (i) funded with the proceeds of Permitted Purchase Money Debt and those represented by Capitalized Lease Obligations, (ii) any additions to property and equipment and other capital expenditures made with the proceeds of any equity securities issued or capital contributions received by any Obligor, (iii) expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed with (A) insurance proceeds paid on account of the loss of or damage to the assets being replaced, substituted, restored or repaired, or (B) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced or substituted, (iv) the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time, (v) the purchase or improvement of property, plant or equipment to the extent paid for with the proceeds of dispositions permitted by Section 10.2.9 that are not required to be applied to prepay the Obligations or the Senior Notes (or any Refinancing Debt in respect thereof), (vi) expenditures that are accounted for as capital expenditures by Parent or any Subsidiary and that actually are paid for by a Person other than Parent or any Subsidiary to the extent neither Parent nor any Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such Person or any other Person (whether before, during or after such period), (vii) any expenditures which are contractually required to be, and are, advanced or reimbursed to the Obligors in cash by a third party (including landlords) during such period of calculation, (viii) the book value of any asset owned by Parent or any Subsidiary prior to or during such period to the extent that such book value is included as a Capital Expenditure during such period as a result of such Person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period; provided that (A) any expenditure necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period in which such expenditure actually is made and (B) such book value shall have been included in Capital Expenditures when such asset was originally acquired, (ix) expenditures that constitute Investments constituting a Business Acquisition otherwise permitted hereunder or (x) that portion of interest on Debt incurred for Capital Expenditures which is paid in cash and capitalized in accordance with GAAP.

Fiscal Quarter – means three (3) months ended March 31, June 30, September 30 and December 31 of each Fiscal Year.

Fiscal Year – means the fiscal year of Borrowers and their Subsidiaries for accounting and tax purposes, which ends on December 31 of each year.

Floor Test – has the meaning set forth in Section 10.3.1 of this Agreement.

FLSA – means the Fair Labor Standards Act of 1938.

 

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Foreign In-Transit Inventory – means Inventory of a Borrower that is in-transit from a Vendor of Borrower from a location outside the continental United States (in the case of a U.S. Borrower) or Canada (in the case of Canadian Borrower or any Canadian Subsidiary Guarantor) to such Borrower or a location designated by such Borrower that is in the continental United States (in the case of a U.S. Borrower) or Canada (in the case of Canadian Borrower or Canadian Subsidiary Guarantor).

Foreign Lender – means (i) with respect to a Loan to U.S. Borrowers, any Lender that is not treated as a United States person under Section 7701(a)(30) of the Code or (ii) in the case of a Lender to Canadian Borrower with respect to a Loan to Canadian Borrower, any Lender that is not a Canadian Resident.

Foreign Plan – means any employee benefit plan or arrangement (a) maintained or contributed to by any Obligor or Subsidiary that is not subject to the laws of the United States; or (b) mandated by a government other than the United States for employees of any Obligor or Subsidiary.

Fronting Exposure – means, at any time there is a Defaulting Lender, (a) with respect to the Issuing Bank, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

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

Funded Debt – means collectively but without duplication (a) the aggregate principal amount of Debt (including Subordinated Debt) which would, in accordance with GAAP, be classified as long-term debt, together with the current maturities thereof and the face amount of all outstanding letters of credit; (b) all Debt outstanding under any revolving credit, line of credit or renewals thereof, notwithstanding that any such Debt is created within one (1) year of the expiration of such agreement; and (c) all Capitalized Lease Obligations.

GAAP – means generally accepted accounting principles in the United States of America in effect from time to time.

Governmental Approvals – means all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and reports to, all Governmental Authorities.

Governmental Authority – means any federal, state, provincial, territorial, municipal, national, foreign or other governmental department, commission, board, bureau, legislative, administrative or regulatory body, court, agency or instrumentality or political subdivision thereof, in each case whether associated with the United States, Canada, any other nation or, in each case, any state, province, district or territory or other political subdivision thereof.

Guarantor – means Parent, each U.S. Subsidiary Guarantor and each Canadian Subsidiary Guarantor, collectively.

Hazardous Materials – means (a) petroleum or petroleum products, by-products or breakdown products, radioactive materials, asbestos or asbestos-containing materials, mold, polychlorinated biphenyls and radon gas and (b) any other chemicals, materials, substances, wastes, pollutants, contaminants, compounds or constituents in any form regulated, or which can give rise to liability, under any Environmental Law.

Hedging Agreement – means any Interest Rate Contract, foreign currency exchange agreement, commodity price protection agreement, physical commodity repurchase agreement or other interest or currency exchange rate or commodity price hedging arrangement.

 

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Increase Effective Date – has the meaning set forth in Section 2.9.2 of this Agreement.

Indemnified Claim – means any and all claims, demands, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, awards, costs (including costs of Responses or corrective actions to Address Hazardous Materials), expenses or disbursements of any kind or nature whatsoever (including reasonable attorneys’, accountants’, consultants’ or paralegals’ fees and expenses), whether arising under or in connection with the Credit Documents, any Applicable Law (including any Environmental Laws) or otherwise, that may now or hereafter be instituted or asserted against any Indemnitee and whether instituted or asserted in or as a result of any investigation, litigation, arbitration or other judicial or non-judicial proceeding or any appeals related thereto.

Indemnified Taxes – means all Taxes other than Excluded Taxes.

Indemnitees – means the Agent Indemnitees, the Lender Indemnitees, the Bank Indemnitees and the Issuing Bank Indemnitees.

Ineligible Accounts – means, with respect to U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, at any date of determination, an amount equal to the aggregate value of all Qualified Accounts of U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, described in one or more of the following clauses, without duplication:

(a) Qualified Accounts to which U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, do not have sole and absolute title (including, without limitation, Qualified Accounts that are subject to a Permitted Receivables Transaction); or

(b) Qualified Accounts that arise out of a sale made by U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, to an employee, officer, director or Affiliate of U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable; or

(c) Qualified Accounts in respect of which the Account Debtor (i) is a creditor of U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, (ii) has or has asserted a right of setoff against U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, including co-op advertising (unless such Account Debtor has entered into a written agreement reasonably acceptable to Administrative Agent to waive such setoff rights) or (iii) has disputed its liability (whether by chargeback or otherwise) or made any claim with respect to such Qualified Accounts or any other Qualified Accounts which has not been resolved, in each case to the extent of the amount owed by U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, to the Account Debtor, the amount of such actual or asserted right of setoff, or the amount of such dispute or claim, as the case may be; or

(d) Qualified Accounts from Account Debtors whose credit standing is not satisfactory to Administrative Agent in its reasonable Credit Judgment, including, without limitation, bankrupt or insolvent Account Debtors or against whom U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, are not able to bring suit or otherwise enforce its remedies through judicial process; or

(e) (i) in the case of Qualified Accounts of U.S. Borrowers, Qualified Accounts that are not payable in U.S. Dollars, or Qualified Accounts in respect of which the Account Debtor either (x) is not incorporated or organized under the laws of the United States, any state thereof or the District of Columbia or the laws of Canada or any province or territory thereof, (y) is located outside the United States and Canada or (z) has its principal place of business or substantially all of its assets outside the United States and Canada, other than Qualified Accounts covered under a letter of credit or bankers’ acceptance on terms acceptable to Administrative Agent (it being understood that no representation or certification by a Borrower as to the matters described in the foregoing clauses (y) or (z) shall be deemed to be false or misleading in any material respect so long as the relevant Borrower has exercised its customary care in making any determination as to the matters described in such clauses); or (ii) in the case of Qualified Accounts of Canadian

 

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Borrower and any Canadian Subsidiary Guarantors, such Qualified Account is not payable in Canadian Dollars or U.S. Dollars or the Account Debtor either (x) is not incorporated under the laws of Canada, or any province or territory thereof, or the laws of the United States of America, any state thereof or the District of Columbia or (y) is located outside Canada and the United States of America or (z) has its principal place of business (or domicile for the purposes of the Quebec Civil Code) or substantially all of its assets outside Canada and the United States of America, other than Qualified Accounts covered under a letter of credit or bankers’ acceptance on terms acceptable to Administrative Agent (it being understood that no representation or certification by Canadian Borrower or any Canadian Subsidiary Guarantor as to the matters described in the foregoing clause (y) or (z) shall be deemed to be false or misleading in any material respect so long as the relevant Borrower has exercised its customary care in making any determination as to the matters described in such clauses); or

(f) (i) Qualified Accounts resulting from sales that are guaranteed sales, sale-and-returns, ship-and-returns or sales on approval or (ii) Qualified Accounts that are sold on terms in excess of 90 days; or

(g) Qualified Accounts in respect of goods that have not been shipped or title to which has not passed to the applicable Account Debtors (including sales on consignment), or Qualified Accounts that represent Progress-Billings or otherwise do not represent completed sales. For purposes hereof, an Account represents a “Progress-Billing” if, and to the extent that, the Account Debtor’s obligation to pay the invoice giving rise to such Account is conditioned upon such Borrower’s completion of any further performance under the contract or agreement; or

(h) Qualified Accounts that do not comply in all material respects with the requirements of all Applicable Laws including without limitation the Federal Consumer Credit Protection Act and the Federal Truth in Lending Act; or

(i) Qualified Accounts that are unpaid more than (i) 60 days from the original due date or (ii) 90 days from the original date of invoice; or

(j) Qualified Accounts that are not paid in full and for which U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, create new receivables for the unpaid portion of such Accounts, including without limitation chargebacks, debit memos and other adjustments for unauthorized deductions; or

(k) all Qualified Accounts with respect to a single Account Debtor if 50% or greater in aggregate value of the Qualified Accounts of such Account Debtor are ineligible other than as a result of this clause (k) (it being understood that in determining the aggregate amount of Qualified Accounts from a single Account Debtor that are unpaid more than 60 days from the due date or more than 90 days from the original date of invoice under clause (i) above, there shall be excluded the amount of any net credit balances relating to the Qualified Accounts of such Account Debtor which are more than 60 days from the due date or 90 days from the original date of invoice); or

(l) Qualified Accounts that (x) are not subject to a valid and perfected first priority Lien in favor of Administrative Agent or Canadian Agent, subject to no other Liens other than Permitted Liens described in Sections 10.2.5(i) , (ii) , (iii) , (vi)  and (xiv)  or (y) do not otherwise conform to the representations and warranties contained in the Credit Documents relating to Accounts; or

(m) Qualified Accounts for which a check, promissory note, draft, trade acceptance or other instrument for the payment of money has been received as payment for all or any part of such Qualified Accounts, presented for payment and returned uncollected for any reason; or

(n) Qualified Accounts that have been written off the books of U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, or have otherwise been designated as uncollectible; or

 

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(o) (i) Qualified Accounts that are non-trade Accounts or notes receivable, (ii) Qualified Accounts that are subject to any adverse security deposit, retainage or other similar advance made by or for the benefit of the applicable Account Debtors, (iii) Qualified Accounts that represent or relate to payments of interest, or (iv) Qualified Accounts that are subject to off-set from customer overpayments, in each case to the extent thereof; or

(p) Qualified Accounts in respect of which the Account Debtor is the United States of America or Canada or any department, agency or instrumentality thereof, unless: (i) in the case of U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, holding a Qualified Account in respect of which the Account Debtor is the United States of America or any department, agency or instrumentality thereof, U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, duly assign the rights to payment of such Qualified Accounts to the applicable Agent pursuant to the Assignment of Claims Act of 1940, as amended, which assignment and related documents and filings shall be in form and substance reasonably satisfactory to Administrative Agent or (ii) in the case of U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, holding a Qualified Account in respect of which the Account Debtor is Canada or any department, agency or instrumentality thereof, the provision of the Financial Administration Act (Canada) or similar provincial or territorial legislation or municipal ordinance of similar purpose has been complied with; or

(q) Qualified Accounts that are subject to a cash rebate, to the extent of the amount of such cash rebate that is accrued and unpaid; or

(r) Qualified Accounts due from any Account Debtor if the aggregate value of Qualified Accounts due from such Account Debtor, plus the aggregate value of Qualified Accounts of such Account Debtor’s Affiliates (in each case, which Qualified Accounts would otherwise be Eligible Accounts), exceeds 15% of the total amount of Eligible Accounts at the time of any determination, to the extent of such excess over such limit; or

(s) such other Qualified Accounts as may be deemed ineligible by Administrative Agent from time to time in the reasonable exercise of its reasonable Credit Judgment; or

(t) such Qualified Account is of an Account Debtor that is located in a jurisdiction requiring the filing of a notice of business activities report or similar report in order to permit such Borrower or any Canadian Subsidiary Guarantor, as applicable, to seek judicial enforcement in such jurisdiction of payment of such Account, unless U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, has qualified to do business in such jurisdiction or has filed a notice of business activities report or equivalent report for the then-current year or if such failure to file and inability to seek judicial enforcement is capable of being remedied without any material delay or material cost.

Ineligible Inventory – means, with respect to U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, at any date of determination, an amount equal to the sum of the following, without duplication:

(a) 100% of the Value of Qualified Inventory that is not subject to a perfected first priority Lien in favor of Administrative Agent; or

(b) 100% of the Value of Qualified Inventory that consists of maintenance spare parts, stores supplies, cleaning mixtures and lubricants, as determined in accordance with the accounting policies of Ryerson to be classified as supplies; or

(c) with respect to U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, 50% of the Value of Slow Moving Inventory; or

 

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(d) 100% of the Value of (i) Qualified Inventory that is not located at property that is owned or leased by such Borrower and is not Eligible In-Transit Inventory and (ii) Qualified Inventory that is located at or in transit to or from any Third-Party Location to property that is either owned or leased by U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable; provided that the Value of Qualified Inventory located at or in transit to or from a Third-Party Location shall not be included in calculating “Ineligible Inventory” pursuant to this clause (d) on any date of determination if (x) the Value of such Qualified Inventory on such date of determination (as reflected on the perpetual inventory system of Ryerson and consistent with Ryerson’s current and historical accounting practices) is greater than $150,000, and (y) such Borrower or the Borrowers’ Agent shall have delivered to Administrative Agent a Lien Waiver with respect to such Third-Party Location or an Inventory Reserve has been established in respect thereof; or

(e) 100% of the Value of Qualified Inventory that (i) in the case of a U.S. Borrower, is not located in the United States or (ii) in the case of Canadian Borrower and any Canadian Subsidiary Guarantors, is not located in Canada; or

(f) 100% of the Value of Qualified Inventory considered non-conforming, which shall mean, on any date, all inventory classified as “non-prime,” “scrap” or other “off-spec” such as non-conforming (“ NCR ”), seconds or thirds, damaged, defective, discontinued, rejects, obsolete, unmerchantable, not in good condition, marked “return to vendor” or otherwise unsaleable in the ordinary course of business; or

(g) 100% of the Value of Qualified Inventory that does not otherwise conform to the representations and warranties contained in the Credit Documents; or

(h) 100% of the Value of Qualified Inventory located on the premises of joint ventures, unless (i) a joint venture agreement reasonably acceptable to Administrative Agent has been executed and (ii) such Qualified Inventory is reasonably acceptable to Administrative Agent; or

(i) 100% of the Value of Qualified Inventory that is subject to a negotiable document of title (as defined in the UCC or the PPSA, as applicable) unless such negotiable document of title has been delivered to the applicable Agent; or

(j) the Value of Qualified Inventory to the extent such Value includes tolling costs or processing costs incurred by U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, for processing customer-owned Inventory; or

(k) the Value of Qualified Inventory to the extent such Value includes prepaid Inventory or relates to advance payments made to vendors for merchandise not yet received; or

(1) without duplication of any calculation pursuant to clause (d) of the definition of Inventory Valuation Reserves, the Value of Qualified Inventory that is subject to vendor credits representing price allowances, rebates and credits that have been allocated by U.S. Borrowers or Canadian Borrower and any Canadian Subsidiary Guarantors, as applicable, to reduce Inventory costs, to the extent of such credits; or

(m) 50% of the Value of Shorts Inventory; or

(n) the Value of such other Qualified Inventory as may be deemed ineligible by Administrative Agent from time to time in the exercise of its reasonable Credit Judgment; or

(o) the Value of In-Transit Inventory except Eligible In-Transit Inventory.

Insolvency Proceeding – means any action, case, filing or proceeding commenced by or against a Person under any state, federal or foreign law, or any agreement of such Person, for (i) the entry of an order for relief under any Debtor Relief Laws, (ii) the appointment of a receiver (or administrative receiver), interim receiver, monitor, trustee, liquidator administrator, conservator or other custodian for such Person or any part of its Property, (iii) an assignment or trust mortgage for the benefit of creditors of such Person, or (iv) the liquidation, dissolution or winding up of the affairs of such Person.

 

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Instrument – shall have the meaning ascribed to the term “instrument” in the UCC (or, with respect to any instrument of a Canadian Loan Party, the PPSA).

Intellectual Property – means all intellectual and similar Property of a Person of every kind and description, including inventions, designs, patents, patent applications, copyrights, trademarks, service marks, trade names, mask works, trade secrets, confidential or proprietary information, know how, software and databases and all embodiments or fixations thereof and related documentation, registrations and franchises, all books and records describing or used in connection with the foregoing and all licenses, or other rights to use any of the foregoing.

Intellectual Property Claim – means the assertion by any Person of a claim (whether asserted in writing, by action, suit or proceeding or otherwise) that any Borrower’s ownership, use, marketing, sale or distribution of any Inventory, Equipment, Intellectual Property or other Property is violative of any ownership or right to use any Intellectual Property of such Person.

Intercreditor Agreement – means an Intercreditor Agreement by and between the Administrative Agent, the Canadian Collateral Agent and Wells Fargo Bank, N.A. as trustee, dated as of October 12, 2012, (or the agreement governing any Refinancing Debt in respect of the Senior Notes), as amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.

Interest Period – means, as to each LIBOR Loan or BA Rate Loan, the period commencing on the date such LIBOR Loan or BA Rate Loan is disbursed or converted to or continued as a LIBOR Loan or BA Rate Loan and ending on the date one, two, three or six or, if available to all Lenders, nine or twelve months thereafter, as selected by the applicable Borrower in its Notice of Borrowing; provided that:

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

(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

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

Interest Rate Contract – means any interest rate agreement, interest rate collar agreement, Swap Obligation, or other agreement or arrangement at any time entered into by any or all Borrowers with Bank of America, any Lender or any of their respective Affiliates or branches that is designed to protect against fluctuations in interest rates.

In-Transit Inventory – means Inventory of an Obligor that is either Domestic In-Transit Inventory or Foreign In-Transit Inventory.

Inventory – shall have the meaning ascribed to the term “inventory” in the UCC or the PPSA, as applicable, and shall include all goods intended for sale or lease by an Obligor, or for display or demonstration; all work in process, all raw materials, and other materials and supplies of every nature and description used or which might be used in connection with the manufacture, printing, packing, shipping, advertising, selling, leasing or furnishing such goods or otherwise used or consumed in such Obligor’s business (but excluding Equipment).

Inventory Formula Amount – means on any date of determination:

(a) with respect to any U.S. Borrower, an amount equal to the lesser of (x) 70% of the Value of Eligible Inventory on such date, and (y) 85% of the NOLV Percentage of the Value of the Inventory of such U.S. Borrower (and, for purposes of this clause (y), to the extent that the NOLV Percentage accounts for the slow moving nature or aged status of Inventory of such U.S. Borrower, such slow moving nature or aged status as in existence on the date of the most recent Qualified Appraisal shall not be used as a basis to exclude Inventory from eligibility nor used as a basis for the institution of an Inventory Reserve); and

 

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(b) with respect to Canadian Borrower and any Canadian Subsidiary Guarantor, an amount equal to the lesser of (x) 70% of the Value of Eligible Inventory for Canadian Borrower and any Canadian Subsidiary Guarantor on such date, and (y) 85% of the NOLV Percentage of the Value of the Inventory of Canadian Borrower and any Canadian Subsidiary Guarantor (and, for purposes of this clause (y), to the extent that the NOLV Percentage accounts for the slow moving nature or aged status of Inventory of Canadian Borrower or such Canadian Subsidiary Guarantor, such slow moving nature or aged status as in existence on the date of the most recent Qualified Appraisal shall not be used as a basis to exclude Inventory from eligibility nor used as a basis for the institution of an Inventory Reserve).

Inventory Reserves – means, with respect to any Borrower, an amount equal to the sum of (i) “landlord reserves,” calculated (x) in the case of a U.S. Borrower, as three months’ rent expense for each U.S. Borrower’s leased facilities at which Eligible Inventory is located for which a Lien Waiver has not been obtained and (y) in the case of Canadian Borrower, as three months’ rent expense for each of Canadian Borrower’s and any Canadian Subsidiary Guarantor’s, as applicable, leased facilities at which Eligible Inventory is located for which a Lien Waiver has not been obtained, (ii) “third party liability reserves,” calculated as any liability owed to any Outside Processor, customer, vendor or Third-Party Warehouseman holding Eligible Inventory from whom a Lien Waiver has not been obtained, not to exceed, for any location, the lesser of (x) the amount owing to such Outside Processor, customer, vendor or Third-Party Warehouseman or (y) the Value of the Eligible Inventory balance at such location, (iii) in the case of Canadian Borrower and any Canadian Subsidiary Guarantor, any reserve which Administrative Agent may require in its Credit Judgment on account of the right of an unpaid supplier to repossess goods under Section 81.1 of the BIA (generally known as the “30 day goods” rule) or any other similar Applicable Law of any other applicable jurisdiction, (iv) such other reserves as may be deemed appropriate by Administrative Agent from time to time in the exercise of its reasonable Credit Judgment, and (v) Inventory Valuation Reserves.

Inventory Valuation Reserves – means an amount equal to the sum of the following:

(a) a purchase price variance reserve, calculated as the aggregate of the most current four months’ purchase price variance, as recorded on Ryerson’s income statements’ variance reports; provided that such aggregate amount represents a favorable purchase price variance ( i.e ., where the Value exceeds the actual cost of such Inventory);

(b) a conversion cost reserve calculated as the amount by which (i) the sum of the most current four months’ reclass variance exceeds (ii) 5% of Value at such date of determination;

(c) a vendor discount reserve, equal to the product of (i) vendor discounts earned, expressed as a percentage of cost of sales during the most current two year period, multiplied by (ii) Value at such date of determination;

(d) a lower of cost or market reserve for Inventory that is sold, or valued by the relevant Borrower or as deemed appropriate by Administrative Agent in its reasonable Credit Judgment, for less than the actual cost to produce or acquire; provided that such a reserve shall only be imposed when the price of relevant metals (including aluminum, stainless steel and carbon) on the London Metal Exchange has dropped at least 5% since the delivery of the immediately prior Borrowing Base Certificate and shall be extinguished upon delivery of the next Borrowing Base Certificate;

(e) a reserve for estimated scrap losses related to custom plates in an amount determined in a manner consistent with the relevant Borrower’s or Canadian Subsidiary Guarantor’s, as applicable, past accounting practices;

 

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(f) a reserve in the amount of general ledger adjustments reflecting changes in Value of Qualified Inventory based on the results of a physical inventory to the extent such adjustments have not also been made to the applicable Borrower’s or Canadian Subsidiary Guarantor’s, as applicable, perpetual inventory system; and

(g) such other reserves as may reasonably be deemed appropriate by Administrative Agent in its reasonable Credit Judgment.

Investment – means any investment in any Person, whether by means of share purchase, capital or other contribution, loan or other extension of credit, guaranty, time deposit or otherwise; provided that (a) the term “Investment” shall not include accounts receivable resulting from the sale of goods or provision of services in the ordinary course of business and (b) the amount of Investments at any time which constitute Debt, an account receivable or other obligation shall be the outstanding amount thereof at such time.

IRS – means the Internal Revenue Service and any Governmental Authority succeeding to any of its principal functions under the Code.

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

Issuing Bank – means (i) Bank of America or an Affiliate of Bank of America regarding Letters of Credit in favor of U.S. Borrowers and Bank of America-Canada Branch regarding Canadian Letters of Credit in favor of Canadian Borrower, (ii) any other Lender that becomes an Issuing Bank pursuant to Section 2.3.13 in their capacity as issuers of Letters of Credit, and their successors in such capacity as provided by Section 2.3.14 ; provided that such Lender (x) executes and delivers an instrument satisfactory in form and substance to the Administrative Agent accepting the benefits and agreeing to perform the obligations of an Issuing Bank hereunder and (y) if such Lender will be an Issuing Bank with respect to any Canadian Letters of Credit, except when an Event of Default has occurred and is continuing, is a Canadian Resident and (iii) solely with respect to the applicable Existing Letters of Credit listed on Schedule 4 , US Bank, N.A.

Issuing Bank Indemnitees – means Issuing Bank and its affiliates and current and future officers, directors, employees, affiliates, agents and attorneys.

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

Joint Ventures – means Coryer, S.A. de C.V., VSC-Ryerson China Limited, Irons Metals Processing LLC and any other joint business arrangement or undertaking by a Borrower with a third party (other than another Borrower or a Guarantor) involving a sharing of profits and liabilities by the parties, whether constituting under Applicable Law a partnership, joint venture or other legal status.

L/C Advance – means, with respect to each U.S. Revolver Lender or Canadian Revolver Lender, as applicable, that Lender’s funding of its participation in any L/C Borrowing in accordance with its U.S. Revolver Percentage or Canadian Revolver Percentage, as applicable.

L/C Borrowing – means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a U.S. Revolver Borrowing or Canadian Revolver Borrowing, as applicable.

L/C Credit Extension – means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or an amendment to or increase of the amount thereof.

L/C Obligations – means, collectively, the U.S. L/C Obligations and the Canadian L/C Obligations.

 

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Lender Indemnitee – means a Lender in its capacity as a lender under this Agreement and its respective affiliates and current and future officers, directors and agents.

Lenders – means the Canadian Revolver Lenders and the U.S. Revolver Lenders and as the context requires, includes the Swing Line Lender.

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

Letter of Credit – means any letter of credit issued hereunder and shall include the Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby letter of credit.

Letter of Credit Application – means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the Issuing Bank.

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

Letter of Credit Fee – has the meaning specified in Section 2.3.9 .

LIBOR Lending Office – means with respect to a U.S. Revolver Lender, the office designated as a LIBOR Lending Office for such U.S. Revolver Lender on Schedule 2 hereof (or on any Assignment and Acceptance, in the case of an assignee) and such other office of such U.S. Revolver Lender or any of its Affiliates that is hereafter designated by written notice to Administrative Agent.

LIBOR Loan – means a Canadian LIBOR Loan or a U.S. LIBOR Loan.

Lien – means any interest in Property securing an obligation owed to, or a claim by, a Person other than the owner of the Property, whether such interest is based on common law, statute or contract. The term “Lien” shall also include security interests, hypothecations, security assignments, pledges, statutory trusts, deemed trusts, reservations, exceptions, encroachments, easements, rights-of-way, servitudes, covenants, conditions, restrictions, leases pursuant to which the owner of the Property is the lessor, and other title exceptions and encumbrances affecting Property. For the purpose of this Agreement, a Borrower shall be deemed to be the owner of any Property which it has acquired or holds subject to a conditional sale agreement or other arrangement pursuant to which title to the Property has been retained by or vested in some other Person for security purposes.

Lien Waiver – means an agreement duly executed in favor of Administrative Agent or Canadian Agent, as applicable, in form and content acceptable to Administrative Agent, by which (i) for locations leased by a Borrower and at which any Collateral is located, an owner of premises upon which any Collateral of a Borrower is located agrees to waive or subordinate any Lien it may have with respect to such Collateral in favor of Administrative Agent’s or Canadian Agent’s, as applicable, Lien therein and to permit Administrative Agent or Canadian Agent, as applicable, to enter upon such premises and remove such Collateral or to use such premises to store or dispose of such Collateral for up to 60 days upon continued payment of rent and other charges, or (ii) for locations at which any Borrower places Inventory with a warehouseman or a processor, such warehouseman or processor agrees to waive or subordinate any Lien it may have with respect to such Collateral in favor of Administrative Agent’s Lien or Canadian Agent’s Lien, as applicable, therein and to permit Administrative Agent or Canadian Agent, as applicable, to enter upon such premises and remove such Collateral or to use such premises to store or dispose of such Collateral for up to 60 days upon continued payment of rent and other charges.

Loan – means an extension of credit by a Lender to a Borrower under Section 2 in the form of a U.S. Revolver Loan, a Canadian Revolver Loan, a Canadian Swing Line Loan, a U.S. Swing Line Loan or an Agent Advance.

 

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Loan Account – means the loan account established by each Lender on its books pursuant to Section 5.8 of this Agreement.

Margin Stock – shall have the meaning ascribed to it in Regulation U and by the Board of Governors.

Material Adverse Effect – means the effect of any event, condition, action, omission or circumstance, which, alone or when taken together with other events, conditions, actions, omissions or circumstances occurring or existing concurrently therewith, (i) has or could reasonably be expected to have a material adverse effect upon the business, operations, Properties (including the Collateral) or condition (financial or otherwise) of Borrowers taken as a whole; (ii) has or could be reasonably expected to have any material adverse effect upon the validity or enforceability of this Agreement or any of the other Credit Documents or the ability of Administrative Agent, Canadian Agent or any Lender to realize upon any of the Collateral or to enforce or collect the Obligations; or (iii) has any material adverse effect, upon the Liens of Administrative Agent or Canadian Agent with respect to the Collateral or the priority of any such Liens.

Material Contract – means an agreement to which a Borrower is a party (other than the Credit Documents) (i) which is deemed to be a material contract as provided in Regulation S-K promulgated by the SEC under the Securities Act of 1933 or (ii) for which breach, termination, cancellation, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect.

Maturity Date – means the earliest of (a) April 3, 2018, (b) the date that occurs 60 days prior to October 15, 2017, the scheduled maturity date of the Ryerson Inc. Senior Secured Notes due 2017, if such notes are then outstanding and (c) the date that occurs 60 days prior to October 15, 2018, the scheduled maturity date of the Ryerson Inc. Senior Notes due 2018, if such notes are then outstanding.

Merger Agreement – means the Agreement and Plan of Merger dated as of July 24, 2007 (including the schedules and exhibits thereto) among Ryerson, Parent and Merger Sub.

Merger Sub – has the meaning set forth in the preamble to this Agreement.

MLPFSI – means Merrill Lynch, Pierce Fenner & Smith Incorporated, and its successors and assigns.

Moody’s – means Moody’s Investors Service, Inc. or any successor to the business of such company in the rating of securities.

Multi-employer Plan – means a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding six (6) years contributed to or required to be contributed to by any Borrower, or any Person for which any Borrower may have any direct or indirect liability or with respect to which any Borrower or Subsidiary could incur liability. For greater certainty, “Multi-employer Plan” does not include any Canadian Pension Plan.

NOLV Percentage – means the net orderly liquidation value of Inventory, expressed as a percentage of the Value Inventory, expected to be realized at an orderly, negotiated sale held within a reasonable period of time, net of all liquidation expenses, as determined from the most recent Qualified Appraisal of such Inventory performed by a Qualified Appraiser.

Non-U.S. Subsidiary – means a Subsidiary of Parent (which may be a corporation, limited liability company, partnership or other legal entity) organized under the laws of a jurisdiction outside the United States and conducting substantially all its operations outside the United States.

 

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Note – means a Note to be executed by the relevant Borrower(s) in favor of a Lender in the form of Exhibit A or Exhibit B , as the case may be, in each case attached hereto, which shall be in the face amount of such Lender’s U.S. Commitment or Canadian Commitment, as the case may be, and which shall evidence all Loans made by such Lenders to a Borrower pursuant to this Agreement.

Notice of Borrowing – means a notice substantially in the form of Exhibit D signed by an Authorized Employee of the applicable Borrower.

Obligations – means all (a) principal of and premium, if any, on the Loans, (b) L/C Obligations and other obligations of Obligors with respect to Letters of Credit, (c) interest, expenses, fees and other sums payable by Obligors under Credit Documents, (d) obligations of Obligors under any indemnity for Claims, (e) Extraordinary Expenses, (f) Bank Product Debt, and (g) other Debts, obligations and liabilities of any kind owing by Obligors pursuant to the Credit Documents, whether now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several; provided , however , that for purposes of the U.S. Security Agreement and each other guarantee agreement or other instrument or document executed and delivered pursuant to this Agreement or the U.S. Security Agreement, the term “Obligations” shall not, as to any Guarantor, include any Excluded Swap Obligations.

Obligor – means each Borrower, each Guarantor, and any other Person that is at any time contractually liable for the payment of the whole or any part of any of the Obligations or that has granted in favor of Administrative Agent or Canadian Agent a Lien upon any of such Person’s assets to secure payment of any of the Obligations.

Ordinary Course of Business – means with respect to any transaction involving any Person, the ordinary course of such Person’s business as undertaken by such Person in good faith and not for the purpose of evading any covenant or restriction in any Credit Document.

Organization Documents – means with respect to any Person, its charter, certificate or articles of incorporation, bylaws, articles of organization, operating agreement, members agreement, partnership agreement, voting trust, or similar agreement or instrument governing the formation or operation of such Person.

Original Credit Agreement – has the meaning given in the recitals hereto.

OSHA – means the Occupational Safety and Health Act of 1970.

Other Agreements – means the Intercreditor Agreement, any China Intercreditor Agreement or intercreditor agreement entered into in connection with a Permitted Receivables Transaction and each Note, the Fee Letter, the Engagement and Fee Letter, Lien Waivers, Interest Rate Contracts or other Hedging Agreements with Bank of America, any Lender or any of their respective branches or Affiliates and any and all agreements, instruments and documents (other than this Agreement and the Security Documents) heretofore, now or hereafter executed by any Obligor or any other Person and delivered to any Agent, any Collateral Agent or any Lender in respect of the transactions contemplated by this Agreement.

Other Taxes – means all present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies arising from any payment made under any Credit Document or from the execution, registration, delivery or enforcement of, or otherwise with respect to, any Credit Document.

Out-of-Formula Condition – means a Canadian Out-of-Formula Condition or a U.S. Out-of-Formula Condition, as applicable.

Out-of-Formula Loan – means a Canadian Out-of-Formula Loan or a U.S. Out-of-Formula Loan, as applicable.

 

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Outside Processor – means any Person that provides processing services with respect to Qualified Inventory owned by an Obligor and on whose premises Qualified Inventory is located, which premises are neither owned nor leased by an Obligor.

Outstanding Amount – means (a) with respect to the U.S. Revolver Loans, the Canadian Revolver Loans, the Canadian Swing Line Loans, the U.S. Swing Line Loans and Agent Advances on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of the U.S. Revolver Loans, the Canadian Revolver Loans, the Canadian Swing Line Loans, the U.S. Swing Line Loans or Agent Advances, as the case may be, occurring on such date; (b) with respect to any U.S. L/C Obligations on any date, the amount of such U.S. L/C Obligations on such date after giving effect to any related L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the U.S. L/C Obligations as of such date, including as a result of any reimbursements by a U.S. Borrower of Unreimbursed Amounts with respect to any U.S. Letter of Credit; and (c) with respect to any Canadian L/C Obligations on any date, the amount of such Canadian L/C Obligations on such date after giving effect to any related L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the Canadian L/C Obligations as of such date, including as a result of any reimbursements by Canadian Borrower of Unreimbursed Amounts with respect to any Canadian Letter of Credit.

Parent – means Ryerson Holding Corporation.

Participant – has the meaning specified in Section 14.1(d) .

Participating Lender – means each Lender that has an undivided interest and participation in an L/C Obligation.

Payment Conditions – means each of the following conditions precedent, the satisfaction of each of which, as determined by Administrative Agent, shall be required before specified Distributions, Permitted Investments or repurchases, redemptions or repayments of Debt may be made by an Obligor:

(a) no Default or Event of Default exists at such time or would result from such Distribution, Permitted Investments or repurchases, redemptions or repayments of Debt;

(b) (i) Pro Forma Excess Availability after giving effect to any Distribution, Permitted Investment (other than a Business Acquisition) or repurchases, redemptions or repayments of Debt is not less than $225,000,000 or, if Pro Forma Excess Availability after giving effect to such Distribution, Permitted Investment (other than a Business Acquisition) or repurchases, redemptions or repayments of Debt is less than $225,000,000, each of the following conditions is satisfied: (1) Pro Forma Excess Availability is not less than the greater of (x) fifteen percent (15%) of the lesser of (i) the aggregate Commitments and (ii) the Total Borrowing Base and (y) $180,000,000 and (2) the Consolidated Fixed Charge Coverage Ratio as calculated and presented to the Administrative Agent on the most recent Compliance Certificate required pursuant to Section 10.1.3 is not less than 1.0 to 1.0 on a pro forma basis, and

(ii) Pro Forma Excess Availability after giving effect to any Business Acquisition is not less than $200,000,000 or, if Pro Forma Excess Availability after giving effect to such Business Acquisition is less than $200,000,000, each of the following conditions is satisfied: (1) Pro Forma Excess Availability is not less than the greater of (x) twelve and one-half percent (12.5%) of the lesser of (i) the aggregate Commitments and (ii) the Total Borrowing Base and (y) $150,000,000 and (2) the Consolidated Fixed Charge Coverage Ratio as calculated and presented to the Administrative Agent on the most recent Compliance Certificate required pursuant to Section 10.1.3 is not less than 1.0 to 1.0 on a pro forma basis; and

(c) Borrowers, taken as a whole, are Current in their accounts payable.

Payment in Full or Full Payment or Paid in Full – means with respect to (i) any non-Contingent Obligations, the indefeasible payment in full, in cash (in U.S. Dollars in the case of Obligations under the U.S. Revolver and in U.S. Dollars or Canadian Dollars in the case of Obligations under the Canadian Revolver), of such Obligations, including all interest, fees and other charges payable in connection therewith under any of the Credit

 

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Documents, whether such interest, fees or other charges accrue or are incurred prior to or during the pendency of an Insolvency Proceeding and whether or not any of the same are allowed or recoverable in any bankruptcy case pursuant to Section 506 of the Bankruptcy Code or any other Debtor Relief Laws or otherwise; with respect to any L/C Obligations represented by undrawn Letters of Credit and Bank Product Debt (including Debt arising under Hedging Agreements), the Cash Collateralization with respect thereto; and (ii) any Obligations that are contingent in nature (other than Obligations consisting of L/C Obligations or Bank Product Debt), such as a right of Administrative Agent, Canadian Agent, any Collateral Agent or a Lender to reimbursement or indemnification by any Obligor, the depositing of cash with Agents in an amount equal to 100% of any such Obligations that have been liquidated or, if such Obligations are unliquidated in amount and represent a claim which has been asserted against Administrative Agent, Canadian Agent, any Collateral Agent or a Lender and for which an indemnity has been provided by Borrowers in any of the Credit Documents, in an amount that is equal to such claim or Administrative Agent’s good faith estimate of such claim. None of the Loans shall be deemed to have been paid in full until all Commitments related to such Loans have expired or been terminated.

Payment Items – means all checks, drafts, or other items of payment payable to a Borrower, including proceeds of any of the Collateral.

PBGC – means the Pension Benefit Guaranty Corporation or any Governmental Authority succeeding to the functions thereof.

Pension Plan – means a pension plan other than a Multi-employer Plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA or subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA which is maintained, sponsored, contributed to or required to be contributed to by a Borrower or any Person for which any Borrower may have any direct or indirect liability for contributions, or with respect to which a Borrower or Subsidiary could incur liability. For greater certainty, “Pension Plan” does not include any Canadian Pension Plan.

Permitted Affiliates – means the Joint Ventures existing on the Closing Date and listed on Schedule 5 hereto attached hereto and any Joint Ventures created or acquired after the Closing Date and permitted pursuant to the terms of the Credit Documents.

Permitted Contingent Obligations – means Contingent Obligations arising from endorsements of Payment Items for collection or deposit in the Ordinary Course of Business; Contingent Obligations of any Borrower and its Subsidiaries existing as of the Closing Date that have been disclosed to Administrative Agent, including extensions and renewals thereof that do not increase the amount of such Contingent Obligations as of the date of such extension or renewal; Contingent Obligations arising under indemnity agreements to title insurers to cause such title insurers to issue to Administrative Agent title insurance policies; Contingent Obligations arising under customary indemnity provisions included in contracts entered into in the Ordinary Course of Business; Contingent Obligations consisting of reimbursement obligations from time to time owing by any Borrower to the Issuing Bank with respect to Letters of Credit (but in no event to include, reimbursement obligations at any time owing by a Borrower to any other Person that may issue letters of credit for the account of Borrowers); and other Contingent Obligations not to exceed $75,000,000 in the aggregate at any time.

Permitted Distributions – means payments by Ryerson of, or Distributions by Ryerson to Parent to be used by Parent to pay (without duplication) (i) Permitted Platinum Payments, (ii) ordinary operating expenses of Parent (excluding, in any event, any payment in respect of Debt except as expressly permitted herein), (iii) to the extent actually used by Parent to pay such taxes, costs and expenses, payments by Borrowers to or on behalf of Parent in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of Parent, (iv) Permitted Tax Distributions by Borrowers to Parent, so long as Parent uses such distributions to pay its Taxes and (v) repurchases of stock options and other equity interests from present and former employees, officers and directors not to exceed (i) $2,000,000 in any Fiscal Year and (ii) $10,000,000 in the aggregate since the Closing Date.

Permitted Investment – has the meaning ascribed to such term in Section 10.2.12 of this Agreement.

Permitted Lien – has the meaning provided in Section 10.2.5 of this Agreement.

 

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Permitted Platinum Payments – means payments of management fees and reasonable expense reimbursements by Ryerson or Parent to Platinum or one of its Affiliates pursuant to a management fee agreement satisfactory to Administrative Agent and MLPFSI; provided that (i) such fees shall be due and payable on a quarterly basis, (ii) the amount of such fees shall not exceed $5,000,000 in the aggregate per Fiscal Year of Borrower Agent and (iii) no Distribution in respect of such fees shall be permitted after the occurrence and during the continuation of a Default or Event of Default; provided that any such fees that are suspended, including pursuant to this clause (iii), shall only be deferred and may be paid when no Default or Event of Default exists, notwithstanding the limitation set forth in clause (ii) of this definition.

Permitted Purchase Money Debt – means Purchase Money Debt of Borrowers and their Subsidiaries which is incurred after Closing Date and that is secured by no Lien or only by a Purchase Money Lien; provided that the aggregate amount of Purchase Money Debt outstanding at any time does not exceed $75,000,000. For the purposes of this definition, the principal amount of any Purchase Money Debt, consisting of capitalized leases shall be computed as a Capitalized Lease Obligation.

Permitted Receivables Transaction – means a transaction entered in the Ordinary Course of Business by any Borrower or any U.S. or Canadian Subsidiary under a Qualified Receivables Program and pursuant to which such Borrower or such U.S. or Canadian Subsidiary agrees to assign to a Qualified Receivables Counterparty its right, title and interest in and to all or a portion of such Borrower’s or such U.S. or Canadian Subsidiary’s Accounts owing from a Qualified Account Debtor; provided that, in connection therewith, all of the following conditions are satisfied as reasonably determined by Administrative Agent: (i) the applicable Borrower or the applicable U.S. or Canadian Subsidiary provides written notice to Administrative Agent of its intent to enter into such factoring transaction not less than ten (10) Business Days prior to execution of the definitive documentation relating thereto and, promptly after the execution thereof, provides to Administrative Agent copies of all Receivables Documents executed or delivered in connection therewith; (ii) pursuant to the applicable Receivables Documents, such Borrower or such U.S. or Canadian Subsidiary does not grant (and the Qualified Receivables Counterparty does not otherwise obtain) any Liens on any Collateral other than Receivables Transaction Assets arising from such Borrower’s or such U.S. or Canadian Subsidiary’s sale of Inventory or provision of services to the applicable Qualified Account Debtor; (iii) prior to the sale of any Accounts to the Qualified Receivables Counterparty, to the extent requested, Administrative Agent shall have received a customary and reasonable intercreditor agreement duly executed by the Qualified Receivables Counterparty, providing for Lien priorities not violative of the Loan Documents and an agreement by the Qualified Receivables Counterparty, upon written instruction of Administrative Agent (not to be exercised by Administrative Agent in the absence of a Cash Dominion Event), to remit proceeds of sales of Accounts directly to Administrative Agent, and containing such other terms to which Administrative Agent may consent (such consent not to be unreasonably withheld); (iv) no Event of Default has occurred and is continuing at the time of the applicable Borrower’s or the applicable U.S. or Canadian Subsidiary’s execution of the applicable Receivables Documents or (unless Administrative Agent otherwise provides its prior written consent) at the time of any sale of Accounts pursuant to such Qualified Receivables Program, and no Event of Default would occur as a result thereof; (v) any Borrowing Base Certificate delivered to Administrative Agent after such Borrower or such U.S. or Canadian Subsidiary has executed the applicable Receivables Documents shall reflect all Accounts owing by the Qualified Account Debtor as Ineligible Accounts and the applicable Borrower shall deliver a pro forma Borrowing Base Certificate for the latest available reporting period under Section 8.4 hereof to Administrative Agent upon entering into any such program; and (vi) the applicable Borrower shall provide Administrative Agent upon delivery of each scheduled Borrowing Base with a schedule (and periodic updates thereto) listing the Receivables Transaction Assets.

Permitted Tax Distributions – means Distributions by Borrowers to Parent in order to pay the consolidated, combined, unitary or other similar federal, state or local income Taxes attributable to the income of Borrowers and their respective Subsidiaries that are not payable directly by Borrowers or any of their respective Subsidiaries, which Distributions by all Borrowers in the aggregate in respect of any taxable year shall not exceed the lesser of (i) the income Taxes that would have been payable by all Borrowers and their respective Subsidiaries in the aggregate in respect of such taxable year had all Borrowers and their respective Subsidiaries filed on a stand-alone basis, and (ii) the actual consolidated, combined, unitary or other similar income Tax liabilities of the Parent group in respect of such taxable year (in each case reduced by any such Taxes paid directly by Borrowers and their respective Subsidiaries).

 

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Person – means an individual, partnership, corporation, limited liability company, limited liability partnership, joint stock company, land trust, business trust, or unincorporated organization, or a Governmental Authority.

Plan – means an employee benefit plan (as defined in Section 3(3) of ERISA) that is maintained or contributed to by a Borrower or any Subsidiary (or with respect to an employee benefit plan subject to Title IV of ERISA, a Borrower, or any Person for which any Borrower may have any direct or indirect liability) or with respect to which a Borrower or a Subsidiary could incur liability, other than a Canadian Benefit Plan. For greater certainty, “Plan” does not include any Canadian Benefit Plan or Canadian Pension Plan.

Platinum – means Platinum Equity Advisors, LLC, a Delaware limited liability company, and its Controlled Investment Affiliates.

PPSA – means the Personal Property Security Act of Ontario (or any successor statute) or similar legislation (including, without limitation, the Civil Code of Quebec) of any other jurisdiction, the laws of which are required by such legislation to be applied in connection with the issue, perfection, enforcement, validity or effect of security interests.

