Dated as of October 31, 2007
among
as the Borrower
from Time to Time Parties Hereto
LEHMAN BROTHERS INC.,
as Co-Lead Arrangers and Joint Bookrunners
as Administrative Agent and Co-Collateral Agent
as Co-Collateral Agent and Syndication Agent,
as Co-Documentation Agents
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SECTION 1. DEFINITIONS | 2 | |||
1.1 Defined Terms | 2 | |||
1.2 Other Interpretive Provisions | 48 | |||
1.3 Accounting Terms; Exchange Rates | 48 | |||
1.4 Rounding | 49 | |||
1.5 References to Agreements, Laws, Etc | 49 | |||
SECTION 2. AMOUNT AND TERMS OF CREDIT | 49 | |||
2.1 Commitments | 49 | |||
2.2 Minimum Amount of Each Borrowing; Maximum Number of Borrowings | 51 | |||
2.3 Notice of Borrowing | 51 | |||
2.4 Disbursement of Funds | 52 | |||
2.5 Repayment of Loans; Evidence of Debt | 53 | |||
2.6 Conversions and Continuations | 53 | |||
2.7Pro RataBorrowings | 54 | |||
2.8 Interest | 54 | |||
2.9 Interest Periods | 55 | |||
2.10 Increased Costs, Illegality, etc | 56 | |||
2.11 Compensation | 58 | |||
2.12 Change of Lending Office | 58 | |||
2.13 Notice of Certain Costs | 58 | |||
2.14 Incremental Facilities | 59 | |||
2.15 Protective Advances | 60 | |||
SECTION 3. LETTERS OF CREDIT | 61 | |||
3.1 Letters of Credit | 61 | |||
3.2 Letter of Credit Requests | 62 | |||
3.3 Letter of Credit Participations | 62 | |||
3.4 Agreement to Repay Letter of Credit Drawings | 65 | |||
3.5 Increased Costs | 66 | |||
3.6 New or Successor Letter of Credit Issuer | 66 | |||
3.7 Role of the Letter of Credit Issuer | 67 | |||
SECTION 4. FEES; COMMITMENTS | 68 | |||
4.1 Fees | 68 | |||
4.2 Voluntary Reduction of Revolving Credit Commitments | 69 | |||
4.3 Mandatory Termination of Commitments | 69 |
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SECTION 5. PAYMENTS | 69 | |||
5.1 Voluntary Prepayments | 69 | |||
5.2 Mandatory Prepayments | 70 | |||
5.3 Method and Place of Payment | 71 | |||
5.4 Net Payments | 71 | |||
5.5 Computations of Interest and Fees | 74 | |||
5.6 Limit on Rate of Interest | 74 | |||
SECTION 6. CONDITIONS PRECEDENT TO INITIAL BORROWING | 75 | |||
6.1 Credit Documents | 75 | |||
6.2 [Reserved] | 75 | |||
6.3 Legal Opinions | 75 | |||
6.4 First Amendment to Term Loan Credit Agreement and Intercreditor Agreement | 75 | |||
6.5 Equity Investments; Existing Indebtedness | 76 | |||
6.6 Closing Certificates | 76 | |||
6.7 Organizational Documents; Incumbency | 76 | |||
6.8 Fees | 76 | |||
6.9 Representations and Warranties | 76 | |||
6.10 Related Agreements | 76 | |||
6.11 Solvency Certificate | 76 | |||
6.12 Historical Financial Statements | 76 | |||
6.13 Red Man Transaction | 76 | |||
6.14 Insurance | 77 | |||
6.15 Pro Forma Financial Statements | 77 | |||
6.16 Borrowing Base Certificate | 77 | |||
6.17 Initial Borrowings | 77 | |||
SECTION 7. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS | 77 | |||
7.1 No Default; Representations and Warranties; Excess Availability | 77 | |||
7.2 Notice of Borrowing; Letter of Credit Request | 78 | |||
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS | 78 | |||
8.1 Corporate Status | 78 | |||
8.2 Corporate Power and Authority | 78 | |||
8.3 No Violation | 78 | |||
8.4 Litigation | 79 | |||
8.5 Margin Regulations | 79 | |||
8.6 Governmental Approvals | 79 | |||
8.7 Investment Company Act | 79 |
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Page | ||||
8.8 True and Complete Disclosure | 79 | |||
8.9 Financial Condition; Financial Statements | 80 | |||
8.10 Tax Returns and Payments | 80 | |||
8.11 Compliance with ERISA | 80 | |||
8.12 Subsidiaries | 81 | |||
8.13 Intellectual Property | 81 | |||
8.14 Environmental Laws | 81 | |||
8.15 Properties | 82 | |||
8.16 Solvency | 82 | |||
SECTION 9. AFFIRMATIVE COVENANTS | 82 | |||
9.1 Information Covenants | 82 | |||
9.2 Books, Records and Inspections | 86 | |||
9.3 Maintenance of Insurance | 87 | |||
9.4 Payment of Taxes | 87 | |||
9.5 Consolidated Corporate Franchises | 87 | |||
9.6 Compliance with Statutes, Regulations, etc | 88 | |||
9.7 ERISA | 88 | |||
9.8 Maintenance of Properties | 88 | |||
9.9 Transactions with Affiliates | 88 | |||
9.10 End of Fiscal Years; Fiscal Quarters | 89 | |||
9.11 Additional Guarantors and Grantors | 89 | |||
9.12 [Intentionally Omitted.] | 90 | |||
9.13 Use of Proceeds | 90 | |||
9.14 Appraisals; Field Examinations | 90 | |||
9.15 Interest Rate Protection | 90 | |||
9.16 Collateral Access Agreements | 90 | |||
9.17 Further Assurances | 90 | |||
SECTION 10. NEGATIVE COVENANTS | 91 | |||
10.1 Limitation on Indebtedness | 91 | |||
10.2 Limitation on Liens | 96 | |||
10.3 Limitation on Fundamental Changes | 98 | |||
10.4 Limitation on Sale of Assets | 99 | |||