Pro Forma Excess Availability – means, on any date of determination, Availability after giving pro forma effect to the payment of any Distribution or other payment by a Borrower.

Pro Rata – means a share of or in all Loans, participations in L/C Obligations, liabilities, payments, proceeds, collections, Collateral and Extraordinary Expenses, which share for any Lender on any date shall be a percentage (expressed as a decimal, rounded to the ninth decimal place) arrived at by (a) while any Commitments are outstanding dividing the amount of the Commitment of such Lender on such date by the aggregate amount of the Commitments of all Lenders on such date and (b) at any other time, dividing the amount of such Lender’s Loans and L/C Obligations by the aggregate amount of all outstanding Loans and L/C Obligations.

Projections – means the projections most recently received by Administrative Agent and Lenders pursuant to and as required by Section 10.1.5 hereof.

Properly Contested – means in the case of any obligation of a Borrower for Taxes or other governmental assessments or claims that could result in a Lien, which is not paid as and when due or payable by reason of such Borrower’s bona fide dispute concerning its liability to pay same or concerning the amount thereof, (i) such obligation is being properly contested in good faith by appropriate proceedings promptly instituted and diligently conducted; (ii) such Borrower has established appropriate reserves as shall be required in conformity with GAAP; (iii) the non-payment of such obligation, individually or in the aggregate with other non-payment of obligations due and payable, will not have a Material Adverse Effect and will not result in a forfeiture of any assets of such Borrower; (iv) no Lien is imposed upon any of such Borrower’s assets with respect to such obligation unless such Lien is at all times junior and subordinate in priority to the Liens in favor of Administrative Agent and Canadian Agent (except only with respect to property taxes that have priority as a matter of applicable state law and with respect to Liens securing obligations that do not exceed in the aggregate with respect to all such obligations $1,000,000 per Fiscal Year, unless otherwise consented to by Administrative Agent in its sole discretion) or enforcement of such Lien is stayed (or if such obligation is fully bonded, no enforcement action has been commenced against any of the Collateral) during the period prior to the final resolution or disposition of such dispute; (v) if the obligation results from, or is determined by the entry, rendition or issuance against a Borrower or any of its assets of, a judgment, writ, order or decree, enforcement of such judgment, writ, order or decree is stayed pending a timely appeal or other judicial review or if such obligation is fully bonded, no enforcement action has been commenced against any of the Collateral; and (vi) if such contest is abandoned, settled or determined adversely (in whole or in part) to such Borrower, such Borrower forthwith pays such obligation and all penalties, interest and other amounts due in connection therewith.

Property – means any interest in any kind of property or asset, whether real, personal or mixed and whether tangible or intangible.

 

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Purchase Money Debt – means and includes (i) Debt (other than the Obligations but including Capitalized Lease Obligations) for the payment of all or any part of the purchase price, or the cost of construction or improvement, of any fixed assets, (ii) any Debt (other than the Obligations but including Capitalized Lease Obligations) incurred at the time of or within one hundred eighty (180) days prior to or after the acquisition or completion of construction or improvement of any property, plant or equipment, as applicable, for the purpose of financing all or any part of the cost thereof, and (iii) any renewals, extensions or refinancings (but not any increases in the principal amounts) thereof outstanding at the time.

Purchase Money Lien – means a Lien upon property, plant or equipment, which secures Purchase Money Debt, but only if such Lien shall at all times be confined solely to the property, plant or equipment (and the proceeds thereof) acquired through the incurrence of the Purchase Money Debt secured by such Lien.

Qualified Account Debtor – means an Account Debtor specified in Schedule 1.1(f) or otherwise reasonably acceptable to Administrative Agent.

Qualified Accounts – means, with respect to any Obligor, all Accounts that are directly created by such Obligor in the Ordinary Course of Business arising out of the sale of goods or rendition of services by such Borrower and for which an invoice has been sent to the applicable Account Debtor; provided that, except during a period of 90 days after a Business Acquisition with respect to Accounts acquired in such Business Acquisition that, taken together with Qualified Inventory acquired in such Business Acquisition, do not exceed 10% of the Total Borrowing Base immediately prior to such Business Acquisition, no Accounts acquired in connection with a Business Acquisition shall be considered for inclusion as Qualified Accounts until the Acquired Accounts Eligibility Requirement with respect to such Accounts shall have been satisfied.

Qualified Appraisal – means for the purpose of determining the net orderly liquidation value of Eligible Inventory on any date, a written appraisal that is prepared by a Qualified Appraiser, that sets forth the Qualified Appraiser’s estimate of the net orderly liquidation value (net of, among other things, liquidation expenses) of the Eligible Inventory that is the subject of the appraisal and that provides an evaluation opinion as of the date that is no earlier than ninety (90) days prior to the date on which such appraisal is delivered.

Qualified Appraiser – means a Person (other than an officer, agent, director, employee or Affiliate of a Borrower) who has sufficient qualifications, experience and credentials to give an evaluation opinion with respect to Collateral and who is otherwise satisfactory to the Collateral Agents in their reasonable Credit Judgment.

Qualified Inventory – means, with respect to any Obligor, all Inventory that is owned solely by such Obligor and as to which such Obligor has good, valid and marketable and (subject to the immediately succeeding sentence) unencumbered title; provided that, except during a period of 90 days after a Business Acquisition with respect to Inventory acquired in such Business Acquisition that, taken together with Qualified Accounts acquired in such Business Acquisition, does not exceed 10% of the Total Borrowing Base immediately prior to such Business Acquisition, no Inventory acquired in connection with a Business Acquisition shall be considered for inclusion as Qualified Inventory until the Acquired Inventory Eligibility Requirement with respect to such Inventory shall have been satisfied. For the avoidance of doubt, “Qualified Inventory” (a) excludes Inventory in which any Person other than the owner Borrower has any direct or indirect ownership interest or title and (b) excludes Inventory that is subject to any Lien other than Liens permitted pursuant to Sections 10.2.5(i), (ii), (iii), (v), (vi)  and (viii) .

Qualifying IPO – means the issuance by Parent or any direct or indirect parent of Parent of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act of 1933, as amended (whether alone or in connection with a secondary public offering).

Qualified Receivables Counterparty – means each bank or other financial institution set forth in Schedule 1.1(f) , or any other bank or financial institution reasonably satisfactory to Administrative Agent.

 

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Qualified Receivables Program – means a financing program sponsored by a Qualified Account Debtor in partnership with one or more Qualified Receivables Counterparty, under which each participating supplier of such Qualified Account Debtor may in its sole discretion sell, convey, transfer or assign from time to time, on a non-recourse basis, all or a portion of its Receivables Transaction Assets to such Qualified Receivables Counterparty(ies) on mutually-agreed terms and conditions.

RCRA – means the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-699li) and all rules and regulations promulgated pursuant thereto.

Real Estate – means all right, title and interest of Borrowers (whether as owner, lessor or lessee) at any time or times held by Borrowers in any real Property or any buildings, structures, parking areas or other improvements thereon (but excluding office leases for locations that do not involve manufacturing, warehousing or distribution activities or do not have any Inventory or Equipment (other than office equipment) at such locations).

Receivables Documents – means collectively, any financing agreement or accounts receivable purchase agreement, service agreement and all other related documents and instruments entered into among, or executed by, Borrower or any U.S. Subsidiary, a Qualified Account Debtor and/or a Qualified Receivables Counterparty in connection with the relevant Qualified Receivables Program, on terms and conditions generally consistent with similar arrangements, established by such Qualified Account Debtor for its other suppliers in the same or similar business as Borrower or such U.S. Subsidiary under such Qualified Receivables Program or otherwise reasonably satisfactory to Administrative Agent, in each case of the foregoing, as amended, supplemented or otherwise modified from time to time in a manner not materially adverse in the interests of the Lenders.

Receivables Transaction Assets – means in connection with any Permitted Receivables Transaction, Accounts owing by the applicable Account Debtor, together with all proceeds thereof (including “proceeds” as defined in the UCC) and all rights of the seller of such Accounts to enforce such rights to reimbursement constituting such Accounts.

Refinancing Conditions – means the following conditions for Refinancing Debt: (a) it is in an aggregate principal amount that does not exceed the principal amount of the Debt being extended, renewed or refinanced (plus accrued and unpaid interest, any premium and associated reasonable expenses); (b) it has a final maturity no sooner than, a weighted average life no less than, and an interest rate no greater than, the Debt being extended, renewed or refinanced; (c) it is subordinated to the Obligations at least to the same extent as the Debt being extended, renewed or refinanced; (d) no additional Lien is granted to secure it except in the case of refinancings, other Liens covering the property and assets that were subject to Liens permitted hereunder securing the Debt being refinanced; (e) no additional Person is obligated on such Debt; and (f) upon giving effect to it, no Default or Event of Default exists.

Refinancing Debt – means Borrowed Money that is the result of an extension, renewal or refinancing of Debt permitted under Section 10.2.3(ii)(a) , (vi) , (vii)  or (viii) .

Register – means the register maintained by Administrative Agent in accordance with Section 5.8.2(c) of this Agreement.

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

Release – means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing or migrating of any Hazardous Material in, into, onto or through the Environment.

Reportable Event – means any of the events set forth in Section 4043(b) of ERISA.

Required Canadian Revolver Lenders – means, as of any date of determination, Canadian Revolver Lenders holding more than 50% of the sum of the (a) Canadian Revolver Outstandings (with the aggregate amount of each Canadian Revolver Lender’s risk participation and funded participation in L/C Obligations and Canadian Swing Line Loans being deemed “held” by such Canadian Revolver Lender for purposes of this definition)

 

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and (b) aggregate unused Canadian Revolver Commitments; provided that the unused Canadian Revolver Commitment of, and the portion of the Canadian Revolver Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Canadian Revolver Lenders.

Required Lenders – means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) U.S. Revolver Outstandings and Canadian Revolver Outstandings (with the aggregate amount of each U.S. Revolver Lender’s risk participation and funded participation in U.S. L/C Obligations, U.S. Swing Line Loans and Agent Advances being deemed “held” by such U.S. Revolver Lender for purposes of this definition and with the aggregate amount of each Canadian Revolver Lender’s risk participation and funded participation in L/C Obligations and Canadian Swing Line Loans being deemed “held” by such Canadian Revolver Lender for purposes of this definition) and (b) the sum of (i) the aggregate unused U.S. Revolver Commitments, and (ii) the aggregate unused Canadian Revolver Commitments; provided that the unused U.S. Revolver Commitment and the unused Canadian Revolver Commitment of, and the portion of the U.S. Revolver Outstandings and Canadian Revolver Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

Required U.S. Revolver Lenders – means, as of any date of determination, U.S. Revolver Lenders holding more than 50% of the sum of the (a) U.S. Revolver Outstandings (with the aggregate amount of each U.S. Revolver Lender’s risk participation and funded participation in U.S. L/C Obligations, U.S. Swing Line Loans and Agent Advances being deemed “held” by such U.S. Revolver Lender for purposes of this definition) and (b) aggregate unused U.S. Revolver Commitments; provided that the unused U.S. Revolver Commitment of, and the portion of the U.S. Revolver Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required U.S. Revolver Lenders.

Reserve Percentage – means the reserve percentage (expressed as a decimal, rounded upward to the nearest 1/8th of 1%) applicable to member banks under regulations issued from time to time by the Board of Governors for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”).

Response – means (a) “response” as such term is defined in CERCLA, 42 U.S.C. § 9601(24), and (b) all other actions required by any Governmental Authority or voluntarily undertaken to (i) investigate, clean up, remove, treat, abate, monitor or in any other way address any Hazardous Material in the Environment; (ii) prevent the Release or threat of Release, or minimize the further Release, of any Hazardous Material; or (iii) perform studies and investigations in connection with, or as a precondition to, clause (i) or (ii) above.

Restricted Investment – means any acquisition of Property by a Borrower or any of its Subsidiaries in exchange for cash or other Property, whether in the form of an acquisition of Equity Interests or Debt, or the purchase or acquisition by such Borrower or any of its Subsidiaries of any other Property, or a loan, advance, capital contribution or subscription, except acquisitions of the following: (i) assets to be used in the Ordinary Course of Business of such Borrower or any of its Subsidiaries so long as the acquisition costs thereof constitute Capital Expenditures permitted hereunder; (ii) inventory held for sale or lease or to be used in the manufacture of goods or the provision of services by such Borrower or any of its Subsidiaries in the Ordinary Course of Business; (iii) Current Assets arising from the sale or lease of goods or the rendition of services in the Ordinary Course of Business of such Borrower or any of its Subsidiaries; and (iv) Cash Equivalents to the extent they are not subject to rights of offset in favor of any Person other than an Agent or a Lender.

Restrictive Agreement – means an agreement (other than any of the Credit Documents) that, if and for so long as a Borrower or any Subsidiary of such Borrower is a party thereto, would prohibit, condition or restrict such Borrower’s or Subsidiary’s right to incur or repay Debt (including any of the Obligations); grant Liens upon any of such Borrower’s or Subsidiary’s assets (including Liens granted in favor of Administrative Agent and Canadian Agent pursuant to the Credit Documents); declare or make Distributions or other Upstream Payments; amend, modify, extend or renew any agreement evidencing Debt (including any of the Credit Documents); or repay any Debt owed to another Borrower.

Ryerson – has the meaning set forth in the preamble to this Agreement.

 

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Ryerson Canada – has the meaning set forth in the preamble to this Agreement.

Ryerson Convertible Notes — means Ryerson’s $175.0 million aggregate principal amount of 3.5% Convertible Senior Notes due 2014.

Ryerson & Son – has the meaning set forth in the preamble to this Agreement.

S&P – means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., or any successor to the business of such division in the rating of securities.

Schedule of Accounts – has the meaning set forth in Section 8.2.1 of this Agreement.

SEC – means Securities and Exchange Commission.

Secured Parties – means the Canadian Secured Parties and the U.S. Secured Parties.

Security Documents – means the U.S. Security Documents and the Canadian Security Documents.

Senior Officer – means the chairman of the board of directors, the president or the chief financial officer, chief accounting officer, controller or treasurer of, or in-house legal counsel to, a Borrower.

Senior Notes – means the up to $1,100,000,000 of Senior Notes issued by Ryerson and Ryerson & Son, as a co-issuer, on the Amendment No. 2 Effective Date pursuant to the Senior Notes Indentures, all or a portion of which may be secured (subject to the Intercreditor Agreement).

Senior Notes Indentures – means each indenture under which any Senior Notes are issued.

Shorts Inventory – means, with respect to any U.S. Borrower or Canadian Borrower or Canadian Subsidiary Guarantor, as applicable, Qualified Inventory classified by such Obligor as partial Inventory pieces, on the basis that the Inventory has been cut below sales lengths customary for such Obligor’s Qualified Inventory.

Significant Subsidiary – means any Subsidiary which, at the time of determination, is a “significant subsidiary,” as such term is defined on Closing Date in Regulation S-X of the Securities and Exchange Commission, except that “5 percent” shall be substituted for “10 percent” in each place where it appears in such definition of “significant subsidiary.”

Slow Moving Inventory – means with respect to any U.S. Borrower or Canadian Borrower or any Canadian Subsidiary Guarantor, as applicable, an amount equal to the Value of such Obligor’s Qualified Inventory classified by such Obligor as stock inventory (measured on a stock keeping unit by stock keeping unit basis) (A) that (i) has not been sold or processed within a 180 day period and (ii) which is calculated to have more than 365 days of supply based upon the immediately preceding 6 months of consumption, or (B) to the extent days of supply data in (ii) above is not available then an amount equal to the Value of such Obligor’s Qualified Inventory classified by such Obligor as stock inventory (measured on a stock keeping unit by stock keeping unit basis) which has not been sold or processed within the prior 365 day period.

Solvent – means as to any Person, such Person (i) owns Property whose fair saleable value is greater than the amount required to pay all of such Person’s Debts (including contingent Debts), (ii) is able to pay all of its Debts as such Debts mature, (iii) has capital sufficient to carry on its business and transactions and all business and transactions in which it is about to engage, and (iv) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code or, with respect to Canadian Borrower or and Canadian Subsidiary Guarantors, is not an “insolvent person” within the meaning of the BIA.

SPC – has the meaning set forth in Section 14.1(h) of this Agreement.

Specified Equity Contribution – has the meaning set forth in Section 10.3.1 to this Agreement.

 

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Subordinated Debt – means unsecured Debt incurred by an Obligor that is expressly subordinated and made junior to the payment and performance in full of the Obligations and contains terms and conditions (including terms relating to interest, fees, repayment and subordination) satisfactory to Administrative Agent and MLPFSI.

Subordination Agreements – means collectively any and all other debt subordination agreements or lien subordination agreements executed in favor of Administrative Agent and reasonably acceptable to Administrative Agent.

Subsidiary – means any Person in which more than 50% of its outstanding Voting Stock or more than 50% of all of its Equity Interests are owned directly or indirectly by a Borrower, by one or more other Subsidiaries of such Borrower or by a Borrower and one or more other Subsidiaries (other than Joint Ventures).

Swap Obligation – means any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

Swing Line Lender – means, as applicable, (i) Bank of America in its capacity as the provider of U.S. Swing Line Loans or (ii) Bank of America-Canada Branch in its capacity as the provider of Canadian Swing Line Loans, or any successor provider of U.S. Swing Line Loans or Canadian Swing Line Loans (which shall at all times be a Canadian Resident, except when an Event of Default has occurred and is continuing), as applicable, hereunder.

Syndication Agents – has the meaning set forth in the preamble to this Agreement.

Taxes – means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority including any interest, additions to tax or penalties applicable thereto.

Third-Party Location – means any property that is either owned or leased by (w) a Third-Party Warehouseman, (x) an Outside Processor, (y) a customer or (z) a Vendor.

Third-Party Warehouseman – means any Person on whose premises Qualified Inventory is located, which premises are neither owned nor leased by an Obligor, any customer of or Vendor to an Obligor, or an Outside Processor.

Total Borrowing Base – means the sum of the U.S. Borrowing Base and the Canadian Borrowing Base.

Transactions – means the Acquisition, the issuance of the Senior Secured Notes (as defined in the Credit Agreement as in effect on the Closing Date) on the Closing Date pursuant to the Senior Secured Notes Indenture (as defined in the Credit Agreement as in effect on the Closing Date), the entering into and Borrowing under this Agreement, the entry into the other Credit Documents, the Equity Contributions, and the payment of fees, commissions and expenses related to each of the foregoing.

Trigger Event – has the meaning set forth in Section 10.3.1 of this Agreement.

Type – means any type of a Loan (i.e. U.S. Base Rate Loan, Canadian Prime Rate Loan, Canadian Base Rate Loan, BA Rate Loan, Canadian LIBOR Loan or U.S. LIBOR Loan) that is denominated in the same currency, has the same interest option and, in the case of LIBOR Loans or BA Rate Loans, the same Interest Period.

UCC – means the Uniform Commercial Code (or any successor statute) as adopted and in force in the State of New York or, when the laws of any other state govern the method or manner of the perfection or enforcement of any security interest in any of the Collateral, the Uniform Commercial Code (or any successor statute) of such state.

 

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Unfinanced Capital Expenditures – means Capital Expenditures that are not Financed Capital Expenditures.

Unreimbursed Amounts – has the meaning set forth in Section 2.3.3 .

Upstream Payment – means a payment or distribution of cash or other Property by a Subsidiary of a Borrower to such Borrower, whether in repayment of Debt owed by such Subsidiary to such Borrower, as a dividend or distribution on account of such Borrower’s ownership of Equity Interests or otherwise.

U.S. Availability – means on any date, the amount that U.S. Borrowers are entitled to borrow as U.S. Revolver Loans on such date, such amount being the difference derived when the aggregate principal amount of U.S. Revolver Outstandings (including any amounts that Administrative Agent or U.S. Revolver Lenders may have paid for the account of U.S. Borrowers pursuant to any of the Credit Documents and that have not been reimbursed by U.S. Borrowers) is subtracted from the lesser of (x) the aggregate U.S. Revolver Commitment then in effect and (y) the U.S. Borrowing Base on such date. If the amount outstanding is equal to or greater than the lesser of (x) the aggregate U.S. Revolver Commitment then in effect and (y) the U.S. Borrowing Base, on such date U.S. Availability is zero.

U.S. Base Rate – means the rate of interest announced by Bank of America from time to time as its prime rate. Such rate is a rate set by Bank of America based upon various factors including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

U.S. Base Rate Loan – means a U.S. Revolver Loan that bears interest based on the U.S. Base Rate.

U.S. Borrower – means Ryerson, Ryerson & Son, Sunbelt-Turret, Turret Steel, Imperial Trucking, Wilcox-Turret and each U.S. Subsidiary that becomes a “Borrower” hereunder after the Closing Date, as the context may require.

U.S. Borrower Joinder Agreement – means a Joinder Agreement substantially in the form of Exhibit C.

U.S. Borrowing Base – means on any date of determination thereof, an amount equal to (i) the sum of the Accounts Formula Amount attributable to all U.S. Borrowers plus the Inventory Formula Amount attributable to all U.S. Borrowers on such date minus (ii) the Availability Reserve to the extent attributable to U.S. Borrowers in the Collateral Agents’ reasonable Credit Judgment on such date; provided that after the Closing Date, the Collateral Agents may adjust the apportionment of the Availability Reserve between the U.S. Revolver and the Canadian Revolver in their discretion.

U.S. Dollars and the sign $ – mean lawful money of the United States of America.

U.S. L/C Obligations – means, as at any date of determination, the aggregate amount available to be drawn under all outstanding U.S. Letters of Credit plus the aggregate of all Unreimbursed Amounts relating to U.S. Letters of Credit, including all L/C Borrowings relating to U.S. Letters of Credit. For all purposes of this Agreement, if on any date of determination a U.S. Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such U.S. Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

U.S. L/C Sublimit – means an amount equal to $200,000,000. The U.S. L/C Sublimit is part of, and not in addition to, the U.S. Revolver.

U.S. Letter of Credit – means a Letter of Credit issued hereunder by the Issuing Bank for the account of U.S. Borrowers.

 

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U.S. LIBOR Loan – means a U.S. Revolver Loan, or portion thereof, during any period in which it bears interest at a rate based upon the applicable Adjusted LIBOR Rate.

U.S. Obligations – means all (a) principal of and premium, if any, on the U.S. Revolver Loans, U.S. Swingline Loans and Agent Advances, (b) U.S. L/C Obligations and other obligations of U.S. Obligors with respect to U.S. Letters of Credit, (c) interest, expenses, fees and other sums payable by U.S. Obligors under Credit Documents in respect of the foregoing, (d) obligations of U.S. Obligors under any indemnity for Claims arising from the foregoing, (e) Extraordinary Expenses in respect of the foregoing, (f) Bank Product Debt of U.S. Borrowers and any U.S. Subsidiary Guarantors, and (g) other Debts, obligations and liabilities of any kind owing by U.S. Obligors pursuant to the Credit Documents in respect of the foregoing, whether now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several.

U.S. Obligors – means Parent, the U.S. Borrowers and the U.S. Subsidiary Guarantors.

U.S. Out-of-Formula Condition – has the meaning set forth in Section 2.5.1 of this Agreement.

U.S. Out-of-Formula Loan – means a U.S. Revolver Loan made or existing when U.S. Out-of-Formula Condition exists or the amount of any U.S. Revolver Loan which, when funded, results in U.S. Out-of-Formula Condition.

U.S. Payment Account – means an account maintained by Administrative Agent to which all monies from time to time deposited to a Dominion Account constituting proceeds of Collateral considered in calculating the U.S. Borrowing Base shall be transferred and all other payments shall be sent in immediately available federal funds.

U.S. Revolver – means, at any time, the aggregate amount of the U.S. Revolver Commitments at such time.

U.S. Revolver Borrowing – means a borrowing consisting of simultaneous U.S. Revolver Loans of the same Type and, in the case of U.S. LIBOR Loans, having the same Interest Period made by each of the U.S. Revolver Lenders pursuant to Section 2.1 .

U.S. Revolver Commitment – means at any date for any U.S. Revolver Lender, its obligation (a) to make U.S. Revolver Loans to U.S. Borrowers pursuant to Section 2.1.1 , (b) to purchase participations in U.S. L/C Obligations, (c) to purchase participations in U.S. Swing Line Loans and (d) to purchase participations in Agent Advances, in an aggregate principal amount at any one time outstanding not to exceed the amount in U.S. Dollars set forth opposite such Lender’s name on Schedule 1 under the caption “U.S. Revolver Commitment” or opposite such caption in the Assignment and Acceptance pursuant to which that Lender becomes party hereto, as applicable, as such amount in U.S. Dollars may be adjusted from time to time in accordance with this Agreement. The aggregate U.S. Revolver Commitment on the Amendment No. 2 Effective Date is $1,215,000,000.

U.S. Revolver Lender – means, at any time, any financial institution from time to time party hereto as a “Lender” that has a U.S. Revolver Commitment at such time.

U.S. Revolver Loan – has the meaning specified in Section 2.1.1 and shall include any U.S. Out-of-Formula Loan unless the context otherwise requires.

U.S. Revolver Note – means a U.S. Revolver Note to be executed by U.S. Borrowers in favor of each U.S. Revolver Lender in the form of Exhibit A attached hereto, which shall be in the face amount of such U.S. Revolver Lender’s U.S. Revolver Commitment and which shall evidence all U.S. Revolver Loans made by such U.S. Revolver Lender to U.S. Borrowers pursuant to this Agreement.

 

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U.S. Revolver Outstandings – means the aggregate Outstanding Amount of all U.S. Revolver Loans (including any U.S. Out-of-Formula Loans), U.S. Swing Line Loans, Agent Advances and U.S. L/C Obligations.

U.S. Revolver Percentage – means with respect to any U.S. Revolver Lender at any time, such U.S. Revolver Lender’s Applicable Percentage in respect of the U.S. Revolver at such time.

U.S. Secured Parties – means Administrative Agent, the Collateral Agents, U.S. Revolver Lenders, Issuing Bank as the issuer of U.S. Letters of Credit or and Bank of America, any Lender or any of their Affiliates as the obligee with respect to any Bank Product Debt.

U.S. Security Agreement – means the U.S. Guarantee and Security Agreement substantially in the form of Exhibit M-1 .

U.S. Security Documents – means the U.S. Security Agreement and each other security agreement, instrument or other document executed and delivered pursuant to this Agreement or any other Credit Document by a U.S. Borrower in favor of Administrative Agent or a Lender to secure the Obligations.

U.S. Subsidiary – means each Subsidiary of Parent, other than any Non-U.S. Subsidiary.

U.S. Subsidiary Guarantor – means each U.S. Subsidiary that is listed on the signature pages of the U.S. Security Agreement under the caption “Subsidiary Guarantors,” each U.S. Subsidiary that, at any time after the Closing Date, became a Subsidiary Guarantor and each U.S. Subsidiary that, at any time after the Closing Date, shall become a Subsidiary Guarantor pursuant to Section 3.5 of the U.S. Security Agreement.

U.S. Swing Line – means the revolving credit facility made available by the Swing Line Lender to U.S. Borrowers pursuant to Section 2.4.1 .

U.S. Swing Line Borrowing – means a borrowing of a U.S. Swing Line Loan pursuant to Section 2.4.1 .

U.S. Swing Line Loan – has the meaning specified in Section 2.4.1 .

U.S. Swing Line Sublimit – means an amount equal to the lesser of (a) $100,000,000 and (b) the U.S. Revolver. The U.S. Swing Line Sublimit is part of, and not in addition to, the U.S. Revolver.

USA PATRIOT Act – means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001), as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

Value – means with reference to the value of Inventory, value as shown in the applicable Borrower’s or Subsidiary Guarantor’s perpetual inventory system, consistent with past practice.

Vendor – means a Person that sells Inventory to a U.S. Borrower, Canadian Borrower or Canadian Subsidiary Guarantor.

Voting Securities – means Equity Interests of any class or classes of a corporation or other entity the holders of which are ordinarily, in the absence of contingencies, entitled to vote to elect a majority of the corporate directors or Persons performing similar functions.

1.2 Accounting Terms . Unless otherwise specified herein, all terms of an accounting character used in this Agreement shall be interpreted, all accounting determinations under this Agreement shall be made, and all financial statements required to be delivered under this Agreement shall be prepared in accordance with GAAP, applied on a basis consistent with the most recent audited Consolidated financial statements of Borrowers and their respective Subsidiaries heretofore delivered to Agents and Lenders and using the same method for inventory

 

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valuation as used in such audited financial statements, except for any change required by GAAP; provided that if there occurs after Closing Date any change in GAAP that affects in any respect the calculation of the financial covenant contained in this Agreement, Administrative Agent and Borrower Agent shall negotiate in good faith amendments to the provisions of this Agreement that relate to the calculation of such covenant with the intent of having the respective positions of the Lenders and Borrowers after such change in GAAP conform as nearly as possible to their respective positions as of Closing Date and, until any such amendments have been agreed upon in writing by Administrative Agent and Borrowers, the applicable covenant shall be calculated as if no such change in GAAP has occurred.

1.3 Other Terms . All other terms contained in this Agreement shall have, when the context so indicates, the meanings provided for by the UCC to the extent the same are used or defined therein. For purposes of any Collateral located in the Province of Québec or charged by any deed of hypothec (or any other Credit Document) and for all other purposes pursuant to which the interpretation or construction of a Credit Document may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (i) “personal property” shall be deemed to include “movable property,” (ii) “real property” shall be deemed to include “immovable property” and an “easement” shall be deemed to include a “servitude,” (iii) “tangible property” shall be deemed to include “corporeal property,” (iv) “intangible property” shall be deemed to include “incorporeal property,” (v) “security interest” and “mortgage” shall be deemed to include a “hypothec,” (vi) all references to filing, registering or recording financing statements or other required documents under the UCC or the PPSA shall be deemed to include publication under the Civil Code of Quebec, and all references to releasing any Lien shall be deemed to include a release, discharge and mainlevee of a hypothec, (vii) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third parties, (viii) any “right of offset,” “right of setoff” or similar expression shall be deemed to include a “right of compensation,” (ix) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, and (x) an “agent” shall be deemed to include a “mandatary.”

1.4 Certain Matters of Construction . The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding.” The section titles, table of contents and list of exhibits appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All references (a) to laws or statutes include related rules, interpretations, regulations and amendments of same and any successor provisions; (b) to any agreement, instrument or other documents (including any of the Credit Documents) shall include any and all modifications and supplements thereto and any and all restatements, extensions or renewals thereof to the extent such modifications, supplements, restatements, extensions or renewals of any such documents are permitted by the terms thereof; (c) to any Person shall mean and include the successors and permitted assigns of such Person; (d) to “including” and “include” shall be understood to mean “including, without limitation” (and, for purposes of this Agreement and each other Credit Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit a general statement, which is followed by or referable to an enumeration of specific matters to matters similar to the matters specifically mentioned); (e) to the time of day shall mean the time of day on the day in question in Los Angeles, California, unless otherwise expressly provided in this Agreement; (f) to any section mean, unless the context otherwise requires, a section of this Agreement; or (g) to any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference. A Default or an Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing in accordance with the terms of this Agreement or, in the case of a Default, is cured within any period of cure expressly provided in this Agreement; and an Event of Default shall “continue” or be “continuing” until such Event of Default has been waived in writing in accordance with the terms of this Agreement. All calculations of Value shall be in U.S. Dollars, all U.S. Revolver Loans, U.S. Swing Line Loans and Agent Advances shall be funded in U.S. Dollars, all U.S. Obligations shall be repaid in U.S. Dollars, all Canadian Revolver Loans and Canadian Swing Line Loans may be funded only in U.S. Dollars or Canadian Dollars and all Canadian Obligations shall be repaid in the currency in which they were funded or otherwise in U.S. Dollars. Unless the context otherwise requires, all determinations (including calculations of the U.S. Borrowing Base, the Canadian Borrowing Base and financial covenant) made from time to time under the Credit Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise

 

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satisfactory to Administrative Agent in its reasonable Credit Judgment (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, Issuing Bank, any Collateral Agent or any Lender under any Credit Documents. Whenever the phrase “to the best of a Borrower’s knowledge” or words of similar import relating to the knowledge or the awareness of a Borrower are used in this Agreement or other Credit Documents, such phrase shall mean and refer to the actual or constructive knowledge of a Senior Officer of any Borrower. Any Lien referred to in this Agreement or any of the other Credit Documents as having been created in favor of Administrative Agent, any agreement entered into by Administrative Agent pursuant to this Agreement or any of the other Credit Documents, any payment made by or to, or funds received by, Administrative Agent pursuant to or as contemplated by any of the Credit Documents, or any other act taken or omitted to be taken by Administrative Agent shall, unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted for the benefit or account of Administrative Agent and the applicable Secured Parties.

1.5 Currency Equivalents Generally . Any amount specified for payment in this Agreement or any of the other Credit Documents to be in U.S. Dollars shall also include the equivalent of such amount in any currency other than U.S. Dollars and any amount specified for payment in this Agreement or any of the other Credit Documents to be in Canadian Dollars shall also include the equivalent of such amount in any currency other than Canadian Dollars (in each case, the “ Equivalent Amount ”), such Equivalent Amount thereof in the applicable currency to be determined by Administrative Agent at such time on the basis of the Spot Rate (as defined below) for the purchase of such currency with U.S. Dollars or Canadian Dollars, as the case may be. For purposes of this Section 1.5 , the “ Spot Rate ” for a currency means the rate determined by Administrative Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 8:00 a.m. on the date one Business Day prior to the date of such determination; provided that Administrative Agent may obtain such spot rate from another financial institution designated by Administrative Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.

1.6 Collateral Agents . In the event that, with respect to any matter herein or in any other Credit Document that requires or permits a decision, exercise of discretion or other determination by the Collateral Agents (including matters relating to Availability Reserves and other matters affecting the calculation of the Canadian Borrowing Base, the U.S. Borrowing Base or the Total Borrowing Base), the Collateral Agents do not all agree on such determination, the same shall reflect the determination of the Collateral Agent that asserts the most conservative Credit Judgment on behalf of the Lenders, provided that, to the extent that there are three Collateral Agents and at least two of the three Collateral Agents are in agreement in their determination, such determination shall prevail. Any Collateral Agent may in its sole discretion resign from acting in such capacity upon written notice to the Administrative Agent, the other Collateral Agents (if any) and the Borrower Agent. In the event that there shall exist no Person acting in the capacity of Collateral Agent, any references herein and the other Credit Documents to the Collateral Agents shall be deemed to refer to the Administrative Agent. For the avoidance of doubt, Administrative Agent shall have the sole and exclusive authority to act as collateral agent for the Secured Parties for purposes of perfecting and administering Liens granted by the U.S. Obligors securing the Obligations under the Credit Documents and for all other purposes stated therein (other than the authority specifically granted to the Collateral Agents herein), and Canadian Agent shall have the sole and exclusive authority to act as collateral agent for Canadian Secured Parties for purposes of perfecting and administering all Liens granted to it and securing the Canadian Obligations under the Credit Documents and for all other purposes stated therein (other than the authority specifically granted to the Collateral Agents herein).

SECTION 2. THE COMMITMENTS AND CREDIT EXTENSIONS

2.1 The Loans .

2.1.1. U.S. Revolver Borrowings. Subject to the terms and conditions set forth herein (including the provisions of Section 2.5.1 ), each U.S. Revolver Lender severally agrees to make loans in U.S. Dollars (each such loan, a “U.S. Revolver Loan”) to U.S. Borrowers from time to time, on any Business Day during the period from the Closing Date through the Commitment Maturity Date, in an aggregate amount not to exceed at any time outstanding the amount of that U.S. Revolver Lender’s Applicable Percentage of U.S. Availability; provided, however, that after giving effect to any Borrowing of U.S. Revolver Loans:

 

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(i) the U.S. Revolver Outstandings shall not exceed the U.S. Borrowing Base;

(ii) the sum of (A) the U.S. Revolver Outstandings plus (B) the Canadian Revolver Outstandings shall not exceed the Total Borrowing Base, and

(iii) the sum of (A) the aggregate Outstanding Amount of the U.S. Revolver Loans of any U.S. Revolver Lender plus (B) that Lender’s U.S. Revolver Percentage of the Outstanding Amount of all U.S. Swing Line Loans, U.S. L/C Obligations and Agent Advances shall not exceed that Lender’s U.S. Revolver Commitment.

Within the limits of each U.S. Revolver Lender’s U.S. Revolver Commitment, and subject to the other terms and conditions hereof, U.S. Borrower may borrow under this Section 2.1.1 , prepay under Section 5 , and reborrow under this Section 2.1.1 . U.S. Revolver Loans (other than U.S. Out-of-Formula Loans that shall be U.S. Base Rate Loans only) may be U.S. Base Rate Loans or U.S. LIBOR Loans, as further provided herein.

2.1.2. Canadian Revolver Borrowings. Subject to the terms and conditions set forth herein (including the provisions of Section 2.5 ), each Canadian Revolver Lender severally agrees to make loans (each such loan, a “Canadian Revolver Loan”) in Canadian Dollars or U.S. Dollars (as requested by Borrower Agent) to Canadian Borrower from time to time, on any Business Day during the period commencing on the Closing Date through the Commitment Maturity Date, in an aggregate amount not to exceed at any time outstanding the amount of that Canadian Revolver Lender’s Applicable Percentage of Canadian Availability; provided , however , that after giving effect to any Borrowing of Canadian Revolver Loans:

(i) the Canadian Revolver Outstandings shall not exceed the Canadian Borrowing Base;

(ii) the sum of (A) the Canadian Revolver Outstandings, plus (B) the U.S. Revolver Outstandings shall not exceed the Total Borrowing Base; and

(iii) the sum of (A) the aggregate Outstanding Amount of the Canadian Revolver Loans of any Canadian Revolver Lender, (B) that Lender’s Canadian Revolver Percentage of the Outstanding Amount of all Canadian L/C Obligations and (C) that Lender’s Canadian Revolver Percentage of the Outstanding Amount of all Canadian Swing Line Loans shall not exceed that Lender’s Canadian Revolver Commitment.

Within the limits of each Canadian Revolver Lender’s Canadian Revolver Commitment, and subject to the other terms and conditions hereof, Canadian Borrower may borrow under this Section 2.1.2 , prepay under Section 5 , and reborrow under this Section 2.1.2 . Canadian Revolver Loans denominated in U.S. Dollars may be Canadian Base Rate Loans or Canadian LIBOR Loans, and Canadian Revolver Loans denominated in Canadian Dollars may be BA Rate Loans or Canadian Prime Rate Loans, in each case as further provided herein; provided that Canadian Out-of-Formula Loans may be Canadian Base Rate Loans or Canadian Prime Rate Loans only.

2.2 Borrowings, Conversions and Continuations of Loans .

2.2.1. Each Borrowing (other than U.S. Swing Line Loans, Canadian Swing Line Loans and Agent Advances), each conversion of U.S. Revolver Loans or Canadian Revolver Loans from one Type to another, and each continuation of LIBOR Loans or BA Rate Loans shall be made upon the applicable Borrower’s irrevocable notice to Administrative Agent, which may be given by telephone. Each such notice must be received by Administrative Agent not later than 11:00 a.m.:

(i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of U.S. LIBOR Loans, Canadian LIBOR Loans or BA Rate Loans, or of any conversion of Canadian LIBOR Loans or U.S. LIBOR Loans to Canadian Base Rate Loans or U.S. Base Rate Loans, as the case may be, or any conversion of BA Rate Loans to Canadian Prime Rate Loans; and

 

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(ii) one Business Day prior to the requested date of any Borrowing of U.S. Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans.

Each telephonic notice by the applicable Borrower pursuant to this Section 2.2.1 must be confirmed promptly by delivery to Administrative Agent of a written Notice of Borrowing, appropriately completed and signed by an Authorized Employee of such Borrower.

Each Borrowing of, conversion to or continuation of U.S. LIBOR Loans or Canadian LIBOR Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Borrowing of, conversion to or continuation of BA Rate Loans shall be in a principal amount of Cdn$1,000,000 or a whole multiple of Cdn$500,000 in excess thereof. Except for Agent Advances and as provided in Sections 2.3.3 and 2.4.1(c) , each Borrowing of or conversion to U.S. Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Except as provided in Sections 2.3.3 and 2.4.2(c) , (i) each Borrowing of or conversion to Canadian Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof, and (ii) each Borrowing of or conversion to Canadian Prime Rate Loans shall be in a principal amount of Cdn$500,000 or a whole multiple of Cdn$100,000 in excess thereof.

Each Notice of Borrowing (whether telephonic or written) shall specify (i) whether the applicable Borrower is requesting a U.S. Revolver Borrowing, a Canadian Revolver Borrowing, a conversion of U.S. Revolver Loans or Canadian Revolver Loans from one Type to another, or a continuation of U.S. LIBOR Loans, Canadian LIBOR Loans or BA Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing U.S. Revolver Loans or Canadian Revolver Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the applicable Borrower fails to specify a Type of Loan in a Notice of Borrowing or if such Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable U.S. Revolver Loans shall be made as, or converted to, U.S. Base Rate Loans or the applicable Canadian Revolver Loans (i) if denominated in Canadian Dollars, shall be made as, or converted to, Canadian Prime Rate Loans, or (ii) if denominated in U.S. Dollars, shall be made as, or converted to, Canadian Base Rate Loans. Any such automatic conversion to U.S. Base Rate Loans, Canadian Prime Rate Loans or Canadian Base Rate Loans, as applicable, shall be effective as of the last day of the Interest Period then in effect with respect to the applicable U.S. LIBOR Loans, Canadian LIBOR Loans or BA Rate Loans. If the applicable Borrower requests a Borrowing of, conversion to, or continuation of U.S. LIBOR Loans, Canadian LIBOR Loans or BA Rate Loans in any such Notice of Borrowing, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Notwithstanding anything to the contrary herein, no Canadian Swing Line Loan nor any U.S. Swing Line Loan may be converted to a U.S. LIBOR Loan, Canadian LIBOR Loan or a BA Rate Loan.

2.2.2. Following receipt of a Notice of Borrowing, Administrative Agent shall promptly notify each relevant Lender of the amount of its Pro Rata share of the applicable U.S. Revolver Loans or Canadian Revolver Loans, and if no timely notice of a conversion or continuation is provided by the applicable Borrower, Administrative Agent shall notify each Lender of the details of any automatic conversion to U.S. Base Rate Loans, Canadian Prime Rate Loans or Canadian Base Rate Loans, as applicable, described in Section 2.2.1 . In the case of a Borrowing of U.S. Revolver Loans or a Borrowing of Canadian Revolver Loans, each relevant Lender shall make the amount of its Loan available to the applicable Agent in immediately available funds at the appropriate Administrative Agent’s Office not later than 11:00 a.m. on the Business Day specified in the applicable Notice of Borrowing. Upon satisfaction of the applicable conditions set forth in Section 11.2 (and, if such Borrowing is the initial Credit Extension, Section 11.1 ), the applicable Agent shall make all funds so received available to the applicable Borrower in like funds as received by the applicable Agent either by (i) crediting the account of such Borrower on the books of Bank of America or Bank of America-Canada Branch, as applicable, with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the applicable Agent by such Borrower; provided , however , that (x) if, on the date a Notice of Borrowing with respect to a U.S. Revolver Borrowing is given by U.S. Borrowers, there are L/C Borrowings outstanding which relate to U.S. Letters of Credit, then the proceeds of such U.S. Revolver Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to U.S. Borrowers as provided above or (y) if, on the date a Notice of Borrowing with respect to a Canadian Revolver Borrowing is given by Canadian Borrower, there are L/C Borrowings outstanding which relate to the Canadian Letters of Credit, then the proceeds of such Canadian Revolver Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to Canadian Borrower as provided above.

 

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2.2.3. Except as otherwise provided herein, a U.S. LIBOR Loan, Canadian LIBOR Loan or BA Rate Loan may be continued or converted only on the last day of an Interest Period for such U.S. LIBOR Loan, Canadian LIBOR Loan or BA Rate Loan, as the case may be. During the existence of a Default or Event of Default, no Loans may be requested as, converted to or continued as U.S. LIBOR Loans without the consent of the Required U.S. Revolver Lenders. During the existence of a Default or Event of Default, no Loans may be requested as, converted to or continued as Canadian LIBOR Loans or BA Rate Loans without the consent of the Required Canadian Revolver Lenders.

2.2.4. The applicable Agent shall promptly notify the applicable Borrower and the Lenders of the interest rate applicable to any Interest Period for U.S. LIBOR Loans, Canadian LIBOR Loans or BA Rate Loans upon determination of such interest rate. At any time that U.S. Base Rate Loans are outstanding, Administrative Agent shall notify U.S. Borrowers and the Lenders of any change in Bank of America’s prime rate used in determining the U.S. Base Rate promptly following the public announcement of such change. At any time that Canadian Base Rate Loans are outstanding, Canadian Agent shall notify Canadian Borrower and the Canadian Revolver Lenders of any change in Bank of America-Canada Branch’s base rate used in determining the Canadian Base Rate promptly following the public announcement of such change. At any time that Canadian Prime Rate Loans are outstanding, Canadian Agent shall notify Canadian Borrower and the Canadian Revolver Lenders of any change in the Canadian Prime Rate promptly following the public announcement of such change.

2.2.5. After giving effect to all U.S. Revolver Borrowings, all conversions of U.S. Revolver Loans from one Type to the other, and all continuations of U.S. Revolver Loans as the same Type, there shall not be more than twenty (20) Interest Periods in effect in respect of the U.S. Revolver. After giving effect to all Canadian Revolver Borrowings, all conversions of Canadian Revolver Loans from one Type to another, and all continuations of Canadian Revolver Loans as the same Type, there shall not be more than five (5) Interest Periods in effect in respect of the Canadian Revolver.

2.3 Letters of Credit .

2.3.1. Letter of Credit Commitments .

(i) Subject to the terms and conditions set forth herein:

(a) the Issuing Bank agrees, in reliance upon the respective agreements of the U.S. Revolver Lenders and the Canadian Revolver Lenders set forth in this Section 2.3 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue U.S. Letters of Credit and Canadian Letters of Credit, and to amend or extend U.S. Letters of Credit or Canadian Letters of Credit previously issued by it, in accordance with Section 2.3.2 , and (2) to honor drawings under such Letters of Credit;

(b) the U.S. Revolver Lenders severally agree to participate in U.S. Letters of Credit and any drawings thereunder based on their Applicable Percentage;

(c) after giving effect to any L/C Credit Extension with respect to any U.S. Letter of Credit:

(w) the U.S. Revolver Outstandings shall not exceed the U.S. Borrowing Base;

(x) the sum of (1) the U.S. Revolver Outstandings plus (2) the Canadian Revolver Outstandings shall not exceed the Total Borrowing Base,

(y) the sum of (1) the aggregate Outstanding Amount of the U.S. Revolver Loans of any U.S. Revolver Lender plus (2) that Lender’s U.S. Revolver Percentage of the Outstanding Amount of all U.S. L/C Obligations plus (3) that Lender’s U.S. Revolver Percentage of the Outstanding Amount of all U.S. Swing Line Loans and Agent Advances shall not exceed that Lender’s U.S. Revolver Commitment, and

 

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(z) the Outstanding Amount of the U.S. L/C Obligations shall not exceed the U.S. L/C Sublimit;

(d) the Canadian Revolver Lenders severally agree to participate in Canadian Letters of Credit and any drawings thereunder based on their Applicable Percentage; and

(e) after giving effect to any L/C Credit Extension with respect to any Canadian Letter of Credit:

(w) the Canadian Revolver Outstandings shall not exceed the Canadian Borrowing Base;

(x) the sum of (1) the Canadian Revolver Outstandings plus (2) the U.S. Revolver Outstandings shall not exceed the Total Borrowing Base,

(y) the sum of (1) the aggregate Outstanding Amount of the Canadian Revolver Loans of any Canadian Revolver Lender plus (2) that Lender’s Canadian Revolver Percentage of the Outstanding Amount of all Canadian L/C Obligations plus (3) that Lender’s Canadian Revolver Percentage of the Outstanding Amount of all Canadian Swing Line Loans shall not exceed that Lender’s Canadian Revolver Commitment, and

(z) the Outstanding Amount of the Canadian L/C Obligations shall not exceed the Canadian L/C Sublimit.

Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by such Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the ability of the respective Borrowers to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.

(ii) The Issuing Bank shall not issue any Letter of Credit if:

(a) subject to Section 2.3.2(iii) , the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required U.S. Revolver Lenders or the Required Canadian Revolver Lenders, as applicable, have approved such expiry date; or

(b) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the U.S. Revolver Lenders or all the Canadian Revolver Lenders, as applicable, have approved such expiry date.

(iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if:

(a) any order, judgment or decree of any Governmental Authority or arbitrator binding on the Issuing Bank shall by its terms purport to enjoin or restrain the Issuing Bank from issuing such Letter of Credit, or any Law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date;

 

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(b) such Letter of Credit, if a U.S. Letter of Credit, is to be denominated in a currency other than U.S. Dollars or such Letter of Credit, if a Canadian Letter of Credit, is to be denominated in a currency other than U.S. Dollars or Canadian Dollars;

(c) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or

(d) the form of the proposed Letter of Credit is not satisfactory to Administrative Agent and Issuing Bank in their reasonable discretion.

(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.

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

(vi) The Issuing Bank shall act on behalf of the U.S. Revolver Lenders or the Canadian Revolver Lenders, as applicable, with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to Administrative Agent in Section 9 with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bank.

2.3.2. Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit .

(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the applicable Borrower delivered to the Issuing Bank (with a copy to Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by an Authorized Employee of such Borrower. Such Letter of Credit Application must be received by the Issuing Bank and Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as Administrative Agent and the Issuing Bank may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the Issuing Bank: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the Issuing Bank may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the Issuing Bank (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the Issuing Bank may reasonably require. Additionally, the applicable Borrower shall furnish to the Issuing Bank and Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the Issuing Bank or Administrative Agent may require.

(ii) Promptly after receipt of any Letter of Credit Application, the Issuing Bank will confirm with Administrative Agent (by telephone or in writing) that Administrative Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, the Issuing Bank will provide Administrative Agent

 

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with a copy thereof. Unless the Issuing Bank has received written notice from any U.S. Revolver Lender or Canadian Revolver Lender, as applicable, Administrative Agent or any Obligor, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Section 11.2 shall not then be satisfied, then, subject to the terms and conditions hereof, the Issuing Bank shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the Issuing Bank’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each U.S. Revolver Lender or Canadian Revolver Lender, as applicable, shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Issuing Bank a risk participation in such Letter of Credit in an amount equal to the product of such Revolver Lender’s Applicable Percentage or such Canadian Revolver Lender’s Applicable Percentage, as applicable, times the amount of such Letter of Credit.

(iii) If a Borrower so requests in any applicable Letter of Credit Application, the Issuing Bank may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, such Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolver Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided , however , that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation on the Non-Extension Notice Date to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.3.1 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Extension Notice Date from Administrative Agent, any U.S. Revolver Lender or Borrower Agent, or any Canadian Revolver Lender or Canadian Borrower, as applicable, that one or more of the applicable conditions specified in Section 11.2 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.

(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the Issuing Bank will also deliver to the applicable Borrower and Administrative Agent a true and complete copy of such Letter of Credit or amendment.

2.3.3. Drawings and Reimbursements; Funding of Participations .

(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the Issuing Bank shall notify the applicable Borrower and Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the Issuing Bank under a Letter of Credit (each such date, an “ Honor Date ”), the applicable Borrower shall reimburse the Issuing Bank through the applicable Agent in an amount equal to the amount of such drawing, or if the applicable Borrower fails to so reimburse the Issuing Bank by such time, Administrative Agent shall promptly notify each U.S. Revolver Lender or Canadian Revolver Lender, as applicable, of the Honor Date, the amount of the unreimbursed drawing (the “ Unreimbursed Amount ”), and the amount of such U.S. Revolver Lender’s U.S. Revolver Percentage or Canadian Revolver Lender’s Canadian Revolver Percentage, as applicable, thereof. In such event, the applicable Borrower shall be deemed to have requested a Borrowing of U.S. Base Rate Loans or a Borrowing of Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable, to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the time at which notices are required to be delivered or the minimum and multiples specified in Section 2.2 for the principal amount of U.S. Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable, but subject to the amount of the unutilized portion of the U.S. Revolver Commitments or Canadian Revolver Commitments, as applicable. Any notice given by the Issuing Bank or Administrative Agent pursuant to this Section 2.3.3 may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

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(ii) Each U.S. Revolver Lender or Canadian Revolver Lender, as applicable, shall upon any notice pursuant to Section 2.3.3 make funds available to the applicable Agent for the account of the Issuing Bank at the appropriate Administrative Agent’s Office in an amount equal to its U.S. Revolver Percentage or Canadian Revolver Percentage, as applicable, of the Unreimbursed Amount not later than 11:00 a.m. on the Business Day specified in such notice by Administrative Agent, whereupon, subject to the provisions of Section 2.3.3(iii) , each U.S. Revolver Lender or Canadian Revolver Lender, as applicable, that so makes funds available shall be deemed to have made a U.S. Base Rate Loan to U.S. Borrowers or a Canadian Base Rate Loan or Canadian Prime Rate Loan to Canadian Borrower, as applicable, in such amount. The applicable Agent shall remit the funds so received to the Issuing Bank.

(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of U.S. Base Rate Loans or a Borrowing of Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable, the applicable Borrower shall be deemed to have incurred from the Issuing Bank an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each U.S. Revolver Lender’s or Canadian Revolver Lender’s, as applicable, payment to the applicable Agent for the account of the Issuing Bank pursuant to Section 2.3.3(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from that Lender in satisfaction of its participation obligation under this Section 2.3 .

(iv) Until a U.S. Revolver Lender or Canadian Revolver Lender funds its U.S. Revolver Loan or Canadian Revolver Loan, respectively, or L/C Advance pursuant to this Section 2.3.3 to reimburse the Issuing Bank for any amount drawn under any Letter of Credit, interest in respect of that Lender’s U.S. Revolver Percentage or Canadian Revolver Percentage, as applicable, of such amount shall be solely for the account of the Issuing Bank.

(v) Each U.S. Revolver Lender’s or Canadian Revolver Lender’s obligation to make U.S. Revolver Loans or Canadian Revolver Loans, as applicable, or L/C Advances to reimburse the Issuing Bank for amounts drawn under Letters of Credit, as contemplated by this Section 2.3.3 , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which that Lender may have against the Issuing Bank, the applicable Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing. No such making of an L/C Advance shall relieve or otherwise impair the obligation of the applicable Borrower to reimburse the Issuing Bank for the amount of any payment made by the Issuing Bank under any Letter of Credit, together with interest as provided herein.

(vi) If any U.S. Revolver Lender or Canadian Revolver Lender, as applicable, fails to make available to the applicable Agent for the account of the Issuing Bank any amount required to be paid by that Lender pursuant to the foregoing provisions of this Section 2.3.3 by the time specified in Section 2.3.3(ii) , the Issuing Bank shall be entitled to recover from that Lender (acting through the applicable Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Issuing Bank at a rate per annum equal to the greater of the Federal Funds Rate (or, in respect of any Letters of Credit under the Canadian Revolver, the Canadian Prime Rate) and a rate determined by the Issuing Bank in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Issuing Bank in connection with the foregoing. If that Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute that Lender’s Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the Issuing Bank submitted to any U.S. Revolver Lender or Canadian Revolver Lender, as applicable (through the applicable Agent), with respect to any amounts owing under this
Section 2.3.3(vi) shall be conclusive absent manifest error.

2.3.4. Repayment of Participations .

(i) At any time after the Issuing Bank has made a payment under any Letter of Credit and has received from any U.S. Revolver Lender or Canadian Revolver Lender, as applicable, that Lender’s L/C Advance in respect of such payment in accordance with Section 2.3.3 , if the applicable Agent receives for the account of the Issuing Bank any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the applicable Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the applicable Agent), the applicable Agent will distribute to that Lender its U.S. Revolver Percentage or Canadian Revolver Percentage, as applicable, thereof in the same funds as those received by the applicable Agent.

 

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(ii) If any payment received by the applicable Agent for the account of the Issuing Bank pursuant to Section 2.3.3(i) is required to be returned under any of the circumstances described in Section 12.4 (including pursuant to any settlement entered into by the Issuing Bank in its discretion), each U.S. Revolver Lender or Canadian Revolver Lender, as applicable, shall pay to the applicable Agent for the account of the Issuing Bank its U.S. Revolver Percentage or Canadian Revolver Percentage, as applicable, thereof on demand of the applicable Agent, plus interest thereon from the date of such demand to the date such amount is returned by that Lender, at a rate per annum equal to the Federal Funds Rate (or, in respect of any Letters of Credit denominated in Canadian Dollars, the Canadian Prime Rate) from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

2.3.5. Obligations Absolute . The obligation of the applicable Borrower to reimburse the Issuing Bank for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Credit Document;

(ii) the existence of any claim, counterclaim, setoff, defense or other right that such Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the Issuing Bank or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

(iii) any draft, demand, certificate or other document presented under such 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; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

(iv) any payment by the Issuing Bank under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the Issuing Bank under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

(v) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, such Borrower or any of its Subsidiaries.

The applicable Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with such Borrower’s instructions or other irregularity, such Borrower will promptly notify the Issuing Bank. The applicable Borrower shall be conclusively deemed to have waived any such claim against the Issuing Bank and its correspondents unless such notice is given as aforesaid.

2.3.6. Role of Issuing Bank . Each Lender and the applicable Borrower agree that, in paying any drawing under a Letter of Credit, the Issuing Bank shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Issuing Bank, any Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the Issuing Bank shall be liable to any Lender for (i) any action taken or omitted

 

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in connection herewith at the request or with the approval of the U.S. Revolver Lenders or the Canadian Revolver Lenders, as applicable, or the Required U.S. Revolver Lenders or Required Canadian Revolver Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The applicable Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is not intended to, and shall not, preclude such Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the Issuing Bank, any Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the Issuing Bank shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.3.5 ; provided , however , that anything in such clauses to the contrary notwithstanding, the applicable Borrower may have a claim against the Issuing Bank, and the Issuing Bank may be liable to such Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by such Borrower which such Borrower proves were caused by the Issuing Bank’s willful misconduct or gross negligence or the Issuing Bank’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and, except in the case of its own gross negligence or willful misconduct, the Issuing Bank shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

2.3.7. Cash Collateral . Upon the request of Administrative Agent, if, as of the Letter of Credit Expiration Date, any U.S. L/C Obligation or Canadian L/C Obligation for any reason remains outstanding, the applicable Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all such U.S. L/C Obligations or Canadian L/C Obligations. At any time that there shall exist a Defaulting Lender, immediately upon the request of Administrative Agent, the applicable Issuing Bank or the applicable Swingline Lender, the applicable Borrower shall deliver to Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 4.2 and any Cash Collateral provided by the Defaulting Lender). Sections 2.5 and 12.3.7 set forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of this Section 2.3 , Section 2.5 and Section 12.3.7, each Borrower hereby grants to the applicable Agent, for the benefit of the applicable Issuing Bank and Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, interest bearing deposit accounts at Bank of America or Bank of America-Canada Branch, as applicable. If at any time Administrative Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than the applicable Agent or that the total amount of such funds is less than the aggregate Outstanding Amount of all U.S. L/C Obligations or Canadian L/C Obligations, the applicable Borrower will, forthwith upon demand by Administrative Agent, pay to the applicable Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as Cash Collateral that Administrative Agent determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under Applicable Laws, to reimburse the Issuing Bank.

2.3.8. Applicability of ISP and UCP . Unless otherwise expressly agreed by the Issuing Bank and the applicable Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit.

2.3.9. Letter of Credit Fees . U.S. Borrower shall pay to Administrative Agent for the account of each U.S. Revolver Lender in accordance with its U.S. Revolver Percentage and Canadian Borrower shall pay to Canadian Agent for the account of each Canadian Revolver Lender in accordance with its Canadian Revolver Percentage, a Letter of Credit fee (the “Letter of Credit Fee”) for each U.S. Letter of Credit or Canadian Letter of Credit, as applicable, equal to the Applicable Margin in effect for LIBOR or BA Rate Loans, respectively, times the daily amount available to be drawn under such Letter of Credit; provided , however , any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting

 

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Lender has not provided Cash Collateral satisfactory to the applicable Issuing Bank pursuant to Section 2.3.7 shall be payable, to the maximum extent permitted by Applicable Law, to the other Lenders in accordance with the upward adjustments in their U.S. Revolver Percentage or Canadian Revolver Percentage allocable to such Letter of Credit pursuant to Section 4.2.1(d) , with the balance of such fee, if any, payable to the Issuing Bank for its own account. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.5 . Letter of Credit Fees shall be (i) due and payable on the first Business Day after the end of each Fiscal Quarter, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Margin during any quarter, the daily amount available to be drawn under each standby Letter of Credit shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that such Applicable Margin was in effect.

2.3.10. Fronting Fee and Documentary and Processing Charges Payable to Issuing Bank . U.S. Borrowers or Canadian Borrower, as applicable, shall pay directly to the applicable Issuing Bank for its own account a fronting fee with respect to each U.S. Letter of Credit or Canadian Letter of Credit, as applicable, at a rate equal to 0.125% per annum on the daily amount available to be drawn under each Letter of Credit. Such fronting fee shall be due and payable quarterly in arrears, on the first Business Day of each Fiscal Quarter, on the Letter of Credit Expiration Date and thereafter on demand. In addition, the applicable Borrower shall pay directly to the Issuing Bank for its own account, all customary charges associated with the issuance, amending, negotiating, payment, processing, transfer and administration of Letters of Credit, which charges shall be paid as and when incurred.

2.3.11. Conflict with Issuer Documents . In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

2.3.12. Letters of Credit Issued for Subsidiaries . Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, one of its Subsidiaries, U.S. Borrowers or Canadian Borrower, as applicable, shall be obligated to reimburse the applicable Issuing Bank hereunder for any and all drawings under such Letter of Credit. Each Borrower hereby acknowledges that the issuance of Letters of Credit for the account of one of its Subsidiaries inures to the benefit of such Borrower, and that such Borrower’s business derives substantial benefits from the businesses of its Subsidiaries.

2.3.13. Replacement of Issuing Lender . An Issuing Bank may be replaced at any time by written agreement among the applicable Borrower, the applicable Agent and the successor Issuing Bank. Such Agent shall notify the applicable Lenders of any such replacement. At the time any such replacement becomes effective, the applicable Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Sections 2.3.9 and 2.3.10 . On and after the effective date of any such replacement, (i) the successor Issuing Bank will have all the rights and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued by it thereafter and (ii) references herein to the term “Issuing Bank” will be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After an Issuing Bank is replaced, it will remain a party hereto and will continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it before such replacement, but will not be required to issue additional Letters of Credit.

2.3.14. Additional Issuing Banks . The Agent Borrower may, at any time and from time to time with the consent of the applicable Agent (which consent shall not be unreasonably withheld or delayed) and such Lender, designate one or more additional Lenders (subject to the satisfaction of the conditions with respect thereto set forth in the definition of “Issuing Bank”) to act as an Issuing Bank; provided that the total number of Lenders so designated at any time shall not exceed five. Any Lender designated as an Issuing Bank pursuant to this Section 2.3.14 shall be deemed to be an “Issuing Bank” for the purposes of this Agreement (in addition to being a Lender) with respect to Letters of Credit issued by such Lender.

 

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2.4 Swing Line Loans .

2.4.1. U.S. Swing Line Loans .

(a) The U.S. Swing Line . Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other U.S. Revolver Lenders set forth in this Section 2.4.1 , to make loans (each such loan, a “ U.S. Swing Line Loan ”) to U.S. Borrowers from time to time on any Business Day during the period commencing on the Closing Date through the Commitment Maturity Date in an aggregate amount not to exceed at any time outstanding the amount of the U.S. Swing Line Sublimit, notwithstanding the fact that such U.S. Swing Line Loans, when aggregated with the sum of the Outstanding Amount of U.S. Revolver Loans of such Lender acting as Swing Line Lender and such Lender’s U.S. Revolver Percentage of the Outstanding Amount of all U.S. L/C Obligations, may exceed the amount of that Lender’s U.S. Revolver Commitment; provided , however , that after giving effect to any U.S. Swing Line Loan, (i) the U.S. Revolver Outstandings shall not exceed the U.S. Borrowing Base at such time, and (ii) the aggregate Outstanding Amount of the U.S. Revolver Loans of any U.S. Revolver Lender at such time, plus such U.S. Revolver Lender’s U.S. Revolver Percentage of the Outstanding Amount of all U.S. L/C Obligations at such time, plus such U.S. Revolver Lender’s U.S. Revolver Percentage of the Outstanding Amount of all U.S. Swing Line Loans and Agent Advances at such time shall not exceed that Lender’s U.S. Revolver Commitment. Within the foregoing limits, and subject to the other terms and conditions hereof, U.S. Borrowers may borrow under this Section 2.4.1 , prepay under Section 5.2.3 , and reborrow under this Section 2.4.1 ; provided that U.S. Borrowers shall not use the proceeds of any U.S. Swing Line Loan to refinance any outstanding U.S. Swing Line Loan. Each U.S. Swing Line Loan shall bear interest only at a rate based on the U.S. Base Rate. Immediately upon the making of a U.S. Swing Line Loan, each U.S. Revolver Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such U.S. Swing Line Loan in an amount equal to the product of such U.S. Revolver Lender’s U.S. Revolver Percentage times the amount of such U.S. Swing Line Loan.

(b) Borrowing Procedures . Each U.S. Swing Line Borrowing shall be made upon U.S. Borrower’s irrevocable notice to the Swing Line Lender and Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and Administrative Agent not later than 11:00 a.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and Administrative Agent of a written Notice of Borrowing, appropriately completed and signed by an Authorized Employee of U.S. Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Notice of Borrowing, the Swing Line Lender will confirm with Administrative Agent (by telephone or in writing) that Administrative Agent has also received such Notice of Borrowing and, if not, the Swing Line Lender will notify Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from Administrative Agent (including at the request of any U.S. Revolver Lender) prior to 11:00 a.m. on the date of the proposed U.S. Swing Line Borrowing (A) directing the Swing Line Lender not to make such U.S. Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.4.1(a) , or (B) that one or more of the applicable conditions specified in Section 11.2 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, promptly on the borrowing date specified in such Notice of Borrowing, make the amount of its U.S. Swing Line Loan available to U.S. Borrower at its office by crediting the account of U.S. Borrower on the books of the Swing Line Lender in immediately available funds.

(c) Refinancing of U.S. Swing Line Loans .

(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of U.S. Borrower which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf, that each U.S. Revolver Lender make a U.S. Base Rate Loan in an amount equal to that Lender’s U.S. Revolver Percentage of the amount of U.S. Swing Line Loans then outstanding; provided that the Swing Line Lender shall be deemed to have made such a request as of the Wednesday of each week ( provided that if such day is not a Business Day, such request shall be deemed to have been made as of the next succeeding Business Day) unless the Swing Line Lender shall otherwise notify the U.S. Revolver Lenders. Such request shall be made in writing (which written request shall be deemed to be a Notice of Borrowing for purposes hereof) and in accordance with the requirements of Section 2.2 , without regard to the minimum and multiples specified therein for the principal amount of U.S. Base Rate Loans or the time for borrowing, but subject to the unutilized portion of the U.S. Revolver and the conditions set forth in Section 11.2 . The Swing Line Lender shall furnish U.S. Borrower with a copy of the applicable Notice of Borrowing promptly after delivering such notice to Administrative Agent. Each U.S. Revolver Lender shall make an amount equal to its U.S. Revolver Percentage of the amount specified in such Notice of Borrowing available to

 

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Administrative Agent in immediately available funds for the account of the Swing Line Lender at Bank of America not later than 12:00 noon on the day specified in such Notice of Borrowing, whereupon, subject to Section 2.4.1(c)(ii) , each U.S. Revolver Lender that so makes funds available shall be deemed to have made a U.S. Base Rate Loan to U.S. Borrower in such amount. Administrative Agent shall remit the funds so received to the Swing Line Lender.

(ii) If for any reason any U.S. Swing Line Loan cannot be refinanced by such a U.S. Revolver Borrowing in accordance with Section 2.4.1(c)(i) , the request for U.S. Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the U.S. Revolver Lenders fund its risk participation in the relevant U.S. Swing Line Loan and each U.S. Revolver Lender’s payment to Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.4.1(c)(i) shall be deemed payment in respect of such participation.

(iii) If any U.S. Revolver Lender fails to make available to Administrative Agent for the account of the Swing Line Lender any amount required to be paid by that Lender pursuant to the foregoing provisions of this Section 2.4.1(c) by the time specified in Section 2.4.1(c)(i) , the Swing Line Lender shall be entitled to recover from that Lender (acting through Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If that Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute that Lender’s Loan included in the relevant Borrowing or funded participation in the relevant U.S. Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

(iv) Each U.S. Revolver Lender’s obligation to make U.S. Revolver Loans or to purchase and fund risk participations in U.S. Swing Line Loans pursuant to this Section 2.4.1(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which that Lender may have against the Swing Line Lender, U.S. Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing. No such funding of risk participations shall relieve or otherwise impair the obligation of U.S. Borrower to repay U.S. Swing Line Loans, together with interest as provided herein.

(d) Repayment of Participations .

(i) At any time after any U.S. Revolver Lender has purchased and funded a risk participation in a U.S. Swing Line Loan, if the Swing Line Lender receives any payment on account of the applicable U.S. Swing Line Loan, the Swing Line Lender will promptly distribute to such U.S. Revolver Lender its U.S. Revolver Percentage thereof in the same funds as those received by the Swing Line Lender.

(ii) If any payment received by the Swing Line Lender in respect of principal or interest on any U.S. Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 5.5 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each U.S. Revolver Lender shall pay to the Swing Line Lender its U.S. Revolver Percentage thereof on demand of Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

(e) Interest for Account of Swing Line Lender . The Swing Line Lender shall be responsible for invoicing U.S. Borrower for interest on U.S. Swing Line Loans. Until each U.S. Revolver Lender funds its U.S. Base Rate Loan or risk participation pursuant to this Section 2.4.1 to refinance such U.S. Revolver Lender’s U.S. Revolver Percentage of any U.S. Swing Line Loan, interest in respect of such U.S. Revolver Percentage shall be solely for the account of the Swing Line Lender.

 

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(f) Payments Directly to Swing Line Lender . U.S. Borrower shall make all payments of principal and interest in respect of the U.S. Swing Line Loans directly to the Swing Line Lender.

(g) Repayment of U.S. Swing Line Loans . To the extent not previously refinanced under Section 2.4.1(c) , U.S. Borrowers shall repay each U.S. Swing Line Loan on the earlier to occur of (i) the date ten Business Days after such Loan is made and (ii) the Commitment Maturity Date.

2.4.2. Canadian Swing Line Loans .

(a) The Canadian Swing Line . Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Canadian Revolver Lenders set forth in this Section 2.4.2 , to make loans in Canadian Dollars or U.S. Dollars (as requested by Borrower Agent) (each such loan, a “ Canadian Swing Line Loan ”) to Canadian Borrower from time to time on any Business Day during the period commencing on the Closing Date through the Commitment Maturity Date in an aggregate amount not to exceed at any time outstanding the amount of the Canadian Swing Line Sublimit, notwithstanding the fact that such Canadian Swing Line Loans, when aggregated with the sum of the Outstanding Amount of Canadian Revolver Loans of such Lender acting as Swing Line Lender and such Lender’s Canadian Revolver Percentage of the Outstanding Amount of all Canadian L/C Obligations, may exceed the amount of that Lender’s Canadian Revolver Commitment; provided , however , that after giving effect to any Canadian Swing Line Loan, (i) the sum of (A) the Canadian Revolver Outstandings and (B) the U.S. Revolver Outstandings shall not exceed the Total Borrowing Base at such time, and (ii) the aggregate Outstanding Amount of the Canadian Revolver Loans of any Canadian Revolver Lender at such time, plus such Canadian Revolver Lender’s Canadian Revolver Percentage of the Outstanding Amount of all Canadian L/C Obligations at such time, plus such Canadian Revolver Lender’s Canadian Revolver Percentage of the Outstanding Amount of all Canadian Swing Line Loans at such time shall not exceed that Lender’s Canadian Revolver Commitment, and provided further that Canadian Borrower shall not use the proceeds of any Canadian Swing Line Loan to refinance any outstanding Canadian Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, Canadian Borrower may borrow under this Section 2.4.2 , prepay under Section 5.2.3 , and reborrow under this Section 2.4.2 . Each Canadian Swing Line Loan shall bear interest only at a rate based on either the Canadian Base Rate or the Canadian Prime Rate. Immediately upon the making of a Canadian Swing Line Loan, each Canadian Revolver Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Canadian Swing Line Loan in an amount equal to the product of such Canadian Revolver Lender’s Canadian Revolver Percentage times the amount of such Canadian Swing Line Loan.

(b) Borrowing Procedures . Each Canadian Swing Line Borrowing shall be made upon Canadian Borrower’s irrevocable notice to the Swing Line Lender and Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and Administrative Agent not later than 11:00 a.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000 or Cdn$100,000, (ii) whether such amount is requested in Canadian Dollars or U.S. Dollars, and (iii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and Administrative Agent of a written Notice of Borrowing, appropriately completed and signed by an Authorized Employee of Canadian Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Notice of Borrowing, the Swing Line Lender will confirm with Administrative Agent (by telephone or in writing) that Administrative Agent has also received such Notice of Borrowing and, if not, the Swing Line Lender will notify Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from Administrative Agent (including at the request of any Canadian Revolver Lender) prior to 11:00 a.m. on the date of the proposed Canadian Swing Line Borrowing (A) directing the Swing Line Lender not to make such Canadian Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.4.2(B) , or (B) that one or more of the applicable conditions specified in Section 11.2 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, promptly on the borrowing date specified in such Notice of Borrowing, make the amount of its Swing Line Loan available to Canadian Borrower at its office either by crediting the account of Canadian Borrower on the books of the Swing Line Lender in immediately available funds or by forwarding immediately available funds in such amount as Canadian Borrower otherwise directs.

 

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(c) Refinancing of Canadian Swing Line Loans .

(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of Canadian Borrower which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Canadian Revolver Lender make a Canadian Base Rate Loan or Canadian Prime Rate Loan, as applicable, in an amount equal to that Lender’s Canadian Revolver Percentage of the amount of Canadian Swing Line Loans then outstanding; provided that the Swing Line Lender shall be deemed to have made such a request as of the Wednesday of each week ( provided that if such day is not a Business Day, such request shall be deemed to have been made as of the next succeeding Business Day) unless the Swing Line Lender shall otherwise notify the Canadian Revolver Lenders. Such request shall be made in writing (which written request shall be deemed to be a Notice of Borrowing for purposes hereof) and in accordance with the requirements of Section 2.2 , without regard to the minimum and multiples specified therein for the principal amount of Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable, or the time for borrowing, but subject to the unutilized portion of the Canadian Revolver and the conditions set forth in Section 11.2 . The Swing Line Lender shall furnish Canadian Borrower with a copy of the applicable Notice of Borrowing promptly after delivering such notice to Administrative Agent. Each Canadian Revolver Lender shall make an amount equal to its Canadian Revolver Percentage of the amount specified in such Notice of Borrowing available to Canadian Agent in immediately available funds for the account of the Swing Line Lender at Bank of America-Canada Branch’s office not later than 12:00 noon on the day specified in such Notice of Borrowing, whereupon, subject to Section 2.4.2(c)(ii) , each Canadian Revolver Lender that so makes funds available shall be deemed to have made a Canadian Base Rate Loan or Canadian Prime Rate Loan, as applicable, to Canadian Borrower in such amount. Canadian Agent shall remit the funds so received to the Swing Line Lender.

(ii) If for any reason any Canadian Swing Line Loan cannot be refinanced by such a Canadian Revolver Borrowing in accordance with Section 2.4.2(c)(i) , the request for Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable, submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Canadian Revolver Lenders fund its risk participation in the relevant Canadian Swing Line Loan and each Canadian Revolver Lender’s payment to Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.4.2(c)(i) shall be deemed payment in respect of such participation.

(iii) If any Canadian Revolver Lender fails to make available to Canadian Agent for the account of the Swing Line Lender any amount required to be paid by that Lender pursuant to the foregoing provisions of this Section 2.4.2(c) by the time specified in Section 2.4.2(c)(i) , the Swing Line Lender shall be entitled to recover from that Lender (acting through Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Canadian Prime Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If that Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute that Lender’s Loan included in the relevant Borrowing or funded participation in the relevant Canadian Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

(iv) Each Canadian Revolver Lender’s obligation to make Canadian Revolver Loans or to purchase and fund risk participations in Canadian Swing Line Loans pursuant to this Section 2.4.2(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which that Lender may have against the Swing Line Lender, Canadian Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing. No such funding of risk participations shall relieve or otherwise impair the obligation of Canadian Borrower to repay Canadian Swing Line Loans, together with interest as provided herein.

(d) Repayment of Participations .

(i) At any time after any Canadian Revolver Lender has purchased and funded a risk participation in a Canadian Swing Line Loan, if the Swing Line Lender receives any payment on account of the applicable Canadian Swing Line Loan, the Swing Line Lender will distribute to such Canadian Revolver Lender its Canadian Revolver Percentage thereof in the same funds as those received by the Swing Line Lender.

 

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(ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Canadian Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 5.5 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Canadian Revolver Lender shall pay to the Swing Line Lender its Canadian Revolver Percentage thereof on demand of Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Canadian Prime Rate. Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

(e) Interest for Account of Swing Line Lender . The Swing Line Lender shall be responsible for invoicing Canadian Borrower for interest on Canadian Swing Line Loans. Until each Canadian Revolver Lender funds its Canadian Base Rate Loan or Canadian Prime Rate Loan, as applicable, or risk participation pursuant to this Section 2.4.2(e) to refinance such Canadian Revolver Lender’s Canadian Revolver Percentage of any Canadian Swing Line Loan, interest in respect of such Canadian Revolver Percentage shall be solely for the account of the Swing Line Lender.

(f) Payments Directly to Swing Line Lender . Canadian Borrower shall make all payments of principal and interest in respect of the Canadian Swing Line Loans directly to the Swing Line Lender.

(g) Canadian Swing Line Loans . To the extent not previously refinanced under Section 2.4.2(c) , Canadian Borrower shall repay each Canadian Swing Line Loan on the earlier to occur of (i) the date ten Business Days after such Loan is made and (ii) the Commitment Maturity Date.

2.5 Out-of-Formula Loans .

2.5.1. U.S. Out-of-Formula Loans . If the U.S. Revolver Outstandings at any time should exceed the U.S. Borrowing Base at such time (a “U.S. Out-of-Formula Condition”), such U.S. Revolver Loans shall nevertheless constitute U.S. Obligations that are secured by the U.S. Collateral and entitled to all of the benefits of the Credit Documents. In the event that U.S. Revolver Lenders are willing in their sole and absolute discretion to make U.S. Out-of-Formula Loans or are required to do so by Section 2.8 or 13.9.4 hereof, such U.S. Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate.

2.5.2. Canadian Out-of-Formula Loans . If the Canadian Revolver Outstandings at any time should exceed the Canadian Borrowing Base at such time (a “Canadian Out-of-Formula Condition”), such Canadian Revolver Loans shall nevertheless constitute Obligations that are secured by the Canadian Collateral and entitled to all of the benefits of the Credit Documents. In the event that Canadian Revolver Lenders are willing in their sole and absolute discretion to make Canadian Out-of-Formula Loans or are required to do so by Section 13.9.5 hereof, such Canadian Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate.

2.6 Use of Proceeds . The proceeds of the Loans shall be used by Borrowers solely for one or more of the following purposes: (i) to pay the fees and transaction expenses associated with the closing of the transactions described herein; (ii) to pay any of the Obligations; (iii) to finance the acquisition of Ryerson by Parent and associated debt refinancings on the Closing Date (and in respect of the Ryerson Convertible Notes); (iv) to issue standby or commercial letters or credit; (v) to finance the ongoing general corporate (including working capital and capital expenditure) needs of Borrowers; and (vi) to make expenditures for other lawful corporate purposes of Borrowers to the extent such expenditures are not prohibited by this Agreement or Applicable Law. In no event may any Loan proceeds be used by any Borrower to make a contribution to the equity of any Subsidiary, to purchase or to carry, or to reduce, retire or refinance any Debt incurred to purchase or carry, any Margin Stock or for any related purpose, in each case, that violates the provisions of Regulations T, U or X of the Board of Governors.

2.7 [Reserved] .

 

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2.8 Administrative Agent Advances . Administrative Agent shall be authorized by Borrowers and Lenders, from time to time in Administrative Agent’s sole and absolute discretion, at any time that a Default or Event of Default exists or any of the conditions precedent set forth in Section 11 hereof have not been satisfied, to make U.S. Revolver Loans to U.S. Borrowers on behalf of U.S. Revolver Lenders in an aggregate amount outstanding at any time not to exceed 5% of the U.S. Borrowing Base (“ Agent Advances ”), but the aggregate principal amount of all outstanding U.S. Revolver Loans shall not exceed the aggregate amount of the U.S. Commitments (and to the extent that an Out-of-Formula Condition occurs as a result thereof, subject to Section 13.9.4 hereof), but only to the extent that Administrative Agent deems the funding of such Agent Advances to be necessary or desirable (i) to preserve or protect the Collateral or any portion thereof, (ii) to enhance the likelihood of or the amount of repayment of the Obligations or (iii) to pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement, including costs, fees and expenses, all of which Loans advanced by Administrative Agent shall be deemed part of the Obligations and secured by the Collateral; provided , however , that the Required U.S. Revolver Lenders may at any time revoke Administrative Agent’s authorization to make any such Agent Advances to U.S. Borrowers by written notice to Administrative Agent, which shall become effective upon and after Administrative Agent’s receipt thereof. Absent such revocation, Administrative Agent’s determination that funding an Agent Advance is appropriate shall be conclusive. Each U.S. Revolver Lender shall participate in each Agent Advance on a Pro Rata basis.

2.9 Increase in Commitments .

2.9.1. So long as no Default or Event of Default exists, Borrowers may request that the Commitments be increased and, upon such request, Administrative Agent shall use reasonable efforts in light of then current market conditions to solicit additional financial institutions to become Lenders for purposes of this Agreement, or to encourage any Lender to increase its Commitment; provided that (a) in the event that it becomes necessary to include a new financial institution to fund the amount of the requested increase in the Commitment, each such financial institution shall be an Eligible Assignee and each such financial institution shall become a Lender hereunder and agree to become party to, and shall assume and agree to be bound by, this Agreement, subject to all terms and conditions hereof; (b) no Lender shall have an obligation to Borrowers, Agents or any other Lender to increase its Commitment or its Pro Rata share of the Commitments, which decision shall be made in the sole discretion of each Lender; and (c) in no event shall the addition of any Lender or Lenders or the increase in the Commitment of any Lender under this Section 2.9.1 increase the aggregate Commitments (i) in any single instance by less than $100,000,000 or (ii) by an aggregate amount greater than $400,000,000 less the amount of any voluntary reductions under Section 5.3 hereof. Upon the addition of any Lender, or the increase in the Commitment of any Lender, Schedule 1 shall be amended by Administrative Agent and Borrowers to reflect such addition or such increase, and Administrative Agent shall deliver to the Lenders, Agents and Borrowers copies of such amended Schedule 1 . Borrowers shall not be required to pay to the applicable Agent, for its own account, an administrative or arrangement fee for the foregoing increase in the Commitments even if such fee requires the processing of any new Lender. Lenders shall be entitled to receive and Borrowers shall be obligated to pay a mutually agreeable amendment fee to the applicable Agent for the Pro Rata benefit of those Lenders who increase their Commitment and any new Lenders, such fee to be based upon the increase in their Commitments only and not on their aggregate Commitments after giving effect to such increase.

2.9.2. If any requested increase in the Commitments is agreed to in accordance with Section 2.9.1 above, Administrative Agent and Borrowers shall determine the effective date of such increase (the “Increase Effective Date”). Administrative Agent, with the consent and approval of Borrowers, shall promptly confirm in writing to the Lenders the final allocation of such increase as of the Increase Effective Date, and each new Lender and each existing Lender that has increased its Commitment shall purchase Loans and L/C Obligations from each other Lender in an amount such that, after such purchase or purchases, the amount of outstanding Loans and L/C Obligations from each Lender shall equal such Lender’s respective Pro Rata share of the U.S. Revolver Commitments and Canadian Revolver Commitments, as applicable, as modified to give effect to such increase, multiplied by the aggregate amount of Loans outstanding and L/C Obligations from all Lenders. As a condition precedent to the effectiveness of such increase, Borrowers shall deliver to Administrative Agent a certificate dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Senior Officer of Borrower Agent on behalf of Borrowers, including a Compliance Certificate demonstrating compliance with the terms of this Agreement and certification that, before and after giving effect to such increase, the representations and warranties contained in Section 9 of the Credit Agreement are true and correct in all material respects on and as of the Increase Effective Date

 

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(except to the extent any such representation or warranty is stated to relate solely to an earlier date) and no Default or Event of Default exists. Upon the request of any Lender, Borrowers shall deliver a new or amended U.S. Revolver Note or Canadian Revolver Note, as applicable, reflecting the new or increased Commitment of each new or affected Lender, as of the Increase Effective Date.

2.10 Evidence of Debt .

2.10.1. The Loans made by each Lender shall be evidenced by one or more accounts or records maintained by that Lender and by Administrative Agent in the ordinary course of business. The accounts or records maintained by Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Loans made by the Lenders to Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of Administrative Agent in respect of such matters, the accounts and records of Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through Administrative Agent, the applicable Borrowers shall execute and deliver to such Lender (through the applicable Agent) a Note, which shall evidence such Lender’s Loans to such Borrower in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

2.10.2. In addition to the accounts and records referred to in Section 3.12.1 , each Lender and Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by that Lender of participations in Letters of Credit and Canadian Swing Line Loans or U.S. Swing Line Loans, as applicable. In the event of any conflict between the accounts and records maintained by Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of Administrative Agent shall control in the absence of manifest error.

SECTION 3. INTEREST, FEES AND CHARGES

3.1 Interest .

3.1.1. Subject to the provisions of Section 3.1.2 , (i) each U.S. LIBOR Loan under the U.S. Revolver shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Adjusted LIBOR Rate for such Interest Period plus the Applicable Margin; (ii) each Canadian LIBOR Loan under the Canadian Revolver shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Adjusted LIBOR Rate for such Interest Period plus the Applicable Margin (iii) each BA Rate Loan under the Canadian Revolver shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the BA Rate for such Interest Period plus the Applicable Margin; (iv) each U.S. Base Rate Loan under the U.S. Revolver shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the U.S. Base Rate plus the Applicable Margin; (v) each Canadian Base Rate Loan under the Canadian Revolver shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Canadian Base Rate plus the Applicable Margin; (vi) each Canadian Prime Rate Loan under the Canadian Revolver shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Canadian Prime Rate plus the Applicable Margin; (vii) each Canadian Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to (A) the Canadian Base Rate plus the Applicable Margin applicable to Canadian Base Rate Loans or (B) the Canadian Prime Rate plus the Applicable Margin applicable to Canadian Prime Rate Loans, as applicable; and (viii) each U.S. Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the U.S. Base Rate plus the Applicable Margin applicable to U.S. Base Rate Loans.

3.1.2. (a) If any amount payable by a Borrower under any Credit Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by Applicable Law.

 

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(b) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

3.2 Fees . In addition to certain fees described in Sections 2.3.9 and 2.3.10 :

3.2.1. Unused Line Fee . U.S. Borrowers shall be jointly and severally obligated to pay to Administrative Agent for the Pro Rata benefit of U.S. Revolver Lenders a fee equal to the Applicable Unused Line Fee Margin for the unused line divided by three hundred sixty (360) days and multiplied by the number of days in the month and then multiplied by the amount, if any, by which the Average Revolver Balance with respect to the U.S. Revolver for such month (or portion thereof that the U.S. Revolver Commitments are in effect) is less than the aggregate amount of the U.S. Revolver Commitments, such fee to be paid on the first day of the following month; but if the U.S. Revolver Commitments are terminated on a day other than the first day of a month, then any such fee payable for the month in which termination shall occur shall be paid on the effective date of such termination and shall be based upon the number of days that have elapsed during such period. Canadian Borrower shall be obligated to pay to Canadian Agent for the Pro Rata benefit of Canadian Revolver Lenders a fee equal to the Applicable Unused Line Fee Margin for the unused line divided by three hundred sixty-five (365) days and multiplied by the number of days in the month and then multiplied by the amount, if any, by which the Average Revolver Balance with respect to the Canadian Revolver for such month (or portion thereof that the Canadian Revolver Commitments are in effect) is less than the aggregate amount of the Canadian Revolver Commitments, such fee to be paid on the first day of the following month; but if the Canadian Revolver Commitments are terminated on a day other than the first day of a month, then any such fee payable for the month in which termination shall occur shall be paid on the effective date of such termination and shall be based upon the number of days that have elapsed during such period.

3.2.2. Audit and Appraisal Fees . Borrowers shall reimburse the applicable Agent for all reasonable costs and expenses incurred by such Agent in connection with (i) examinations and reviews of any Borrower’s or any Canadian Subsidiary Guarantor’s, as applicable, books and records and such other matters pertaining to such Borrower or Canadian Subsidiary Guarantor, as applicable, or any Collateral as Administrative Agent shall deem appropriate in the exercise of its reasonable Credit Judgment and, in each case, shall pay to the applicable Agent the standard amount charged by the applicable Agent ($1,000 per person per day as of the Closing Date) for each day that an employee or agent of such Agent shall be engaged in an examination or review of such Borrower’s or Canadian Subsidiary Guarantor’s books and records, and (ii) appraisals of Inventory, at such times as may be determined by Administrative Agent; provided , however , that Borrowers shall not be obligated to reimburse the applicable Agent for more than the number of all field examinations and all appraisals of Collateral specified to be paid by Borrowers conducted as provided in Section 10.1.1 and in connection with satisfying the Acquired Accounts Eligibility Requirement or the Acquired Inventory Eligibility Requirement.

3.2.3. Administrative Agent’s Fee . In consideration of Bank of America’s service as Administrative Agent hereunder, U.S. Borrowers shall be jointly and severally obligated to pay to Bank of America an Administrative Agent’s fee in the amounts and on the dates provided in the Fee Letter.

3.2.4. Fee . In consideration of Bank of America’s and MLPFSI’s arrangement of the credit facility referenced herein, U.S. Borrowers shall be jointly and severally obligated to pay Bank of America and MLPFSI an arrangement fee as provided in the Engagement and Fee Letter.

3.2.5. General Provisions . All fees shall be fully earned by the identified recipient thereof pursuant to the foregoing provisions of this Agreement, the Fee Letter and the Engagement and Fee Letter on the due date thereof (and, in the case of Letters of Credit, upon each issuance, renewal or extension of such Letters of Credit) and, except as otherwise set forth herein or required by Applicable Law, shall not be subject to rebate, refund or proration. All fees provided for in this Section 3.2 are and shall be deemed to be compensation for services and are not, and shall not be deemed to be, interest or any other charge for the use, forbearance or detention of money.

 

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3.3 Reimbursement Obligations .

3.3.1. Borrowers shall reimburse the applicable Agent or, to the extent set forth below, any Collateral Agent (and during any period that an Event of Default exists, each Lender) for:

(i) all reasonable legal, accounting, appraisal, consulting and other fees and out-of-pocket expenses incurred by such Agent (and during any period that an Event of Default exists, any Lender) in connection with (a) the negotiation and preparation of any of the Credit Documents or any amendment or modification thereto; (b) the administration of the Credit Documents and the transactions contemplated thereby, subject to Section 3.2.2 hereof; and (c) any inspection of or audits conducted with respect to such Borrower’s or any Canadian Subsidiary Guarantor’s, as applicable, books and records or any of the Collateral, subject to Section 3.2.2 hereof; and

(ii) all legal, accounting, appraisal, consulting and other fees and out-of-pocket expenses incurred by the applicable Agent (and during any period that an Event of Default exists, any Lender) in connection with: (a) any effort to verify, protect, appraise (subject to Section 3.2.2 hereof), preserve, or restore any of the Collateral or to collect, sell, liquidate or otherwise dispose of or realize upon any of the Collateral; (b) any litigation, contest, dispute, suit, proceeding or action (whether instituted by or against such Agent, any applicable Collateral Agent, any applicable Lender, any applicable Borrower or any other Person) in any way arising out of or relating to any of the Collateral (or the validity, perfection or priority of such Agent’s Liens thereon), any of the Credit Documents or the validity, allowance or amount of any of the Obligations (unless such litigation is between Borrowers and the Canadian Subsidiary Guarantors and/or Agents and/or Collateral Agents and/or Lenders and a court having jurisdiction renders a final, non-appealable judgment against Agents and/or Collateral Agents and/or Lenders, in which event Borrowers shall not be liable for, as applicable, Agents’, Collateral Agents’ or Lenders’ costs of such litigation); (c) the protection or enforcement of any rights or remedies of such Agent, any applicable Collateral Agent or any applicable Lender in any Insolvency Proceeding; (d) any other action taken by such Agent, any applicable Collateral Agent or any applicable Lender to enforce any of the rights or remedies of such Agent, such Collateral Agent or such Lender against any Borrower or any Account Debtors to enforce collection of any of the Obligations or payments with respect to any of the Collateral; (e) any waiver of any Default or Event of Default under any of the Credit Documents, or any restructuring or forbearance with respect thereto; and (f) any action taken to perfect or maintain the perfection or priority of the applicable Agent’s Liens with respect to any of the Collateral. All amounts chargeable to Borrowers under this Section 3.3 shall constitute Obligations that are secured by all of the applicable Collateral and shall be payable on demand to the applicable Agent. Borrowers also shall reimburse the applicable Agent for expenses incurred by such Agent in its administration of any of the Collateral to the extent and in the manner provided in Section 8 hereof or in any of the other Credit Documents. The foregoing shall be in addition to, and shall not be construed to limit, any other provision of any of the Credit Documents regarding the reimbursement by Obligors of costs, expenses or liabilities suffered or incurred by any Agent, any Collateral Agent or any Lender.