10.5 Limitation on Investments | 102 | |||
10.6 Limitation on Dividends | 104 | |||
10.7 Limitations on Debt Payments and Amendments | 106 | |||
10.8 Limitations on Sale Leasebacks | 107 | |||
10.9 [Reserved] | 107 | |||
10.10 Changes in Business | 107 | |||
10.11 Burdensome Agreements | 107 |
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SECTION 11. EVENTS OF DEFAULT | 108 | |||
11.1 Payments | 108 | |||
11.2 Representations, etc | 108 | |||
11.3 Covenants | 108 | |||
11.4 Default Under Other Agreements | 109 | |||
11.5 Bankruptcy, etc | 109 | |||
11.6 ERISA | 109 | |||
11.7 Guarantee | 110 | |||
11.8 [Reserved] | 110 | |||
11.9 Security Agreement | 110 | |||
11.10 [Intentionally Omitted] | 110 | |||
11.11 Judgments | 110 | |||
11.12 Change of Control | 110 | |||
11.13 Subordination | 110 | |||
SECTION 12. [RESERVED] | 111 | |||
SECTION 13. THE ADMINISTRATIVE AGENT | 111 | |||
13.1 Appointment | 111 | |||
13.2 Delegation of Duties | 112 | |||
13.3 General Immunity | 113 | |||
13.4 Reliance by Agents | 114 | |||
13.5 Notice of Default | 114 | |||
13.6 Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders | 114 | |||
13.7 Indemnification | 115 | |||
13.8 Agents in their Individual Capacity | 115 | |||
13.9 Successor Agents | 116 | |||
13.10 Withholding Tax | 116 | |||
13.11 REPORTS AND FINANCIAL STATEMENTS; DISCLAIMER BY LENDERS | 116 | |||
SECTION 14. MISCELLANEOUS | 117 | |||
14.1 Amendments and Waivers | 117 | |||
14.2 Notices | 119 | |||
14.3 No Waiver; Cumulative Remedies | 119 | |||
14.4 Survival of Representations and Warranties | 120 | |||
14.5 Payment of Expenses and Taxes | 120 | |||
14.6 Successors and Assigns; Participations and Assignments | 121 | |||
14.7 Replacements of Lenders under Certain Circumstances | 124 |
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Page | ||||
14.8 Adjustments; Set-off | 125 | |||
14.9 Counterparts | 126 | |||
14.10 Severability | 126 | |||
14.11 Integration | 126 | |||
14.12 GOVERNING LAW | 126 | |||
14.13 Submission to Jurisdiction; Waivers | 126 | |||
14.14 Acknowledgments | 127 | |||
14.15WAIVERS OF JURY TRIAL | 127 | |||
14.16 Confidentiality | 127 | |||
14.17 Direct Website Communications | 128 | |||
14.18 USA PATRIOT Act | 130 | |||
SECTION 15. LIMITATION ON PERMITTED DISCRETION; SPECIAL PROVISIONS REGARDING ACCOUNTS, INVENTORY, AND APPLICATION OF COLLATERAL PROCEEDS | 130 | |||
15.1 Accounts and Account Collections | 130 | |||
15.2 Limitation on Permitted Discretion | 132 |
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SCHEDULES | ||
Schedule 1.1(A) | Existing Letters of Credit | |
Schedule 1.1 (B) | Initial Borrowing Base Guarantors | |
Schedule 1.1 (C) | Commitments and Addresses of Lenders | |
Schedule 1.1 (D) | Excluded Subsidiaries | |
Schedule 1.1(E) | Initial Cost Savings | |
Schedule 1.1(F) | Non-Core Assets | |
Schedule 8.12 | Subsidiaries | |
Schedule 9.9 | Closing Date Affiliate Transactions | |
Schedule 9.17(C) | Post-Closing Actions | |
Schedule 10.1 | Closing Date Indebtedness | |
Schedule 10.2 | Closing Date Liens | |
Schedule 10.5 | Closing Date Investments | |
Schedule 10.11 | Closing Date Restrictions | |
Schedule 14.2 | Notice Addresses | |
EXHIBITS | ||
Exhibit C | Form of Guarantee | |
Exhibit D | [Intentionally Omitted] | |
Exhibit E | Form of Perfection Certificate | |
Exhibit F | [Intentionally Omitted] | |
Exhibit G | Form of Security Agreement | |
Exhibit H | Form of Letter of Credit Request | |
Exhibit I-1 | Form of Legal Opinion of Simpson Thacher & Bartlett LLP | |
Exhibit I-2 | Form of Legal Opinions of Local Counsel | |
Exhibit J | Form of Closing Certificate | |
Exhibit K | Form of Assignment and Acceptance | |
Exhibit L | Form of Promissory Note (Revolving Credit Loans and Swingline Loans) | |
Exhibit M | Form of Joinder Agreement | |
Exhibit N | Form of Borrowing Base Certificate | |
Exhibit O | Form of Intercreditor Agreement |
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Applicable ABR Margin for | ||
Status | Revolving Credit Loans and Swingline Loans | |
Level I Status | 0.50% | |
Level II Status | 0.25% | |
Level III Status | 0.00% |
minus (b) the sum, without duplication, of:
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Applicable LIBOR Margin for | ||
Status | Revolving Credit Loans | |
Level I Status | 1.50% | |
Level II Status | 1.25% | |
Level III Status | 1.00% |
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Status | Commitment Fee Rate | |
Level I Status | 0.375% | |
Level II Status | 0.25% | |
Level III Status | 0.25% |
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(a) | which is not subject to a perfected security interest in favor of the Collateral Agent; | ||
(b) | which is subject to any Lien (including Liens permitted bySection 10.2) other than (i) a Lien in favor of the Collateral Agent and (ii) a Permitted Lien which does not have priority over the Lien in favor of the Collateral Agent;provided that, with respect to any tax Lien having such priority, eligibility of Accounts shall, without duplication, be reduced by the amount of such tax Lien; | ||
(c) | (i) owing by General Electric with respect to which more than 150 days have lapsed since the date of the original invoice therefor or (ii) owing by any other Account Debtor which more than 120 days have lapsed since the date of the original invoice therefor or which is more than 60 days past the due date for payment (provided, that the aggregate amount of all Accounts eligible under the foregoing clause (i) does not exceed $3,000,000 at any time); | ||
(d) | which is owing by an Account Debtor for which more than 50% of the Accounts owing from such Account Debtor and its Affiliates are ineligible pursuant to clause (c) above; | ||
(e) | which is owing by an Account Debtor to the extent the aggregate amount of Accounts owing from such Account Debtor and its Affiliates to such Borrower or Borrowing Base Guarantor exceeds 20% of the aggregate Eligible Accounts (but only to the extent of such excess); | ||
(f) | with respect to which any covenant, representation, or warranty relating to such Account contained in this Agreement or in the Security Agreement has been breached or is not true in any material respect; | ||
(g) | which (i) does not arise from the sale of goods or performance of services in the ordinary course of business, (ii) is not evidenced by an invoice, or other documentation satisfactory to the Administrative Agent, which has been sent to the Account Debtor, (iii) represents a progress billing, (iv) is contingent upon such Borrower’s or Borrowing Base Guarantor’s completion of any further performance, or (v) represents a sale on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment which is billed prior to actual sale to the end user, cash-on-delivery or any other repurchase or return basis, except with respect to up to $10,000,000 of such Accounts described in this clause (v); | ||
(h) | for which the goods giving rise to such Account (other than Accounts described in the foregoing paragraph (g)(v)) have not been shipped to the Account Debtor or for which the services giving rise to such Account have not been performed by such Borrower or Borrowing Base Guarantor; |
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(i) | with respect to which any check or other instrument of payment has been returned uncollected for any reason; | ||
(j) | which is owed by an Account Debtor which is a debtor or a debtor in possession under any bankruptcy law or any other federal, state or foreign (including any provincial) receivership, insolvency relief or other law or laws for the relief of debtors unless the payment of Accounts from such Account Debtor is secured by assets of, or guaranteed by, in either case in a manner reasonably satisfactory to the Administrative Agent, a Person that is reasonably acceptable to the Administrative Agent or, if the Account from such Account Debtor arises subsequent to a decree or order for relief with respect to such Account Debtor under the federal bankruptcy laws, as now or hereafter in effect, the Administrative Agent shall have reasonably determined that the timely payment and collection of such Account will not be impaired; | ||
(k) | which is owed by an Account Debtor which is not organized under applicable law of the U.S. or any state of the U.S. unless such Account is backed by a letter of credit or other credit support reasonably acceptable to the Administrative Agent and which is in the possession of the Administrative Agent; | ||
(m) | which is owed in any currency other than Dollars; | ||
(n) | which is owed by (i) the government (or any department, agency, public corporation, or instrumentality thereof) of any country other than the U.S. unless such Account is backed by a Letter of Credit reasonably acceptable to the Administrative Agent and which is in the possession of the Administrative Agent, or (ii) the government of the U.S., or any department, agency, public corporation, or instrumentality thereof, unless the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727etseq. and 41 U.S.C. § 15etseq.), and any other steps necessary to perfect the Lien of the applicable Collateral Agent in such Account have been complied with to the Administrative Agent’s reasonable satisfaction; | ||