3.3.2. If at any time, in connection with the administration of the Credit Documents or the normal day-to-day operations and maintenance of the Loans, Administrative Agent or (with the consent of Administrative Agent) MLPFSI or any Lender shall agree to indemnify any Person (including Bank of America or Bank of America-Canada Branch) against losses or damages that such Person may suffer or incur in its dealings or transactions with Borrowers and any Canadian Subsidiary Guarantor, or shall guarantee or provide assurance of payment or performance of any liability or obligation of Borrowers or any Canadian Subsidiary Guarantor to such Person, including with respect to Bank Product Debt, then the Contingent Obligation of any Agent or any Lender providing any such indemnity, guaranty or other assurance of payment or performance, together with any payment made or liability incurred by any Agent or any Lender in connection therewith, shall constitute Obligations that are secured by the Collateral and Borrowers shall repay, on demand, any amount so paid or any liability incurred by any Agent or any Lender in connection with any such indemnity, guaranty or assurance, except that repayment pursuant to Section 2.3.3(i) shall be due as set forth in that Section. Nothing herein shall be construed to impose upon any Agent or any Lender any obligation to provide any such indemnity, guaranty or assurance except to the extent provided in Section 2.3 hereof. Administrative Agent shall use reasonable efforts to notify Borrower Agent of such indemnity, guaranty or assurance to the extent that such indemnity, guaranty or assurance has not otherwise been expressly requested by Borrowers.

3.3.3. In the event that any financial statement or Borrowing Base Certificate delivered pursuant to Section 10.1.3 or 8.4 is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected would have led to a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then

 

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(i) Borrowers shall immediately deliver to Administrative Agent correct financial statements and a correct Borrowing Base Certificate for such Applicable Period, (ii) the Applicable Margin shall be determined by reference to the correct financial statements and corrected Borrowing Base Certificate (but in no event shall Lenders owe any amounts to Borrowers), and (iii) Borrowers shall immediately pay to the applicable Agent the additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the applicable Agent in accordance with the terms hereof. This Section 3.3.3 shall not limit the rights of any Agent and Lenders hereunder.

3.4 Bank Charges . Borrowers shall pay to the applicable Agent, on demand, any and all fees, costs or expenses which such Agent or any Lender pays to a bank or other similar institution (including any fees paid by any Agent or any Lender to any Participant) arising out of or in connection with (i) the forwarding to a Borrower or any other Person on behalf of Borrower by any Agent or any Lender of proceeds of Loans made by Lenders to a Borrower pursuant to this Agreement and (ii) the depositing for collection by any Agent or any Lender of any Payment Item received or delivered to any Agent or any Lender on account of the Obligations. Each Borrower acknowledges and agrees that any Agent may charge such costs, fees and expenses to Borrowers based upon such Agent’s good faith estimate of such costs, fees and expenses as they are incurred by such Agent or any Lender.

3.5 Illegality . If any Lender determines that any Applicable Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund LIBOR Loans or BA Rate Loans, or to determine or charge interest rates based upon the Adjusted LIBOR Rate or the BA Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, U.S. Dollars in the London interbank market or the position of such Lender in such Lender in such market in respect of Adjusted LIBOR determination or other circumstance affecting the determination of the BA Rate, then, on notice thereof by such Lender to Agent, any obligation of such Lender to make or continue LIBOR Loans or BA Rate Loans or to convert U.S. Base Rate Loans to U.S. LIBOR Loans, Canadian Base Rate Loans to Canadian LIBOR Loans or Canadian Prime Rate loans to BA Rate Loans shall be suspended until such Lender notifies Agent that the circumstances giving rise to such determination no longer exist. Upon delivery of such notice, Borrowers shall prepay or, if applicable, convert all U.S. LIBOR Loans, Canadian LIBOR Loans or BA Rate Loans of such Lender to U.S. Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBOR Loans or BA Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such LIBOR Loans or BA Rate Loans. Upon any such prepayment or conversion, Borrowers shall also pay accrued interest on the amount so prepaid or converted.

3.6 Increased Costs; Capital Adequacy .

3.6.1. Change in Law . If any Change in Law shall:

(a) impose modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in Adjusted LIBOR Rate or BA Rate) or Issuing Bank;

(b) subject any Lender or Issuing Bank to any Tax with respect to any Loan, Credit Document, Letter of Credit or participation in L/C Obligations, or change the basis of Taxation of payments to such Lender or Issuing Bank in respect thereof (except in either case to the extent such imposition or change, as applicable, relates to Indemnified Taxes or Other Taxes indemnified under Section 5.9 or Excluded Taxes); or

(c) impose on any Lender or Issuing Bank or the London interbank market or the Lender’s position in such market any other condition, cost or expense affecting any Loan, Credit Document, Letter of Credit or participation in L/C Obligations;

and the result thereof shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan or BA Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in

 

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or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or Issuing Bank, the applicable Borrowers will pay to such Lender or Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered.

3.6.2. Capital Adequacy . If any Lender or Issuing Bank determines that any Change in Law affecting such Lender or Issuing Bank or any Lending Office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s or holding company’s capital as a consequence of this Agreement, or such Lender’s or Issuing Bank’s Commitments, Loans, Letters of Credit or participations in L/C Obligations, to a level below that which such Lender, Issuing Bank or holding company could have achieved but for such Change in Law (taking into consideration such Lender’s, Issuing Bank’s and holding company’s policies with respect to capital adequacy), then from time to time the applicable Borrowers will pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate it or its holding company for any such reduction suffered.

3.6.3. Compensation . Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of its right to demand such compensation, but Borrowers shall not be required to compensate a Lender or Issuing Bank for any increased costs incurred or reductions suffered more than nine months prior to the date that the Lender or Issuing Bank notifies Borrower Agent of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

3.7 Mitigation . If any Lender gives a notice under Section 3.5 or requests compensation under Section 3.6 , or if Borrowers are required to pay additional amounts with respect to a Lender under Section 5.9 , then such Lender shall use reasonable efforts to designate a different Lending Office or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (a) would eliminate the need for such notice or reduce amounts payable in the future, as applicable; and (b) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrowers agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

3.8 Funding Losses . If for any reason (other than default by a Lender) (a) any Borrowing of, or conversion to or continuation of, a LIBOR Loan or BA Rate Loan does not occur on the date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn), (b) any repayment or conversion of a LIBOR Loan or a BA Rate Loan occurs on a day other than the end of its Interest Period, or (c) Borrowers fail to repay a LIBOR Loan or BA Rate Loan when required hereunder, then the applicable Borrowers shall pay to the applicable Agent its customary administrative charge and to each Lender all losses and expenses that it sustains as a consequence thereof, including loss of anticipated profits and any loss or expense arising from liquidation or redeployment of funds or from fees payable to terminate deposits of matching funds. Lenders shall not be required to purchase U.S. Dollar deposits in the London interbank market or any other offshore U.S. Dollar market to fund any LIBOR Loan or purchase any bankers’ acceptances to fund any BA Rate Loan, but the provisions hereof shall be deemed to apply as if each Lender had purchased such deposits or bankers’ acceptances, as applicable, to fund its LIBOR Loans or BA Rate Loans, as applicable.

3.9 Maximum Interest .

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

 

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3.9.2. Without limiting the generality of Section 3.9.1 , if any provision of any of the Credit Documents would obligate Canadian Obligors to make any payment of interest with respect to the Canadian Obligations in an amount or calculated at a rate which would be prohibited by Applicable Law or would result in the receipt of interest with respect to the Canadian Obligations at a criminal rate (as such terms are construed under the Criminal Code (Canada)), then notwithstanding such provision, such amount or rates shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a receipt by the applicable recipient of interest with respect to the Canadian Obligations at a criminal rate, such adjustment to be effected, to the extent necessary, as follows: (i) first, by reducing the amount or rates of interest required to be paid to the applicable recipient under the Credit Documents; and (ii) thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid to the applicable recipient which would constitute interest with respect to the Canadian Obligations for purposes of Section 347 of the Criminal Code (Canada). Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if the applicable recipient shall have received an amount in excess of the maximum permitted by that section of the Criminal Code (Canada), then Canadian Obligors shall be entitled, by notice in writing to Canadian Agent, to obtain reimbursement from the applicable recipient in an amount equal to such excess, and pending such reimbursement, such amount shall be deemed to be an amount payable by the applicable recipient to the applicable Canadian Obligor. Any amount or rate of interest with respect to the Canadian Obligations referred to in this Section 3.9.2 shall be determined in accordance with generally accepted actuarial practices and principles as an effective annual rate of interest over the term that any Canadian Revolver Loans to Canadian Borrower remain outstanding on the assumption that any charges, fees or expenses that fall within the meaning of “interest” (as defined in the Criminal Code (Canada)) shall, if they relate to a specific period of time, be prorated over that period of time and otherwise be prorated over the period from the Closing Date to the date of Full Payment of the Canadian Obligations, and, in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by Canadian Agent shall be conclusive for the purposes of such determination.

3.10 Computation of Interest and Fees . All computations of interest for (i) U.S. Base Rate Loans when the U.S. Base Rate is determined by the Prime Rate, (ii) Canadian Base Rate Loans when the Canadian Base Rate is determined by Bank of America-Canada Branch’s “base rate,” (iii) Canadian Prime Rate Loans when the Canadian Prime Rate is determined by Bank of America-Canada Branch’s “prime rate” and (iv) BA Rate Loans shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 4.1.1 , bear interest for one day. Each determination by Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. For the purposes of the Interest Act (Canada), (i) whenever any interest under this Agreement or any other Credit Document is calculated using a rate based on a year of 360 days, the rate determined pursuant to such calculation, when expressed as an annual rate, is equivalent to (x) the applicable rate, (y) multiplied by the actual number of days in the calendar year in which the period for which such interest is payable (or compounded) ends, and (z) divided by 360, (ii) the principle of deemed reinvestment of interest does not apply to any interest calculation under this Agreement, and (iii) the rates of interest stipulated in this Agreement are intended to be nominal rates and not effective rates or yields.

3.11 Replacement of Lenders . Borrower Agent shall be permitted to replace any Lender that requests reimbursement for any amount reimbursable by Borrowers pursuant to any of Sections 3.6.1 , 3.6.2 or 5.9 ; provided that (i) such replacement does not conflict with any Applicable Law, (ii) no Event of Default shall have occurred and be continuing at the time of such replacement, (iii) if applicable, prior to any such replacement, such Lender shall not have taken appropriate action under Section 3.7 so as to eliminate the continued need for payment of such amounts, (iv) Borrowers shall be liable to such replaced Lender under Section 3.8 if any LIBOR Loan or BA Rate Loan owing to such replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto, (v) the replacement financial institution, if not already a Lender, shall be reasonably satisfactory to Administrative

 

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Agent, (vi) the transfer shall be made in accordance with the provisions of Section 14.1 ( provided that the applicable Borrowers shall be obligated to pay the registration and processing fee referred to therein) and by its execution of this Agreement each Lender hereby authorizes Agents to act as its agent in executing any documents to replace such Lender in accordance with this Section 3.11 , and (vii) any such replacement shall not be deemed to be a waiver of any rights that Borrowers, Agents, the Collateral Agents or any other Lender shall have against the replaced Lender.

SECTION 4. LOAN ADMINISTRATION

4.1 Payments Generally; Administrative Agent’s Clawback .

4.1.1. General . All payments to be made by Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrowers hereunder shall be made to the applicable Agent, for the account of the respective Lenders to which such payment is owed, at the appropriate Administrative Agent’s Office in U.S. Dollars or Canadian Dollars, as applicable, and in immediately available funds not later than 11:00 a.m. on the date specified herein. The applicable Agent will promptly distribute to each Lender its Pro Rata share in respect of the relevant Facility (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to that Lender’s Lending Office. All payments received by the applicable Agent after 11:00 a.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by a Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected on computing interest or fees, as the case may be.

4.1.2. (a) Funding by Lenders; Presumption by Administrative Agent. Unless Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of LIBOR Loans or BA Rate Loans (or, in the case of any Borrowing of U.S. Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, prior to 11:00 a.m. on the date of such Borrowing) that that Lender will not make available to the applicable Agent that Lender’s share of such Borrowing, the applicable Agent may assume that that Lender has made such share available on such date in accordance with Section 2.2 (or, in the case of a Borrowing of U.S. Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, that that Lender has made such share available in accordance with and at the time required by Section 2.2 ) and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the applicable Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the applicable Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the applicable Agent, at (A) in the case of a payment to be made by that Lender, the greater of the Federal Funds Rate (or, in respect of any payments under the Canadian Revolver, the Canadian Prime Rate) and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the applicable Agent in connection with the foregoing, and (B) in the case of a payment to be made by a Borrower, the interest rate applicable to U.S. Base Rate Loans, or if such payment relates to Canadian Revolver Loans, the interest rate applicable to Canadian Base Rate Loans or Canadian Prime Rate Loans (as applicable). If such Borrower and that Lender shall pay such interest to the applicable Agent for the same or an overlapping period, the applicable Agent shall promptly remit to such Borrower the amount of such interest paid by such Borrower for such period. If that Lender pays its share of the applicable Borrowing to the applicable Agent, then the amount so paid shall constitute that Lender’s Loan included in such Borrowing. Any payment by a Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the applicable Agent.

(b) Payments by Borrowers; Presumptions by Administrative Agent . Unless Administrative Agent shall have received notice from a Borrower prior to the time at which any payment is due to the applicable Agent for the account of Lenders or the Issuing Bank hereunder that such Borrower will not make such payment, the applicable Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or the Issuing Bank, as the case may be, the amount due. In such event, if such Borrower has not in fact made such payment, then each of the relevant Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the applicable Agent forthwith on demand

 

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the amount so distributed to that Lender or the Issuing Bank, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the applicable Agent, at the greater of (i) the Federal Funds Rate, with respect to payment in respect of the U.S. Revolver or the Canadian Prime Rate, with respect to payment in respect of the Canadian Revolver and (ii) a rate determined by the applicable Agent in accordance with banking industry rules on interbank compensation.

A notice of Administrative Agent to any Lender or a Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

4.1.3. Failure to Satisfy Conditions Precedent . If any Lender makes available to the applicable Agent funds for any Loan to be made by that Lender as provided in the foregoing provisions of Section 2 and Section 3 , and such funds are not made available to the applicable Borrower by the applicable Agent because the conditions to the applicable Credit Extension set forth in Section 11.2 are not satisfied or waived in accordance with the terms hereof, the applicable Agent promptly shall return such funds (in like funds as received from that Lender) to that Lender, without interest.

4.1.4. Obligations of Lenders Several . The obligations of Lenders hereunder to make the U.S. Revolver Loans and the Canadian Revolver Loans, to fund participations in Letters of Credit, Canadian Swing Line Loans and U.S. Swing Line Loans and to make payments pursuant to Section 15.2 are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 15.2 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 15.2 .

4.1.5. Funding Source . Subject to the definition of “Canadian Revolver Lender,” nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

4.1.6. Insufficient Funds . If at any time insufficient funds are received by and available to Agents to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.

4.2 Defaulting Lender .

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

(a) Waivers and Amendments . That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 13.9 .

(b) Reallocation of Payments . Any payment of principal, interest, fees or other amounts received by Administrative Agent or Canadian Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 12 or otherwise), shall be applied at such time or times as may be determined by Administrative Agent as follows: first , to the payment of any amounts owing by that Defaulting Lender to Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the Issuing Bank or Swing Line Lender hereunder; third , if so determined by Administrative Agent or requested by the Issuing Bank or Swing Line Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Swing Line Loan or Letter of Credit then outstanding; fourth , as any Borrower may request (so long as no Default

 

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or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; fifth , if so determined by Administrative Agent and the Borrower Agent, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth , to the payment of any amounts owing to the Lenders, the Issuing Bank or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by any Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were made at a time when the conditions set forth in Section 11.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 4.2.1(b) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

(c) Certain Fees . That Defaulting Lender shall not be entitled to receive any Letter of Credit Fee pursuant to Section 2.3.9 for any period during which that Lender is a Defaulting Lender (and no Borrower shall be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

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

(e) Defaulting Lender Cure . If the Borrowers, the Administrative Agent, Swing Line Lender and the Issuing Bank agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Committed Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 4.2.1(d) ), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

4.3 Special Provisions Governing LIBOR Loans .

4.3.1. [ Reserved ]

 

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4.3.2. [ Reserved ]

4.3.3. LIBOR Lending Office . Each Lender’s initial LIBOR Lending Office is set forth on Schedule 2 hereof. Each Lender shall have the right at any time and from time to time to designate a different office of itself or of any Affiliate as such Lender’s LIBOR Lending Office, and to transfer, any outstanding LIBOR Loans to such LIBOR Lending Office. No such designation or transfer shall result in any liability on the part of Borrowers for increased costs or expenses resulting solely from such designation or transfer. Provided that a change in Applicable Law was not in effect at the time of such designation or transfer, increased costs for expenses resulting from such change in Applicable Law occurring subsequent to any such designation or transfer shall be deemed not to result solely from such designation or transfer.

4.4 Borrower Agent . Each Borrower hereby irrevocably appoints Ryerson, and Ryerson agrees to act under this Agreement, as the agent and representative of itself and each other Borrower for all purposes under this Agreement, including requesting Borrowings, selecting whether any Loan or portion thereof is to bear interest as a U.S. Base Rate Loan, a U.S. LIBOR Loan, a Canadian LIBOR Loan a Canadian Base Rate Loan, a Canadian Prime Rate Loan or a BA Rate Loan, and receiving account statements and other notices and communications to Borrowers (or any of them) from Administrative Agent. Administrative Agent may rely, and shall be fully protected in relying, on any Notice of Borrowing, Notice of Conversion/Continuation, disbursement instructions, reports, information, Borrowing Base Certificate or any other notice or communication made or given by Borrower Agent, whether in its own name, on behalf of any Borrower or on behalf of “the Borrowers,” and Administrative Agent shall have no obligation to make any inquiry or request any confirmation from or on behalf of any other Borrower as to the binding effect on such Borrower of any such Notice of Borrowing, instruction, report, information, Borrowing Base Certificate or other notice or communication from Borrower Agent, nor shall any joint and several character of Borrowers’ liability for the Obligations be affected. Administrative Agent may maintain a Loan Account in the name of “Ryerson Group, Inc.” hereunder with respect to the U.S. Revolver and a Loan Account in the name of “Ryerson Canada, Inc.” with respect to the Canadian Revolver, and each Borrower expressly agrees to such arrangement and confirms that such arrangement shall have no effect on any joint and several character of such Borrower’s liability for the Obligations.

4.5 U.S. Revolver Loans to Constitute One Obligation . The U.S. Revolver Loans shall constitute one general obligation of U.S. Borrowers and (unless otherwise expressly provided in any Security Document) shall be secured by Administrative Agent’s Lien upon all of the Collateral attributable to U.S. Borrowers; provided , however , that each Agent, each Collateral Agent and each U.S. Revolver Lender shall be deemed to be a creditor of each U.S. Borrower and the holder of a separate claim against each U.S. Borrower to the extent of any Obligations jointly and severally owed by U.S. Borrowers to such Agent, such Collateral Agent or such U.S. Revolver Lender.

SECTION 5. PAYMENTS

5.1 General Payment Provisions . All payments (including all prepayments) of principal of and interest on the Loans, L/C Obligations and other Obligations that are payable to any Agent or any Lender shall be made (a) to Administrative Agent with respect to the U.S. Revolver Loans, in U.S. Dollars, and (b) to Canadian Agent with respect to the Canadian Revolver Loans, in Canadian Dollars or U.S. Dollars, as applicable, in each case, subject to Section 5.9 hereof, without any offset or counterclaim and free and clear of (and without deduction for) any present or future Taxes, and, with respect to payments made other than by application of balances in the Payment Account, in immediately available funds not later than 11:00 a.m. on the due date (and payment made after such time on the due date to be deemed to have been made on the next succeeding Business Day). All payments received by the applicable Agent shall be distributed by the applicable Agent in accordance with Section 5.7 hereof, subject to the rights of offset that the applicable Agent may have as to amounts otherwise to be remitted to a particular Lender by reason of amounts due the applicable Agent from such Lender under any of the Credit Documents.

 

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5.2 Repayment of Loans .

5.2.1. Payment of Principal . The outstanding principal amounts with respect to the Loans shall be repaid as follows:

(i) Any U.S. Base Rate Loans shall be paid by the U.S. Borrowers to Administrative Agent, for the Pro Rata benefit of U.S. Revolver Lenders immediately upon the Commitment Maturity Date.

(ii) Any Canadian Base Rate Loans or Canadian Prime Rate Loans shall be paid by Canadian Borrower to Canadian Agent, for the Pro Rata benefit of Canadian Revolver Lenders immediately upon the Commitment Maturity Date.

(iii) Any U.S. LIBOR Loans shall be paid by the applicable Borrower to Administrative Agent, for the Pro Rata benefit of U.S. Revolver Lenders, immediately upon (a) the last day of the Interest Period applicable thereto, unless converted to a U.S. Base Rate Loan or continued as a U.S. LIBOR Loan in accordance with the terms of this Agreement, and (b) the Commitment Maturity Date. In no event shall Borrowers be authorized to make a voluntary prepayment with respect to any U.S. LIBOR Loan prior to the last day of the Interest Period applicable thereto unless Borrowers pay to Administrative Agent, for the Pro Rata benefit of Lenders, concurrently with any prepayment of a U.S. LIBOR Loan, any amount due Administrative Agent and Lenders under Section 3.8 hereof as a consequence of such prepayment.

(iv) Any Canadian LIBOR Loans shall be paid by Canadian Borrower to Canadian Agent, for the Pro Rata benefit of Canadian Revolver Lenders, immediately upon (a) the last day of the Interest Period applicable thereto, unless converted to a Canadian Base Rate Loan or continued as a Canadian LIBOR Loan in accordance with the terms of this Agreement, and (b) the Commitment Maturity Date. In no event shall Canadian Borrower be authorized to make a voluntary prepayment with respect to any Canadian LIBOR Loan prior to the last day of the Interest Period applicable thereto unless Canadian Borrower pays to Canadian Agent, for the Pro Rata benefit of Canadian Lenders, concurrently with any prepayment of a Canadian LIBOR Loan, any amount due Canadian Agent and Canadian Lenders under Section 3.8 hereof as a consequence of such prepayment.

(v) Any BA Rate Loans shall be paid by Canadian Borrower to Canadian Agent, for the Pro Rata benefit of Canadian Revolver Lenders, immediately upon (a) the last day of the Interest Period applicable thereto, unless converted to a Canadian Prime Rate Loan or continued as a BA Rate Loan in accordance with the terms of this Agreement, and (b) the Commitment Maturity Date. In no event shall Canadian Borrower be authorized to make a voluntary prepayment with respect to any Canadian Revolver Loan outstanding as a BA Rate Loan prior to the last day of the Interest Period applicable thereto unless Canadian Borrower pays to Canadian Agent, for the Pro Rata benefit of Canadian Revolver Lenders, concurrently with any prepayment of a BA Rate Loan, any amount due Canadian Agent and Lenders under Section 3.8 hereof as a consequence of such prepayment.

(vi) Notwithstanding anything to the contrary contained elsewhere in this Agreement (but subject to Section 13.9.4 ), if a U.S. Out-of-Formula Condition shall exist, U.S. Borrowers shall, on the sooner to occur of Administrative Agent’s demand or the first Business Day after any U.S. Borrower has obtained knowledge of such U.S. Out-of-Formula Condition, repay outstanding U.S. Base Rate Loans in an amount sufficient to reduce the aggregate unpaid principal amount of all U.S. Revolver Loans by an amount sufficient to cure the U.S. Out-of-Formula Condition; and, if such payment of U.S. Base Rate Loans is not sufficient to eliminate the U.S. Out-of-Formula Condition, then U.S. Borrowers shall immediately deposit with Administrative Agent, for the Pro Rata benefit of U.S. Revolver Lenders, for application to any outstanding U.S. Revolver Loans bearing interest as U.S. LIBOR Loans as the same become due and payable (whether at the end of the applicable Interest Periods or on the Commitment Maturity Date) cash in an amount sufficient to eliminate such U.S. Out-of-Formula Condition, and Administrative Agent may (a) hold such deposit as cash security pending disbursement of same to U.S. Revolver Lenders for application to the U.S. Obligations, or (b) if a Default or Event of Default exists, immediately apply such proceeds to the payment of the U.S. Obligations, including the U.S. LIBOR Loans (in which event U.S. Borrowers shall also pay to Administrative Agent for the Pro Rata benefit of U.S. Revolver Lenders any amounts required by Section 3.8 to be paid by reason of the prepayment of a U.S. LIBOR Loan prior to the last day of the Interest Period applicable thereto).

 

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(vii) Notwithstanding anything to the contrary contained elsewhere in this Agreement (but subject to Section 13.9.5 ), if a Canadian Out-of-Formula Condition shall exist, Canadian Borrower shall, on the sooner to occur of Canadian Agent’s demand or the first Business Day after Canadian Borrower has obtained knowledge of such Canadian Out-of-Formula Condition, repay outstanding Canadian Base Rate Loans and Canadian Prime Rate Loans in an amount sufficient to reduce the aggregate unpaid principal amount of all Canadian Revolver Loans by an amount sufficient to cure the Canadian Out-of-Formula Condition; and, if such payment of Canadian Base Rate Loans and Canadian Prime Rate Loans is not sufficient to eliminate the Canadian Out-of-Formula Condition, then Canadian Borrower shall immediately deposit with Canadian Agent, for the Pro Rata benefit of Canadian Revolver Lenders, for application to any outstanding Canadian LIBOR Loans or BA Rate Loans as the same become due and payable (whether at the end of the applicable Interest Periods or on the Commitment Maturity Date, cash in an amount sufficient to eliminate such Canadian Out-of-Formula Condition, and Canadian Agent may (a) hold such deposit as cash security pending disbursement of same to Canadian Revolver Lenders for application to the Canadian Obligations, or (b) if a Default or Event of Default exists, immediately apply such proceeds to the payment of the Canadian Obligations, including the Canadian LIBOR Loans and BA Rate Loans (in which event Canadian Borrower shall also pay to Canadian Agent for the Pro Rata benefit of Canadian Revolver Lenders any amounts required by Section 3.8 to be paid by reason of the prepayment of a Canadian LIBOR Loan or BA Rate Loan prior to the last day of the Interest Period applicable thereto).

5.2.2. Payment of Interest . Interest accrued on the U.S. Revolver Loans shall be due and payable on (i) the first day of each month (for the immediately preceding month), computed through the last day of the preceding month, with respect to any U.S. Revolver Loan (that is a U.S. Base Rate Loan), (ii) with respect to any U.S. LIBOR Loan with an interest period longer than three months, at the end of each three-month period such U.S. LIBOR Loan is outstanding and (iii) the last day of the applicable Interest Period in the case of any U.S. LIBOR Loan. Accrued interest shall also be paid by Borrowers on the Commitment Maturity Date. With respect to any U.S. Base Rate Loan converted into a U.S. LIBOR Loan pursuant to Section 2.2.1 on a day when interest would not otherwise have been payable with respect to such U.S. Base Rate Loan, accrued interest to the date of such conversion on the amount of such U.S. Base Rate Loan so converted shall be paid on the conversion date. Interest accrued on the Canadian Revolver Loans shall be due and payable on (i) the first day of each month (for the immediately preceding month), computed through the last day of the preceding month, with respect to any Canadian Revolver Loan (that is a Canadian Base Rate Loan or Canadian Prime Rate Loan) and (ii) with respect to any Canadian LIBOR Loan or BA Rate Loan with an interest period longer than three months, at the end of each three-month period such Canadian LIBOR Loan or BA Rate Loan is outstanding and (iii) the last day of the applicable Interest Period in the case of a Canadian LIBOR Loan or a BA Rate Loan. Accrued interest shall also be paid by Borrowers on the Commitment Maturity Date. With respect to any Canadian Base Rate Loan or Canadian Prime Rate Loan converted into a Canadian LIBOR Loan or BA Rate Loan pursuant to Section 2.2.1 on a day when interest would not otherwise have been payable with respect to such Canadian Base Rate Loan or Canadian Prime Rate Loan, accrued interest to the date of such conversion on the amount of such Canadian Base Rate Loan or Canadian Prime Rate Loan so converted shall be paid on the conversion date.

5.2.3. Optional Prepayments .

(i) Any Borrower may, upon notice to Administrative Agent, at any time or from time to time voluntarily prepay the Loans owed by that Borrower in whole or in part without premium or penalty; provided that:

(A) such notice must be received by Administrative Agent not later than 11:00 a.m. (x) three Business Days prior to any date of prepayment of LIBOR Loans or BA Rate Loans and (y) one Business Day prior to the prepayment of U.S. Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans;

(B) each prepayment of LIBOR Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof;

(C) each prepayment of U.S. Base Rate Loans or Canadian Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.

 

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(D) each prepayment of BA Rate Loans shall be in a principal amount of Cdn$1,000,000 or a whole multiple of Cdn$500,000 in excess thereof; and

(E) each prepayment of Canadian Prime Rate Loans shall be in a principal amount of Cdn$500,000 or a whole multiple of Cdn$100,000 in excess thereof

or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if LIBOR Loans or BA Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of that Lender’s ratable portion of such prepayment (based on that Lender’s Applicable Percentage in respect of the relevant Facility). Any prepayment of a LIBOR Loan or BA Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.8 .

(ii) U.S. Borrower may, upon notice to the Swing Line Lender (with a copy to Administrative Agent), at any time or from time to time, voluntarily prepay U.S. Swing Line Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Swing Line Lender and Administrative Agent not later than 11:00 a.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by U.S. Borrower, U.S. Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

(iii) Canadian Borrower may, upon notice to the Swing Line Lender (with a copy to Administrative Agent), at any time or from time to time, voluntarily prepay Canadian Swing Line Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Swing Line Lender and Administrative Agent not later than 11:00 a.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $100,000 or Cdn$100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by Canadian Borrower, Canadian Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

5.3 Termination or Reduction of Commitments .

5.3.1. Optional . The Borrowers may, upon notice to Administrative Agent, terminate the U.S. Revolver Commitment, the Canadian Revolver Commitment, the U.S. L/C Sublimit, the Canadian L/C Sublimit, the Canadian Swing Line Sublimit or the U.S. Swing Line Sublimit, or from time to time permanently reduce the U.S. Revolver Commitment, the Canadian Revolver Commitment, the U.S. L/C Sublimit, the Canadian L/C Sublimit, the Canadian Swing Line Sublimit or the U.S. Swing Line Sublimit; provided that:

(i) any such notice shall be received by Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination or reduction;

(ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $5,000,000 in excess thereof or, if less, the entire remaining amount of the applicable Commitment;

(iii) the Borrowers shall not terminate or reduce the U.S. Revolver Commitment if, after giving effect thereto and to any concurrent prepayments hereunder, the U.S. Revolver Outstandings would exceed the U.S. Revolver Commitment;

(iv) the Borrowers shall not terminate or reduce the Canadian Revolver Commitment if, after giving effect thereto and to any concurrent prepayments hereunder, the Canadian Revolver Outstandings would exceed the Canadian Revolver Commitment;

 

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(v) the Borrowers shall not terminate or reduce the U.S. L/C Sublimit if, after giving effect thereto, the Outstanding Amount of U.S. L/C Obligations not fully Cash Collateralized hereunder would exceed the U.S. L/C Sublimit;

(vi) the Borrowers shall not terminate or reduce the Canadian L/C Sublimit if, after giving effect thereto, the Outstanding Amount of Canadian L/C Obligations not fully Cash Collateralized hereunder would exceed the Canadian L/C Sublimit;

(vii) the Borrowers shall not terminate or reduce the Canadian Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Canadian Swing Line Loans would exceed the Canadian Swing Line Sublimit; and

(viii) the Borrowers shall not terminate or reduce the U.S. Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of U.S. Swing Line Loans would exceed the U.S. Swing Line Sublimit.

5.3.2. Application of Commitment Reductions; Payment of Fees .

(i) Administrative Agent will promptly notify the Lenders of any termination or reduction of the U.S. L/C Sublimit, the U.S. Swing Line Sublimit or the U.S. Revolver Commitment under this Section 5.3 . Upon any reduction of the U.S. Revolver Commitments, the U.S. Revolver Commitment of each U.S. Revolver Lender shall be reduced by that Lender’s U.S. Revolver Percentage of such reduction amount. All fees in respect of the U.S. Revolver accrued until the effective date of any termination of the U.S. Revolver shall be paid to the U.S. Revolver Lenders on the effective date of such termination.

(ii) Administrative Agent will promptly notify the Canadian Revolver Lenders of any termination or reduction of the Canadian L/C Sublimit, the Canadian Swing Line Sublimit or the Canadian Revolver Commitment under this Section 5.3 . Upon any reduction of the Canadian Revolver Commitments, the Canadian Revolver Commitment of each Canadian Revolver Lender shall be reduced by that Lender’s Canadian Revolver Percentage of such reduction amount. All fees in respect of the Canadian Revolver accrued until the effective date of any termination of the Canadian Revolver shall be paid to the Canadian Revolver Lenders on the effective date of such termination.

5.4 Payment of Other Obligations . The balance of the Obligations requiring the payment of money, including the L/C Obligations and Extraordinary Expenses incurred by any Agent or any Lender, shall be repaid by Borrowers to Administrative Agent for allocation among Agents and Lenders as provided in the Credit Documents, or, if no date of payment is otherwise specified in the Credit Documents, on demand.

5.5 Marshaling; Payments Set Aside . Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of Borrowers or against or in payment of any or all of the Obligations. To the extent that Borrowers make a payment or payments to any Agent or Lenders or any of such Persons receives payment from the proceeds of any Collateral or exercises its right of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other Person, then to the extent of any loss by Agents or Lenders, the Obligations or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such payment or proceeds had not been made or received and any such enforcement or setoff had not occurred. The provisions of the immediately preceding sentence of this Section 5.5 shall survive any termination of the Commitments and Payment in Full of the Obligations.

5.6 Post-Default Allocation of Payments and Collections . Notwithstanding anything herein to the contrary, during an Event of Default, all monies to be applied to the Obligations, whether arising from payments by Obligors, realization on Collateral, setoff or otherwise, shall be allocated among the applicable Agent, applicable Collateral Agent and such of the Lenders as are entitled thereto (and, with respect to monies allocated to Lenders, on a Pro Rata basis unless otherwise provided herein): (i)  FIRST , to the applicable Agent to pay principal and accrued

 

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interest on Agent Advances and any other portion of the Loans which the applicable Agent may have advanced on behalf of any Lender and for which the applicable Agent has not been reimbursed by such Lender or Borrowers; (ii)  SECOND , to the extent that Issuing Bank has not received from any Participating Lender a payment as required by Section 2.3.3 hereof, to Issuing Bank to pay all such required payments from each Participating Lender and to the extent Swing Line Lender has not received payment from any Lender as required herein, to pay all such required payments; (iii)  THIRD , to the applicable Agent to pay the amount of Extraordinary Expenses and amounts owing to the applicable Agent pursuant to Section 15.10 hereof that have not been reimbursed to the applicable Agent by Borrowers or Lenders, together with interest accrued thereon at the rate applicable to U.S. Revolver Loans that are U.S. Base Rate Loans or Canadian Revolver Loans that are Canadian Base Rate Loans; (iv)  FOURTH , to the applicable Agent or applicable Collateral Agent to pay any amount with respect to Indemnified Claims that has not been paid to the applicable Agent or applicable Collateral Agent in its capacity as such by Borrowers or Lenders, together with interest accrued thereon at the rate applicable to U.S. Revolver Loans that are U.S. Base Rate Loans or Canadian Revolver Loans that are Canadian Base Rate Loans; (v)  FIFTH , to the applicable Agent to pay any fees due and payable to the applicable Agent in its capacity as such; (vi)  SIXTH , to each Lender for any amount with respect to Indemnified Claims that such Lender has paid to the applicable Agent and any Extraordinary Expenses that such Lender has reimbursed to such Agent or such Lender has incurred, to the extent that such Lender has not been reimbursed by Borrowers therefor; (vii)  SEVENTH , to Issuing Bank to pay principal and interest with respect to L/C Obligations (or to the extent any of the L/C Obligations are contingent and an Event of Default then exists, deposited in the Cash Collateral Account to provide security for the payment of the L/C Obligations), which payment shall be shared with the Participating Lenders in accordance with Section 2.3.3 hereof; (viii)  EIGHTH , to Lenders in payment of the unpaid principal and accrued interest in respect of the Loans; (ix)  NINTH , to the payment of the Hedging Obligations; (x)  TENTH , to the payment of any other Obligations then outstanding (excluding any Bank Product Debt other than Hedging Obligations); and (xi)  ELEVENTH , to the payment of any Bank Product Debt other than Hedging Obligations. Amounts shall be applied to each category of Obligations set forth above until full payment thereof and then to the next category. If amounts are insufficient to satisfy a category, they shall be applied on a Pro Rata basis among the Obligations in the category. The allocations set forth in this Section 5.6 are solely to determine the rights and priorities of the Agents, the Collateral Agents and Lenders as among themselves and may be changed by the Agents, the Collateral Agents and Lenders without notice to or the consent or approval of any Borrower or any other Person.

5.7 Application of Payments and Collateral Proceeds . All Payment Items received by the applicable Agent by 11:00 a.m. on any Business Day shall be deemed received on that Business Day. All Payment Items received by the applicable Agent after 12:00 noon, on any Business Day shall be deemed received on the following Business Day. Each Borrower irrevocably waives the right to direct the application of any and all payments and Collateral proceeds at any time or times hereafter received by any Agent or any Lender from or on behalf of Borrowers, and each Borrower does hereby irrevocably agree that any Agent shall have the continuing exclusive right to apply and reapply any and all such payments and Collateral proceeds received at any time or times hereafter by any Agent against the Obligations, in such manner as Administrative Agent may deem advisable in accordance with this Agreement, notwithstanding any entry by Administrative Agent upon any of its books and records; provided , however , that Administrative Agent will apply (i) any proceeds of Collateral of Canadian Borrower to the Canadian Obligations and (ii) any proceeds of Collateral of U.S. Borrowers to the Obligations (other than the Canadian Obligations). If, as the result of Administrative Agent’s collection of proceeds of Accounts and other Collateral as authorized by Section 8.2.6 a credit balance exists, such credit balance shall not accrue interest in favor of Borrowers, but shall be available to Borrowers at any time or times for so long as no Default or Event of Default exists. U.S. Revolver Lenders may, at their option, apply such credit balance against any of the Obligations upon and after the occurrence of an Event of Default.

5.8 Loan Accounts .

5.8.1. Each Lender shall maintain in accordance with its usual and customary practices an account or accounts (a “ Loan Account ”) evidencing the Debt of Borrowers to such Lender resulting from each Loan owing to such Lender from time to time, including the amount of principal and interest payable to such Lender from time to time hereunder and under each Note payable to such Lender. Any failure of a Lender to record in the Loan Account, or any error in doing so, shall not limit or otherwise affect the obligation of Borrowers hereunder (or under any Note) to pay any amount owing hereunder to such Lender.

 

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5.8.2. The Register . Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register (the “Register”) which shall include a master account and a subsidiary account for each Lender and in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing and L/C Borrowing made hereunder, the Type of each Loan and L/C Obligation comprising such Borrowing or L/C Borrowing and any Interest Period applicable thereto, (ii) the effective date and amount of each Assignment and Acceptance delivered to and accepted by it and the parties thereto, (iii) the amount of any principal or interest due and payable or to become due, and payable from Borrowers to each Lender hereunder or under the Notes, and (iv) the amount of any sum received by Administrative Agent from Borrowers and each Lender’s share thereof. The Register shall be available for inspection by Borrowers or any Lender at the offices of Administrative Agent at any reasonable time and from time to time upon reasonable prior notice. Any failure of Administrative Agent to record in the Register, or any error in doing so, shall not limit or otherwise affect the obligation of Borrowers hereunder (or under any Note) to pay any amount owing with respect to the Loans or L/C Obligations or provide the basis for any claim against Administrative Agent.

5.9 Gross Up for Taxes .

5.9.1. Payment Free of Taxes . Any and all payments by or on account of any Obligor with respect to any Obligations shall be made free and clear of and without reduction or withholding for any Taxes; provided that if an Obligor, Administrative Agent or any other applicable withholding agent shall be required by Applicable Law to deduct or withhold any Taxes in respect of any such payments, then (a) if such Tax is an Indemnified Tax or Other Tax, the sum payable by the Obligor shall be increased as necessary so that after all required deductions have been made (including deductions applicable to additional sums payable under this Section 5.9 ) each Lender or Issuing Bank, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made; (b) the Obligor, Administrative Agent or other applicable withholding agent shall make such deductions; and (c) the Obligor, Administrative Agent or other applicable withholding agent shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with Applicable Law. Without limiting the foregoing, Borrowers shall timely pay all Other Taxes to the relevant Governmental Authorities.

5.9.2. Indemnification . Without duplication of amounts paid pursuant to Section 5.9.1 , Borrowers shall indemnify, hold harmless and reimburse Administrative Agent, the Canadian Agent, Lenders and Issuing Bank, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 5.9 ) payable by the Administrative Agent, the Canadian Agent, any Lender or Issuing Bank with respect to any Obligations, Letters of Credit or Credit Documents, and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower Agent by a Lender or Issuing Bank (with a copy to Administrative Agent), or by the Administrative Agent or the Canadian Agent showing in reasonable detail the method of calculation thereof, shall be conclusive absent manifest error. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Borrower, Borrower Agent shall deliver to Administrative Agent a receipt issued by the Governmental Authority evidencing such payment or other evidence of payment reasonably requested by and reasonably satisfactory to Administrative Agent.

5.9.3. Refunds . If any Agent or Lender reasonably determines that it is entitled to claim a refund of any Indemnified Taxes or Other Taxes to which it has been indemnified by any Borrower or with respect to which any Borrower has paid additional amounts pursuant to this Section 5.9., it shall promptly notify such Borrower of the availability of such refund claim and, if requested in writing by the Borrower, shall make such refund claim to such taxation authority for such refund at such Borrower’s expense, unless such Agent or Lender reasonably determines in good faith that pursuing such refund claim would be materially detrimental to it. If a Lender or any Agent receives a refund (including pursuant to a claim for refund made pursuant to the preceding sentence), it shall pay over such refund to such Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower under this Section 5.9. with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes imposed on the receipt of such refund) of such Agent or such Lender and without interest (other than interest paid by the relevant taxing authority); provided that each Borrower, upon the request of such Agent or such Lender, agrees to repay the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. This subsection 5.9.3 shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to such Borrower or any other Person.

 

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5.10 Foreign Lenders .

5.10.1. Exemption . Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which an Obligor is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to any payments under any Credit Document shall, to the extent that it is legally eligible to do so, deliver to Administrative Agent and Borrower Agent, at the time or times prescribed by Applicable Law or reasonably requested by Administrative Agent or Borrower Agent, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Foreign Lender, if requested by Administrative Agent or Borrower Agent, shall deliver such documentation as required by Applicable Law or reasonably requested by Administrative Agent or Borrower Agent as will enable Administrative Agent or Borrower Agent to determine whether such Foreign Lender is subject to backup withholding or information reporting requirements. If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower Agent and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower Agent or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower Agent or the Administrative Agent as may be necessary for the Borrower Agent and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender’s obligations under FATCA, or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this sentence, “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

5.10.2. Foreign Lender Documentation . Without limiting the generality of the foregoing, if a Borrower is resident for tax purposes in the United States, a Foreign Lender shall, if it is legally eligible to do so, deliver to Administrative Agent and Borrower Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender hereunder, whichever of the following (if any) is applicable, (a) duly completed originals of IRS Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party; (b) duly completed copies of IRS Form W-8ECI; (c) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (i) a certificate (substantially in the form of Exhibit H (a “Non-Bank Certificate”) to the effect that (A) such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) such Foreign Lender is not a “10 percent shareholder” of any U.S. Obligor within the meaning of Section 881(c)(3)(B) of the Code, (C) any interest payment received by such Foreign Lender under this Agreement or any other Credit Document is not effectively connected with the conduct of a trade or business in the United States and (D) such Foreign Lender is not a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (ii) duly completed originals of IRS Form W-8BEN; (d) where such Foreign Lender is not the beneficial owner for U.S. federal income tax purposes (e.g., where such Lender is a partnership or a participating Lender), duly completed originals of IRS Form W-8IMY, together with all agreed attachments, including copies of IRS Forms W-9 or applicable IRS Forms W-8 for each beneficial owner or intermediary, and if applicable, a Non-Bank Certificate form with respect to each beneficial owner claiming the portfolio interest exemption (provided, that if a Foreign Lender is a partnership (and not a participating Lender), and one or more of its direct or indirect partners is claiming the portfolio interest exemption, a Non-Bank Certificate may be provided by such Lender on behalf of its direct or indirect partners); or (e) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States federal withholding tax, duly completed together with such supplementary documentation as may be prescribed by Applicable Law to permit Borrowers to determine the withholding or deduction required to be made. For the avoidance of doubt, none of Canadian Borrower or any Canadian Subsidiary Guarantors shall be liable for any of the U.S. Obligations. Notwithstanding anything to the contrary, nothing in this Section 5.10.2 shall require any Lender to deliver any documentation it is not legally eligible to deliver.

 

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5.10.3. Documentation in Respect of U.S. Federal Backup Withholding . Each Lender (including a Lender to the Canadian Loan Parties) that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Administrative Agent, the Canadian Agent and the Borrower Agent, on or prior to the date on which such Lender becomes a Lender hereunder, duly completed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding. Each Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code that has not provided an applicable IRS Form W-8 pursuant to Section 5.10.2 shall, on or prior to the date on which such Lender becomes a Lender hereunder, deliver to the Administrative Agent, the Canadian Agent and the Borrower Agent duly completed originals of an applicable IRS Form W-8 certifying such Lender’s non-U.S. status.

5.10.4. Notification and Updating Documents . Each Lender shall promptly notify Borrower Agent, Administrative Agent and, if applicable, the Canadian Agent of any change in circumstances which would modify or render expired, invalid or obsolete any documentation previously provided by such Lender pursuant to Sections 5.10.1 , 5.10.2 or 5.10.3 and shall promptly provide updated or new documentation as required (or promptly notify the Administrative Agent, the Borrower Agent and, if applicable, the Canadian Agent, of its legal ineligibility to do so).

5.10.5. For the avoidance of doubt, for purposes of this Section 5.10 , the term “Lender” shall include any Issuing Bank and any Swing Line Lender.