(o) | which is owed by any Affiliate, employee, director, or officer of any Credit Party other than Accounts of Borrower or any Borrowing Base Guarantor which are owed by Red Man Distributors;provided that (i) the amount of any such Eligible Accounts shall not include the amount owed by Red Man Distributors to Borrower for administrative services with respect thereto, (ii) such Account shall be subject to ineligibility or such reductions in amount as determined by Collateral Agent’s application of the same eligibility criteria as set forth in the remaining clauses of this definition (other than the criteria in clause (a) hereof) to the corresponding Accounts owed to Red Man Distributors by its Account Debtors, (iii) the aggregate amount of all Accounts eligible under this clause (o) (together with the aggregate amount of all Accounts eligible under clause (a) of the definition of Eligible Red Man Business Account) shall not exceed $30,000,000 at any time and (iv) the Organizational Documents of Red Man Distributors provide for a negative pledge of its Accounts (other than with respect |
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to tax Liens) and for a right of subrogation in favor of the Collateral Agent with respect to such Accounts on terms reasonably satisfactory to the Collateral Agent; | |||
(p) | which is owed by an Account Debtor or any Affiliate of such Account Debtor which is the holder of Indebtedness issued or incurred by any Credit Party;provided, that any such Account shall only be ineligible as to that portion of such Account which is less than or equal to the amount owed by the Credit Party to such Person; | ||
(q) | which is subject to any counterclaim, deduction, defense, setoff or dispute, but only to the extent of the amount of such counterclaim, deduction, defense, setoff or dispute, unless (i) the Administrative Agent, in its Permitted Discretion, has established an appropriate Reserve and determines to include such Account as an Eligible Account or (ii) such Account Debtor has entered into an agreement reasonably acceptable to the Administrative Agent to waive such rights; | ||
(r) | which is evidenced by any promissory note, chattel paper, or instrument (in each case, other than any such items that are held by a Credit Party or delivered to the Administrative Agent or the Collateral Agent); | ||
(s) | which is owed by an Account Debtor located in any jurisdiction that requires, as a condition to access to the courts of such jurisdiction, that a creditor qualify to transact business, file a business activities report or other report or form, or take one or more other actions, unless such Borrower or Borrowing Base Guarantor has so qualified, filed such reports or forms, or taken such actions (and, in each case, paid any required fees or other charges), except to the extent such Borrower or Borrowing Base Guarantor may qualify subsequently as a foreign entity authorized to transact business in such state or jurisdiction and gain access to such courts, without incurring any cost or penalty reasonably viewed by the Administrative Agent to be material in amount, and such later qualification cures any access to such courts to enforce payment of such Account; | ||
(t) | with respect to which such Borrower or Borrowing Base Guarantor has made any agreement with the Account Debtor for any reduction thereof, but only to the extent of such reduction, other than discounts and adjustments given in the ordinary course of business; or | ||
(u) | which the Administrative Agent determines in its Permitted Discretion may not be paid by reason of the Account Debtor’s inability to pay. |
(a) | which is not subject to a perfected Lien in favor of the Collateral Agent; |
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(b) | which is subject to any Lien other than (i) a Lien in favor of the Collateral Agent and (ii) a Permitted Lien which does not have priority over the Lien in favor of the Collateral Agent (other than any bailee, warehouseman, landlord or similar non-consensual Liens having priority of operation of law to the extent either subclause (i) or (ii) of such clauses (h) or (i) is satisfied with respect to the relevant Inventory);provided that, with respect to any tax Lien having such priority, eligibility of Inventory shall, without duplication, be reduced by the amount of such tax Lien; | ||
(c) | which is, in the Administrative Agent’s Permitted Discretion, slow moving, obsolete, unmerchantable, defective, unfit for sale, not salable at prices approximating at least the cost of such Inventory in the ordinary course of business or unacceptable due to age, type, category and/or quantity; | ||
(d) | with respect to which any covenant, representation, or warranty contained in this Agreement or any Security Agreement has been breached or is not true; | ||