5.11 Nature and Extent of Each Borrower’s Liability .

5.11.1. Joint and Several Liability . Each U.S. Borrower shall be liable for, on a joint and several basis, and hereby guarantees the timely payment by all other Borrowers of, all of the Loans and other Obligations, regardless of which Borrower actually may have received the proceeds of any Loans or other extensions of credit hereunder or the amount of such Loans received or the manner in which any Agent or any Lender accounts for such Loans or other extensions of credit on its books and records, it being acknowledged and agreed that Loans to any Borrower inure to the mutual benefit of all Borrowers and that Agents and Lenders are relying on the joint and several liability of Borrowers in extending the Loans and other financial accommodations hereunder. Each U.S. Borrower hereby unconditionally and irrevocably agrees that upon default in the payment when due (whether at stated maturity, by acceleration or otherwise) of any principal of, or interest owed on any of the Loans or other Obligations, such U.S. Borrower shall forthwith pay the same, without notice or demand.

5.11.2. Unconditional Nature of Liability . Each U.S. Borrower’s joint and several liability hereunder with respect to, and guaranty of, the Loans and other Obligations shall, to the fullest extent permitted by Applicable Law, be unconditional irrespective of (i) the validity, enforceability, avoidance or subordination of any of the Obligations or of any promissory note or other document evidencing all or any part of the Obligations, (ii) the absence of any attempt to collect any of the Obligations from any other Obligor or any Collateral or other security therefor, or the absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of any indulgence by any Agent, any Collateral Agent or any Lender with respect to any provision of any instrument evidencing or securing the payment of any of the Obligations, or any other agreement now or hereafter executed by any other Borrower and delivered to any Agent, any Collateral Agent or any Lender, (iv) the failure by any Agent to take any steps to perfect or maintain the perfected status of its security interest in or Lien upon, or to preserve its rights to, any of the Collateral or other security for the payment or performance of any of the Obligations or any Agent’s release of any Collateral or of its Liens upon any Collateral, (v) Agents’, Collateral Agents’ or Lenders’ election, in any proceeding instituted under the Bankruptcy Code, for the application of Section 1111(b)(2) of the Bankruptcy Code or similar provision under another Debtor Relief Law, (vi) any borrowing or grant of a security interest by any other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code or similar provision under another Debtor Relief Law, (vii) the release or compromise, in whole or in part, of the liability of any Obligor for the payment of any of the Obligations, (viii) any amendment or modification of any of the Credit Documents or any waiver of a Default or Event of Default, (ix) any increase in the amount of the Obligations beyond any limits imposed herein or in the amount of any interest, fees or other charges payable in connection therewith, or any decrease in the same, (x) the disallowance of all or any portion of any Agent’s, any Collateral Agents’ or any Lender’s claims against any other Obligor for the repayment of any of the Obligations under Section 502 of the Bankruptcy Code or similar provision under another Debtor Relief Law, or (xi) any other circumstance that might constitute a legal or equitable discharge or defense of any Borrower. After the occurrence and during the continuance

 

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of any Event of Default, the Agents may proceed directly and at once, without notice to any U.S. Borrower, against any or all of U.S. Borrowers to collect and recover all or any part of the Obligations, without first proceeding against any other Borrower or against any Collateral or other security for the payment or performance of any of the Obligations, and each U.S. Borrower waives any provision under Applicable Law that might otherwise require the Agents to pursue or exhaust their remedies against any Collateral or Borrower before pursuing another U.S. Borrower. Each U.S. Borrower consents and agrees that the Agents shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Obligations.

5.11.3. No Reduction in Liability for Obligations . No payment or payments made by a Borrower or received or collected by Administrative Agent from a Borrower or any other Person by virtue of any action or proceeding or any setoff or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, release or otherwise affect the liability of any U.S. Borrower under this Agreement, each of whom shall remain jointly and severally liable for the payment and performance of all Loans and other Obligations until the Obligations are Paid in Full and this Agreement is terminated.

5.11.4. Contribution . Each U.S. Borrower is unconditionally obligated to repay the Obligations on a joint and several basis under this Agreement. If, as of any date, the aggregate amount of payments made by a U.S. Borrower on account of the Obligations and proceeds of such U.S. Borrower’s Collateral that are applied to the Obligations exceeds the aggregate amount of Loan proceeds actually used by such U.S. Borrower in its business (such excess amount being referred to as an “Accommodation Payment”), then each of the other U.S. Borrowers (each such U.S. Borrower being referred to as a “Contributing Borrower”) shall be obligated to make contribution to such U.S. Borrower (the “Paying Borrower”) in an amount equal to (A) the product derived by multiplying the sum of each Accommodation Payment of each U.S. Borrower by the Allocable Percentage of U.S. Borrower from whom contribution is sought less (B) the amount, if any, of the then outstanding Accommodation Payment of such Contributing Borrower (such last mentioned amount which is to be subtracted from the aforesaid product to be increased by any amounts theretofore paid by such Contributing Borrower by way of contribution hereunder, and to be decreased by any amounts theretofore received by such Contributing Borrower by way of contribution hereunder); provided , however , that a Paying Borrower’s recovery of contribution hereunder from the other U.S. Borrowers shall be limited to that amount paid by the Paying Borrower in excess of its Allocable Percentage of all Accommodation Payments then outstanding of all Borrowers. As used herein, the term “Allocable Percentage” shall mean, on any date of determination thereof, a fraction the denominator of which shall be equal to the number of U.S. Borrowers who are parties to this Agreement on such date and the numerator of which shall be the aggregate amount of Obligations; provided , however , that such percentages shall be modified in the event that contribution from a U.S. Borrower is not possible by reason of insolvency, bankruptcy or otherwise by reducing such U.S. Borrower’s Allocable Percentage equitably and by adjusting the Allocable Percentage of the other U.S. Borrowers proportionately so that the Allocable Percentages of all U.S. Borrowers at all times equals 100%.

5.11.5. Subordination . Each Borrower hereby subordinates any claims, including any right of payment, subrogation, contribution and indemnity, that it may have from or against any other Borrower, and any successor or assign of any other Borrower, including any trustee, receiver or debtor-in-possession, howsoever arising, due or owing or whether heretofore, now or hereafter existing, to the Payment in Full of all of the Obligations.

SECTION 6. TERM AND TERMINATION OF COMMITMENTS

6.1 Term Date of Commitments . Subject to each Lender’s right to cease making Loans and other extensions of credit to Borrowers when any Default or Event of Default exists or upon termination of the Commitments as provided in Section 6.2 hereof, the Revolver Commitments shall be in effect from the Closing Date through the close of business on the Commitment Maturity Date.

6.2 Termination .

6.2.1. Termination by Administrative Agent .

(i) Administrative Agent may (and upon the direction of the Required Lenders, shall) terminate the Commitments without notice at any time that an Event of Default exists.

 

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(ii) Notwithstanding the foregoing the Commitments shall automatically terminate as provided in Section 12.2 hereof.

6.2.2. Termination by Borrowers . Upon at least ten (10) days’ prior written notice to Administrative Agent, Borrower Agent (on behalf of Borrowers) may, at its option, terminate the Commitments ; provided , however , that no such termination by Borrowers shall be effective until Payment in Full of the Obligations. Any notice of termination given by Borrowers shall be irrevocable unless Administrative Agent otherwise agrees in writing. Borrowers may elect to terminate the Commitments in their entirety only; provided that nothing contained herein shall affect Borrowers’ right to voluntarily reduce the Commitments as provided in Section 5.3.1 of this Agreement. No section of this Agreement, Type of Loan available hereunder or Commitment may be terminated by Borrowers singly.

6.2.3. Reserved .

6.2.4. Effect of Termination. On the effective date of termination of the Commitments by Administrative Agent or by Borrowers, all of the Obligations shall be immediately due and payable and Lenders shall have no obligation to make any Loans and Issuing Bank shall have no obligation to procure any Letters of Credit. All undertakings, agreements, covenants, warranties and representations of Borrowers contained in the Credit Documents shall survive any such termination and each Agent shall retain its Liens on the Collateral and all of its rights and remedies under the Credit Documents notwithstanding such termination until Payment in Full of the Obligations. Upon Payment in Full of the Obligations, each Agent shall release such Liens on the Collateral by filing Uniform Commercial Code or PPSA termination statements and as the Borrowers may reasonably request, any other documentation necessary to release such Liens. Notwithstanding the Payment in Full of the Obligations, no Agent shall be required to terminate its security interests in any of the Collateral unless, with respect to any loss or damage such Agent may incur as a result of the dishonor or return of any Payment Items applied to the Obligations, such Agent shall have received either (i) a written agreement, executed by the applicable Borrowers and any Person deemed financially responsible by Administrative Agent whose loans or other advances to the applicable Borrowers are used in whole or in part to satisfy the Obligations, indemnifying Agents and Lenders from any such loss or damage; or (ii) such monetary reserves and Liens on the Collateral for such period of time as such Agent, in its reasonable Credit Judgment, may deem necessary to protect such Agent from any such loss or damage. The provisions of Sections 3.3, 3.6, 3.7, 3.8, 5.5, 5.9 and this Section 6.2.4 and all obligations of Borrowers to indemnify any Agent, any Collateral Agent or any Lender pursuant to this Agreement or any of the other Credit Documents shall in all events survive any termination of the Commitments and Payment in Full of the Obligations.

SECTION 7. [RESERVED]

SECTION 8. COLLATERAL ADMINISTRATION

8.1 General Provisions .

8.1.1. Location of Collateral . All tangible items of Collateral, other than In-Transit Inventory, shall at all times be kept by Borrowers and the Canadian Subsidiary Guarantors (i) at one or more of the business locations of Borrowers and Canadian Subsidiary Guarantors set forth in Schedule 8.1.1 hereto, (ii) at a location owned or leased by an Obligor in the United States or Canada other than those shown on Schedule 8.1.1 hereto so long as (x) Borrowers have given Administrative Agent notice of such new location at the time the next Borrowing Base Certificate is required to be delivered following the start of use of such new location and (y) prior to moving any Inventory to a new location any Borrower or Canadian Subsidiary Guarantor leases, either (A) the landlord has executed in favor of the applicable Agent a Lien Waiver or (B) a rent reserve has been established as contemplated in clause (i) of the definition of “Inventory Reserve,” or (iii) if the Collateral consists of Inventory, at a Third-Party Location where either (A) the applicable Agent has either received from such third party an acceptable Lien Waiver or (B) a reserve has been established as contemplated by clause (ii) of the definition of “Inventory Reserve.”

 

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8.1.2. Insurance of Collateral; Condemnation Proceeds .

(i) Each Borrower and the Canadian Subsidiary Guarantors, as applicable, shall maintain and pay for insurance upon all Collateral, wherever located, covering casualty, hazard, public liability, theft, malicious mischief, and such other risks in such amounts and with such insurance companies as are reasonably satisfactory to Administrative Agent. Schedule 8.1.2 describes all such insurance of Borrowers and the Canadian Subsidiary Guarantors in effect on the Closing Date, which the Lenders acknowledge are satisfactory as of the Closing Date. All proceeds payable to Borrowers or the Canadian Subsidiary Guarantors, as applicable, under each such policy shall be payable to the applicable Agent for application to the Obligations, except to the extent otherwise provided in Section 8.1.2(ii) hereof. Each policy of insurance or endorsement shall contain a clause requiring the insurer to give not less than thirty (30) days’ prior written notice (or if not available in the case of non-payment of premium, ten (10) days’) to the applicable Agent in the event of cancellation of the policy for any reason whatsoever and a clause specifying that the interest of the applicable Agent shall not be impaired or invalidated by any act or neglect of any Borrower or Canadian Subsidiary Guarantor, as applicable, or the owner of the Property or by the occupation of the premises for purposes more hazardous than are permitted by said policy. If any Borrower or Canadian Subsidiary Guarantor, as applicable, fails to provide and pay for such insurance, the applicable Agent may, at its option, but shall not be required to, procure the same and charge Borrowers therefor. Each Borrower agrees to deliver to the applicable Agent, upon the request of such Agent, true copies of all material reports made in any reporting forms to insurance companies. As long as no Event of Default exists, each Borrower and any Canadian Subsidiary Guarantor shall have the right to settle, adjust and compromise any claim with respect to any insurance maintained by such Borrower; provided that all proceeds thereof are applied in the manner specified in this Agreement, and the applicable Agent agrees promptly to provide any necessary endorsement to any checks or drafts issued in payment of any such claim. At any time that an Event of Default exists, only the applicable Agent shall be authorized to settle, adjust and compromise such claims, and such Agent shall have all rights and remedies with respect to such policies of insurance as are provided for in this Agreement and the other Credit Documents.

(ii) If a Cash Dominion Event has occurred and is continuing, any proceeds of insurance referred to in this Section 8.1.2 and any condemnation or expropriation awards in connection with a condemnation or expropriation of any of the Collateral shall be paid to the applicable Agent in an amount equal to the pro rata portion of such proceeds based on the relative Value of the Collateral subject to the applicable loss, condemnation or expropriation as compared to the value of all other assets of the Borrowers and the Canadian Subsidiary Guarantors, as applicable, subject to such loss, condemnation or expropriation (measured as of the date of such event) and applied to the payment of the U.S. Revolver Loans or Canadian Revolver Loans, as applicable, and then to any other Obligations outstanding; provided , however , that if an Event of Default exists on the date of the applicable Agent’s receipt thereof, the applicable Agent may apply such proceeds to the Obligations in such order of application that is not inconsistent with Section 5.6 .

8.1.3. Protection of Collateral . All expenses of protecting, storing, warehousing, insuring, handling, maintaining and shipping any Collateral, all Taxes imposed under any Applicable Law on any of the Collateral or in respect of the sale thereof, and all other payments required to be made by the applicable Agent to any Person to realize upon any Collateral shall be borne and paid by the applicable Borrowers and the Canadian Subsidiary Guarantors, as applicable. Neither Agent shall be liable or responsible in any way for the safekeeping of any of the Collateral or for any loss or damage thereto (except for reasonable care in the custody thereof while any Collateral is in such Agent’s actual possession or control) or for any diminution in the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency, or other Person whomsoever, but the same shall be at Borrowers’ or the Canadian Subsidiary Guarantors’, as applicable, sole risk.

8.1.4. Defense of Title to Collateral . Each Borrower and each Canadian Subsidiary Guarantor shall at all times defend such Borrower’s or Canadian Subsidiary Guarantor’s, as applicable, title to the Collateral and Administrative Agent’s Liens therein against all Persons and all claims and demands whatsoever other than Permitted Liens.

8.2 Administration of Accounts .

8.2.1. Records and Schedules of Accounts . Each Borrower and Canadian Subsidiary Guarantor shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Administrative Agent on a quarterly basis (or if a Default or Event of Default exists or Average Availability for the preceding 30 consecutive day period is less than $150,000,000, once a month) a sales and collections report for

 

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the preceding period, in form satisfactory to Administrative Agent. If Average Availability for the preceding calendar month is less than $150,000,000, each Borrower and Canadian Subsidiary Guarantor shall also provide to Administrative Agent on or before the twentieth day of each month, a detailed aged trial balance of all Accounts existing as of the last day of the preceding month, specifying the face value and due dates for each Account and each Account Debtor obligated on an Account so listed (“ Schedule of Accounts ”) and upon Administrative Agent’s request therefor, copies of reports relating to such other matters and information as Administrative Agent shall reasonably request. Any reports, trial balances or other information provided to Administrative Agent pursuant to this Section 8.2.1 shall also be provided to any Collateral Agent upon its request therefor.

8.2.2. Discounts, Disputes and Returns . If any Borrower or Canadian Subsidiary Guarantor, as applicable, grants any discounts, allowances or credits that are not shown on the face of the invoice for the Account involved, such Borrower or Canadian Subsidiary Guarantor, as applicable, shall report such discounts, allowances or credits, as the case may be to Administrative Agent as, part of the next required Schedule of Accounts. If any amounts due and owing in excess of $1,000,000 are in dispute between any Borrower or Canadian Subsidiary Guarantor, as applicable, and any Account Debtor, or if any returns are made in excess of $1,000,000 with respect to any Accounts owing from an Account Debtor, such Borrower or Canadian Subsidiary Guarantor, as applicable, shall provide Administrative Agent with written notice thereof at the time of submission of the next Schedule of Accounts, explaining in detail the reason for the dispute or return, all claims related thereto and the amount in controversy. At any time an Event of Default exists, Administrative Agent shall have the right to settle or adjust all disputes and claims directly with the Account Debtor and to compromise the amount or extend the time for payment of any Accounts comprising a part of the Collateral upon such terms and conditions as Administrative Agent may deem advisable, and to charge the deficiencies, costs and expenses thereof, including attorneys’ fees, to the applicable Borrowers and Canadian Subsidiary Guarantors.

8.2.3. Taxes . If an Account of any Borrower or any Canadian Subsidiary Guarantor, as applicable, includes a charge for any Taxes payable to any Governmental Authority, subject to a Borrower’s or Canadian Subsidiary Guarantor’s right to Properly Contest the same pursuant to Section 10.1.6 hereof, the applicable Agent is authorized, in its sole discretion, to pay the amount thereof to the proper taxing authority for the account of such Borrower or Canadian Subsidiary Guarantor and to charge Borrowers therefor; provided , however , that neither Agents nor Lenders shall be liable for any Taxes that may be due by Borrowers.

8.2.4. Account Verification . Whether or not a Default or an Event of Default exists, Agent shall have the right at any time, in the name of Administrative Agent, any designee of Administrative Agent, any Borrower or any Canadian Subsidiary Guarantor to verify the validity, amount or any other matter relating to any Accounts of such Borrower by mail, telephone, telegraph or otherwise. Borrowers and the Canadian Subsidiary Guarantors shall cooperate fully with Administrative Agent in an effort to facilitate and promptly conclude any such verification process. Unless a Default or Event of Default exists, such verifications shall be done in the name of a fictitious company.

8.2.5. Maintenance of Dominion Account . Borrowers and the Canadian Subsidiary Guarantors shall maintain one or more Dominion Accounts, each pursuant to a lockbox or other arrangement acceptable to Administrative Agent, with such bank as may be selected by Borrowers or the Canadian Subsidiary Guarantors, as applicable, and be acceptable to Administrative Agent. Borrowers and the Canadian Subsidiary Guarantors shall issue to each such lockbox bank an irrevocable letter of instruction directing such bank to deposit all payments or other remittances received in the lockbox to the related Dominion Account. Borrowers and the Canadian Subsidiary Guarantors, as applicable, shall enter into agreements, in form satisfactory to Administrative Agent, with each bank at which a Dominion Account is maintained by which such bank shall, upon the occurrence and during the continuation of a Cash Dominion Event, immediately transfer to the U.S. Payment Account all monies deposited to a Dominion Account constituting proceeds of Collateral considered in calculating the U.S. Borrowing Base and to the Canadian Payment Account all monies deposited to a Dominion Account constituting proceeds of Collateral considered in calculating the Canadian Borrowing Base. All funds deposited in each Dominion Account shall be subject to the applicable Agent’s Lien. Borrowers and the Canadian Subsidiary Guarantors shall obtain the agreement (in favor of and in form and content satisfactory to Agents) by each bank at which a Dominion Account is maintained to waive any offset rights against the funds deposited into such Dominion Account, except offset rights in respect of charges incurred in the administration of such Dominion Account. Neither Agents nor Lenders assume any responsibility to Borrowers or the Canadian Subsidiary Guarantors for such lockbox arrangement or, upon the occurrence and during the continuation of a Cash Dominion Event, any Dominion Account, including any claim of accord and satisfaction or release with respect to deposits accepted by any bank thereunder.

 

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8.2.6. Collection of Accounts and Proceeds of Collateral . All Payment Items received by any Borrower or any Canadian Subsidiary Guarantor, as applicable, in respect of its Accounts, together with the proceeds of any other Collateral, shall be held by such Borrower or Canadian Subsidiary Guarantor, as applicable, as trustee of an express trust for the applicable Agent’s benefit; such Borrower or such Canadian Subsidiary Guarantor, as applicable, shall immediately deposit same in kind in a Dominion Account for application to the applicable Obligations in accordance with the terms of this Agreement. Each Agent retains the right at all times that a Default or an Event of Default exists to notify Account Debtors of any Borrower or Canadian Subsidiary Guarantor that Accounts have been assigned to Agents and to collect Accounts directly in its own name and to charge to Borrowers or the Canadian Subsidiary Guarantors, as applicable, the collection costs and expenses incurred by the applicable Agent or Lenders, including reasonable attorneys’ fees. Upon the occurrence and during the continuation of a Cash Dominion Event, all monies properly deposited in the U.S. Payment Account shall be deemed to be voluntary prepayments of U.S. Revolver Loans and applied in accordance with Section 5.6 to reduce outstanding U.S. Revolver Loans and all monies properly deposited in the Canadian Payment Account shall be deemed to be voluntary prepayments of Canadian Revolver Loans and applied in accordance with Section 5.6 to reduce outstanding Canadian Revolver Loans.

8.3 Administration of Inventory .

8.3.1. Records and Reports of Inventory . Each Borrower and Canadian Subsidiary Guarantor shall keep accurate and complete records of its Inventory and shall furnish Agents and Lenders inventory reports respecting such Inventory in form and detail satisfactory to Agents and Lenders at such times as Agents and applicable Lenders may request, but so long as no Default or Event of Default exists, no more frequently than once each month. Each Borrower and each Canadian Subsidiary Guarantor shall, at its own expense, conduct a physical inventory no less frequently than annually and periodic cycle counts consistent with such Borrower’s or such Canadian Subsidiary Guarantor’s historical practices and shall provide to Agents and Lenders a report based on each such physical inventory and cycle count promptly after completion thereof, together with such supporting information as Administrative Agent or any Collateral Agent shall request. Administrative Agent may participate in and observe each physical count or inventory, which participation shall be at Borrowers’ expense at any time that an Event of Default exists.

8.3.2. Returns of Inventory . No Borrower or any Canadian Subsidiary Guarantor shall return any of its Inventory to a supplier or vendor thereof, or any other Person, whether for cash, credit against future purchases or then existing payables, or otherwise, unless (i) such return is in the Ordinary Course of Business of such Borrower or such Canadian Subsidiary Guarantor, as applicable, and such Person; (ii) no Default or Event of Default exists or would result therefrom; (iii) the return of such Inventory will not result in an Out-of-Formula Condition; (iv) such Borrower or Canadian Subsidiary Guarantor, as applicable, promptly notifies Administrative Agent thereof if the aggregate Value of all Inventory returned in any month exceeds $25,000,000; and (v) when a Cash Dominion Event has occurred and is continuing, any payments received by such Borrower or such Canadian Subsidiary Guarantor, as applicable, in connection with any such return are promptly turned over to Administrative Agent for application to the Obligations in accordance with the terms of this Agreement.

8.4 Borrowing Base Certificates . On the Closing Date and on or before the twentieth day of each month (as of the close of the previous month), Borrowers shall deliver to Administrative Agent, and to any Collateral Agent upon its request, (and Administrative Agent shall promptly deliver to Lenders and to Canadian Agent) a Borrowing Base Certificate prepared as of the close of business of the previous month, and at such other times as Administrative Agent may request in its reasonable discretion; provided that the first Borrowing Base Certificate delivered after the Closing Date shall not be required to be delivered until October 31, 2007. All calculations of Availability in connection with any Borrowing Base Certificate originally shall be made by Borrowers and certified by a Senior Officer to Administrative Agent and Lenders; provided that Administrative Agent shall have the right to review and adjust, in the exercise of its reasonable Credit Judgment, any such calculation (i) to reflect its reasonable estimate of declines in value of any of the Collateral described therein and (ii) to the extent that such calculation is not in accordance with this Agreement or does not accurately reflect the amount of the applicable Availability Re serve. In no event shall (a) the U.S. Borrowing Base on any date be deemed to exceed the amount of the U.S.

 

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Borrowing Base or (b) Canadian Borrowing Base on any date be deemed to exceed the amount of the Canadian Borrowing Base, in each case shown on the Borrowing Base Certificate last received by Administrative Agent prior to such date, as such Borrowing Base Certificate may be adjusted from time to time by Administrative Agent as herein authorized; provided further that if on the first day of any month it is determined that during the immediately preceding calendar month Average Availability was less than $200,000,000, then on each Wednesday of such month (beginning with the Wednesday occurring during the first full calendar week of such month), Borrower Agent shall deliver to Administrative Agent, and to any Collateral Agent upon its request, a Borrowing Base Certificate, updated as of the close of business on the last Business Day of the immediately preceding calendar week (it being understood that inventory amounts shown in such Borrowing Base Certificate will be based on the inventory amount for the most recently ended month) unless the Collateral Agents otherwise agree (or if Wednesday is not a Business Day, on the next succeeding Business Day).

SECTION 9. REPRESENTATIONS AND WARRANTIES

9.1 General Representations and Warranties . To induce Agents and Lenders to enter into this Agreement and to make available the Commitments, each Borrower warrants and represents to Agents and Lenders that:

9.1.1. Organization and Qualification . Each Borrower and each of its Subsidiaries is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Each Borrower and each of its Subsidiaries is duly qualified and is authorized to do business and is in good standing as a foreign corporation in each state or jurisdiction listed on Schedule 9.1.1 hereto and in all other states and jurisdictions in which the failure of such Borrower or any of such Subsidiaries to be so qualified would have a Material Adverse Effect.

9.1.2. Power and Authority . Each Borrower and each of its Subsidiaries is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and each of the other Credit Documents to which it is a party. The execution, delivery and performance of this Agreement and each of the other Credit Documents have been duly authorized by all necessary corporate action on behalf of the Borrowers and any of their Subsidiaries party thereto and do not and will not (i) require any consent or approval of any of the holders of the Equity Interests of any Borrower or any of its Subsidiaries other than those obtained on or prior to the Closing Date; (ii) contravene the Organization Documents of any Borrower or any of its Subsidiaries; (iii) violate, or cause any Borrower or any of its Subsidiaries to be in default under, any provision of any Applicable Law, order, writ, judgment, injunction, decree, determination or award in effect having applicability to any Borrower or any of its Subsidiaries; (iv) result in a breach of or constitute a default under any indenture or loan or credit agreement or any other material agreement, lease or instrument to which any Borrower or any of its Subsidiaries is a party or by which it or its Properties may be bound or affected; or (v) result in, or require, the creation or imposition of any Lien (other than Permitted Liens) upon or with respect to any of the Properties now owned or hereafter acquired by any Borrower or any of its Subsidiaries.

9.1.3. Legally Enforceable Agreement . This Agreement is, and each of the other Credit Documents when delivered will be, a legal, valid and binding obligation of each Borrower and each of its Subsidiaries signatories thereto enforceable against them in accordance with the respective terms of such Credit Documents, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws of general application affecting the enforcement of creditors’ rights and by general principles of equity (whether considered in a proceeding at law or equity).

9.1.4. Capital Structure . As of Closing Date, after giving effect to the Acquisition, Schedule 9.1.4 hereto states (i) the correct name of each Borrower and Subsidiary, its jurisdiction of incorporation and the percentage of its Equity Interests having voting powers owned by each Person and (ii) the number of authorized and issued Equity Interests (and treasury shares) of each Borrower and its Subsidiaries. Each Borrower has good title to all of the shares it purports to own of the Equity Interests of each of its Subsidiaries, free and clear in each case of any Lien other than Permitted Liens. All such Equity Interests have been duly issued and are fully paid and non-assessable. Except as set forth on Schedule 9.1.4 hereto, there are no outstanding options to purchase, or any rights or warrants to subscribe for, or any commitments or

 

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agreements to issue or sell, or any Equity Interests or obligations convertible into, or any powers of attorney relating to, shares of the capital stock of any Borrower or any of its Subsidiaries. Except as set forth on Schedule 9.1.4 hereto, there are no outstanding agreements or instruments binding upon the holders of any Borrower’s Equity Interests relating to the ownership of its Equity Interests.

9.1.5. Title to Properties; Priority of Liens . Each Borrower and each of its Subsidiaries has good title to all of its personal Property, including all Property reflected in the financial statements referred to in Section 9.1.7 or delivered pursuant to Section 10.1.3 (other than any Property sold in the Ordinary Course of Business after the date of such financial statements), in each case free and clear of all Liens except Permitted Liens. The Liens granted to Administrative Agent pursuant to the U.S. Security Documents for the benefit of the Secured Parties (i) have been validly created, (ii) will attach to each item of Collateral owned by U.S. Borrowers on the Closing Date and (iii) when so attached, will secure all the Obligations. When the UCC financing statements describing the Collateral owned by U.S. Borrowers have been filed in the offices as specified on Schedule 9.1.5 hereto, the Liens granted to Administrative Agent as of the Amendment No. 3 Effective Date will constitute perfected security interests to the extent that a security interest therein may be perfected by filing pursuant to the UCC, prior to all Liens and rights of others therein. The Liens granted to Canadian Agent pursuant to the Canadian Security Documents for the benefit of the Canadian Secured Parties (i) have been validly created, (ii) will attach to each item of Collateral on the Closing Date and (iii) when so attached, will secure all the Canadian Obligations owing by the Canadian Obligor granting such Lien. When the PPSA financing statements describing the Collateral owned by Canadian Borrower and Canadian Subsidiary Guarantors have been filed in the offices as specified on Schedule 9.1.5 hereto, the Liens granted to Canadian Agent for the benefit of the Canadian Secured Parties as of the Amendment No. 3 Effective Date will constitute perfected security interests to the extent that a security interest therein may be perfected by filing pursuant to the PPSA, prior to all Liens (other than Liens permitted by Sections 10.2.5(ii), (iii)  and (xi) ) and rights of others therein.

9.1.6. Accounts . Administrative Agent may rely, in determining which Accounts are Eligible Accounts, on all statements and representations made by Borrowers and Canadian Subsidiary Guarantors with respect to any Account. Unless otherwise indicated in the most recent Borrowing Base Certificate or otherwise in writing to Administrative Agent, with respect to each Account, each Borrower and Canadian Subsidiary Guarantor warrants that:

(i) It is genuine and in all respects what it purports to be, and it is not evidenced by a judgment;

(ii) It arises out of a completed, bona fide sale and delivery of goods or rendition of services by a Borrower or a Canadian Subsidiary Guarantor in the Ordinary Course of Business and substantially in accordance with the terms and conditions, of all purchase orders, contracts or other documents relating thereto and forming a part of the contract between a Borrower or a Canadian Subsidiary Guarantor and the Account Debtor;

(iii) It is for a sum certain maturing as stated in the invoice covering such sale or rendition of services (subject to adjustment in the Ordinary Course of Business), a copy of which is available to Administrative Agent on request;

(iv) To the best of Borrowers’ and Canadian Subsidiary Guarantors’ knowledge, such Account, and the applicable Agent’s security interest therein, is not, and will not (by voluntary act or omission of a Borrower or a Canadian Subsidiary Guarantor) be in the future, subject to any offset, Lien, deduction, defense, dispute, counterclaim or any other adverse condition except for disputes resulting in returned goods where the amount in controversy is immaterial, and each such Account is absolutely owing to a Borrower or a Canadian Subsidiary Guarantor and is not contingent in any respect or for any reason;

(v) Such Borrower or Canadian Subsidiary Guarantor has not made any agreement with any Account Debtor thereunder for any extension, compromise, settlement or modification of any such Account or any deduction therefrom, except discounts or allowances which are granted

 

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by a Borrower or a Canadian Subsidiary Guarantor in the Ordinary Course of Business and which are promptly thereafter reflected in the calculation of the net amount of each respective invoice related thereto, and are reflected in the Schedules of Accounts next submitted to Administrative Agent pursuant to Section 8.2.1 hereof;

(vi) To the best of such Borrower’s and Canadian Subsidiary Guarantor’s knowledge, there are no facts, events or occurrences which are reasonably likely to impair the validity or enforceability of such Account or reduce the amount payable thereunder from the face amount of the invoice and statements delivered to Administrative Agent with respect thereto;

(vii) To the best of such Borrower’s and Canadian Subsidiary Guarantor’s knowledge, (1) the Account Debtor thereunder had the capacity to contract at the time any contract or other document giving rise to the Account was executed and (2) no Account Debtor with more than $5,000,000 of unpaid Accounts is party to any Insolvency Proceeding;

(viii) To the best of such Borrower’s and Canadian Subsidiary Guarantor’s knowledge, there are no proceedings or actions which are threatened or pending against any Account Debtor whose Accounts comprise more than 1% of the Value of the Accounts of all Account Debtors thereunder and which are reasonably likely to result in any material adverse change in such Account Debtor’s financial condition or the collectibility of such Account; and

(ix) In the ordinary course of its business, each Borrower and Canadian Subsidiary Guarantor processes its accounts receivable in a manner such that each payment received by such Borrower or Canadian Subsidiary Guarantor in respect of accounts receivable is allocated to a specifically identified invoice, which invoice corresponds to a particular account receivable owing to such Borrower or Canadian Subsidiary Guarantor.

9.1.7. Financial Statements Fiscal Year.

(a) The Consolidated balance sheets of Borrowers and such other Persons described therein (including the accounts of all Subsidiaries of Borrowers for the respective periods during which a Subsidiary relationship existed) as of December 31, 2012, and the related statements of income, changes in stockholder’s equity, and changes in financial position for the periods ended on such dates, have been prepared in accordance with GAAP, and present fairly the financial positions of Borrowers and such Persons at such dates and the results of Borrowers’ operations for such periods. Since December 31, 2012, there has been no Material Adverse Effect.

(b) The unaudited Consolidated balance sheet of Borrowers and such other Persons described therein (including the accounts of all Subsidiaries of Borrowers for the respective periods during which a Subsidiary relationship existed) as of June 30, 2007 and the related unaudited consolidated statements of operations and reinvested earnings and of cash flows for the fiscal quarter then ended and the six months then ended, set forth in Ryerson’s quarterly report for the fiscal quarter ended June 30, 2007 as filed with the SEC on Form 10-Q, a copy of which has been delivered to each of the Lenders, fairly present, in conformity with GAAP applied on a basis consistent with the financial statements referred to in Section 9.1.7(a) , the consolidated financial position of Borrowers and such other Persons as of such date and their consolidated results of operations and cash flows for such fiscal quarter and such six-month period (subject to normal year-end adjustments and the absence of footnotes).

9.1.8. Full Disclosure . The financial statements referred to in Section 9.1.7 hereof do not contain any untrue statement of a material fact and do not omit to state any information necessary to make the statements required to be made therein, in light of the circumstances under which they were made, not misleading, and neither this Agreement nor any other written statement (other than any projections and budgets) provided to the Agents or Lenders by a Borrower contains an untrue statement or omits any material fact necessary to make the statements contained herein or therein not materially misleading. With respect to any projections or budgets delivered to the Agents or Lenders by a Borrower, such projections and budgets were prepared in good faith on the basis of assumptions believed by Borrowers to be reasonable at the time of the preparation thereof.

 

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9.1.9. Solvent Financial Condition . Borrowers and their Subsidiaries together, on a consolidated basis, are now Solvent and, after giving effect to the Loans to be made hereunder, the Letters of Credit to be issued in connection herewith and the consummation of the other transactions described in the Credit Documents, will be Solvent.

9.1.10. Taxes . Each Borrower and each of its Subsidiaries has filed all material federal, state, provincial, territorial, local and foreign tax returns and other material reports it is required by law to file, has paid, or made adequate provision for the payment of, all Taxes upon it, its income and Properties as and when such Taxes are due and payable, and has satisfied all of its respective Tax withholding obligations except to the extent being Properly Contested. The provision for Taxes on the books of each Borrower and each of its Subsidiaries is adequate for all years not closed by applicable statutes, and for its current Fiscal Year.

9.1.11. [Reserved].

9.1.12. Intellectual Property . Each Borrower and Subsidiary owns or has the lawful right to use all Intellectual Property necessary for the present and planned future conduct of its business without any conflict with the rights of others; there is no objection to, or pending (or, to Borrower’s knowledge, threatened) Intellectual Property Claim with respect to, any Borrower’s or any Subsidiary’s right to use any such Intellectual Property and such Borrower and Subsidiary are not aware of any grounds for challenge or objection thereto; and, except as may be disclosed on Schedule 9.1.12 hereto, as of the Amendment No. 3 Effective Date , no Borrower nor any of its Subsidiaries pays any royalty or other compensation to any Person for the right to use any Intellectual Property. As of the Amendment No. 3 Effective Date, all such patents, trademarks, service marks, trade names, copyrights, licenses and other similar rights are listed on Schedule 9.1.12 hereto, to the extent they are registered under any Applicable Law or are otherwise material to any Borrower’s or any of its Subsidiaries’ business.

9.1.13. Governmental Approvals . Each Borrower and each of its Subsidiaries has, and is in good standing with respect to, all Governmental Approvals necessary to continue to conduct its business as heretofore or proposed to be conducted by it and to own or lease and operate its Properties as now owned or leased by it, except where the failure to have, or be in good standing with respect to, any necessary Government Approvals could not reasonably be expected to have a Material Adverse Effect. All necessary import, export or other licenses, permits or certificates for the import or handling of any goods or other Collateral have been procured and are in effect, and Borrowers and Subsidiaries have complied with all foreign and domestic laws with respect to the shipment and importation of any goods or Collateral, except where noncompliance could not reasonably be expected to have a Material Adverse Effect.

9.1.14. Compliance with Laws . Each Borrower and each of its Subsidiaries has duly complied with, and its Properties, business operations and leaseholds are in compliance in all material respects with, the provisions of all Applicable Law (except to the extent that any such noncompliance with Applicable Law could not reasonably be expected to have a Material Adverse Effect) and there have been no citations, notices or orders of noncompliance issued to any Borrower or any of its Subsidiaries under any such law, rule or regulation, which could result in a Material Adverse Effect.

9.1.15. Burdensome Contracts . No Borrower nor any of its Subsidiaries is a party or subject to any contract, agreement, or charter or other corporate restriction, which has or could be reasonably expected to have a Material Adverse Effect. As of the Amendment No. 3 Effective Date, no Borrower nor any of its Subsidiaries is a party or subject to any Restrictive Agreements, except as set forth on Schedule 9.1.15 hereto, none of which prohibit the execution or delivery of any of the Credit Documents by any Borrower or the performance by any Borrower of its obligations under any of the Credit Documents to which it is a party, in accordance with the terms of such Credit Documents.

 

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9.1.16. Litigation . Except as set forth on Schedule 9.1.16 hereto, there are no actions, suits, proceedings or investigations pending or, to the knowledge of any Borrower, threatened on the Closing Date against or affecting any Borrower or any of its Subsidiaries, or the business, operations, Properties, prospects, profits or condition of any Borrower or any of its Subsidiaries, (i) which relate to any of the Credit Documents or any of the transactions contemplated thereby or (ii) which, if determined adversely to any Borrower or any of its Subsidiaries, could reasonably be expected to have a Material Adverse Effect. To the knowledge of each Borrower, no Borrower nor any of its Subsidiaries is in default on the Closing Date with respect to any order, writ, injunction, judgment, decree or rule of any court, Governmental Authority or arbitration board or tribunal, which default could reasonably be expected to result in a Material Adverse Effect.

9.1.17. No Defaults . No event has occurred and no condition exists which would, upon or after the execution and delivery of this Agreement or any Borrower’s performance hereunder, constitute a Default or an Event of Default. No Borrower nor any of its Subsidiaries is in default, and no event has occurred and no condition exists which constitutes or which with the passage of time or the giving of notice or both would constitute a default, by a Borrower under any Material Contract or in the payment of any Debt of a Borrower or a Subsidiary to any Person for Debt.

9.1.18. Leases . Schedule 9.1.18 hereto is a complete listing of each capitalized and operating lease of each Borrower and each of its Subsidiaries on the Closing Date that constitutes a Material Contract. Each Borrower and each of its Subsidiaries is in substantial compliance with all of the terms of each of its respective capitalized and operating leases and to the best of Borrowers’ knowledge, there is no basis upon which the lessors under any such, leases could terminate same or declare any Borrower or any of its Subsidiaries in default thereunder, the termination of which could reasonably be expected to have a Material Adverse Effect.

9.1.19. Labor Relations . On the Closing Date, there are no material grievances, disputes or controversies with any union or any other organization of any Borrower’s or any Subsidiary’s employees, or, to any Borrower’s knowledge, any threats of strikes, work stoppages or any asserted pending demands for collective bargaining by any union or organization, which could reasonably be expected to have a Material Adverse Effect.

9.1.20. Not a Regulated Entity . No Borrower nor any of its Subsidiaries is (i) an “investment company” or “controlled by” an “investment company” within the meaning of the Investment Company Act of 1940; or (ii) subject to regulation under the Federal Power Act, the Interstate Commerce Act, any public utilities code or any other Applicable Law regarding its authority to incur Debt.

9.1.21. Margin Stock . No Borrower nor any of its Subsidiaries is engaged, principally or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock.

9.1.22. Environmental Matters .

(a) Except as set forth in Schedule 9.1.22 hereto and except as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect:

(i) Each of the Borrowers and their respective Subsidiaries and their businesses, operations and Property are in compliance with, and each of the Borrowers and their respective Subsidiaries have no liability under, applicable Environmental Law;

(ii) Each of the Borrowers and their respective Subsidiaries have obtained, or have applied in a timely manner for, all permits, approvals and authorizations required for the conduct of their businesses and operations, and the ownership, operation and use of their Property, under Environmental Law (“ Environmental Permits ”), and all such Environmental Permits are valid and in good standing;

 

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(iii) There has been no Release or threatened Release of Hazardous Material on, at, under or from any Real Estate or facility presently or to the knowledge of each Borrower formerly owned, leased or operated by each of the Borrowers and their respective Subsidiaries or their predecessors in interest that could reasonably be expected to result in liability of any of the Borrowers or their respective Subsidiaries under or non-compliance by each of the Borrowers or any of their respective Subsidiaries with any Environmental Law;

(iv) There is no Environmental Claim pending or, to the knowledge of each of the Borrowers and their respective Subsidiaries, threatened against any of the Borrowers or their respective Subsidiaries, or relating to any Borrower Property currently or to the knowledge of any Borrower formerly owned, leased or operated by any of the Borrowers and their respective Subsidiaries or relating to the operations of each of the Borrowers and their respective Subsidiaries, and there are no actions, activities, circumstances, conditions, events or incidents that could reasonably be expected to form the basis of such an Environmental Claim;

(v) Neither any of the Borrowers nor any of their respective Subsidiaries is obligated to perform any action or otherwise incur any expense under Environmental Law pursuant to any order, decree, judgment or agreement by which it is bound or has assumed by contract or agreement, and none of them is conducting or financing, in whole or in part, any Response required by any Environmental Law at any location; and

(vi) No Real Estate or facility owned, operated or leased by Parent or any Subsidiary and, to the knowledge of each of the Borrowers and their respective Subsidiaries, no Real Estate or facility formerly owned, operated or leased by any of the Borrowers or their respective Subsidiaries or any of their predecessors in interest is (i) listed or formally proposed for listing on the National Priorities List promulgated pursuant to CERCLA or (ii) listed on the Comprehensive Environmental Response, Compensation and Liability Information System promulgated pursuant to CERCLA or (iii) included on any similar list maintained by any Governmental Authority including any such list relating to petroleum or petroleum products.

(b) Except as set forth in Schedule 9.1.22 hereto, the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not require any notification, registration, filing, reporting, disclosure, investigation or Response pursuant to any Environmental Law.

9.1.23. ERISA Compliance .

(i) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state law. Each Plan which is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the IRS (or has timely filed an application for a determination letter that is under review by the IRS) and to the best knowledge of Borrowers, nothing has occurred which would cause the loss of such qualification.

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

(iii) (a) No ERISA Event has occurred or is reasonably expected to occur that when taken together with all other such ERISA Events has or could reasonably be expected to have a Material Adverse Effect; (b) neither any Borrower nor any Person for which any Borrower may have a direct or indirect liability under ERISA has incurred, or reasonably expects to incur, any ,liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA) that has or could reasonably be expected to have a Material Adverse Effect; (c) neither any Borrower nor any Person for which any Borrower may have a direct or indirect liability under ERISA has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA

 

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with respect to a Multi-employer Plan that has or could reasonably be expected to have a Material Adverse Effect; (d) no Borrower has engaged in a transaction that could reasonably be expected to be subject to Section 4069 or 4212(c) of ERISA; and (e) no other Person for which any Borrower may have any direct or indirect liability under ERISA has engaged in a transaction that could reasonably be expected to be subject to Section 4069 or 4212(c) of ERISA or could reasonably be expected to result in a Material Adverse Effect.

9.1.24. Bank Accounts . Schedule 9.1.24 hereto contains as of the Closing Date a complete and accurate list of all bank accounts maintained by Borrowers with any bank or other financial institution, each of which is a Dominion Account, other than accounts exclusively used for payroll, payroll taxes, employee benefits and deferred compensation or escrow accounts or an account not containing more than $25,000 at any time.

9.1.25. [ Reserved ].

9.1.26. [ Reserved ].

9.1.27. Canadian Pension Plans . The Canadian Pension Plans are duly registered under the Income Tax Act (Canada) and all other Applicable Laws which require registration and no event has occurred which is reasonably likely to cause the loss of such registered status. All material obligations of each Obligor (including fiduciary, funding, investment and administration obligations) required to be performed in connection with the Canadian Pension Plans and Canadian Benefit Plans and any funding agreements therefor have been performed in a timely fashion, except where (i) the failure to do so could not reasonably be expected to have a Material Adverse Effect and (ii) no Lien (other than a Permitted Lien) is created thereby. There have been no improper withdrawals or applications of the assets of the Canadian Pension Plans or the Canadian Benefit Plans by any Obligor or its Affiliates except where such withdrawals or applications could not reasonably be expected to have a Material Adverse Effect. There are no material outstanding disputes involving any Obligor or its Affiliates concerning the assets of the Canadian Pension Plans or the Canadian Benefit Plans except where such disputes could not reasonably be expected to have a Material Adverse Effect. No Canadian Plan Termination Event has occurred that would be reasonably likely to have a Material Adverse Effect. No Governmental Authority has issued any default or other breach notices in respect of any Canadian Pension Plan, except where such notices could not reasonably be expected to have a Material Adverse Effect. As of the Amendment No. 3 Effective Date, Schedule 9.1.27 contains a list of each Canadian Defined Benefit Plan. The Canadian Borrower has provided the Lenders with a copy of the actuarial valuation for each Canadian Defined Benefit Plan most recently filed with the applicable Governmental Authorities.

9.1.28. Insurance . Except as set forth in Schedule 9.1.28 hereto, the Properties of each Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of any Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where any Borrower or the applicable Subsidiary operates.

9.1.29. Casualty, Etc. Neither the businesses nor the properties of any Borrower or any of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo or other casualty (whether or not covered by insurance) that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

9.1.30. Transaction Documents . Ryerson and Parent have delivered to Administrative Agent a complete and correct copy of the Merger Agreement (including all schedules, exhibits, amendments, supplements and modifications thereto). The Merger Agreement complies in all material respects with all Applicable Law.