(e) | which does not conform in all material respects to all standards imposed by any Governmental Authority (except that any standard that is qualified as to “materiality” shall have been conformed to in all respects); | ||
(f) | which constitutes packaging and shipping material, manufacturing supplies, display items, bill-and-hold goods in excess of $10,000,000, returned or repossessed goods (other than goods that are undamaged and able to be resold in the ordinary course of business), defective goods, goods held on consignment, goods to be returned to the Borrower’s or applicable Borrowing Base Guarantor’s suppliers or goods which are not of a type held for sale in the ordinary course of business; | ||
(g) | which is not located in the U.S. or which is in transit with a common carrier from vendors and suppliers; | ||
(h) | which is located in any location leased by the Borrower or applicable Borrowing Base Guarantor unless (i) the lessor has delivered to the Agents a Collateral Access Agreement or (ii) a Reserve for rent, charges, and other amounts due or to become due with respect to such facility has been established by the Administrative Agent in its Permitted Discretion;provided, that any such Reserve shall not exceed an amount equal to the rent due with respect to such facility for the time period used to determine the orderly liquidation value as set forth in the most recent Inventory Appraisal; | ||
(i) | which is located (a) in any third party warehouse or is in the possession of a bailee and is not evidenced by a Document, unless (i) such warehouseman or bailee has delivered to the Agents a Collateral Access Agreement and such other documentation as the Administrative Agent may reasonably require or (ii) an appropriate Reserve has been established by the Administrative Agent in its Permitted Discretion;provided, that any such Reserve shall not exceed an amount |
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equal to the reasonable fees and expenses due with respect to such warehouse or bailee for the time period used to determine the orderly liquidation value as set forth in the most recent Inventory Appraisal or (b) at a vendor location unless an appropriate Reserve has been established by the Administrative Agent in its Permitted Discretion;provided, that any such Reserve shall not exceed an amount equal to the accounts payable with respect to such vendor; | |||
(j) | which is the subject of a consignment by the Borrower or any Borrowing Base Guarantor as consignor unless (i) a protective UCC-1 financing statement has been properly filed against the consignee, and (ii) there is a written agreement acknowledging that such Inventory is held on consignment, that the Borrower or such Borrowing Base Guarantor retains title to such Inventory, that no Lien arising by, through or under such consignee has attached or will attach to such Inventory and requiring consignee to segregate the consigned Inventory from the consignee’s other personal or movable property and having other terms consistent with the Borrower’s or such Borrowing Base Guarantor’s past practices for consigned Inventory;provided that the aggregate amount of all Inventory eligible under this clause (j) shall not exceed $25,000,000 at any time; | ||
(k) | which is perishable as determined in accordance with GAAP; or | ||
(l) | which contains or bears any intellectual property rights licensed to the Borrower or any Borrowing Base Guarantor unless the Administrative Agent is satisfied that it may sell or otherwise dispose of such Inventory without (i) infringing the rights of such licensor in any material respect, (ii) violating any material contract with such licensor or (iii) incurring any material liability with respect to payment of royalties other than royalties incurred pursuant to sale of such Inventory under the current licensing agreement. |
(a) | it is owed by any Affiliate, employee, director, or officer of any Credit Party other than Accounts of Borrower or any Borrowing Base Guarantor which are owed by Red Man Distributors;provided that (i) the amount of any such Eligible Red Man Business Account shall not include the amount owed by Red Man Distributors to Borrower for administrative services with respect thereto, (ii) such Account shall be subject to ineligibility or such reductions in amount as determined by Collateral Agent’s application of the same eligibility criteria as set forth in the remaining clauses of this definition (other than the criteria in clause (m) hereof) to the corresponding Accounts owed to Red Man Distributors by its Account Debtors, (iii) the aggregate amount of all Accounts eligible under this clause (a) |
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(together with the aggregate amount of all Accounts eligible under clause (o) of the definition of Eligible Accounts) shall not exceed $30,000,000 at any time and (iv) the Organizational Documents of Red Man Distributors provide for a negative pledge of its Accounts (other than with respect to tax Liens) and for a right of subrogation in favor of the Collateral Agent with respect to such Accounts on terms reasonably satisfactory to the Collateral Agent; | |||
(b) | it remains unpaid more than ninety (90) days after the original invoice date thereof; | ||
(c) | more than thirty percent (30%) of the total Accounts owing by an Account Debtor remain unpaid more than ninety (90) days after the invoice date thereof, to the extent of all Accounts owing by such Account Debtor; | ||
(d) | any covenant, representation or warranty contained in this Agreement with respect to such Account has been breached; | ||
(e) | the Account Debtor is also Borrower’s or the Borrowing Base Guarantor’s creditor or supplier, or the Account otherwise is or may become subject to any right of setoff by the Account Debtor;provided, that in such case the Account shall be deemed to be an Eligible Red Man Business Account if, and to the extent, the balance of the Account exceeds all amounts owed by Borrower or such Borrowing Base Guarantor to the Account Debtor or the amount of such setoff; | ||
(f) | the Account Debtor has disputed liability with respect to such Account (provided, that if the amount disputed is less than twenty-five percent (25%) of the entire balance of the Account, the Account shall be deemed to be an Eligible Red Man Business Account to the extent the balance of the Account exceeds the amount disputed); | ||
(g) | the Account Debtor has commenced a voluntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or made an assignment for the benefit of creditors, or a decree or order for relief has been entered by a court having jurisdiction in the premises in respect of the Account Debtor in an involuntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or if the Account Debtor has ceased to be “solvent” (as such term is interpreted under applicable laws relating to fraudulent transfers and conveyances) or consented to or suffered a receiver, trustee, liquidator or custodian to be appointed for it or for all or a significant portion of its assets or affairs; | ||
(h) | it arises from a sale to an Account Debtor outside the United States; | ||
(i) | it arises from a sale to the Account Debtor on a bill-and-hold, guaranteed sale, sale-or-return, sale-on-approval, consignment or any other repurchase or return basis; | ||
(j) | Collateral Agent believes, in its sole judgment, that, collection of such Account is insecure or that payment thereof is doubtful or will be delayed by reason of the Account Debtor’s financial condition; |
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(k) | the Account Debtor is the United States of America or any State or any department, agency or instrumentality thereof; | ||
(l) | the Account Debtor is located in the State of New Jersey, unless Borrower or the applicable Borrowing Base Guarantor has filed a Notice of Business Activities Report with the New Jersey Division of Taxation for the then current year; | ||
(m) | the Account is not subject to Collateral Agent’s duly perfected first priority security interest or is subject to a Lien, other than a Permitted Lien or a Lien permitted bySection 10.2 which is junior to Collateral Agent’s security interest; | ||
(n) | the goods giving rise to such Account have not been delivered to and accepted by the Account Debtor or the services giving rise to such Account have not been performed by Borrower or the applicable Borrowing Base Guarantor and accepted by the Account Debtor or the Account otherwise does not represent a final sale; | ||
(o) | the total unpaid Accounts of the Account Debtor exceed a credit limit determined by Collateral Agent, in its reasonable discretion, to the extent such Account exceeds such limit; | ||
(p) | it is evidenced by chattel paper or an instrument of any kind, or has been reduced to judgment; | ||
(q) | Borrower or the applicable Borrowing Base Guarantor has made any agreement with the Account Debtor for any deduction therefrom, except for discounts or allowances which are made in the ordinary course of business for prompt payment and which discounts or allowances are reflected in the calculation of the face value of each invoice related to such Account; | ||
(r) | Borrower or the applicable Borrowing Base Guarantor has made an agreement with the Account Debtor to extend the time of payment thereof, or | ||