9.1.31. OFAC. No Loan Party (i) is a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner that violates Section 2 of such executive order, or (iii) is a person on the list of “Specially Designated Nationals and Blocked Persons” or subject to the limitations or prohibitions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order.

 

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9.2 Reaffirmation of Representations and Warranties . Each representation and warranty contained in this Agreement and the other Credit Documents shall be deemed to be reaffirmed by each Borrower on each day that Borrowers request or are deemed to have requested an extension of credit hereunder, except for changes in the nature of a Borrower’s or, if applicable, any of its Subsidiaries’ business or operations that may occur after the Closing Date in the Ordinary Course of Business so long as Administrative Agent has consented to such changes or such changes are not violative of any provision of this Agreement. Notwithstanding the foregoing, representations and warranties which by their terms are applicable only to a specific date shall be deemed made only at and as of such date.

9.3 Survival of Representations and Warranties . All representations and warranties of Borrowers contained in this Agreement or any of the other Credit Documents shall survive the execution, delivery and acceptance thereof by Agents, Lenders and the parties thereto and the closing of the transactions described therein or related thereto.

SECTION 10. COVENANTS AND CONTINUING AGREEMENTS

10.1 Affirmative Covenants . For so long as there are any Commitments outstanding and thereafter until Payment in Full of the Obligations, each Borrower covenants that, unless the Required Lenders have otherwise consented in writing, it shall and shall cause each Subsidiary to:

10.1.1. Visits, Inspections and Appraisals .

(a) Permit representatives of Administrative Agent and Canadian Agent, from time to time, as often as may be reasonably requested, but only during normal business hours and (except when a Default or Event of Default exists) upon reasonable prior notice to a Borrower, to visit and inspect the Properties of such Borrower and each of its Subsidiaries, inspect, audit and make extracts from such Borrower’s and each Subsidiary’s books and records, and discuss with its officers, its employees and its independent accountants (not to exceed five (5) billable hours for such accountants unless an Event of Default exists), such Borrower’s and each Subsidiary’s business, financial condition, business prospects and results of operations; provided that representatives of Borrower Agent shall be given notice of, and the opportunity to participate in, any discussion with Borrowers’ independent accountants. Representatives of each Lender shall be authorized to accompany Agents on each such visit and inspection and to participate with Agents therein, or in any such discussion with the accountants, but at their own expense, unless a Default or Event of Default exists. Neither any Agent nor any Lender shall have any duty to make any such inspection and shall not incur any liability by reason of its failure to conduct or delay in conducting any such inspection.

(b) Independently, or in connection with the visits and inspections provided for in clause (a) above, but not more than twice in any year (or three times in any year when the Floor Test is not met or Availability is below $125.0 million for each day during an immediately preceding thirty consecutive day period), permit representatives of Administrative Agent during normal business hours and after reasonable notice (except when a Default or Event of Default exists), to conduct commercial finance examinations and other evaluations, including without limitation, (i) of Borrowers’ practices in computation of the U.S. Borrowing Base and the Canadian Borrowing Base, (ii) inspecting and verifying and auditing the Collateral and (iii) conducting inventory appraisals; provided that only one (or two in any year the Floor Test is not met or Availability is below $125.0 million for each day during an immediately preceding thirty consecutive day period) inventory appraisal will be conducted in any year; provided that during the existence and continuation of an Event of Default, the foregoing limitations on the number of examinations, evaluations and appraisals shall not apply. Borrowers shall be responsible for all reasonable fees and expenses incurred by Administrative Agent (i) in connection with such field examinations, evaluations and appraisals conducted in accordance with the previous sentence and (ii) in connection with the collateral review conducted in connection with any Acquired Receivables Eligibility Requirement and the collateral review conducted in connection with any Acquire Inventory Eligibility Requirement. This work shall be in addition to any evaluation and reviews conducted in connection with a Business Acquisition.

 

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10.1.2. Notices . Notify Administrative Agent and Lenders in writing, promptly after a Borrower’s obtaining knowledge thereof, of any of the following that affects an Obligor: (a) the threat or commencement of any litigation, proceeding or investigation, whether or not covered by insurance, if an adverse determination could reasonably be expected to have a Material Adverse Effect; (b) any pending or threatened labor dispute, strike or walkout, or the expiration (without renewal) of any material labor contract, in each case, that could reasonably be expected to have a Material Adverse Effect; (c) any event of default under or termination of a Material Contract, in each case, that could reasonably be expected to have a Material Adverse Effect; (d) the existence of any Default or Event of Default; (e) any judgment entered against any Obligor in an amount exceeding $10,000,000; (f) the assertion of any Intellectual Property Claim, if an adverse resolution could reasonably be expected to have a Material Adverse Effect; (g) any violation or asserted violation of any Applicable Law (including ERISA, OSHA, FLSA or any Environmental Laws), if an adverse resolution could reasonably be expected to have a Material Adverse Effect; (h) any Release of Hazardous Materials by an Obligor or on, at, under or from any Property owned, leased or occupied by an Obligor; or receipt of any Environmental Notice, in each case where the Release or matter could reasonably be expected to have a Material Adverse Effect; or (i) the occurrence of any ERISA Event or similar occurrence in respect of Canadian Pension Plans; (j) the discharge of or any withdrawal or resignation by Borrowers’ independent accountants.

10.1.3. Financial and Other Information . Keep adequate records and books of account with respect to its business activities and ensure that proper entries are made reflecting all its financial transactions in accordance with sound business practices sufficient to allow the preparation based thereon of financial statements in accordance with GAAP; and cause to be prepared and to be furnished to Agents and Lenders the following (all to be prepared in accordance with GAAP applied on a consistent basis):

(i) as soon as available, and in any event within one hundred (100) days after the close of each Fiscal Year, audited balance sheets of Borrowers and their respective Subsidiaries as of the end of such Fiscal Year and the related statements of income, Shareholders’ equity and cash flow, on a Consolidated basis, certified without material qualification by a firm of independent certified public accountants of recognized national standing selected by Borrowers (except for a qualification for a change in accounting principles with which the accountant concurs), and setting forth in each case in comparative form the corresponding Consolidated figures for the preceding Fiscal Year;

(ii) as soon as available, and in any event within thirty (30) days after the end of each of the first two calendar months of each of Borrowers’ Fiscal Quarters, unaudited consolidated balance sheets of Borrowers and their respective Subsidiaries as of the end of such month and the related consolidated statements of operations and reinvested earnings and of cash flows for such month and for the portion of Borrowers’ Fiscal Year ended at the end of such month, on a Consolidated basis and consistent with the financial information prepared for Ryerson’s management, setting forth in each case in comparative form the corresponding figures for the preceding Fiscal Year; provided that so long as Availability for each day during a Fiscal Quarter is at least $300,000,000, the foregoing monthly financial statements in respect of each calendar month of such Fiscal Quarter shall be furnished to Administrative Agent within 30 days after the end of such Fiscal Quarter;

(iii) as soon as available, and in any event within forty-five (45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year, unaudited balance sheets of Borrowers and their Subsidiaries as of the end of such Fiscal Quarter and the related unaudited statements of income and cash flow for such Fiscal Quarter and for the portion of Borrowers’ Fiscal Year then elapsed, on a Consolidated basis, setting forth in each case in comparative form the corresponding figures for the preceding Fiscal Year and certified by the principal financial officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting the Consolidated financial position and results of operations of Borrowers and their Subsidiaries for such Fiscal Quarter and period subject only to changes from audit and year-end adjustments and except that such statements need not contain notes;

 

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(iv) concurrently with the delivery of each Borrowing Base Certificate pursuant to Section 8.4 , a summary of all of each Borrower’s trade payables as of the last Business Day of each month, specifying the name of and balance due each trade creditor, and, at Administrative Agent’s or any Lender’s request, monthly detailed trade payable agings in form acceptable to Administrative Agent; provided that as long as Availability for each day during a Fiscal Quarter is at least $150,000,000, such summary may be furnished quarterly within 30 days after the end of such Fiscal Quarter; provided further that such summary information shall not be required to be delivered until following the full implementation of SAP by Borrower;

(v) promptly after the sending or filing thereof, copies of any proxy statements; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the SEC or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower; and

(vi) (A) such other reports and information as any Agent or any Collateral Agent may reasonably request from time to time in connection with any Collateral and (B) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Borrower’s, Subsidiary’s or other Obligor’s financial condition or business.

Notwithstanding the foregoing, with respect to any financial statements that include all or any portion of October 2007, it is understood and agreed that such financial statements will be prepared on a basis consistent with Schedule 10.1.3 . Concurrently with the delivery of the financial statements described in clauses (i), (ii) and (iii) of this Section 10.1.3 or more frequently, if requested by any Agent or any Lender during any period that an Event of Default exists, Borrowers shall cause to be prepared and furnished to Administrative Agent and Lenders a Compliance Certificate executed by the chief financial officer of Borrower Agent; provided that as long as Availability for each day during a Fiscal Quarter is at least $150,000,000 and no Event of Default exists, such Compliance Certificate need only be furnished concurrently with the delivery of the financial statements described in clauses (i) and (iii) of this Section 10.1.3 .

Promptly after the sending or filing thereof, Borrowers shall also provide to Administrative Agent copies of any annual report to be filed in accordance with each Plan, each annual information return to be filed in accordance with the applicable pension standards legislation in connection with each Canadian Pension Plan, all notices received by a Borrower, Subsidiary or any Person for which any Borrower may have any direct or indirect liability from a Multi-employer Plan or any governmental agency regarding an ERISA Event and such other data and information (financial and otherwise) as Administrative Agent, from time to time, may reasonably request, bearing upon or related to the Collateral or any Borrower’s and any of its Subsidiaries’ financial condition or results of operations and, to the extent not already provided to Administrative Agent and Lenders, copies of all financial statements or reports that any Obligor has delivered to the trustee under the Senior Notes Indentures (or the trustee or agent under the agreement governing any Refinancing Debt in respect of the Senior Notes) at the time such financial statements or reports are so delivered to the trustee or any holder of Senior Notes (or the trustee, agent or holder under the agreement governing any Refinancing Debt in respect of the Senior Notes).

Promptly following any request therefor, on and after the effectiveness of the Pension Protection Act of 2006, Borrowers shall also provide copies of (i) any documents described in Section 101(k) of ERISA that any Borrower, any Subsidiary or any Person for which any Borrower may have any direct or indirect liability may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l) of ERISA that any Borrower, any Subsidiary or any Person for which any Borrower may have any direct or indirect liability may request with respect to any Multiemployer Plan; provided that if such Person has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the applicable Person shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof.

 

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Promptly, after the Borrowers or any of their Subsidiaries obtains knowledge thereof, notice of, with copies of any such documentation and notices as applicable, (i) any default in, or breach of, a Canadian Defined Benefit Plan that could reasonably be expected to result in a Material Adverse Effect; (ii) any action or inaction of a plan sponsor or administrator that could result in a Canadian Plan Termination Event that could reasonably be expected to result in a Material Adverse Effect; (iii) receipt of any notice from, or any action of any Governmental Authority that could lead to a Canadian Plan Termination Event; and (iv) copies of each actuarial valuation filed with the applicable Governmental Authorities for each Canadian Defined Benefit Plan. Furthermore, at the time of the delivery of the financial statements provided for in Section 10.1.3 (i) , a certificate of an Authorized Employee of the Canadian Borrower setting forth a calculation of the excess in any Canadian Defined Benefit Plan of that Canadian Defined Benefit Plan’s benefit liabilities, over the current value of that Canadian Defined Benefit Plan’s assets, determined in accordance with the assumptions used for funding the Canadian Defined Benefit Plan pursuant to Applicable Laws for the applicable plan year (which includes an unfunded liability or solvency deficiency as determined for the purposes of the Pension Benefits Act (Ontario)), as appears from the most recent actuarial valuation report for each Canadian Defined Benefit Plan most recently filed with the applicable Governmental Authorities.

10.1.4. Landlord and Storage Agreements . Upon the request of Administrative Agent, provide Administrative Agent with copies of all existing agreements, and promptly after execution thereof provide Administrative Agent with copies of all future agreements, between any Borrower and any landlord, warehouseman or bailee which owns any premises at which any Collateral in excess of $150,000 of value may, from time to time, be kept.

10.1.5. Projections . No later than forty-five (45) days after the end of each Fiscal Year of Borrowers, deliver to Administrative Agent and Lenders the Projections of Borrowers for the forthcoming Fiscal Year, month by month and on an annual basis for the second and third fiscal years thereafter.

10.1.6. Taxes and Liabilities . Pay and discharge all Taxes and other liabilities prior to the date on which such Taxes or other liabilities become delinquent or penalties attach thereto and the imposition of any Lien (other than Permitted Liens) would result therefrom, except and to the extent only that such Taxes or other liabilities are being Properly Contested.

10.1.7. Compliance with Laws . Comply with all Applicable Law, including ERISA, FLSA, OSHA, and all laws, statutes, regulations and ordinances regarding the collection, payment and deposit of Taxes, and obtain and keep in force any and all Governmental Approvals necessary to the ownership or operation of its Properties or to the conduct of its business, to the extent that any such failure to comply, obtain or keep in force could be reasonably expected to have a Material Adverse Effect.

10.1.8. Insurance . (a) Borrowers will maintain, at their sole cost and expense, the policies of insurance as in effect on the Closing Date or otherwise with coverages, and in amounts customary for comparable businesses in the industries in which Borrowers operate and with insurers reasonably acceptable to Administrative Agent. Such policies of insurance (or the loss payable and additional insured endorsements delivered to the applicable Agent) shall contain provisions pursuant to which the insurer agrees to provide 30 days’ (or, with respect to non-payment of premium, 10 days’) prior written notice to the applicable Agent in the event of any non-renewal, cancellation or amendment of any such insurance policy. If any Borrower or any of its Subsidiaries at any time or times hereafter shall fail to obtain or maintain any of the policies of insurance required above or to pay all premiums relating thereto, the applicable Agent may at any time or times thereafter obtain and maintain such policies of insurance and pay such premiums and take any other action with respect thereto that the applicable Agent deems advisable. The applicable Agent shall have no obligation to obtain insurance for any Borrower or any of its Subsidiaries or to pay any premiums therefor. By doing so, the applicable Agent shall not be deemed to have waived any Default arising from failure of any Borrower or any of its Subsidiaries to maintain such insurance or to pay any premiums therefor. All sums so disbursed, including reasonable attorneys’ fees, court costs and other charges related thereto, shall be payable on demand by the applicable Borrower to the applicable Agent and shall be additional obligations hereunder secured by the Collateral. Administrative Agent reserves the right at any time upon any change in the Borrowers’ risk profile to require additional coverages and limits of insurance to, in the Agents’ reasonable opinion, adequately protect Agents’ and Lenders’ interests in all or any portion of the Collateral. If reasonably requested by Administrative Agent, each Borrower shall deliver to Administrative Agent from time to time the most current AmBest rating of each insurer, with respect to the insurance policies.

 

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(b) Each Borrower shall deliver to the applicable Agent, in form and substance reasonably satisfactory to the applicable Agent, endorsements to (i) all “All Risk” insurance naming the applicable Agent, on behalf of itself and the applicable Lenders, as loss payee, and (ii) all general liability policies naming the applicable Agent, on behalf of itself and the applicable Lenders, as additional insureds. Each Borrower irrevocably makes, constitutes and appoints the applicable Agent (and all officers, employees or agents designated by such Agent), so long as any Event of Default has occurred and is continuing, as such Borrower’s true and lawful agent and attorney-in-fact for the purpose of making, settling and adjusting claims under such “All Risk” policies of insurance, endorsing the name of such Borrower on any check or other item of payment for the proceeds of such “All Risk” policies of insurance and for making all determinations and decisions with respect to such “All Risk” policies of insurance. Administrative Agent shall have no duty to exercise any rights or powers granted to it pursuant to the foregoing power-of-attorney.

10.1.9. [ Reserved ]

10.1.10. Compliance with Environmental Laws .

(a) Comply, and use commercially reasonable efforts to cause all lessees and other Persons occupying Real Estate of any Obligor to comply in all material respects with all Environmental Laws and Environmental Permits applicable to its operations and Real Estate; obtain and renew all material Environmental Permits applicable to its operations and Real Estate; and conduct all Responses required by, and in accordance with, Environmental Laws; provided that neither each Borrower nor any of its respective Subsidiaries shall be required to undertake any Response to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP.

(b) If a Default caused by reason of a breach of Section 9.1.22 or Section 10.1.10(a) shall have occurred and be continuing for more than 30 days without each Borrower and its respective Subsidiaries commencing activities reasonably likely to cure such Default in accordance with Environmental Laws, at the written request of the Administrative Agent or the Required Lenders through the Administrative Agent, provide to the Lenders within 60 days after such request, at the sole expense of each Borrower and its respective Subsidiaries, an environmental assessment report regarding the matters which are the subject of such Default, including, where appropriate, soil and/or groundwater sampling, prepared by an environmental consulting firm and, in the form and substance, reasonably acceptable to the Administrative Agent or Required Lenders making the request and indicating the presence or absence of Hazardous Materials and the estimated cost of any compliance or Response to address them as required by applicable Environmental Laws.

10.1.11. Canadian Pension Plans . The Canadian Loan Parties shall cause each of their Canadian Pension Plans to be administered in all respects in compliance with, as applicable, the Pension Benefits Act (Ontario) and all other Applicable Laws (including regulations, orders and directives), and the terms of the Canadian Pension Plans and any agreements relating thereto other than such non-compliance that could not reasonably be expected to result in a Material Adverse Effect. The Canadian Loan Parties shall ensure that, to the extent such action or inaction could reasonably be expected to result in a Material Adverse Effect, (a) each of them does not engage in a prohibited transaction or violation of the fiduciary responsibility rules with respect to any Canadian Defined Benefit Plan, and (b) each of them as a Canadian Defined Benefit Plan sponsor or otherwise, shall not take any steps to cause the wind up and/or termination of any Canadian Defined Benefit Plan that has a solvency funding deficiency of greater than $1.0 million without the consent of the Administrative Agent.

10.1.12. Conduct of Business; Maintenance of Existence .

(a) Each Borrower and its Subsidiaries will continue to engage in business of the same general type as now conducted by them which shall, taken as a whole, principally be the business (both domestic and international) of (i) selling, distributing and processing steel, other metals and industrial products, (ii) managing such materials for customers and (iii) providing other services and products incidental, ancillary or related to any of the foregoing.

 

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(b) Each Borrower will, and will cause each of its Subsidiaries to, preserve, renew and keep in full force and effect its respective existence and its respective rights, privileges and franchises necessary or desirable in the normal conduct of its business; provided that nothing in this Section shall prohibit (i) the merger of a Subsidiary with and into a Borrower or (ii) the dissolution of any Subsidiary if the relevant Borrower in good faith determines that such dissolution is in the best interest of such Borrower and is not materially disadvantageous to Lenders.

10.1.13. Further Assurances . Each Borrower will, and will cause each of its U.S. Subsidiaries and Canadian Subsidiaries to, execute and deliver any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements and other documents), that may be required under any Applicable Law, or that Administrative Agent, Canadian Agent or the Required Lenders may reasonably request to cause the Lien securing the Obligations to be perfected first priority liens (subject only to Permitted Liens) in favor of Administrative Agent, Canadian Agent and the agreement and Obligation of each Obligor to remain in full force and effect, all at the applicable Borrower’s expense. Borrowers will provide to Administrative Agent, from time to time upon request, evidence reasonably satisfactory to Administrative Agent, Canadian Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.

10.2 Negative Covenants . For so long as there are any Commitments outstanding and thereafter until Payment in Full of the Obligations, each Borrower covenants that, unless the Required Lenders have otherwise consented in writing, it shall not and shall not permit any Subsidiary to:

10.2.1. Fundamental Changes . Merge, reorganize, consolidate or amalgamate with any Person, or liquidate, wind up its affairs or dissolve itself, in each case whether in a single transaction or in a series of related transactions, unless (i) (a) either (x) such Borrower (or, in the case of a merger or consolidation between a U.S. Borrower and another U.S. Borrower, either of such U.S. Borrowers) is the Person surviving such transaction or (y) if such Borrower is not the Person surviving such transaction, (A) such Borrower shall have notified the Lenders in writing of the identity of the surviving Person and the Required Lenders shall not have objected thereto in writing within 15 Business Days of such notice, (B) if the Borrower that is a party to such transaction is organized under the laws of the United States or any State thereof or the District of Columbia, the Person surviving such transaction shall be organized under the laws of the United States or any State thereof or the District of Columbia, (C) if the Borrower that is party to such transaction is organized under the laws of Canada or one of its provinces or territories, the Person surviving such transaction shall be organized under the laws of Canada or one of its provinces or territories, (D) the Person surviving such transaction shall have (I) expressly assumed all of the rights and obligations of such Borrower under the Credit Documents in a manner satisfactory to Administrative Agent and (II) made representations and delivered opinions of counsel (unless Administrative Agent shall have indicated that no such opinion of counsel is required), in each case, in form and substance satisfactory to Administrative Agent, as to the valid existence of such Person, as to the power and authorization of such Person to assume such rights and obligations and as to the validity and binding nature of the Credit Documents on such Person and (b) immediately after giving effect to such transaction, no Default shall have occurred and be continuing or (ii) with respect to any Subsidiary, unless (AA) the Person surviving such transaction is such Borrower or a Subsidiary of a Borrower, (BB) immediately after giving effect to such transaction, no Default shall have occurred and be continuing, (CC) if the Subsidiary of a Borrower that is party to such transaction is a Guarantor, the Person surviving such transaction shall be a Borrower or a Guarantor, (DD) if the Subsidiary of a Borrower that is a party to such transaction is organized under the laws of the United States or any State thereof or the District of Columbia, the Person surviving such transaction shall be organized under the laws of the United States or any State thereof or the District of Columbia, and (EE) if the Subsidiary of a Borrower that is party to such transaction is organized under the laws of Canada or one of its provinces or territories, the Person surviving such transaction shall be organized under the laws of Canada or one of its provinces or territories (provided that if such Subsidiary is Canadian Borrower or a Canadian Subsidiary Guarantor, its guarantee under the applicable Security Document shall not become void, unenforceable or otherwise limited by financial assistance or other applicable provisions of corporate law or other Applicable Laws).

 

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10.2.2. [ Reserved ].

10.2.3. Permitted Debt . Create, incur, assume, guarantee or suffer to exist any Debt except:

(i) the Obligations (other than any China Facility incurred as a tranche hereunder);

(ii) the Senior Notes;

(iii) Permitted Purchase Money Debt;

(iv) Permitted Contingent Obligations;

(v) Debt permitted by Section 10.2.12 ;

(vi) Debt that is not included in any of the other paragraphs of this Section 10.2.3 not secured by a Lien (unless such Lien is a Permitted Lien) and not to exceed $200,000,000 at any time outstanding as to all Borrowers and Subsidiary Guarantors;

(vii) Debt that is not included in any of the other paragraphs of this Section 10.2.3 , has a stated maturity that is at least one hundred eighty (180) days after the Maturity Date, does not require any payments of principal prior to the Maturity Date, has covenants no more restrictive than those contained in this Agreement;

(viii) Debt (other than the Debt permitted pursuant to clauses (i) or (ii) above) outstanding on the Closing Date and listed on Schedule 10.2.3(viii) hereto;

(ix) Refinancing Debt so long as each Refinancing Condition is satisfied;

(x) Bank Product Debt; provided that any Hedging Agreements are permitted under Section 10.2.18 ;

(xi) Debt secured by Liens permitted by Section 10.2.5(xv) ;

(xii) Debt assumed in connection with a Business Acquisition that is permitted under Section 10.2.12 ; provided that (x) such Debt exists at the time of such Business Acquisition and is not created in contemplation thereof or in connection therewith, (y) the aggregate principal amount of Debt permitted by this clause (xii) shall not exceed $100,000,000 at any time outstanding and (z) such Debt is unsecured except for Liens permitted by Section 10.2.5 ;

(xiii) reimbursement obligations incurred in the Ordinary Course of Business in respect of trade letters of credit issued to support the purchase of Inventory in transit to a property owned or leased by an Obligor; provided that such reimbursement obligations are secured only by the Inventory in respect of which the applicable letter of credit has been issued; and provided further that such letters of credit shall be payable only against sight drafts (and not time drafts);

(xiv) reimbursement obligations in respect of the standby letters of credit listed on Schedule 10.2.3(xiv) hereto;

(xv) Debt in respect of the China Facility incurred by Ryerson China Limited and its subsidiaries;

 

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(xvi) guarantees by Parent, the U.S. Borrower and U.S. Guarantors of Debt in respect of the China Facility; and

(xvii) Debt in respect of Permitted Receivables Transactions.

None of the provisions of this Section 10.2.3 that authorize any Borrower to incur any Debt shall be deemed to override, modify or waive any of the provisions of Section 10.3 , which shall constitute an independent and separate covenant and obligation of each Borrower.

10.2.4. Affiliate Transactions . Enter into, or be a party to, any transaction with any Affiliate or stockholder, except: (i) the transactions contemplated by the Credit Documents; (ii) payment of reasonable compensation to officers and employees for services actually rendered to Borrowers or their respective Subsidiaries; (iii) payment of customary directors’ fees and indemnities; (iv) transactions with Affiliates listed on Schedule 10.2.4 that have been disclosed to Agents prior to the Closing Date; (v) Affiliate Loans; (vi) Permitted Investments; (vii) Distributions permitted under Section 10.2.7 hereof; (viii) transactions solely among U.S. Obligors; (ix) transactions solely among Canadian Loan Parties; (x) transactions with Affiliates in the Ordinary Course of Business and pursuant to the reasonable requirements of such Borrower’s or such Subsidiary’s business and upon fair and reasonable terms that are no less favorable to such Borrower or such Subsidiary than such Borrower or such Subsidiary would obtain in a comparable arm’s-length transaction with a Person not an Affiliate or stockholder of such Borrower or such Subsidiary and if requested by Administrative Agent, the terms of which are disclosed to Administrative Agent in writing; and (xi) transactions contemplated by the Merger Agreement and related documents, including payments to employees or directors in connection with the Acquisition.

10.2.5. Limitation on Liens . Create or suffer to exist any Lien upon any of its Property, income or profits, whether now owned or hereafter acquired, except the following (collectively, “Permitted Liens”):

(i) Liens at any time granted in favor of Agents;

(ii) Liens for Taxes not yet delinquent or which are being Properly Contested;

(iii) statutory Liens (other than Liens for Taxes or imposed pursuant to any of the provisions of ERISA) arising in the Ordinary Course of Business of a Borrower or a Subsidiary, but only if and for so long as (x) payment in respect of any such Lien is not required or the Debt secured by any such Lien is being Properly Contested and (y) such Liens do not materially detract from the value of the Property of such Borrower or such Subsidiary and do not materially impair the use thereof in the operation of such Borrower’s or such Subsidiary’s business;

(iv) Purchase Money Liens securing Permitted Purchase Money Debt;

(v) Liens securing Debt of a Subsidiary of a Borrower or a Borrower, in each case to another Borrower;

(vi) Liens arising by virtue of the rendition, entry or issuance against such Borrower or any of its Subsidiaries, or any Property of such Borrower or any of its Subsidiaries, of any judgment, writ, order or decree for so long as each such Lien does not give rise to an Event of Default under Section 12.1.15 ;

(vii) servitudes, easements, rights-of-way, restrictions, covenants or other agreements of record and other similar charges or encumbrances on Real Estate of such Borrower or any of its Subsidiaries that do not secure any monetary obligation and do not interfere with the ordinary conduct of the business of such Borrower or such Subsidiary;

 

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(viii) normal and customary rights of setoff upon deposits of cash in favor of banks and other depository institutions and Liens of a collecting bank arising under the UCC on Payment Items in the course of collection;

(ix) the filing of UCC or PPSA financing statements solely as a precautionary measure in connection with operating leases;

(x) such other Liens existing on the Closing Date and listed on Schedule 10.2.5 hereto, to the extent provided therein;

(xi) Liens incurred or deposits made in the Ordinary Course of Business to secure the performance of tenders, bids, leases, contracts (other than for the repayment of Debt), statutory obligations, obligations to customs brokers and other similar obligations arising as a result of progress payments under government contracts;

(xii) Leases of Real Estate among Borrowers in the Ordinary Course of Business;

(xiii) Liens securing the Senior Notes and any Refinancing Debt related thereto; provided that the Liens thereon relating to Collateral are junior in priority to Liens thereon in favor of Agents pursuant to the Intercreditor Agreement;

(xiv) any Lien existing on any asset of any Person immediately before such Person becomes a Subsidiary of any Borrower or is merged or consolidated with or into any Borrower and not created in contemplation of such event; provided that such Liens do not extend to Property not subject to such Liens at the time of acquisition;

(xv) Liens not otherwise permitted by the foregoing clauses of this Section securing Debt in an aggregate principal amount at any time outstanding not to exceed $20,000,000;

(xvi) (a) Liens securing trade letters of credit permitted under Section 10.2.3(xiii) and (b) Liens securing standby letters of credit permitted under Section 10.2.3(xiv) ;

(xvii) Liens securing additional notes issued under the Senior Notes Indentures after the Amendment No. 2 Effective Date; provided that the Liens thereon relating to Collateral are of the same or junior priority as the Liens securing any Senior Notes issued on the Amendment No. 2 Effective Date that are secured; and;

(xviii) (a) other Liens on real property subject to a mortgage in favor of the trustee under the Senior Notes Indentures (or the trustee or agent under the agreement governing any Refinancing Debt in respect of the Senior Notes) as approved by the Administrative Agent in its reasonable discretion and (b) such other Liens as Agents and the Required Lenders in their sole discretion may hereafter approve in writing;

(xix) Liens securing the guarantees of Debt permitted under Section 10.2.3(xvi) , which may be (A) secured equally and ratably with the Obligations and (B) implemented on a “super priority” basis subject to a customary intercreditor agreement placing any payment on such guarantees before Bank Product Debt and Hedging Obligations but after all other Obligations in the post-default allocation of payments and collection provisions (or, to the extent the China Facility is documented as a new tranche under the Credit Documents, such super priority basis may be established through permitted amendments to Section 5.6 hereof); and

(xx) Liens arising from precautionary UCC financing statements or similar filings made in respect of operating leases entered into by any U.S. Borrower or any of its U.S. Subsidiaries and Liens in favor of Qualified Receivables Counterparties on Receivables Transaction Assets owing by Qualified Account Debtors to secure obligations in connection with Permitted Receivables Transactions.

 

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The foregoing negative pledge shall not apply to any Margin Stock to the extent that the application of such negative pledge to such Margin Stock would require filings or other actions by any Lender under Regulation U or other regulations of the Federal Reserve Board, or otherwise result in a violation of any such regulations.

Notwithstanding the foregoing, Borrowers will not and will not permit any Subsidiary to create, incur, assume or suffer to exist any Lien on any Collateral other than (i) Liens securing the Obligations, (ii) Liens otherwise permitted by Sections 10.2.5(ii) , (iii) , (vi) , (viii) , (xi) , (xiii) , (xiv) , (xvi) , (xvii)  and (xviii)  to the extent so approved (in the case of clause (xviii)) and (iii) additional Liens permitted hereunder pursuant to Section 10.2.5 attaching to Collateral having an aggregate fair value not to exceed $1,000,000.

10.2.6. Other Debt . (a) Make any payment, directly or indirectly, of all or any part of any Debt or take any other action or omit to take any other action in respect of any Debt, except (i) regularly scheduled payments of principal, interest and fees and other payments made in accordance with the agreements governing such Debt, (ii) prepayments of the Senior Notes as required by Section 4.10 or Section 4.16 of the Senior Notes Indentures, (iii) refinancing of such Debt permitted by Section 10.2.3(ix) , (iv) any repayment of the Obligations, (v) prepayments of Purchase Money Debt or Capitalized Lease Obligations with the net cash proceeds of assets relating to such Debt, (vi) any prepayment, redemption or repurchase of any Debt not otherwise permitted under this Section 10.2.6 not to exceed $150,000,000 in the aggregate, (vii) mandatory prepayments of the Ryerson Convertible Notes required by the indenture governing such notes, and (viii) any payments so long as each of the Payment Conditions is satisfied as determined by Administrative Agent; or (b) amend or modify the terms of any agreement applicable to any Debt, other than (i) to extend the time of payment thereof, (ii) to reduce the rate of interest payable in connection therewith, (iii) to make any other change that is not adverse to the Lenders in any material respect or (iv) to amend this Agreement and the other Credit Documents as permitted by Section 13.9 . To the extent that any payment (other than scheduled payments of interest thereunder that are due on the same day of each month and that are known in amount and frequency to Administrative Agent) is permitted to be made with respect to any Debt pursuant to the provisions of the agreement governing such Debt, as a condition precedent to Borrowers’ authorization make any such payment, Borrowers shall provide to Administrative Agent, not less than five (5) Business Days prior to the scheduled payment, a certificate from a Senior Officer of Borrower Agent stating that no Default or Event of Default is in existence as of the date of the certificate or will be in existence as of the date of such payment (both with and without giving effect to the making of such payment), and specifying the amount of principal and interest to be paid.

10.2.7. Distributions . Declare or make any Distributions, except for: (i) Upstream Payments;

(ii) Permitted Distributions;

(iii) payments made in respect of dissenting shares and in respect of Ryerson’s incentive stock or other equity based benefit plans, Director’s Compensation Plan and Nonqualified Savings Plan, including deferred accounts therein denominated in stock units in each case made in connection with the Acquisition; and

(iv) Distributions so long as each of the Payment Conditions is satisfied.

10.2.1. [ Reserved ].

10.2.9. Disposition of Assets . Sell, assign, lease, license, transfer, consign or otherwise dispose of any of its Properties or any interest therein, including any disposition of Property as part of a sale and leaseback or synthetic lease transaction, to or in favor of any Person, except (i) sales of Inventory in the Ordinary Course of Business or under any commodity repurchase agreement, (ii) a transfer of Property to a Borrower by another Borrower or a Subsidiary (subject to Section 10.2.12(vi) ), (iii) non-exclusive licenses of technology and other Intellectual Property by and among any Borrowers or any of their Subsidiaries,

 

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(iv) dispositions of Property that is not necessary to the business of Borrowers, not to exceed $10,000,000 in the aggregate per Fiscal Year, so long as Borrowers have either reinvested the proceeds thereof in other assets to be used in the business of such entity within one hundred eighty (180) days after such disposition or remitted proceeds thereof (a) in the case of Property subject to Liens permitted by Section 10.2.5(iv) , for application to the Debt secured thereby or (b) in the case of Property securing the obligations under the Senior Notes Indentures (or the agreement governing any Refinancing Debt in respect of the Senior Notes) (other than the Collateral), to the trustee under the Senior Notes Indentures (or the trustee or agent under the agreement governing any Refinancing Debt in respect of the Senior Notes) for application in accordance with the terms thereof, (v) the sale or other disposition of Real Estate of Borrowers so long as no Event of Default exists or results therefrom, (vi) the sale of any Property covered by a Capitalized Lease Obligation in connection with the termination of such Capitalized Lease Obligations, (vii) dispositions of cash or Cash Equivalents, (viii) other dispositions so long as each of the Payment Conditions is satisfied as determined by Administrative Agent,(ix) dispositions of receivables for which the obligor is The Stanley Works Co. in connection with a “fast-pay” program related thereto not to exceed $2,750,000 in any calendar year and (x) a transfer or deposition of Receivables Transaction Assets in connection with a Permitted Receivables Transaction.

10.2.10. Subsidiaries . Form or acquire any Subsidiary after the Closing Date except in connection with an Investment permitted under Section 10.2.12(vi), (x)  or (xi) ; provided that any such Subsidiary that (a) is a U.S. Subsidiary, becomes a U.S. Borrower or a U.S. Guarantor or (b) is a Canadian Subsidiary, becomes a Canadian Subsidiary Guarantor, as applicable, or permit any existing Subsidiary to issue any additional Equity Interests except (i) director’s qualifying shares and (ii) to other Obligors.

10.2.11. Bill-and-Hold Sales and Consignments . Make sales to any customer on a bill-and-hold, guaranteed sale, sale and return, sale on approval, consignment or repurchase or return basis exceeding $50,000,000 in the aggregate from and after the Amendment No. 1 Effective Date.

10.2.12. Restricted Investments . Make or acquire any Restricted Investment other than (collectively “ Permitted Investments ”),

(i) Affiliate Loans;

(ii) investments existing on the Closing Date in Subsidiaries and Permitted Affiliates listed on Schedule 10.2.12 ;

(iii) loans or other advances of money to an officer or employee of a Borrower or a Subsidiary for salary, travel advances, advances against commissions and other similar advances not to exceed $1,000,000 at any time outstanding;

(iv) [reserved];

(v) the prepayment of operating expenses or deposits made in connection therewith in the Ordinary Course of Business;

(vi) Investments (i) by any U.S. Borrower or U.S. Subsidiary Guarantor in another U.S. Borrower or any U.S. Subsidiary Guarantor, (ii) by Canadian Borrower or any Canadian Subsidiary Guarantor in another Borrower or U.S. Subsidiary Guarantor or Canadian Subsidiary Guarantor, (iii) by any U.S. Borrower or any U.S. Subsidiary Guarantor in Canadian Borrower, any Canadian Subsidiary Guarantor, any Subsidiary that is not an Obligor or a Permitted Affiliate; provided that the aggregate amount of such Investments pursuant to this subclause (iii) shall not exceed $35,000,000 at any one time outstanding (it being understood that any Investments made pursuant to Section 10.2.12(i) shall not reduce the amount of Investments that are available to be made pursuant to this subclause (iii)), and (iv) by a Subsidiary that is not a Borrower or a Guarantor in any other Subsidiary that is not a Borrower or a Guarantor; provided that any Investment in the form of a loan or advance shall be evidenced by a subordinated intercompany note and, in the case of a loan or advance by an Obligor, pledged by such Obligor as Collateral pursuant to the Security Documents;

 

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(vii) Parent may consummate the Acquisition on the Closing Date;

(viii) Investments in securities of trade creditors or customers in the ordinary course of business received upon foreclosure or pursuant to any plan of reorganization or liquidation or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers;

(ix) the $8,500,000 contribution to the Ryerson Change in Control Severance Trust specified by the Merger Agreement;

(x) other Investments (including acquisitions) not permitted under the other provisions of this Section 10.2.12 up to $30,000,000 at any time outstanding; and

(xi) other Investments so long as each of the Payment Conditions is satisfied as determined by Administrative Agent.

10.2.13. [ Reserved ]

10.2.14. Tax Consolidation . File or consent to the filing of any consolidated income tax return with any Person other than a Subsidiary, Merger Sub and Parent.

10.2.15. Accounting Changes . Make any significant change in accounting treatment or reporting practices, except as may be required by GAAP, or except as set forth on Schedule 10.1.3 hereto, establish a fiscal year different from the Fiscal Year.

10.2.16. Organization Documents . Amend, modify or otherwise change any of the terms or provisions in any of its Organization Documents as in effect on the Closing Date, except for changes that do not affect in any way such Borrower’s or any of its Subsidiaries’ rights and obligations to enter into and perform the Credit Documents to which it is a party and to pay all of the Obligations and that do not otherwise have a Material Adverse Effect.

10.2.17. Restrictive Agreements . Enter into or become a party to any Restrictive Agreement; provided that the foregoing shall not apply to (i) Restrictive Agreements existing on the Closing Date and identified on Schedule 9.1.15 (but shall apply to any amendment or modification expanding the scope of any restriction or condition contained in any such Restrictive Agreement), (ii) the Senior Notes Indentures as in effect on the Amendment No. 2 Effective Date, (iii) restrictions or conditions imposed by any Restrictive Agreement evidencing or governing secured Debt that is permitted by this Agreement if such restrictions or conditions apply only to the Properties securing such Debt (and the proceeds thereof) and otherwise permit the Liens securing the Obligations, (iv) customary provisions in leases and other contracts restricting the assignment thereof, (v) provisions in agreements relating to assets to be sold in transactions permitted by this Agreement restricting the transfer thereof or the grant of liens therein pending the closing of such transactions and (vi) restrictions on Upstream Payments (a) pursuant to the Credit Documents and (b) existing under Applicable Law.

10.2.18. Hedging Agreements . Enter into any Hedging Agreement, other than Hedging Agreements entered into in the Ordinary Course of Business to hedge or mitigate risks to which any Borrower or any Subsidiary is exposed in the conduct of its business or the management of its liabilities and not for any speculative purpose.

10.2.19. Cancellation of Claim . Cancel any claim or debt owing to it involving an amount in excess of $5,000,000, except for any claim or debt (a) canceled for reasonable consideration negotiated on an arm’s-length basis and (b) compromised or written off in the Ordinary Course of Business.

 

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10.3 Financial Covenants . For so long as there are any Commitments outstanding and thereafter until Payment in Full of the Obligations, Borrowers covenant that, unless otherwise consented to by the Required Lenders in writing, they shall:

10.3.1. Consolidated Fixed Charge Coverage Ratio . Maintain a Consolidated Fixed Charge Coverage Ratio to be tested and applicable as follows:

(i) Covenant Testing . If a Trigger Event occurs then until an End Date occurs thereafter, Borrowers and their Subsidiaries on a consolidated basis shall be required to maintain a Consolidated Fixed Charge Coverage Ratio of at least 1.0 to 1.0, calculated as of the last day of the most recent calendar month for which Borrowers were required to deliver financial statements under the terms of this Agreement, for the Applicable Test Period.

(ii) Trigger Events . A Trigger Event shall occur if either of the following events occurs (each a “ Trigger Event ”):

(a) if Availability on any Business Day is less than ten percent (10%) of the lesser of (i) the aggregate Commitments and (ii) the Total Borrowing Base, or

(b) if Availability is less than $125,000,000 at the close of business on any Business Day (clauses (a) and (b), the “ Floor Test ”).

(iii) Cure .

(a) Notwithstanding anything to the contrary contained in Section 10.3 , in the event that a Trigger Event occurs, the End Date has not yet occurred and the Borrowers fail to comply with Section 10.3.1 , Parent shall have the right within ten days after the occurrence of such Event of Default to issue common equity interests to Platinum for cash to the common capital of Parent (which shall be invested in U.S. Borrower) (a “ Specified Equity Contribution ”) and upon receipt of such cash (the “ Cure Amount ”) by U.S. Borrower, the Consolidated Fixed Charge Coverage Ratio will be recalculated such that Consolidated EBITDA will be increased, solely for the purpose of calculating the Consolidated Fixed Charge Coverage Ratio for Section 10.3.1 and not for any other purpose under this Agreement, by the Cure Amount. If after giving effect to the foregoing recalculations, the Borrowers are in compliance with Section 10.3.1 , then no Default or Event of Default shall have been deemed to occur. No Cure Amount shall exceed the amount required for the Borrowers to be in compliance with Section 10.3.1

(b) If such Specified Equity Contribution is to be funded by Platinum from capital calls on its partners, then Platinum shall provide written evidence to Administrative Agent of such capital calls no later than two (2) Business Days after the occurrence of such Event of Default.

(c) Limitation on Number of Specified Equity Contributions . Notwithstanding anything to the contrary contained herein, (a) Specified Equity Contributions shall not be permitted more than two (2) times during any period of six consecutive calendar months and (b) there shall not be more than ten (10) Specified Equity Contributions for all periods prior to the Maturity Date.

Upon Administrative Agent’s receipt of a notice from Platinum that it or one of its Affiliates intends to make a Specified Equity Contribution (a “ Notice of Intent to Cure ”), until the 10th day following the date of required delivery of the related Compliance Certificate to which such Notice of Intent to Cure relates, none of Administrative Agent, any Issuing Bank nor any Lender shall exercise the right to accelerate the Loans or terminate the Commitments and no Agent, nor any other Lender or Secured Party shall exercise any right to foreclose on or take possession of the Collateral solely on the basis of an Event of Default having occurred and being continuing under this Section 10.3.1 .

 

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SECTION 11. CONDITIONS PRECEDENT

11.1 Conditions Precedent to Initial Credit Extensions on the Closing Date . Lenders shall not be required to fund any Loan requested by Borrowers or otherwise extend credit to Borrowers, and Issuing Bank shall not be required to issue any Letter of Credit, unless, on or before November 30, 2007, each of the following conditions has been satisfied:

11.1.1. Credit Documents . Each of the Credit Documents shall have been duly executed and delivered to Administrative Agent by each of the signatories thereto (and, with the exception of the Notes, in sufficient counterparts for each Lender) and accepted by Agents and Lenders and each Obligor shall be in compliance with all of the terms thereof.

11.1.2. Availability . Immediately after Lenders have made the initial Loans to be made on the Closing Date, Issuing Bank has issued the Letters of Credit to be issued on the Closing Date and Borrowers have paid (or made provision for payment of) all closing costs incurred in connection with the Commitments, Availability shall be not less than $275,000,000.

11.1.3. Evidence of Perfection and Priority of Liens . Administrative Agent shall have received duly executed copies of all filings and notices necessary to perfect the Liens of Agents on the Collateral such that upon filing or recordation thereof such Liens will constitute valid and perfected security interests and Liens. Administrative Agent shall be satisfied that, upon consummation of the transactions contemplated hereby, there shall be no other Liens upon any Collateral except for Permitted Liens.

11.1.4. Organization Documents . Administrative Agent shall have received copies of the Organization Documents of each Obligor and each of its Subsidiaries, and all amendments thereto, certified by the Secretary of State or other appropriate official of the jurisdiction of organization of such Obligor or its Subsidiary.

11.1.5. Good Standing Certificates . Administrative Agent shall have received good standing certificates for each Obligor and each of its Subsidiaries, issued by the Secretary of State or other appropriate official of the jurisdiction of organization of such Obligor or Subsidiary and each jurisdiction where the conduct of such Obligor’s or Subsidiary’s business activities or ownership of its Property necessitates qualification.

11.1.6. Opinion Letters . Administrative Agent and Canadian Agent, as applicable, shall have received a favorable, written opinion of Bingham McCutchen LLP, Blake, Cassels and Graydon LLP, Eva Kalawski, the general counsel to Platinum, and the respective local counsel to Obligors and Administrative Agent, covering, to Administrative Agent’s reasonable satisfaction, the matters set forth on Exhibit F attached hereto.

11.1.7. Insurance . Administrative Agent shall have received certificates of insurance with respect to all property and casualty insurance policies of Obligors with respect to the Collateral, and certificates of insurance with respect to such policies in form acceptable to Administrative Agent, and loss payable endorsements on each Agent’s standard form of loss payee endorsement naming the applicable Agent as lender’s loss payee and mortgagee with respect to each such policy and certified copies of Obligors’ liability insurance policies, including product liability coverage, together with endorsements naming the applicable Agent as an additional insured, all as required by the Credit Documents.

11.1.8. Lockbox; Dominion and Concentration Accounts . Administrative Agent shall have received the duly executed agreements establishing the lockbox and each Dominion Account, in each case with the applicable Agent for the collection or servicing of the Accounts.

11.1.9. Solvency Certificates . Administrative Agent and Lenders shall have received certificates satisfactory to them from one or more knowledgeable Senior Officers of Borrowers and Parent that, after giving effect to the financing under this Agreement and the issuance of the Letters of Credit, Borrowers and Parent are Solvent.

 

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11.1.10. Compliance with Laws and Other Agreements . Administrative Agent shall have determined or received assurances satisfactory to them that none of the Credit Documents or any of the transactions contemplated thereby violate Regulation U of the Board of Governors.

11.1.11. No Material Adverse Change . Since December 31, 2006, there shall have been no material adverse change in, or material adverse effect on, the business, properties, financial condition or operations of Ryerson and its Subsidiaries, taken as a whole, or the ability of Ryerson to consummate the transactions contemplated by the Merger Agreement (a “ Closing Material Adverse Effect ”); provided , however , that the effects of changes that are generally applicable to (i) the industries and markets in which Ryerson and its Subsidiaries operate, (ii) the United States economy or (iii) the United States securities markets shall be excluded from the determination of Closing Material Adverse Effect; and provided, further, that any adverse effect on Ryerson and its Subsidiaries resulting from (A) the execution of the Merger Agreement, the announcement of the Merger Agreement or the pendency or consummation of the transactions contemplated thereby, (B) any acts of terrorism or war, (C) changes in any Laws (as defined in the Merger Agreement) or accounting regulations or principles applicable to Ryerson or any of its Subsidiaries, (D) any other action required by Law, contemplated by the Merger Agreement or taken at the request of Parent or Merger Sub, (E) any failure by Ryerson or its Subsidiaries to meet analysts’ or internal earnings estimates or financial projections in and of itself, or (F) the failure of Parent to consent to any of the actions proscribed in Section 6.1 of the Merger Agreement, shall also be excluded from the determination of Material Adverse Effect.

11.1.12. Debt . Borrowers shall have no Debt outstanding other than the Obligations, the Senior Secured Notes (as defined in the Credit Agreement in effect on the Closing Date) and the Debt listed on Schedule 10.2.3 and other Debt permitted under Section 10.2.3 .

11.1.13. Payment of Fees . Borrowers shall have paid, or made provision for the payment on the Closing Date of, all fees and expenses (to the extent invoiced) to be paid hereunder to Agents and Lenders on the Closing Date.

11.1.14. Acquisition by Platinum . The agreements, instruments and documents relating to each aspect of the Transactions, including the Merger Agreement, shall not be altered, amended or otherwise changed or supplemented or any condition therein waived, in each case in any material respect in any manner adverse to the Lenders, without the prior written consent of Administrative Agent. The Acquisition shall have been consummated substantially simultaneously with the Closing Date in accordance with the terms of the Merger Agreement and in compliance with Applicable Law and regulatory approvals.

11.1.15. Administrative Agent shall have received reasonably satisfactory evidence with respect to the Equity Contribution.

11.1.16. Financial Information . The Administrative Agent and the Lenders shall have received: (i) unaudited management accounts of Ryerson and its Subsidiaries for any interim quarterly periods which have ended since the December 31, 2006 audited financial statements and for which at least 45 days have passed as of the Closing Date and, with respect to the unaudited management accounts of Ryerson and its Subsidiaries for the interim quarterly period ended June 30, 2007, such unaudited management accounts will not be materially inconsistent with the financial statements for such period previous delivered to Bank of America and (ii) pro forma financial statements giving effect to the Transaction for the period commencing with the end of the most recently completed fiscal year and ending with the most recently completed quarter (for which at least 45 days have passed as of the Closing Date).

11.2 Conditions Precedent to All Credit Extensions . Lenders shall not be required to fund any Loans or otherwise extend any credit to or for the benefit of Borrowers, and Issuing Bank shall not be required to issue any Letter of Credit, unless and until each of the following conditions has been and continues to be satisfied, or waived by Agents and Lenders in accordance with the provisions of Section 13.9 hereof:

 

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11.2.1. No Defaults . No Default or Event of Default exists at the time, or would result from the funding, of any Loan or other extension of credit.

11.2.2. Representations and Warranties . The representations and warranties of each Obligor in the Credit Documents shall be true and correct on the date of, and upon giving effect to, such funding, issuance or grant (except for representations and warranties that expressly relate to an earlier date).

11.3 Inapplicability of Conditions . None of the conditions precedent set forth in Sections 11.1 or 11.2 shall be conditions to the obligation of (i) each Participating Lender to make payments to Issuing Bank pursuant to Section 2.3.3 , (ii) each Lender to deposit with Administrative Agent such Lender’s Pro Rata share of a Borrowing in accordance with Section 2.2.2 , (iii) each Lender to pay any amount payable to the applicable Agent or any other Lender pursuant to this Agreement, (iv) Administrative Agent to pay any amount payable to any Lender pursuant to this Agreement or (v) each U.S. Revolver Lender to make payments to Administrative Agent in connection with Agent Advances pursuant to Section 2.8 .

11.4 Limited Waiver of Conditions Precedent . If Lenders shall make any Loan, procure any Letter of Credit, or otherwise extend any credit to Borrowers under this Agreement at a time when any of the foregoing conditions precedent are not satisfied or waived in accordance with Section 13.9 hereof (regardless of whether the failure of satisfaction of any such conditions precedent was known or unknown to Agents or Lenders), the funding of such Loan shall not operate as a waiver of the right of Agent and Lenders to insist upon the satisfaction of all conditions precedent with respect to each subsequent Borrowing requested by Borrowers or a waiver of any Default or Event of Default as a consequence of the failure of any such conditions to be satisfied, unless Administrative Agent, with the prior written consent of the Required Lenders, in writing waives the satisfaction of any condition precedent, in which event such waiver shall only be applicable for the specific instance given and only to the extent and for the period of time expressly stated in such written waiver.

SECTION 12. EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT

12.1 Events of Default . The occurrence or existence of any one or more of the following events or conditions shall constitute an “ Event of Default ” (each of which Events of Default shall be deemed to exist unless and until waived by Administrative Agent and Lenders in accordance with the provisions of Section 13.9 hereof):

12.1.1. Payment of Obligations . Borrowers shall fail to pay (or shall fail to have had paid on its behalf) any of the Obligations on the due date thereof (whether due at stated maturity, on demand, upon acceleration or otherwise).

12.1.2. Misrepresentations . Any representation, warranty or other written statement to any Agent or any Lender by or on behalf of any Obligor, whether made in or furnished in compliance with or in reference to any of the Credit Documents (including any representation made in any Borrowing Base Certificate), proves to have been false or misleading in any material respect when made or furnished or when reaffirmed pursuant to Section 9.2 hereof.

12.1.3. Breach of Specific Covenants . Any Obligor shall fail or neglect to perform, keep or observe (i) any covenant contained in Section 8.1.1 , 8.2.4 , 8.2.5 , 8.2.6 , 8.4 , 10.1.1 , 10.2 or 10.3 hereof on the date that such Obligor is required to perform, keep or observe such covenant, (ii) any covenant contained in Section 10.1.3 hereof within five (5) days after the date that such Obligor is required to perform, keep and observe, and (iii) any covenant contained in Section 10.1.6 within three (3) Business Days after the date that such Obligor is required to perform, keep and observe.

12.1.4. Breach of Other Covenants . Any Obligor shall fail or neglect to perform, keep or observe any covenant contained in this Agreement (other than a covenant which is dealt with specifically elsewhere in Section 12.1 hereof) and the breach of such other covenant is not cured within thirty (30) days after the sooner to occur of any Senior Officer’s receipt of notice of such breach from Administrative Agent or the date on which such failure or neglect first becomes known to any Senior Officer; provided, however, that such notice and opportunity to cure shall not apply in the case of any failure to perform, keep or observe any covenant which is not capable of being cured at all or within such 30-day period or which is a willful and knowing breach by any Obligor.

 

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12.1.5. Default Under Security Documents/Other Agreements . Any Obligor shall default in the due and punctual observance or performance (after the expiration of any applicable grace period) of any liability or obligation to be observed or performed by it under any of the Other Agreements or Security Documents.

12.1.6. Other Defaults . There shall occur any default or event of default on the part of any Obligor (other than Parent) or any Subsidiary under any agreement, document or instrument to which such Obligor (other than Parent) or such Subsidiary is a party or by which such Obligor (other than Parent) or such Subsidiary or any of their respective Properties is bound, creating or relating to any Debt (other than the Obligations) in excess of $20,000,000 if the payment or maturity of such Debt may be accelerated in consequence of such event of default or demand for payment of such Debt may be made; or there shall occur any default or event of default on the part of Parent under any agreement, document or instrument to which Parent is a party or by which Parent or any of its Property is bound, creating or relating to Debt (other than the Obligations) in excess of $20,000,000; and the holder of such Debt shall have commenced any enforcement action against Parent to collect such Debt.

12.1.7. Uninsured Losses . Any loss, theft, damage or destruction of any of the Collateral (excluding Accounts) not fully covered (subject to such deductibles as Administrative Agent shall have permitted) by insurance if the amount not covered by insurance exceeds $20,000,000.

12.1.8. Material Adverse Effect . There shall occur any event or condition that has a Material Adverse Effect.

12.1.9. Solvency . Borrower Agent shall cease to be Solvent (on a Consolidated Basis).

12.1.10. Insolvency Proceedings . Any Insolvency Proceeding shall be commenced by any Borrower or any of its Significant Subsidiaries (or any group of Subsidiaries that, when taken together, would meet the definition of “Significant Subsidiary”); an Insolvency Proceeding is commenced against any Borrower or any of its Significant Subsidiaries (or any group of Subsidiaries, that when taken together, would meet the definition of “Significant Subsidiary”) and any of the following events occur: such Borrower or such Significant Subsidiary (or any group of Subsidiaries that, when taken together, would meet the definition of “Significant Subsidiary”) consents to the institution of the Insolvency Proceeding against it, the petition commencing the Insolvency Proceeding is not timely controverted by such Borrower or such Significant Subsidiary (or any group of Subsidiaries that, when taken together, would meet the definition of “Significant Subsidiary”), the petition commencing the Insolvency Proceeding is not dismissed within sixty (60) days after the date of the filing thereof (provided that, in any event, during the pendency of any such period, Lenders shall be relieved from their obligation to make Loans or otherwise extend credit to or for the benefit of Borrowers hereunder), a trustee or receiver (on an interim or permanent basis) or similar official is appointed to take possession of all or a substantial portion of the Properties of such Borrower or such Significant Subsidiary (or any group of Subsidiaries that, when taken together, would meet the definition of “Significant Subsidiary”) or to operate all or any substantial portion of the business of such Borrower or such Significant Subsidiary (or any group of Subsidiaries that, when taken together, would meet the definition of “Significant Subsidiary”) or an order for relief shall have been issued or entered in connection with such Insolvency Proceeding; or any Borrower or any of its Significant Subsidiaries (or any group of Subsidiaries that, when taken together, would meet the definition of “Significant Subsidiary”) shall make an offer of settlement extension or composition to its unsecured creditors generally.

12.1.11. Business Disruption Condemnation . There shall occur a cessation of a substantial part of the business of any Obligor for a period which may be reasonably expected to have a Material Adverse Effect; or any Obligor shall suffer the loss or revocation of any license or permit now held or hereafter acquired by such Obligor which is necessary to the continued or lawful operation of its business; or any Obligor shall be enjoined, restrained or in any way prevented by court, governmental or administrative order from conducting all or any material part of its business affairs; or any material lease or agreement pursuant

 

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to which any Obligor leases or occupies any premises on which any Collateral is located shall be canceled or terminated prior to the expiration of its stated term and such cancellation or termination has a Material Adverse Effect or results in an Out-of-Formula Condition; or any material part of the Collateral shall be taken through condemnation or the value of such Collateral shall be materially impaired through condemnation.

12.1.12. Change of Ownership . (i) A Change of Control shall occur; (ii) Parent shall cease to own beneficially and of record at least 100% of the Equity Interest of Ryerson; (iii) any “change of control” (as defined in the indenture or other agreement governing the Debt incurred under Section 10.2.3(vii) ) shall occur; or (iv) any “change of control” (as defined in the Senior Notes Indentures) shall occur.

12.1.13. ERISA; Canadian Pension Plans . An ERISA Event, a Canadian Plan Termination Event or any similar event shall occur with respect to a Pension Plan, Canadian Pension Plan or Multi-employer Plan which has resulted or could reasonably be expected to have a Material Adverse Effect or result in a Lien on a portion of the Collateral having a value greater than $5,000,000 (other than in respect of contributions not yet due to a Canadian Pension Plan).

12.1.14. Challenge to Credit Documents . Any Obligor or any of its Subsidiaries or Affiliates shall challenge or contest in any action, suit or proceeding the validity or enforceability of any of the Credit Documents, the legality or enforceability of any of the Obligations or the perfection or priority of any Lien granted to Agents, or any of the Credit Documents ceases to be in full force or effect for any reason other than a full or partial waiver or release by Agents and Lenders in accordance with the terms thereof.

12.1.15. Judgment . (i) One or more judgments or orders for the payment of money in an amount that exceeds, individually or in the aggregate, $20,000,000 (net of any insurance coverage applicable thereto acknowledged by the insurer) shall be entered against any Borrower or any of its Subsidiaries or (ii) one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, shall be entered against any Borrower or any of its Subsidiaries and, in either case, (x) enforcement proceedings shall have been commenced by any creditor upon such judgment or order, (y) there shall be any period of thirty (30) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect or (z) results in the creation or imposition of a Lien upon any of the Collateral that is not a Permitted Lien.

12.1.16. Repudiation of or Default Under Guaranty . Any Guarantor shall revoke or attempt to revoke its guarantee of the Obligations, shall repudiate such Guarantor’s liability thereunder, or shall be in default under the terms thereof, or shall fail to confirm in writing, promptly after receipt of Administrative Agent’s written request therefor, such Guarantor’s ongoing liability under the U.S. Security Agreement or Canadian Security Documents, as the case may be, in accordance with the terms thereof.

12.1.17. Criminal Forfeiture . Any Obligor shall be convicted under any criminal law that could lead to a forfeiture of any Property of such Obligor or there is filed against any Obligor or any of its Subsidiaries any action, suit or proceeding under any federal or state racketeering statute (including the Racketeer Influenced and Corrupt Organization Act of 1970), in each case, which could reasonably be expected to have a Material Adverse Effect.

12.2 Acceleration of Obligations; Termination of Commitments . Without in any way limiting the right of Administrative Agent to demand payment of any portion of the Obligations payable on demand in accordance with this Agreement:

12.2.1. Upon or at any time after the occurrence of an Event of Default (other than pursuant to Section 12.1.10 hereof) and for so long as such Event of Default shall exist, Administrative Agent may in its discretion (and, upon receipt of written instructions to do so from the Required Lenders, shall) (a) declare the principal of and any accrued interest on the Loans and all other Obligations owing under any of the Credit Documents to be, whereupon the same shall become without further notice or demand (all of which notice and demand each Borrower expressly waives), forthwith due and payable and Borrowers shall forthwith pay to Administrative Agent the entire principal of and accrued and unpaid interest on the Loans and other Obligations plus reasonable attorneys’ fees and court costs if such principal and interest are collected by or through an attorney at law and (b) terminate the Commitments.

 

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12.2.2. Upon the occurrence of an Event of Default specified in Section 12.1.10 hereof, all of the Obligations shall become automatically due and payable without declaration, notice or demand by Administrative Agent to or upon any Borrower and the Commitments all automatically terminate as if terminated by Administrative Agent pursuant to Section 6.2.1 hereof and with the effects specified in Section 6.2.4 hereof; provided, however, that, if Agents or Lenders shall continue to make Loans or otherwise extend credit to Borrowers pursuant to this Agreement after an automatic termination of the Commitments by reason of the commencement of an Insolvency Proceeding by or against Borrowers, such Loans and other credit shall nevertheless be governed by this Agreement and enforceable against and recoverable from each Borrower as if such Insolvency Proceeding had never been instituted.

12.3 Other Remedies . Upon and after the occurrence of an Event of Default and for so long as such Event of Default shall exist, each Agent may in its discretion (and, upon receipt of written direction of the Required Lenders, shall) exercise from time to time the following rights and remedies (without prejudice to the rights of any Agent or any Lender to enforce its claim against any or all Borrowers):

12.3.1. All of the rights and remedies of a secured party under the UCC, PPSA, BIA or CCAA or under other Applicable Law, and all other legal and equitable rights to which Agents may be entitled under any of the Credit Documents, all of which rights and remedies shall be cumulative and shall be in addition to any other rights or remedies contained in this Agreement or any of the other Credit Documents, and none of which shall be exclusive.

12.3.2. The right to collect all amounts at any time payable to a Borrower from any Account Debtor or other Person at any time indebted to such Borrower.

12.3.3. The right to take immediate possession of any of the Collateral, and to (i) require Borrowers to assemble the Collateral, at Borrowers’ expense, and make it available to the applicable Agent at a place designated by the applicable Agent which is reasonably convenient to both parties, and (ii) enter any premises where any of the Collateral shall be located and to keep and store the Collateral on said premises until sold (and if said premises be the Property of a Borrower, then such Borrower agrees not to charge the applicable Agent for storage thereof).

12.3.4. The right to sell or otherwise dispose of all or any Collateral in its then condition, or after any further manufacturing or processing thereof at public or private sale or sales, with such notice as may be required by Applicable Law, in lots or in bulk, for cash or on credit, all as Administrative Agent, in its sole discretion, may deem advisable. Each Borrower agrees that any requirement of notice to any Borrower of any proposed public or private sale or other disposition of Collateral by the applicable Agent shall be deemed reasonable notice thereof if given at least ten (10) days prior thereto, and such sale may be at such locations as the applicable Agent may designate in said notice, the applicable Agent shall have the right to conduct such sales on any applicable Borrower’s premises, without charge therefor, and such sales may be adjourned from time to time in accordance with Applicable Law. The applicable Agent shall have the right to sell, lease or otherwise dispose of the Collateral, or any part thereof, for cash, credit or any combination thereof, and the applicable Agent may purchase all or any part of the Collateral at public or, if permitted by law, private sale and, in lieu of actual payment of such purchase price, may set off the amount of such price against the Obligations. The proceeds realized from the sale or other disposition of any Collateral may be applied, after allowing two (2) Business Days for collection in accordance with Section 5.6 . If any deficiency shall arise, U.S. Borrowers shall remain jointly and severally liable to Agents and Lenders therefor.

12.3.5. The right to the appointment of a receiver (on an interim or permanent basis), without notice of any kind whatsoever, to take possession of all or any portion of the Collateral and to exercise such rights and powers as the court appointing such receiver shall confer upon such receiver.

12.3.6. [ Reserved ].

 

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12.3.7. The right to require Borrowers to Cash Collateralize the aggregate amount of the L/C Obligations and, if Borrowers fail promptly to make such deposit, Lenders may (and shall upon the direction of the Required U.S. Revolver Lenders or Required Canadian Revolver Lenders, as applicable) advance such amount as a U.S. Revolver Loan or Canadian Revolver Loan, as the case may be, (whether or not an Out-of-Formula Condition exists or is created thereby). Any such deposit or advance shall be held by the applicable Agent as a reserve to fund future payments on any Letter of Credit. At such time as all Letters of Credit have been drawn upon or expired, any amounts remaining in such reserve shall be applied against any outstanding Obligations, or, after full and final payment of all Obligations have been Paid in Full, returned to Borrowers.

12.3.8. With respect to each arrangement contemplated by this paragraph to the extent of any Borrower’s interest therein, and to the extent the same may be granted under such Borrower’s license or other right to use the same if not owned by such Borrower, each Agent is hereby granted an irrevocable, non-exclusive license or other right to use, license or sub license (exercisable without payment of royalty or other compensation to any Borrower or any other Person) any or all of each Borrower’s Intellectual Property and all of each Borrower’s computer hardware and software trade secrets, brochures, customer lists, promotional and advertising materials, labels, and packaging materials, and any Property of a similar nature, in advertising for sale, marketing, selling and collecting and in completing the manufacturing of any Collateral, and each Borrower’s rights under all licenses and all franchise agreements shall inure to Administrative Agent’s benefit.

12.4 Setoff . In addition to any Liens granted under any of the Credit Documents and any rights now or hereafter available under Applicable Law, each Agent and each Lender (and, each of their respective Affiliates) is hereby authorized by Borrowers at any time that an Event of Default exists, without notice to Borrowers or any other Person (any such notice being hereby expressly waived), to set off and to appropriate and apply any and all deposits, general or special (including Debt evidenced by certificates of deposit whether matured or unmatured (but not including trust accounts, tax accounts, employee benefit or payroll accounts)) and any other Debt at any time held or owing by such Lender or any of their Affiliates to or for the credit or the account of any Borrower against and on account of the Obligations of Borrowers arising under the Credit Documents to such Agent, such Lender or any of their Affiliates, including all Loans and L/C Obligations and all claims of any nature or description arising out of or in connection with this Agreement, irrespective of whether or not (i) such Agent or such Lender shall have made any demand hereunder, (ii) Administrative Agent, at the request or with the consent of the Required Lenders, shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by this Agreement and even though such Obligations may be contingent or unmatured or (iii) the Collateral for the Obligations is adequate. Notwithstanding the foregoing, each of Agents and Lenders agree with each other that it shall not, without the express consent of the Required Lenders, exercise its setoff rights hereunder against any accounts of any Borrower now or hereafter maintained with such Agent, such Lender or any Affiliate of any of them, but no Borrower shall have any claim or cause of action against any Agent or any Lender for any setoff made without the consent of the Required Lenders and the validity of any such setoff shall not be impaired by the absence of such consent. If any party (or its Affiliate) exercises the right of setoff provided for hereunder, such party shall be obligated to share any such setoff in the manner and to the extent required by Section 13.5 .

12.5 Remedies Cumulative; No Waiver .

12.5.1. All covenants, conditions, provisions, warranties, guaranties, indemnities, and other undertakings of Borrowers contained in this Agreement and the other Credit Documents, or in any document referred to herein or contained in any agreement supplementary hereto or in any schedule given to any Agent, any Collateral Agent or any Lender or contained in any other agreement between any Agent, any Collateral Agent or any Lender and Borrowers, heretofore, concurrently, or hereafter entered into, shall be deemed cumulative to and not in derogation or substitution of any of the terms, covenants, conditions, or agreements of Borrowers herein contained. The rights and remedies of Agents, Collateral Agents and Lenders under this Agreement and the other Credit Documents shall be cumulative and not exclusive of any rights or remedies that any Agent, any Collateral Agent or any Lender would otherwise have. The rights and remedies of Borrowers under this Agreement and the other Credit Documents also shall be cumulative and not exclusive of any rights or remedies that Borrowers would otherwise have.

 

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12.5.2. The failure or delay of any Agent, any Collateral Agent or any Lender to require strict performance by Borrowers of any provision of any of the Credit Documents or to exercise or enforce any rights, Liens, powers or remedies under any of the Credit Documents or with respect to any Collateral shall not operate as a waiver of such performance, Liens, rights, powers and remedies, but all such requirements, Liens, rights, powers, and remedies shall continue in full force and effect until all Loans and all other Obligations, owing or to become owing from Borrowers to Agents, the Collateral Agents and Lenders shall have been fully satisfied. None of the undertakings, agreements, warranties, covenants and representations of Borrowers contained in this Agreement or any of the other Credit Documents and no Event of Default by any Borrower under this Agreement or any other Credit Documents shall be deemed to have been suspended or waived by any Agent, any Collateral Agent or any Lender, unless such suspension or waiver is by an instrument in writing specifying such suspension or waiver and is signed by a duly authorized representative of such Agent, such Collateral Agent or such Lender and directed to Borrowers. The failure or delay of Borrowers to require strict performance by any Agent, any Collateral Agent or any Lender of any provision of any of the Credit Documents or to exercise or enforce any rights, powers or remedies under any of the Credit Documents or at Applicable Law shall not operate as a waiver of such rights, powers and remedies.

12.5.3. If any Agent, any Collateral Agent or any Lender shall accept performance by a Borrower, in whole or in part, of any obligation that a Borrower is required by any of the Credit Documents to perform only when a Default or Event of Default exists, or if any Agent, any Collateral Agent or any Lender shall exercise any right or remedy under any of the Credit Documents that may not be exercised other than when a Default or Event of Default exists, such Agent’s, such Collateral Agent’s or Lender’s acceptance of such performance by a Borrower or such Agent’s, such Collateral Agent’s or Lender’s exercise of any such right or remedy shall not operate to waive any such Event of Default or to preclude the exercise by any Agent, any Collateral Agent or any Lender of any other right or remedy, unless otherwise expressly agreed in writing by such Agent, such Collateral Agent or such Lender, as the case may be.

SECTION 13. AGENTS

13.1 Appointment, Authority and Duties of Agents .

13.1.1. Appointment and Authority .

(a) Each Lender appoints and designates Bank of America as Administrative Agent hereunder. Each Lender appoints and designates each of Bank of America, General Electric Capital Corporation and Wells Fargo Capital Finance, LLC as a Collateral Agent hereunder. Administrative Agent may, and each Lender authorizes Administrative Agent and each Collateral Agent to, enter into all Credit Documents to which Administrative Agent and each Collateral Agent is intended to be a party and accept all Security Documents, for Administrative Agent’s benefit and the Pro Rata benefit of Lenders. Each Lender agrees that any action taken by Administrative Agent or Required Lenders in accordance with the provisions of the Credit Documents, and the exercise by Administrative Agent or Required Lenders of any rights or remedies set forth therein, together with all other powers reasonably incidental thereto, shall be authorized by and binding upon all Lenders. Without limiting the generality of the foregoing, Administrative Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections with respect to the U.S. Obligors arising in connection with the Obligations under the Credit Documents; (b) execute and deliver as Administrative Agent each Credit Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document from any Obligor or other Person; (c) act as collateral agent for the Secured Parties for purposes of perfecting and administering Liens granted by the U.S. Obligors securing the Obligations under the Credit Documents and for other purposes stated therein (other than the authority specifically granted to the Collateral Agents herein); (d) manage, supervise or otherwise deal with Collateral of U.S. Obligors securing the Obligations; and (e) take any Enforcement Action or otherwise exercise any rights or remedies with respect to any Collateral of U.S. Obligors securing the Obligations under the Credit Documents, Applicable Law or otherwise. The duties of Administrative Agent and the Collateral Agents shall be ministerial and administrative in nature, and neither Administrative Agent nor any Collateral Agent shall have a fiduciary relationship with any Lender, Secured Party, Participant or other Person, by reason of any Loan Document or any transaction relating thereto. Administrative Agent alone shall be authorized to determine whether any Accounts or Inventory constitute Eligible Accounts or Eligible Inventory, or (subject to the following proviso) whether to impose or release any reserve, and to exercise its Credit Judgment in

 

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connection therewith, which determinations and judgments, if exercised in good faith, shall exonerate Administrative Agent from liability to any Lender or other Person for any error in judgment; provided, that notwithstanding the foregoing, the Collateral Agents shall be authorized to determine whether to impose or release certain reserves (as set forth in this Agreement), and to exercise their Credit Judgment in connection therewith, which determinations and judgments, if exercised in good faith, shall exonerate the Collateral Agents from liability to any Lender or other Person for any error in judgment.

(b) Each Canadian Revolver Lender appoints and designates Bank of America-Canada Branch as Canadian Agent hereunder. Canadian Agent may, and each Canadian Revolver Lender authorizes Canadian Agent to, enter into all Credit Documents to which Canadian Agent is intended to be a party and accept all Security Documents, for Canadian Agent’s benefit and the Pro Rata Benefit of Canadian Lenders and the Secured Parties. Each Canadian Revolver Lender agrees that any action taken by Canadian Agent, Required Canadian Revolver Lenders or Required Lenders in accordance with the provisions of the Credit Documents, and the exercise by Canadian Agent, Required Canadian Revolver Lenders or Required Lenders of any rights or remedies set forth therein, together with all other powers reasonably incidental thereto, shall be authorized and binding upon all Canadian Revolver Lenders. Without limiting the generality of the foregoing (but subject to Section 13.1.1(a) ), Canadian Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Canadian Revolver Lenders with respect to all payments and collections arising in connection with the Canadian Obligations under the Credit Documents; (b) execute and deliver as Canadian Agent each Credit Document, including any intercreditor or subordination agreement, and accept delivery of each Credit Document from any Obligor or other Person; (c) act as collateral agent for Secured Parties for purposes of perfecting and administering all Liens granted to it and securing the Canadian Obligations under the Credit Documents, and for all other purposes stated therein; (d) manage, supervise or otherwise deal with Collateral of Canadian Loan Parties; and (e) take any Enforcement Action or otherwise exercise any rights and remedies given to Canadian Agent with respect to any Collateral of Canadian Loan Parties under the Credit Documents, Applicable Law or otherwise. The duties of Canadian Agent shall be ministerial and administrative in nature, and Canadian Agent shall not have a fiduciary relationship with any Lender, Secured Party, Participant or other Person, by reason of any Credit Document or any transaction relating thereto. Administrative Agent and Canadian Agent will coordinate and cooperate with respect to U.S. Obligors and their Collateral in their capacity as Canadian Obligors.

(c) For the purposes of creating a solidarité active in accordance with Article 1541 of the Civil Code of Québec between each Secured Party, taken individually, on the one hand, and Canadian Agent, on the other hand, each Obligor and each such Secured Party acknowledges and agrees with Canadian Agent that such Secured Party and Canadian Agent are hereby conferred the legal status of solidary creditors of each such Obligor in respect of all Obligations owed by each such Obligor to Canadian Agent and such Secured Party hereunder and under the other Credit Documents (collectively, the “ Solidary Claim ”) and that, accordingly, but subject (for the avoidance of doubt) to Articles 1542 and 1543 of the Civil Code of Québec, each such Obligor is irrevocably bound towards Canadian Agent and each Secured Party in respect of the entire Solidary Claim of Canadian Agent and such Secured Party. As a result of the foregoing, the parties hereto acknowledge that Canadian Agent and each Secured Party shall at all times have a valid and effective right of action for the entire Solidary Claim of Canadian Agent and such Secured Party and the right to give full acquittance for it. Accordingly, and without limiting the generality of the foregoing, Canadian Agent, as solidary creditor with each Secured Party, shall at all times have a valid and effective right of action in respect of the Solidary Claim and the right to give a full acquittance for same. By its execution of the Credit Documents to which it is a party, each such Obligor not a party hereto shall also be deemed to have accepted the stipulations hereinabove provided. The parties further agree and acknowledge that such Liens (hypothecs) under the Security Documents and the other Credit Documents shall be granted to Canadian Agent, for its own benefit and for the benefit of the Secured Parties, as solidary creditor as hereinabove set forth.

13.1.2. Duties . No Agent nor any Collateral Agent shall have any duties except those expressly set forth in the Credit Documents. The conferral upon any Agent or any Collateral Agent of any right shall not imply a duty on such Agent’s or such Collateral Agent’s part to exercise such right, unless, in the case of any Agent, instructed to do so by Required Lenders in accordance with this Agreement.

13.1.3. Agent Professionals . Each Agent and each Collateral Agent may perform its duties through agents and employees. Each Agent and each Collateral Agent may consult with and employ Agent Professionals, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by an Agent Professional. No Agent nor any Collateral Agent shall be responsible for the negligence or misconduct of any agents, employees or Agent Professionals selected by it with reasonable care.

 

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13.1.4. Instructions of Required Lenders . The rights and remedies conferred upon each Agent and each Collateral Agent under the Credit Documents may be exercised without the necessity of joinder of any other party, unless required by Applicable Law. Each Agent and each Collateral Agent may request instructions from Required Lenders with respect to any act (including the failure to act) in connection with any Credit Documents, and may seek assurances to its satisfaction from Lenders of their indemnification obligations under Section 13.6 against all Claims that could be incurred by any Agent in connection with any act. Each Agent and each Collateral Agent shall be entitled to refrain from any act until it has received such instructions or assurances, and no Agent nor any Collateral Agent shall incur liability to any Person by reason of so refraining. Instructions of Required Lenders shall be binding upon all Lenders, and no Lender shall have any right of action whatsoever against any Agent or any Collateral Agent as a result of such Agent or such Collateral Agent acting or refraining from acting in accordance with the instructions of Required Lenders. Notwithstanding the foregoing, instructions by and consent of all Lenders shall be required in the circumstances described in Section 13.9 , and in no event shall Required Lenders, without the prior written consent of each Lender, direct any Agent to accelerate and demand payment of Loans held by one Lender without accelerating and demanding payment of all other Loans, nor to terminate the Commitments of one Lender without terminating the Commitments of all Lenders. In no event shall any Agent or any Collateral Agent be required to take any action that, in its opinion, is contrary to Applicable Law or any Credit Documents or could subject any Agent Indemnitee to personal liability.

13.1.5. Withholding Tax . To the extent required by any Applicable Law, any Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any other authority of the United States or other jurisdiction asserts a claim that any Agent did not properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not property executed, or because such Lender failed to notify such Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective), such Lender shall indemnify and hold harmless such Agent (to the extent that such Agent has not already been reimbursed by the Obligors and without limiting the obligation of any Obligor to do so) for all amounts paid, directly or indirectly, by such Agent as tax or otherwise, including any interest, additions to tax or penalties thereto, together with all expenses incurred, including legal expenses and any other out-of-pocket expenses, whether or not such tax were correctly or legally imposed or asserted by the relevant Government Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender agrees that each Agent may setoff against any amounts owing to such Lender under the Credit Documents any amounts owing from such Lender to such Agent under this Section 13.1.5 . For the avoidance of doubt, the term “Lender” shall, for purposes of this Section 13.1.5 , include any Issuing Bank and any Swing Line Lender.

13.2 Agreements Regarding Collateral and Field Examination Reports .

13.2.1. Lien Releases; Care of Collateral . Lenders authorize each Agent to release any Lien with respect to any Collateral (a) upon Full Payment of the Obligations; (b) that is the subject of an Asset Disposition which Borrowers certify in writing to Administrative Agent is permitted pursuant to the terms of this Agreement or a Lien which Borrowers certify is a Permitted Lien entitled to priority over any Agent’s Liens (and each Agent may rely conclusively on any such certificate without further inquiry); (c) that does not constitute a material part of the Collateral; or (d) with the written consent of all Lenders. No Agent shall have any obligation whatsoever to any Lenders to assure that any Collateral exists or is owned by a Borrower, or is cared for, protected, insured or encumbered, nor to assure that such Agent’s Liens have been properly created, perfected or enforced, or are entitled to any particular priority, nor to exercise any duty of care with respect to any Collateral.

13.2.2. Possession of Collateral . Agents and Lenders appoint each other Lender as agent (for the benefit of Secured Parties) for the purpose of perfecting Liens in any Collateral held by such Lender, to the extent such Liens are perfected by possession. If any Lender obtains possession of any Collateral, it shall notify Administrative Agent thereof and, promptly upon Administrative Agent’s request, deliver such Collateral to the applicable Agent or otherwise deal with it in accordance with Administrative Agent’s instructions.

 

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13.2.3. Reports . Administrative Agent shall promptly, upon receipt thereof, forward to each Lender copies of the results of any field audit, examination or appraisal prepared by or on behalf of Administrative Agent with respect to any Obligor or Collateral (“Report”). Each Lender agrees (a) that neither Bank of America, Administrative Agent, Bank of America-Canada Branch nor Canadian Agent makes any representation or warranty as to the accuracy or completeness of any Report, and shall not be liable for any information contained in or omitted from any Report; (b) that the Reports are not intended to be comprehensive audits or examinations, and that Agents or any other Person performing any audit or examination will inspect only specific information regarding Obligations or the Collateral and will rely significantly upon Borrowers’ books and records as well as upon representations of Borrowers’ officers and employees; and (c) to keep all Reports confidential and strictly for such Lender’s internal use, and not to distribute any Report (or the contents thereof) to any Person (except to such Lender’s Participants, attorneys and accountants) or use any Report in any manner other than administration of the Loans and other Obligations. Each Lender agrees to indemnify and hold harmless Agents and any other Person preparing a Report from any action such Lender may take as a result of or any conclusion it may draw from any Report, as well as any Claims arising in connection with the any third parties that obtain any part or contents of a Report through such Lender.

13.3 Reliance by Agent . Agents shall be entitled to rely, and shall be fully protected in relying, upon any certification, notice or other communication (including those by telephone, telex, telegram, telecopy or e-mail) believed by it to be genuine and correct and to have been signed, sent or made by the proper Person, and upon the advice and statements of Agent Professionals. As to any matters not expressly provided for by this Agreement or any of the other Credit Documents, each Agent shall in all cases be fully protected in acting or refraining from acting hereunder and thereunder in accordance with the instructions of the Required Lenders, and such instructions of the Required Lenders and any action taken or failure to act pursuant thereto shall be binding upon Lenders.

13.4 Action upon Default . Agents shall not be deemed to have knowledge of any Default or Event of Default unless it has received written notice from a Lender or Borrower specifying the occurrence and nature thereof. If any Lender acquires knowledge of a Default or Event of Default, it shall promptly notify Administrative Agent and the other Lenders thereof in writing. Each Lender agrees that, except as otherwise provided in any Credit Documents or with the written consent of Administrative Agent and Required Lenders, it will not take any Enforcement Action, accelerate Obligations under any Credit Documents, or exercise any right that it might otherwise have under Applicable Law to credit bid with respect to any Obligations owing to such Lender under the Credit Documents at foreclosure sales, UCC or PPSA sales or other similar dispositions of Collateral. Notwithstanding the foregoing, however, a Lender may take action to preserve or enforce its rights against an Obligor where a deadline or limitation period is applicable that would, absent such action, bar enforcement of Obligations held by such Lender, including the filing of proofs of claim in an Insolvency Proceeding.

13.5 Ratable Sharing . If any Lender shall obtain any payment or reduction of any Obligation, whether through setoff or otherwise, in excess of its share of such Obligation, determined on a Pro Rata basis or in accordance with Section 5.6, as applicable, such Lender shall forthwith purchase from the applicable Agent, Issuing Bank and the other Lenders such participations in the affected Obligation as are necessary to cause the purchasing Lender to share the excess payment or reduction on a Pro Rata basis or in accordance with Section 5.6, as applicable. If any of such payment or reduction is thereafter recovered from the purchasing Lender, the purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest. No Lender shall set off against any Dominion Account without the prior consent of Administrative Agent.

13.6 Indemnification of Agent Indemnitees .

13.6.1. Each Lender agrees to indemnify and defend the Agent Indemnitees acting in their capacities as Agent Indemnitees (to the extent not reimbursed by Borrowers under this Agreement, but without limiting the indemnification obligation of Borrowers under this Agreement), on a Pro Rata basis, and to hold each of the Agent Indemnitees harmless from and against, any and all Indemnified Claims which may be imposed on, incurred by or asserted against any of the Agent Indemnitees in any way related to or arising out of this Agreement or any of the other Credit Documents or any other document contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby (including the costs and expenses which Borrowers are obligated to pay under Section 15.2 hereof or amounts any Agent may be called upon to pay in connection with any lockbox or Dominion Account arrangement contemplated hereby or under any indemnity, guaranty or other assurance of payment or

 

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performance given by any Agent with respect to Letters of Credit) or the enforcement of any of the terms hereof or thereof or of any such other documents; provided that no Lender shall be liable to an Agent Indemnitee for any of the foregoing to the extent that they result from the willful misconduct or gross negligence of such Agent Indemnitee.

13.6.2. Without limiting the generality of the foregoing provisions of this Section 13.6 , if an Agent should be sued by any receiver, interim receiver, trustee, debtor in possession, monitor or other Person on account of any alleged preference or fraudulent transfer received, or alleged to have been received from any Borrower as the result of any transaction under the Credit Documents, then in such event any monies paid by such Agent in settlement or satisfaction of such suit, together with all Extraordinary Expenses incurred by such Agent in the defense of same, shall be promptly reimbursed to such Agent by Lenders to the extent of each Lender’s Pro Rata share.

13.6.3. Without limiting the generality off the foregoing provisions of this Section 13.6 , if at any time (whether prior to or after the Commitment Maturity Date) any action or proceeding shall be brought against any of the Agent Indemnitees by a Borrower or by any other Person claiming by, through or under a Borrower, to recover damages for any act taken or, omitted by any Agent or any Collateral Agent under any of the Credit Documents or in the performance of any rights, powers or remedies of any Agent or any Collateral Agent against any Borrower, any Account Debtor, the Collateral or with respect to any Loans, or to obtain any other relief of any kind on account of any transaction involving any Agent Indemnitees under or in relation to any of the Credit Documents, each Lender agrees to indemnify, defend and hold the Agent Indemnitees harmless with respect thereto and to pay to the Agent Indemnitees such Lender’s Pro Rata share of such amount as any of the Agent Indemnitees shall be required to pay by reason of a judgment, decree, or other order entered in such action or proceeding or by reason of any compromise or settlement agreed to by the Agent Indemnitees, including all interest and costs assessed against any of the Agent Indemnitees in defending or compromising such action, together with attorneys’ fees and other legal expenses paid or incurred by the Agent Indemnitees in connection therewith; provided, however, that no Lender shall be liable to any Agent Indemnitee for any of the foregoing to the extent that they arise from the willful misconduct or gross negligence of such Agent Indemnitee. In Administrative Agent’s discretion, Administrative Agent may also reserve for or satisfy any such judgment, decree or order from proceeds of Collateral prior to any distributions therefrom to or for the account of Lenders.

13.7 Limitation on Responsibilities of Agent . No Agent nor any Collateral Agent shall be liable to Lenders for any action taken or omitted to be taken under the Credit Documents, except for losses caused by such Agent’s or such Collateral Agent’s gross negligence or willful misconduct. No Agent nor any Collateral Agent assumes any responsibility for any failure or delay in performance or any breach by any Obligor or Lender of any obligations under the Credit Documents. No Agent nor any Collateral Agent makes to Lenders any express or implied warranty, representation or guarantee with respect to any Obligations, Collateral, Credit Documents or Obligor. No Agent Indemnitee shall be responsible to Lenders for any recitals, statements, information, representations or warranties contained in any Credit Documents; the execution, validity, genuineness, effectiveness or enforceability of any Credit Documents; the genuineness, enforceability, collectibility, value, sufficiency, location or existence of any Collateral, or the validity, extent, perfection or priority of any Lien therein; the validity, enforceability or collectibility of any Obligations; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Obligor or Account Debtor. No Agent Indemnitee shall have any obligation to any Lender to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any Obligor of any terms of the Credit Documents, or the satisfaction of any conditions precedent contained in any Credit Documents.

13.8 Successor Agent and Co-Agents .

13.8.1. Resignation; Successor Administrative Agent . Subject to the appointment and acceptance of a successor Administrative Agent or Canadian Agent as provided below, Administrative Agent or Canadian Agent may resign at any time by giving at least 30 days written notice thereof to Lenders and Borrowers. Upon receipt of such notice, Required Lenders shall have the right to appoint a successor Administrative Agent or Canadian Agent, as the case may be, which shall be (provided no Default or Event of Default exists) reasonably acceptable to Borrower Agent. If no successor agent is appointed prior to the effective date of the resignation of Administrative Agent or Canadian Agent, as the case may be, then Administrative Agent or Canadian Agent, as the case may be,

 

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may appoint a successor agent from among the applicable Lenders. Upon acceptance by a successor Administrative Agent or Canadian Agent, as the case may be, of an appointment to serve as Administrative Agent or Canadian Agent, as the case may be, hereunder, such successor Administrative Agent or Canadian Agent, as the case may be, shall thereupon succeed to and become vested with all the powers and duties of the retiring Administrative Agent or Canadian Agent, as the case may be, without further act, and the retiring Administrative Agent or Canadian Agent, as the case may be, shall be discharged from its duties and obligations hereunder but shall continue to have the benefits of the indemnification set forth in Sections 13 and 15 . Notwithstanding any Administrative Agent’s or Canadian Agent’s resignation, the provisions of this Section 13 shall continue in effect for its benefit with respect to any actions taken or omitted to be taken by it while Administrative Agent or Canadian Agent. Any successor to Bank of America or Bank of America-Canada Branch by merger, amalgamation or acquisition of stock or this loan shall continue to be Administrative Agent and Canadian Agent hereunder, respectively, without further act on the part of the parties hereto, unless such successor resigns as provided above.

13.8.2. Separate Collateral Administrative Agent . It is the intent of the parties that there shall be no violation of any Applicable Law denying or restricting the right of financial institutions to transact business in any jurisdiction. If any Agent believes that it may be limited in the exercise of any rights or remedies under the Credit Documents due to any Applicable Law, such Agent may appoint an additional Person who is not so limited, as a separate collateral agent or co-collateral agent. If any Agent so appoints a collateral agent or co-collateral agent, each right and remedy intended to be available to such Agent under the Credit Documents shall also be vested in such separate agent. Every covenant and obligation necessary to the exercise thereof by such agent shall run to and be enforceable by it as well as such Agent. Lenders shall execute and deliver such documents as each Agent deems appropriate to vest any rights or remedies in such agent. If any collateral agent or co-collateral agent shall die or dissolve, become incapable of acting, resign or be removed, then all the rights and remedies of such agent, to the extent permitted by Applicable Law, shall vest in and be exercised by the applicable Agent until appointment of a new agent.

13.9 Consents, Amendments and Waivers; Out-of-Formula Loans .

13.9.1. Amendment . No modification of any Credit Document, including any extension or amendment of a Credit Document or any waiver of a Default or Event of Default, shall be effective without the prior written agreement of Administrative Agent (with the consent of, and at the direction of, Required Lenders) and each Obligor party to such Credit Document; provided, however, that

(a) without the prior written consent of the applicable Agent or the applicable Collateral Agent (in addition to the Required Lenders), no modification shall be effective with respect to any provision in a Credit Document or provision of this Agreement that relates to any rights, duties or discretion of such Agent or such Collateral Agent;

(b) without the prior written consent of Issuing Bank, no modification shall be effective with respect to any L/C Obligations or Section 2.3 ;

(c) without the prior written consent of each affected Lender, no modification shall be effective that would (i) increase, extend or reinstate the Commitment of such Lender; or (ii) reduce the amount of, or waive or delay payment of, any principal, interest, fees or other amounts payable to such Lender; and

(d) without the prior written consent of all Lenders (except a Defaulting Lender as provided in this Section 13.9.1 ), no modification shall be effective that would (i) extend the Commitment Maturity Date; (ii) alter Section 5.6 (and Section 10.2.5(xix) as it relates to Section 5.6 ) or 13.9.1 ; (iii) amend the definitions of “Total Borrowing Base,” “U.S. Borrowing Base” or “Canadian Borrowing Base” (and the defined terms used in such definitions), “Applicable Percentage,” “Pro Rata,” “Required Lenders,” “Required U.S. Revolver Lenders” or “Required Canadian Revolver Lenders”; (iv) increase any advance rate or increase total Commitments; (vi) other than in connection with a transaction permitted by Section 10.2.9 release a material portion of the Collateral; (vii) release any Solvent (at the time of the release) Obligor from liability for any Obligations other than in connection with a transaction permitted by Section 10.2.1 or 10.2.9 or (viii) subordinate the Obligations to any other obligation.