(s) | it arises from a sale to the Account Debtor on a C.O.D. or cash basis. |
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(a) | (i) The Borrower may, at its option, provide to the Administrative Agent any information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Credit Documents, including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (A) relates to a request for a new, or a conversion of an existing, borrowing or other extension of credit (including any election of an interest rate or interest period relating thereto), (B) relates to the payment of any principal or other amount due under the Credit Agreement prior to the scheduled date therefor, (C) provides notice of any default or event of default under the Credit Agreement or (D) is required to be delivered to satisfy any condition precedent to the effectiveness of the Credit Agreement and/or any borrowing or other extension of credit thereunder (all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium in a format reasonably acceptable to the Administrative Agent at (212) 461-7760, Attn: Relationship Manager/McJunkin. Nothing in thisSection 14.17 shall prejudice the right of the Borrower, the Administrative Agent or any Lender to give any notice or other communication pursuant to any Credit Document in any other manner specified in such Credit Document. |
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(ii) The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Credit Documents. Each Lender agrees that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Credit Documents. Each Lender agrees (A) to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and (B) that the foregoing notice may be sent to such e-mail address. |
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MCJUNKIN CORPORATION | ||||
By: | /s/ J.F. UNDERHILL | |||
Name: | J.F. Underhill | |||
Title: | Chief Financial Officer |
GOLDMAN SACHS CREDIT PARTNERS L.P., as Co-Lead Arranger and Joint Bookrunner | ||||
By: | /s/ WALTER A. JACKSON | |||
Name: | Walter A. Jackson | |||
Title: | Authorized Signatory | |||
By: | ||||
Name: | ||||
Title: | ||||
THE CIT GROUP/BUSINESS CREDIT, INC., as Administrative Agent and Co-Collateral Agent | ||||
By: | /s/ CYNTRA A. TRANI | |||
Name: | Cyntra A. Trani | |||
Title: | Senior Vice President | |||
BANK OF AMERICA, N.A., as Co-Collateral Agent | ||||
By: | /s/ J.L. BARTHOLOMEW | |||
Name: | J.L. Bartholomew | |||
Title: | Senior Vice President |
LEHMAN BROTHERS INC., as Co-Lead Arranger and Joint Bookrunner | ||||
By: | /s/ LAURIE PERPER | |||
Name: | Laurie Perper | |||
Title: | Senior Vice President |
BANK OF AMERICA, N.A., as Syndication Agent | ||||
By: | /s/ JOY L. BARTHOLOMEW | |||
Name: | Joy L. Bartholomew | |||
Title: | Senior Vice President | |||
Allied Irish Banks, p.l.c., as a Lender | ||||
By: | /s/ ALBERT D. PEREZ | |||
Name: | Albert D. Perez | |||
Title: | Vice President | |||
By: | /s/ EANNA P. MULKERE | |||
Name: | Eanna P. Mulkere | |||
Title: | Assistant Vice President | |||
BANK OF AMERICA, N.A., as a Lender | ||||
By: | /s/ JOY L. BARTHOLOMEW | |||
Name: | Joy L. Bartholomew | |||
Title: | Senior Vice President | |||
Bank of Oklahoma, N.A. as a Lender | ||||
By: | /s/ DAN HUGHES | |||
Name: | Dan Hughes | |||
Title: | Senior Vice President | |||
Branch Banking & Trust Company, as a Lender | ||||
By: | /s/ STEPHANIE J. COOK | |||
Name: | Stephanie J. Cook | |||
Title: | Senior Vice President | |||
Burdale Financial Limited, as a Lender | ||||
By: | /s/ DAVID GRENDE | |||
Name: | David Grende | |||
Title: | Managing Director | |||
By: | /s/ JASON D. SCHICK | |||
Name: | Jason Schick | |||
Title: | Vice President | |||
CATERPILLAR FINANCIAL SERVICES CORPORATION, as a Lender | ||||
By: | /s/ CHRISTOPHER C. PATTERSON | |||
Name: | Christopher C. Patterson | |||
Title: | Global Operations Manager — Capital Markets | |||
THE CIT GROUP/BUSINESS CREDIT, INC., as a Lender | ||||
By: | /s/ CYNTRA A. TRANI | |||
Name: | Cyntra A. Trani | |||
Title: | Senior Vice President | |||
Citizens Bank, as a Lender | ||||
By: | /s/ TIMOTHY D. HANCHETT | |||
Name: | Timothy D. Hanchett | |||
Title: | Senior Vice President | |||
City National Bank of West Virginia, as a Lender | ||||
By: | /s/ JACK CAVENDER | |||
Name: | Jack Cavender | |||
Title: | Executive Vice President | |||
Fifth Third Bank an Ohio Banking Corporation, as a Lender | ||||
By: | /s/ WILLIAM R. HARROD | |||
Name: | William R. Harrod | |||
Title: | Vice President | |||
General Electric Capital Corporation, as a Lender | ||||
By: | /s/ MARTIN J. MAHONEY | |||
Name: | Martin Mahoney | |||