 

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Notwithstanding anything to the contrary, the Credit Documents may be amended with the written consent of the U.S. Borrower, the Administrative Agent and the Collateral Agents (if necessary), as shall be necessary or appropriate to implement the China Facility and associated guarantees, Liens and intercreditor terms either as a stand-alone facility or as a new tranche under the Credit Documents to the extent permitted under applicable law, rule and regulation.

Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.

13.9.2. Limitations . The agreement of Borrowers shall not be necessary to the effectiveness of any modification of a Credit Document that deals solely with the rights and duties of Lenders, Administrative Agent, Canadian Agent, Collateral Agents and/or Issuing Bank as among themselves. Only the consent of the parties to the Fee Letter, the Engagement and Fee Letter or any agreement relating to a Bank Product shall be required for any modification of such agreement, and no Affiliate or branch of a Lender that is party to a Bank Product agreement shall have any other right to consent to or participate in any manner in modification of any other Credit Document. The making of any Loans during the existence of a Default or Event of Default shall not be deemed to constitute a waiver of such Default or Event of Default, nor to establish a course of dealing. Any waiver or consent granted by Lenders hereunder shall be effective only if in writing, and then only in the specific instance and for the specific purpose for which it is given.

13.9.3. Payment for Consents . No Borrower will, directly or indirectly, pay any remuneration or other thing of value, whether by way of additional interest, fee or otherwise, to any Lender (in its capacity as a Lender hereunder) as consideration for agreement by such Lender with any modification of any Credit Documents, unless such remuneration or value is concurrently paid, on the same terms, on a Pro Rata basis to all Lenders providing their consent.

13.9.4. U.S. Out of Formula Loans . Unless otherwise directed in writing by the Required U.S. Revolver Lenders, Administrative Agent may require U.S. Revolver Lenders to honor requests by Borrower for U.S. Out-of-Formula Loans (in which event, and notwithstanding anything to the contrary set forth in this Agreement, U.S. Revolver Lenders shall continue to make U.S. Revolver Loans up to their Pro Rata share of the U.S. Revolver Commitments) and to forbear from requiring Borrowers to cure a U.S. Out-of-Formula Condition, (1) when no Event of Default exists (or if an Event of Default exists, when the existence of such Event of Default is not known by Administrative Agent), if and for so long as (i) such U.S. Out-of-Formula Condition does not continue for a period of more than thirty (30) consecutive days, following which no U.S. Out-of-Formula Condition exists for at least fifteen (15) consecutive days before another Out-of-Formula Condition exists, (ii) the amount of the U.S. Revolver Loans outstanding at any time does not exceed the aggregate of the U.S. Revolver Commitments at such time, and (iii) the U.S. Out-of-Formula Condition is not known by Administrative Agent at the time in question to exceed 10% of the U.S. Borrowing Base and (2) regardless of whether or not an Event of Default exists, if Administrative Agent discovers the existence of a U.S. Out-of-Formula Condition not previously known by it to exist, but U.S. Revolver Lenders shall be obligated to continue making such U.S. Revolver Loans as directed by Administrative Agent only (A) if the amount of the U.S. Out-of-Formula Condition is not increased by more than $10,000,000 above the amount determined by Administrative Agent to exist on the date of discovery thereof and (B) for a period not to exceed thirty (30) days and (C) the amount of the U.S. Revolver Loans outstanding at any time does not exceed the aggregate of the U.S. Revolver Commitments at such time. In no event shall any Borrower be deemed to be a beneficiary of this Section 13.9.4 or authorized to enforce any of the provisions of this Section 13.9.4 . Any funding of a U.S. Out-of-Formula Loan or a sufferance of a U.S. Out-of-Formula Condition shall not constitute a waiver by Administrative Agent or U.S. Revolver Lenders of the Event of Default caused thereby.

13.9.5. Canadian Out of Formula Loans . Unless otherwise directed in writing by the Required Canadian Revolver Lenders, Canadian Agent may require Canadian Revolver Lenders to honor requests by Canadian Borrower for Canadian Out-of-Formula Loans (in which event, and notwithstanding anything to the contrary set

 

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forth in this Agreement, Canadian Revolver Lenders shall continue to make Canadian Revolver Loans up to their Pro Rata share of the Canadian Revolver Commitments) and to forbear from requiring Canadian Borrower to cure a Canadian Out-of-Formula Condition, (1) when no Event of Default exists (or if an Event of Default exists, when the existence of such Event of Default is not known by Administrative Agent or Canadian Agent), if and for so long as (i) such Canadian Out-of-Formula Condition does not continue for a period of more than thirty (30) consecutive days, following which no Canadian Out-of-Formula Condition exists for at least fifteen (15) consecutive days before another Canadian Out-of-Formula Condition exists, (ii) the amount of the Canadian Revolver Loans outstanding at any time does not exceed the aggregate of the Canadian Revolver Commitments at such time, and (iii) the Canadian Out-of-Formula Condition is not known by Administrative Agent or Canadian Agent at the time in question to exceed 10% of the Canadian Borrowing Base and (2) regardless of whether or not an Event of Default exists, if Administrative Agent or Canadian Agent discovers the existence of a Canadian Out-of-Formula Condition not previously known by it to exist, but Canadian Revolver Lenders shall be obligated to continue making such Canadian Revolver Loans as directed by Canadian Agent only (A) if the amount of the Canadian Out-of-Formula Condition is not increased by more than $2,000,000 above the amount determined by Canadian Agent to exist on the date of discovery thereof and (B) for a period not to exceed thirty (30) days and (C) the amount of the Canadian Revolver Loans outstanding at any time does not exceed the aggregate of the Canadian Revolver Commitments at such time. In no event shall any Borrower be deemed to be a beneficiary of this Section 13.9.5 or authorized to enforce any of the provisions of this Section 13.9.5 . Any funding of a Canadian Out-of-Formula Loan or a sufferance of a Canadian Out-of-Formula Condition shall not constitute a waiver by Administrative Agent or Canadian Revolver Lenders of the Event of Default caused thereby.

13.10 Due Diligence and Non-Reliance . Each Lender acknowledges and agrees that it has, independently and without reliance upon any Agent, any Collateral Agent or any other Lenders, and based upon such documents, information and analyses as it has deemed appropriate, made its own credit analysis of each Obligor and its own decision to enter into this Agreement and to fund Loans and participate in L/C Obligations hereunder. Each Lender has made such inquiries concerning the Credit Documents, the Collateral and each Obligor as such Lender feels necessary. Each Lender further acknowledges and agrees that the other Lenders, Collateral Agents and Agents have made no representations or warranties concerning any Obligor, any Collateral or the legality, validity, sufficiency or enforceability of any Credit Documents or Obligations. Each Lender will, independently and without reliance upon the other Lenders or Agents, and based upon such financial statements, documents and information as it deems appropriate at the time, continue to make and rely upon its own credit decisions in making Loans and participating in L/C Obligations, and in taking or refraining from any action under any Credit Documents. Except for notices, reports and other information expressly requested by a Lender or that an Agent has expressly agreed to provide Lenders herein, no Agent nor any Collateral Agent shall have any duty or responsibility to provide any Lender with any notices, reports or certificates furnished to such Agent or such Collateral Agent by any Obligor or any credit or other information concerning the affairs, financial condition, business or Properties of any Obligor (or any of its Affiliates) which may come into possession of such Agent or such Collateral Agent or any of such Agent’s or Collateral Agent’s Affiliates or branches.

13.11 Representations and Warranties of Lenders . By its execution of this Agreement, each Lender hereby represents and warrants to each Borrower and the other Lenders that it has the power to enter into and perform its obligations under this Agreement and the other Credit Documents, and that it has taken all necessary and appropriate action to authorize its execution and performance of this Agreement and the other Credit Documents to which it is a party, each of which will be binding upon it and the obligations imposed upon it herein or therein will be enforceable against it in accordance with the respective terms of such documents.

13.12 The Required Lenders . As to any provisions of this Agreement or the other Credit Documents under which action may or is required to be taken upon direction or approval of the Required Lenders, the Required U.S. Revolver Lenders or Required Canadian Revolver Lenders, as applicable, the direction or approval of the Required Lenders shall be binding upon each Lender to the same extent and with the same effect as if each Lender had joined therein.

13.13 Several Obligations . The obligations and commitments of each Lender under this Agreement and the other Credit Documents are several and neither any Agent nor any Lender shall be responsible for the performance by the other Lenders of its obligations or commitments hereunder or thereunder. Notwithstanding any liability of Lenders stated to be joint and several to third Persons under any of the Credit Documents, such liability shall be shared, as among Lenders, Pro Rata according to the respective Commitments of Lenders.

 

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13.14 Administrative Agent and Collateral Agents in Their Individual Capacities . As a Lender, Bank of America and Bank of America-Canada Branch, General Electric Capital Corporation and Wells Fargo Capital Finance, LLC shall each have the same rights and remedies under the other Credit Documents as any other Lender, and the terms “Lenders,” “Required Lenders,” “Required U.S. Revolver Lenders” or “Required Canadian Revolver Lenders” or any similar term shall include Bank of America and Bank of America-Canada Branch, General Electric Capital Corporation Wells Fargo Capital Finance, LLC in their capacities as a Lender, as applicable. Each of Bank of America, Bank of America-Canada Branch, General Electric Capital Corporation and Wells Fargo Capital Finance, LLC and each of their Affiliates and branches may accept deposits from, maintain deposits or credit balances for, invest in, lend money to, provide Bank Products to, act as trustee under indentures of, serve as financial or other advisor to, and generally engage in any kind of business with, Obligors and their Affiliates, as if Bank of America, Bank of America-Canada Branch, General Electric Capital Corporation and Wells Fargo Capital Finance, LLC were any other bank, without any duty to account therefor (including any fees or other consideration received in connection therewith) to the other Lenders. In their individual capacity, Bank of America, Bank of America-Canada Branch, General Electric Capital Corporation and Wells Fargo Capital Finance, LLC and their Affiliates and branches may receive information regarding Obligors, their Affiliates and their Account Debtors (including information subject to confidentiality obligations), and each Lender agrees that Bank of America, Bank of America-Canada Branch, General Electric Capital Corporation and Wells Fargo Capital Finance, LLC and their Affiliates and branches shall be under no obligation to provide such information to Lenders, if acquired in such individual capacity and not as an Agent or Collateral Agent hereunder.

13.15 No Third Party Beneficiaries . Except for Borrowers as provided in the first and second sentences of Section 13.8.1 and in Section 13.9.1 , this Section 13 is an agreement solely among Lenders and Agents and the Collateral Agents, and shall survive Full Payment of the Obligations. This Section 13 does not confer any rights or benefits upon Borrowers or any other Person. As between Borrowers and Collateral Agents or Agents, any action that any Agent or any Collateral Agent may take under any Credit Documents or with respect to any Obligations shall be conclusively presumed to have been authorized and directed by Lenders.

13.16 Notice of Transfer . Each Agent may deem and treat a Lender party to this Agreement as the owner of such Lender’s portion of the Loans for all purposes, unless and until a written notice of the assignment or transfer thereof executed by such Lender has been received by Administrative Agent.

13.17 Replacement of Certain Lenders . If a Lender (a) fails to fund its Pro Rata share of any Loan or L/C Obligation hereunder, and such failure is not cured within two Business Days, (b) defaults in performing any of its obligations under the Credit Documents, or (c) fails to give its consent to any amendment, waiver or action for which consent of all Lenders was required and Required Lenders consented, then, in addition to any other rights and remedies that any Person may have, Administrative Agent may, by notice to such Lender within 120 days after such event, require such Lender to assign all of its rights and obligations under the Credit Documents to Eligible Assignee(s) specified by Administrative Agent, pursuant to appropriate Assignment and Acceptance(s) and within 20 days after Administrative Agent’s notice. Administrative Agent is irrevocably appointed as attorney-in-fact to execute any such Assignment and Acceptance if the Lender fails to execute same. Such Lender shall be entitled to receive, in cash, concurrently with such assignment, all amounts owed to it under the Credit Documents, including all principal, interest and fees through the date of assignment (but excluding any prepayment charge).

13.18 Remittance of Payments and Collections .

13.18.1. Remittances Generally . All payments by any Lender to the applicable Agent shall be made by the time and on the day set forth in this Agreement, in immediately available funds. If no time for payment is specified or if payment is due on demand by the applicable Agent and request for payment is made by the applicable Agent by 8:00 a.m. on a Business Day, payment shall be made by Lender not later than 11:00 a.m. on such day, and if request is made after 8:00 a.m., then payment shall be made by 8:00 a.m. on the next Business Day. Payment by the applicable Agent to any Lender shall be made by wire transfer, in the type of funds received by the applicable Agent. Any such payment shall be subject to the applicable Agent’s right of offset for any amounts due from such Lender under the Credit Documents.

 

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13.18.2. Failure to Pay . If any Lender fails to pay any amount when due by it to the applicable Agent pursuant to the terms hereof, such amount shall bear interest from the due date until paid at the rate determined by such Agent as customary in the banking industry for interbank compensation. In no event shall Borrowers be entitled to receive credit for any interest paid by a Lender to the applicable Agent.

13.18.3. Recovery of Payments . If any Agent pays any amount to a Lender in the expectation that a related payment will be received by such Agent from an Obligor and such related payment is not received, then the applicable Agent may recover such amount from each Lender that received it. If the applicable Agent determines at any time that an amount received under any Loan Document must be returned to an Obligor or paid to any other Person pursuant to Applicable Law or otherwise, then, notwithstanding any other term of any Loan Document, the applicable Agent shall not be required to distribute such amount to any Lender. If any amounts received and applied by the applicable Agent to any Obligations are later required to be returned by the applicable Agent pursuant to Applicable Law, each Lender shall pay to the applicable Agent, on demand , such Lender’s Pro Rata share of the amounts required to be returned.

13.19 No Reliance on Agents’ Customer Identification Program . Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, Participants, Transferees or assignees; may rely on any Agent to carry out such Lender’s, Affiliate’s, Participant’s, Transferee’s or assignee’s customer identification program, or other obligations required or imposed under or pursuant to the USA PATRIOT Act or the, regulations thereunder, including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “ CIP Regulations ”), or any other Anti-Terrorism Law, including any programs involving any of the following items relating to or in connection with any Borrower, its Subsidiaries, Affiliates or its agents, the Credit Documents or the transactions hereunder: (1) any identity verification procedures, (2) any recordkeeping, (3) any comparisons with government lists, (4) any customer notices or (5) any other procedures required under the CIP Regulations or such other laws.

13.20 USA PATRIOT Act . Each Lender or Transferee or Participant or assignee of a U.S. Revolver Lender that is not incorporated under the laws of the United States of America or a state thereof (and is not excepted from the certification requirement contained in Section 313 of the USA PATRIOT Act and the applicable regulations because it is both (i) an affiliate of a depository institution or foreign bank that maintains a physical presence in the United States or foreign country, and (ii) subject to supervision by a banking authority regulating such affiliated depository institution or foreign bank) shall deliver to Administrative Agent the certification, or, if applicable, recertification, certifying that such U.S. Revolver Lender is not a “shell” and certifying to other matters as required by Section 313 of the USA PATRIOT Act and the applicable regulations: (1) within ten (10) days after the Closing Date and (2) at such other times as are required under the USA PATRIOT Act.

13.21 Hedging Arrangements . Each Lender shall notify Administrative Agent if such U.S. Revolver Lender or any of its Affiliates enters into a Hedging Agreement with any Borrower within 5 Business Days after consummation of such transaction, and at Administrative Agent’s request from time to time, shall provide such information as Administrative Agent may request regarding such Hedging Agreement, including a mark to market value on each hedging arrangement. If any Lender shall fail to notify Administrative Agent of its Hedging Agreement or if requested by Administrative Agent, its mark to market value on such hedging arrangement, then amounts owing to such Lender or its Affiliate under such Hedging Agreement shall be paid last in order under Section 5.6 .

SECTION 14. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS

14.1 Successors and Assigns .

(a) Successors and Assigns Generally . The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that other than as permitted by Section 10.2.1 the Borrowers may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 14.1(b) , (ii) by way of participation in accordance with the provisions of Section 14.1(d) , or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 14.1(f) , or (iv) to an SPC in accordance with the provisions of Section 14.1(h) (and any other attempted

 

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assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. For greater certainty, a successor or assign of a Borrower hereunder shall be subject to the provisions of Sections 6 and 5.11 as if it were the Borrower from which it acquired its rights or obligations.

(b) Assignments by Lenders . Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this Section 14.1(b) , participations in L/C Obligations, Canadian Swing Line Loans and U.S. Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:

(i) Minimum Amounts .

(a) In the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under any Facility and the Loans at the time owing to it under such Facility or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

(b) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Administrative Agent or, if “Trade Date” is specified in the Assignment and Acceptance, as of the Trade Date, shall not be less than $5,000,000, in the case of any assignment in respect of either the U.S. Revolver or the Canadian Revolver, unless each of Administrative Agent and, so long as no Event of Default under Section 12.1.1 , 12.1.9 or 12.1.10 has occurred and is continuing, each of the Borrowers otherwise consents (each such consent not to be unreasonably withheld or delayed); provided , however , that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met;

(ii) Proportionate Amounts . Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not (A) apply to the Swing Line Lender’s rights and obligations in respect of Canadian Swing Line Loans or U.S. Swing Line Loans, as applicable, or (B) prohibit any Lender from assigning all or a portion of its rights and obligations under the U.S. Revolver and the Canadian Revolver.

(iii) Required Consents . No consent shall be required for any assignment except to the extent required by subsection (b)(i)(b) of this Section and, in addition:

(a) the consent of each of the Borrowers (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default under Section 12.1.1 , 12.1.9 or 12.1.10 has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund ( provided that no Canadian Revolver Lender may assign its rights or obligations hereunder to a Lender or an Approved Fund if such assignee would not satisfy the definition of “Canadian Revolver Lender”);

(b) the consent of Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of any U.S. Revolver Commitment or Canadian Revolver Commitment if such assignment is to a Person that is not a Lender with a Commitment in respect of the applicable Facility, an Affiliate or branch of that Lender or an Approved Fund with respect to that Lender;

 

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(c) the consent of the Issuing Bank (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and

(d) the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the U.S. Revolver or Canadian Revolver Commitment.

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

(v) No Assignment to a Borrower . No such assignment shall be made to a Borrower or any of the Affiliates or Subsidiary of a Borrower.

(vi) No Assignment to Natural Persons . No such assignment shall be made to a natural person.

(vii) No Assignment to Defaulting Lenders . No such assignment shall be made to a Defaulting Lender or any of its Subsidiaries.

Subject to acceptance and recording thereof by Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, that Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.6 , 3.8, 5.9 and 15.2 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, the applicable Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by that Lender of a participation in such rights and obligations in accordance with Section 14.1(d) .

(c) Register . Any assignment of any Loan or L/C Obligation, whether or not evidenced by a note, shall be effective only upon appropriate entries with respect thereto being made in the Register. The entries in the Register shall be conclusive (absent manifest error), and the Borrowers, Agents and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

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

 

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with that Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that that Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that that Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 13.9.1 that affects such Participant. Subject to subsection (e) of this Section, the Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.6 , 3.8 and 5.9 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 14.1(b) (but subject in each case to any limitations upon the benefits provided by those Sections including the requirement to comply with Section 5.10 which would be imposed upon the participant were it a Lender). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 14.2 as though it were a Lender; provided that such Participant complies with Section 13.5 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of Borrowers, maintain a register on which it enters the name and address of each Participant and the principal and interest amounts of each participant’s interest in the Loans or other obligations under this Agreement (the “ Participant Register ”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. No Lender shall have the obligation to disclose all or any portion of any Participation Register (including the identity of any Participant or any information relating to a Participant’s interest in any Obligations under any Credit Documents) to any Person except to the extent that such disclosure is necessary in connection with a Tax audit or other proceeding to establish that any Loans are in registered form for U.S. federal income tax purposes under Section 5f.103-1(c) of the United States Treasury Regulations.

(e) Limitations upon Participant Rights . A Participant shall not be entitled to receive any greater payment under Section 3.6 or 5.9 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the prior written consent of each of the Borrowers (not to be unreasonably withheld or delayed). Nothing in Section 14.1(d) or Section 14.1(e) shall obligate the Borrowers to make duplicative payments to the Participant and to the Lender from which the Participant purchased its participation.

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

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

(h) Special Purpose Funding Vehicles . Notwithstanding anything to the contrary contained herein, any Lender (a “ Granting Lender ”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to Administrative Agent and the Borrowers (an “ SPC ”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. Each party hereto hereby agrees that (i) each SPC shall be entitled to the benefits of Sections 3.6 , 3.8 and 5.9 (subject to the requirements or limitations therein) to the same extent as if it were a Lender; provided that neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrowers under this Agreement (unless the grant or the exercise was made with the relevant Borrower’s prior written consent, which consent shall not be unreasonably withheld or delayed), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable (with the granting

 

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Lender remaining obligated for such obligations), and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Credit Document, remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior debt of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof or of Canada or any province or territory thereof. Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Borrowers and Administrative Agent and with the payment of a processing fee in the amount of $3,500 to the applicable Agent, assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.

(i) For greater certainty, an assignment or participation of a Canadian Revolver Loan, Canadian Letter of Credit or any other Canadian Obligation shall be assigned or participated to, as the case may be, an assignee or participant that is a Canadian Resident unless any Event of Default has occurred and remains continuing.

14.2 Treatment of Certain Information; Confidentiality . Each Agent, the Lenders and the Issuing Bank agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and branches and to its and its Affiliates’ and branches’ respective partners, directors, officers, employees, agents, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Credit Document or any action or proceeding relating to this Agreement or any other Credit Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to a Borrower and its obligations, (g) with the consent of each of the Borrowers or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to any Agent, any Lender, the Issuing Bank or any of their respective Affiliates or branches on a nonconfidential basis from a source other than a Borrower or any of its Affiliates. Notwithstanding the foregoing, Agents and Lenders may issue and disseminate to the public general information describing this credit facility, including the names and addresses of Borrowers and a general description of Borrowers’ businesses, and may use Borrowers’ names in advertising and other promotional materials.

For purposes of this Section, “ Information ” means all information received from any Obligor or any Subsidiary thereof relating to any Obligor or any Subsidiary thereof or their respective businesses, other than any such information that is available to any Agent, any Lender or the Issuing Bank on a nonconfidential basis prior to disclosure by any Obligor or any Subsidiary thereof; provided that, in the case of information received from a Obligor or any such Subsidiary after the Closing Date, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

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

 

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SECTION 15. MISCELLANEOUS

15.1 Power of Attorney . Each Borrower hereby irrevocably designates, makes, constitutes and appoints the applicable Agent (and all Persons designated by such Agent) as such Borrower’s true and lawful attorney (and agent in fact) and such Agent, or such Agent’s designee, may, without notice to such Borrower and in either such Borrower’s or such Agent’s name, but at the cost and expense of Borrowers:

15.1.1. At such time or times as such Agent or designee may determine, endorse such Borrower’s name on any Payment Item or proceeds of the Collateral which come into the possession of such Agent or under such Agent’s control and deposit the same for application to the Obligations as set forth and only under the circumstances and to the extent provided in this Agreement.

15.1.2. At any time that an Event of Default exists: (i) demand payment of the Accounts from the Account Debtors, enforce payment of the Accounts by legal proceedings or otherwise, and generally exercise all of such Borrower’s rights and remedies with respect to the collection of the Accounts; (ii) settle, adjust, compromise, discharge or release any of the Accounts or other Collateral or any legal proceedings brought to collect any of the Accounts or other Collateral; (iii) sell or assign any of the Accounts and other Collateral upon such terms, for such amounts and at such time or times as the applicable Agent deems advisable; (iv) take control, in any manner, of any item of payment or proceeds relating to any Collateral; (v) prepare, file and sign such Borrower’s name to a proof of claim in bankruptcy or similar document against any Account Debtor or to any notice of Lien, assignment or satisfaction of Lien or similar document in connection with any of the Collateral; (vi) receive, open and deal with all mail addressed to such Borrower; (vii) endorse the name of such Borrower upon any of the items of payment or proceeds relating to any Collateral and deposit the same, to the account of the applicable Agent on account of the Obligations; (viii) endorse the name of such Borrower upon any chattel paper, document, instrument, invoice, freight bill, bill of lading or similar document or agreement relating to any Accounts or Inventory of any Borrower and any other Collateral; (ix) use such Borrower’s stationery and sign the name of such Borrower to verifications of the Accounts and notices thereof to Account Debtors; (x) use the information recorded on or contained in any data processing equipment and computer hardware and software relating to the Accounts, Inventory, Equipment or any other Collateral; (xi) make and adjust claims under policies of insurance; (xii) sign the name of such Borrower on any proof of claim in bankruptcy against Account Debtors and on notices of Liens, claims of mechanic’s Liens or assignments or releases of mechanic’s Liens securing any Accounts; (xiii) take all action as may be necessary to obtain the payment of any letter of credit or banker’s acceptance of which such Borrower is a beneficiary; and (xiv) do all other acts and things necessary, in the applicable Agent’s determination, to fulfill such Borrower’s obligations under this Agreement.

15.2 General Indemnity . Each Borrower hereby agrees to indemnify and defend the Indemnitees against and to hold the Indemnitees harmless from any Indemnified Claim that may be instituted or asserted against any of the Indemnitees and that either (i) arises out of or relates to this Agreement or any of the other Credit Documents (including any transactions entered into pursuant to any of the Credit Documents, Administrative Agent’s Lien upon the Collateral, or the performance by Agents, the Collateral Agents or Lenders of their duties or the exercise of any of their rights or remedies under this Agreement or any of the other Credit Documents), or (ii) results from a Borrower’s failure to observe, perform or discharge any of such Borrower’s covenants or duties hereunder. Without limiting the generality of the foregoing, this indemnity shall extend to any Indemnified Claims instituted or asserted against the Indemnitees by any Person relating to the actual or alleged presence or Release of Hazardous Materials on, at, under or from any Property now or formerly owned or operated by Borrower, or any Environmental Claim relating to Borrower. The foregoing indemnities shall not apply to Indemnified Claims incurred by any Indemnitee as a result of its own gross negligence or willful misconduct or that arise solely out of any disputes between Lenders or Lenders and Agents. The foregoing indemnity shall not extend to or preclude any claim, demand, suit, allegation or other proceeding by any Borrower against any Indemnitee on account of any damages, losses, liabilities and expenses that may be suffered or incurred by any Borrower by a breach of this Agreement or the other Credit Documents by any Indemnified Party. For the avoidance of doubt, this Section 15.2 shall not apply to Taxes other than Taxes that represent damages in respect of a non-Tax claim.

 

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15.3 Survival of All Indemnities . Notwithstanding anything to the contrary in this Agreement or any of the other Credit Documents, the obligation of each Borrower and each Lender with respect to each indemnity given by it in this Agreement, whether given by any or all Borrowers to Agent Indemnitees, Lender Indemnitees or Bank Indemnitees or by any Lender to any Agent Indemnitees or Bank Indemnitees, shall survive the Payment in Full of the Obligations and the termination of any of the Commitments.

15.4 [Reserved] .

15.5 Severability . Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under Applicable Law, but if any provision of this Agreement shall be prohibited by or invalid under Applicable Law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

15.6 Cumulative Effect ; Conflict of Terms. The provisions of the Other Agreements and the Security Documents are hereby made cumulative with the provisions of this Agreement. Without limiting the generality of the foregoing, the parties acknowledge that this Agreement and the other Credit Documents may use several different limitations, tests or measurements to regulate the same or similar matters and that such limitations, tests and measures are cumulative and each must be performed, except as may be expressly stated to the contrary in this Agreement. Except as otherwise provided in any of the other Credit Documents by specific reference to the applicable provision of this Agreement, if any provision contained in this Agreement is indirect conflict with, or in consistent with, any provision in any of the other Credit Documents, the provision contained in this Agreement shall govern and control.

15.7 Execution in Counterparts . This Agreement and any amendments hereto may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument.

15.8 Consent . Whenever an Agent’s, Collateral Agent’s, Lenders’ or Required Lenders’ consent is required to be obtained under this Agreement or any of the other Credit Documents as a condition to any action, inaction, condition or event, each Agent, each Collateral Agent and each Lender shall be authorized to give or withhold its consent in its sole and absolute discretion and to condition its consent upon the giving of additional collateral security for the Obligations, the payment of money or any other matter; provided , that when an Agent’s consent alone is required, such Agent may give or withhold its consent in its reasonable discretion.

15.9 Notices . All notices, requests and demands to or upon a party hereto shall be in writing and shall be sent by certified or registered mail, return receipt requested, personal delivery against receipt or by telecopier or other facsimile transmission and shall be deemed to have been validly served, given or delivered when delivered against receipt or, in the case of facsimile transmission, when received (if on a Business Day and, if not received on a Business Day, then on the next Business Day after receipt) at the office where the noticed party’s telecopier is located, in each case addressed to the noticed party at the address shown for such party on the signature page hereof or on Schedule 2 hereof, or in the case of a Person who becomes a Lender after the Closing Date, at the address shown on the Assignment and Acceptance by which such person became a Lender. Notwithstanding the foregoing, no notice to or upon Administrative Agent pursuant to Sections 2.2 , 2.3 , 2.4 , 2.9 or 6.2 shall be effective until after actually received by the individual to whose attention at such Agent such notice is required to be sent. Any written notice, request or demand that is not sent in conformity with the provisions hereof shall nevertheless be effective on the date that such notice, request or demand is actually received by the individual to whose attention at the noticed party such notice, request or demand is required to be sent.

15.10 Performance of Obligors’ Obligations . If any Obligor shall fail to discharge any covenant, duty or obligation hereunder or under any of the other Credit Documents, the applicable Agent may, in its sole discretion at any time or from time to time, for such Obligor’s account and at Obligors’ expense, pay any amount or do any act required of Obligors hereunder or under any of the other Credit Documents or otherwise lawfully requested by the applicable Agent to (i) enforce any of the Credit Documents or collect any of the Obligations, (ii) preserve, protect, insure or maintain or realize upon any of the Collateral, or (iii) preserve, defend, protect or maintain the validity or priority of the applicable Agent’s Liens on any of the Collateral, including the payment of any judgment against any Obligor, any insurance premium, any warehouse charge, any finishing or processing charge, any landlord claim, any other Lien upon or with respect to any of the Collateral (whether or not a Permitted Lien). All payments that the

 

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applicable Agent may make under this Section and all out of pocket costs and expenses (including Extraordinary Expenses) that the applicable Agent pays or incurs in connection with any action taken by it hereunder shall be reimbursed to the applicable Agent by the applicable Obligors on demand with interest from the date such payment is made or such costs or expenses are incurred to the date of payment thereof at the Default Rate applicable for U.S. Base Rate Loans or Canadian Revolver Loans that are Canadian Base Rate Loans. Any payment made or other action taken by the applicable Agent under this Section shall be without prejudice to any right to assort, and without waiver of, an Event of Default hereunder and to without prejudice to the applicable Agent’s right proceed thereafter as provided herein or in any of the other Credit Documents.

15.11 Credit Inquiries . Each Borrower hereby authorizes and permits Agents and Lenders (but Agents and Lenders shall have no obligation) to respond to usual and customary credit inquiries from third parties concerning such Borrower or any of its Subsidiaries.

15.12 Time of Essence . Time is of the essence of this Agreement, the Other Agreements and the Security Documents.

15.13 Indulgences Not Waivers . Any party’s failure at any time or times hereafter, to require strict performance of any provision of this Agreement shall not waive, affect or diminish any right of such party thereafter to demand strict compliance and performance therewith.

15.14 Entire Agreement ; Exhibits and Schedules . This Agreement and the other Credit Documents, together with all other instruments, agreements and certificates executed by the parties in connection therewith or with reference thereto, embody the entire understanding and agreement between the parties hereto and thereto with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings and inducements, whether express or implied, or all or written. Each of the Exhibits and each of the Schedules attached hereto are incorporated into this Agreement and by this reference made a part hereof.

15.15 Interpretation . No provision of this Agreement or any of the other Credit Documents shall be construed against or interpreted to the disadvantage of any party hereto by any court or other governmental or judicial authority by reason of such party having, or being deemed to have, structured, drafted or dictated such provision.

15.16 Obligations of Lenders Several . The obligations of each Lender hereunder are several, and no Lender shall be responsible for the obligations or Commitment of any other Lender. Nothing contained in this Agreement and no action taken by Lenders pursuant hereto shall be deemed to constitute the Lenders to be a partnership, association, joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled, to the extent not otherwise restricted hereunder, to protect and enforce its rights arising out of this Agreement and any of the other Credit Documents and it shall not be necessary for any Agent or any other Lender to be joined as an additional party in any proceeding for such purpose.

15.17 Advertising and Publicity . On or after the Closing Date, with the prior consent of Borrowers (which shall not be unreasonably withheld or delayed), Administrative Agent, on behalf of Lenders, may issue and disseminate to the public (by advertisement or otherwise) information describing the credit accommodations made available by Lenders pursuant to this Agreement, including the name and address of each Borrower, the amount and security for the credit accommodations and the general nature of each Borrower’s business; provided that detail regarding terms (such as interest rate) may be provided only to industry publications, such as the “LPC Gold Sheets.”

15.18 Governing Law; Consent to Forum . This Agreement has been negotiated, executed and delivered at and shall be deemed to have been made in New York, New York. This Agreement shall be governed by and construed in accordance with the laws of the State of New York (without giving effect to the conflict of law principles thereof); provided , however , that, if any of the Collateral shall be located in any jurisdiction other than New York, the laws of such jurisdiction shall govern the method, manner and procedure for foreclosure of the applicable Agent’s Lien upon such Collateral and the enforcement of such Agent’s other remedies in respect of such Collateral to the extent that the laws of such jurisdiction are different from or inconsistent with the laws of the State of New York. As part of the consideration for new value received, and regardless of any present or future domicile or

 

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principal place of business of any Borrower, any Lender, any Collateral Agent or any Agent, each Borrower hereby consents and agrees that the United States District Court for the Southern District of New York located in New York County (the “ Southern District ”) shall have the exclusive jurisdiction to hear and determine any claims or disputes among any or all Borrowers, Agents, Collateral Agents and Lenders pertaining to this Agreement or to any matter arising out of or related to this Agreement. Each Borrower expressly submits and consents in advance to such exclusive jurisdiction in any action or suit commenced, in any such Court, and each Borrower hereby waives any objection that such Borrower may have based upon lack of personal jurisdiction, improper venue or forum non conveniens and hereby consents to the granting of such legal or equitable relief as is deemed appropriate by such Court. Each Borrower hereby waives personal service of the summons, complaint and other process issued in any such action or suit and agrees that service of such summons, complaint and other process may be made by certified mail addressed to such Borrower at the address set forth in this Agreement and that service so made shall be deemed completed upon the earlier of such Borrower’s actual receipt thereof or four (4) Business Days after deposit in the U.S. mails, proper postage prepaid. Nothing in this Agreement shall be deemed or operate to affect the right of Administrative Agent to serve legal process in any other manner permitted by law, or to preclude the enforcement by Administrative Agent of any judgment or order obtained in such forum or the taking of any action under this Agreement to enforce same in any other appropriate forum or jurisdiction.

Each Canadian Loan Party hereby agrees to irrevocably and unconditionally appoint an agent for service of process located in The City of New York (the “ New York Process Agent ”), reasonably satisfactory to Administrative Agent, as its agent to receive on behalf of such Canadian Loan Party and its property service of copies of the summons and complaint and any other process which may be served in any action or proceeding in the Southern District described in paragraph (a) of this subsection 11.13(f) and agrees promptly to appoint a successor New York Process Agent in The City of New York (which successor New York Process Agent shall accept such appointment in a writing reasonably satisfactory to Administrative Agent) prior to the termination for any reason of the appointment of the initial New York Process Agent. CT Corporation, a WoltersKluwer Company, located at 111 Eighth Avenue, 13th Floor, New York, NY 10011, telephone: 212-590-9310, facsimile: 212-590-9190, has been appointed as the initial New York Process Agent. In any action or proceeding in the Southern District, service may be made on a Canadian Loan Party by delivering a copy of such process to such Canadian Loan Party in care of the New York Process Agent at the New York Process Agent’s address and by depositing a copy of such process in the mails by certified or registered air mail, addressed to such Canadian Loan Party at its address specified in subsection 11.2 with (if applicable) a copy to the Borrower Agent (such service to be effective upon such receipt by the New York Process Agent and the depositing of such process in the mails as aforesaid). Each Canadian Loan Party hereby irrevocably and unconditionally authorizes and directs the New York Process Agent to accept such service on its behalf. As an alternate method of service, each Canadian Loan Party irrevocably and unconditionally consents to the service of any and all process in any such action or proceeding in the Southern District by mailing of copies of such process to such Canadian Loan Party by certified or registered air mail at its address specified in Section 15.9 . Each Canadian Loan Party agrees that, to the fullest extent permitted by applicable law, a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

To the extent that a Canadian Loan Party has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from setoff or any legal process (whether service or notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) with respect to itself or any of its property, such Canadian Loan Party hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations under this Agreement and any Credit Document.

15.19 Waivers by Borrowers . To the fullest extent permitted by Applicable Law, each Borrower waives (1) the right to trial by jury (which each Agent, each Collateral Agent and each Lender hereby also waives) in any action, suit, proceeding or counterclaim of any kind arising out of or related to any of the Credit Documents, the Obligations or the Collateral; (ii) presentment, demand and protest and notice of presentment, protest, default, nonpayment, maturity, release, compromise, settlement, extension or renewal of any or all commercial paper, accounts, contract rights, documents, instruments, chattel paper and guaranties at any time held by any Agent on which such Borrower may in any way be liable and hereby ratifies and confirms whatever any Agent may do in this regard; (iii) notice prior to taking possession or control of the Collateral or any bond or security which might be required by any court prior to allowing any Agent to exercise any of such Agent’s remedies; (iv) the benefit of all valuation,

 

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appraisement and exemption laws; and (v) notice of acceptance hereof. Each Borrower acknowledges that the foregoing waivers are a material inducement to Agents’, Collateral Agents’ and Lenders’ entering into this Agreement and that Agents, Collateral Agents and Lenders are relying upon the foregoing waivers in its future dealings with Borrowers. Each Borrower warrants and represents that it has reviewed the foregoing waivers with its legal counsel and has knowingly and voluntarily waived its jury trial rights following consultation with legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a trial by the Court.

15.20 Waiver of Consumer Rights . Each Borrower waives its rights under the Texas Deceptive Trade Practices Consumer Protection Act, Section 17.41 et seq ., Business & Commerce Code, a law that gives consumers special rights and protections. After consultation with an attorney of each Borrower’s selection, each Borrower voluntarily consents to this waiver.

15.21 Limitation of Liability . NO CLAIM MAY BE MADE BY ANY AGENT, ANY COLLATERAL AGENT, ANY BORROWER, ANY LENDER OR OTHER PERSON AGAINST ANY AGENT, ANY COLLATERAL AGENT, ANY BORROWER, ANY LENDER, OR THE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL, REPRESENTATIVES, AGENTS OR ATTORNEYS-IN-FACT OF ANY OF THEM FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, AND EACH BORROWER, EACH AGENT, EACH COLLATERAL AGENT, AND EACH LENDER HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.

15.22 No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby, each Borrower acknowledges and agrees that: (i) the credit facilities provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Credit Document) are an arm’s-length commercial transaction between the Borrowers and their respective Affiliates, on the one hand, and Agents, Collateral Agents and Arrangers, on the other hand, and each Borrower is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Credit Documents (including any amendment, waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, Agents, Collateral Agents and Arrangers each is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Borrowers or any of their respective Affiliates, stockholders, creditors or employees or any other Person; (iii) no Agent, Collateral Agent or Arranger has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Borrowers with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Credit Document (irrespective of whether such Agent, Collateral Agent or Arranger has advised or is currently advising the Borrowers or any of their respective Affiliates on other matters) and no Agent, Collateral Agent or Arranger has any obligation to the Borrowers or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Credit Documents; (iv) any Agent, Collateral Agent and Arranger and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers and their respective Affiliates, and no Agent, Collateral Agent or Arranger has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) no Agent, Collateral Agent or Arranger has provided nor will it provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Credit Document) and each of the Borrowers has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each of the Borrowers hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against any Agent, Collateral Agent or Arranger with respect to any breach or alleged breach of agency or fiduciary duty.

15.23 Judgment Currency . If for the purpose of obtaining judgment in any court it is necessary to convert an amount due hereunder in the currency in which it is due (the “ Original Currency ”) into another currency (the “ Second Currency ”), the rate of exchange applied shall be that at which, in accordance with normal banking

 

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procedures, Administrative Agent could purchase in the New York foreign exchange market, the Original Currency with the Second Currency on the date two (2) Business Days preceding that on which judgment is given. Each Borrower agrees that its obligation in respect of any Original Currency due from it hereunder shall, notwithstanding any judgment or payment in such other currency, be discharged only to the extent that, on the Business Day following the date Administrative Agent receives payment of any sum so adjudged to be due hereunder in the Second Currency, Administrative Agent may, in accordance with normal banking procedures, purchase, in the New York foreign exchange market, the Original Currency with the amount of the Second Currency so paid; and if the amount of the Original Currency so purchased or could have been so purchased is less than the amount originally due in the Original Currency, each Borrower agrees as a separate obligation and notwithstanding any such payment or judgment to indemnify Administrative Agent against such loss. The term “rate of exchange” in this Section 15.24 means the spot rate at which Administrative Agent, in accordance with normal practices, is able on the relevant date to purchase the Original Currency with the Second Currency, and includes any premium and costs of exchange payable in connection with such purchase.

15.24 USA PATRIOT Act Notice . Administrative Agent and Lenders hereby notify Borrowers that pursuant to the requirements of the USA PATRIOT Act, Administrative Agent and Lenders are required to obtain, verify and record information that identifies each Borrower, including its legal name, address, tax ID number and other information that will allow Administrative Agent and Lenders to identify it in accordance with the USA PATRIOT Act. Administrative Agent and Lenders will also require information regarding each personal guarantor, if any, and may require information regarding Borrowers’ management and owners, such as legal name, address, social security number and date of birth.

15.25 Effectiveness of the Acquisition . Ryerson, Ryerson & Son and Ryerson Canada shall have no rights, liabilities or obligations hereunder until the consummation of the Acquisition and any representations and warranties of Ryerson, Ryerson & Son and Ryerson Canada hereunder shall not become effective until such time. Upon consummation of the Acquisition, Ryerson, Ryerson & Son and Ryerson Canada shall succeed to all the rights and obligations of Rhombus Merger Corporation under this Agreement and all representations and warranties of Ryerson, Ryerson & Son and Ryerson Canada shall become effective as of the Closing Date, without any further action by any Person.

15.26 Canadian Anti-Money Laundering Legislation . If any Agent has ascertained the identity of any Canadian Loan Party or any authorized signatories of any Canadian Loan Party for the purposes of the Proceeds of Crime Act (Canada) and other Applicable Laws and “know your client” policies, regulations, laws or rules (the Proceeds of Crime Act (Canada) and such other Applicable Laws, applicable policies, regulations, laws or rules, collectively, including any guidelines or orders thereunder, “ AML Legislation ”), then such Agent:

(a) shall be deemed to have done so as an agent for each Lender and this Agreement shall constitute a “written agreement” in such regard between each Lender and such Agent within the meaning of the applicable AML Legislation; and

(b) shall provide to such Agent, copies of all information obtained in such regard without any representation or warranty as to its accuracy or completeness.

Notwithstanding the preceding sentence and except as may otherwise be agreed in writing, each Lender agrees that the Agents have no obligation to ascertain the identity of the Canadian Loan Parties or any authorized signatories of the Canadian Loan Parties on behalf of any Lender, or to confirm the completeness or accuracy of any information they obtain from any Canadian Loan Party or any such authorized signatory in doing so.

15.27 Addition of U.S. Borrowers . The U.S. Borrowers shall cause each U.S. Subsidiary of Ryerson which, from time to time, after the date hereof shall be required to pledge any assets to the Administrative Agent for the benefit of the Secured Parties pursuant to the provisions of the Credit Agreement, to either (x) execute and deliver to the Administrative Agent either a joinder to the U.S. Security Agreement to the extent the Parent elects to designate such U.S. Subsidiary as a U.S. Subsidiary Guarantor or (y) (a) a U.S. Borrower Joinder Agreement substantially in the form of Exhibit C hereto and (b) a Perfection Certificate, in each case, within thirty (30) days of the date, such time to be extended in the Administrative Agent’s sole discretion, not to be unreasonably withheld, on which it was acquired or created, and upon such execution and delivery, such U.S. Subsidiary shall constitute a

 

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“U.S. Borrower” or “U.S. Subsidiary Guarantor” and a “Pledgor” for all purposes hereunder and the U.S. Security Agreement with the same force and effect as if originally named as a U.S. Borrower and Pledgor under the Credit Documents. The execution and delivery of a U.S. Borrower Joinder Agreement shall not require the consent of any Obligor (other than such joining U.S. Borrower). The rights and obligations of each other Obligor under the Credit Documents shall remain in full force and effect notwithstanding the addition of any new U.S. Borrower as a party to the Credit Documents.

In addition, with the consent of the Administrative Agent (not to be unreasonably withheld), Parent may elect to designate any U.S. Subsidiary Guarantor as a U.S. Borrower by providing written notice to the Administrative Agent of such election.

Prior to the effectiveness of any joinder under this Section 15.27 , the Loan Parties shall have provided, at least five Business Days prior to the proposed date of effectiveness, (i) notice of any such proposed joinder to the Administrative Agent and (ii) the documentation and other information reasonably requested in writing by the Administrative Agent in connection with applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, all as of the date first written above.

 

[COMPANY NAME]
By:    
 

Name: [Signatory]

Title:   [Title]

 

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Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the reference to our firm under the caption “Experts” and to the use of our report dated March 19, 2013, (except for Note 18 and Note 19 as to which the date is                  , 2013) in Amendment No. 15 to the Registration Statement (Form S-1 No. 333-164484) and related Prospectus of Ryerson Holding Corporation dated May 6, 2013.

Ernst & Young LLP

Chicago, Illinois

The foregoing consent is in the form that will be signed upon the completion of the termination of the corporate advisory services agreement and the completion of the         for 1.00 split of the common stock of Ryerson Holding Corporation as described in Note 19 to the consolidated financial statements.

/s/ Ernst & Young LLP

Chicago, Illinois

May 6, 2013