Title: | Duly Authorized Signatory | |||
The Huntington National Bank, as a Lender | ||||
By: | /s/ L. BLAIR DEVAN | |||
Name: | L. Blair DeVan | |||
Title: | Vice President | |||
Israel Discount Bank of New York, as a Lender | ||||
By: | /s/ RAHUM N. WILLIAMS | |||
Name: | Rahum N. Williams | |||
Title: | Vice President | |||
By: | /s/ JEFFREY S. ACKERMAN | |||
Name: | Jeffrey S. Ackerman | |||
Title: | Senior Vice President | |||
JPMorgan Chase Bank, N.A., as a Lender | ||||
By: | /s/ KIM NGUYEN | |||
Name: | Kim Nguyen | |||
Title: | Vice President | |||
Mizuho Corporate Bank, as a Lender | ||||
By: | /s/ JAMES R. FAYEN | |||
Name: | James R. Fayen | |||
Title: | Deputy General Manager | |||
National City Business Credit, Inc., as a Lender | ||||
By: | /s/ THOMAS J. EVANS | |||
Name: | Thomas J. Evans | |||
Title: | Vice President | |||
North Fork Business Capital Corporation, as a Lender | ||||
By: | /s/ MICHAEL S. BURNS | |||
Name: | Michael S. Burns | |||
Title: | Senior Vice President | |||
PNC Bank, National Association, as a Lender | ||||
By: | /s/ SAM V. TRABERMAN | |||
Name: | Sam V. Traberman | |||
Title: | Vice President | |||
RZB Finance LLC, as a Lender | ||||
By: | /s/ SHIRLEY M. RITCH | |||
Name: | Shirley M. Ritch | |||
Title: | Assistant Vice President | |||
By: | /s/ NICOLAS M. MORIATIS | |||
Name: | Nicolas M. Moriatis | |||
Title: | Group Vice President Controller | |||
United Bank, Inc, as a Lender | ||||
By: | /s/ JAMES A. WARD | |||
Name: | James A. Ward | |||
Title: | Vice President | |||
UPS Capital Corporation, as a Lender | ||||
By: | /s/ JOHN P. HOLLOWAY | |||
Name: | John P. Holloway | |||
Title: | Director of Portfolio Management | |||
Wachovia Bank National Association, as a Lender | ||||
By: | /s/ STEVEN J. HAAS | |||
Name: | Steven J. Haas | |||
Title: | Director | |||
Beneficiary | Expiration Date | Amount | Purpose | Issuing Bank | ||||||||
Brickstreet | 11/1/08 | $ | 200,000 | Worker’s Comp | JPMorgan Chase | |||||||
St. Paul Travelers | 12/31/07 | $ | 1,775,000 | Insurance | United Bank | |||||||
State of West Virginia | 1/31/08 | $ | 1,000,000 | Worker’s Comp | JPMorgan Chase | |||||||
Sentry Insurance | 11/1/08 | $ | 75,000 | Insurance | JPMorgan Chase | |||||||
Lumberman’s Mutual | 7/1/08 | $ | 45,000 | Insurance | JPMorgan Chase |
McJunkin Appalachian Oilfield Supply Company McJunkin Development Corporation McJunkin Nigeria Limited McJunkin-Puerto Rico Corporation McJunkin-West Africa Corporation Milton Oil & Gas Company Ruffner Realty Company Greenbrier Petroleum Corporation Midway-Tristate Corporation West Oklahoma PVF Company Red Man Pipe & Supply Co. Wesco Acquisition Partners, Inc. |
Bank of America, N.A.
Bank of Oklahoma, N.A.
Branch Banking & Trust Company
Burdale Financial Limited
Caterpillar Financial Services Corporation
The CIT Group/Business Credit, Inc.
Citizens Bank
City National Bank of West Virginia
Fifth Third Bank an Ohio Banking Corporation
General Electric Capital Corporation
The Huntington National Bank
Israel Discount Bank of New York
JPMorgan Chase Bank, N.A.
Mizuho Corporate Bank, Ltd.
National City Business Credit, Inc.
North Fork Business Capital Corporation
PNC Bank, National Association
RZB Finance LLC
United Bank, Inc.
UPS Capital Corporation
Wachovia Bank, National Association
Material | |||||||||
Subsidiary | |||||||||
Name | Owner | Type | (Y/N) | ||||||
McJunkin Appalachian Oilfield Supply Company | McJunkin Corporation | corporation | Y | ||||||
McJunkin Nigeria Limited | McJunkin Corporation | corporation | N | ||||||
McJunkin Development Corporation | McJunkin Corporation | corporation | N | ||||||
McJunkin-Puerto Rico Corporation | McJunkin Corporation | corporation | N | ||||||
McJunkin Receivables Corporation | McJunkin Corporation | corporation | N | ||||||
McJunkin-West Africa Corporation | McJunkin Corporation | corporation | N | ||||||
Milton Oil & Gas Company | McJunkin Corporation | corporation | N | ||||||
Greenbrier Petroleum Corporation | Milton Oil & Gas Company | corporation | N | ||||||
Ruffner Realty Company | McJunkin Corporation | corporation | N | ||||||
Midway-Tristate Corporation | McJunkin Appalachian Oilfield Supply Company | corporation | Y | ||||||
West Oklahoma PVF Company | McJunkin Corporation | corporation | Y | ||||||
McJunkin de Angola, Lda | McJunkin-West Africa Corporation (49%)/McJunkin Development Corporation (51%) | limited liability company | N | ||||||
Red Man Pipe & Supply Co. | West Oklahoma PVF Company | corporation | Y | ||||||
Wesco Acquisition Partners, Inc. | Red Man Pipe & Supply Co. | corporation | N | ||||||
Red Man Pipe and Supply Canada, Ltd. | Red Man Pipe & Supply Co. | corporation | Y | ||||||
Midfield Supply ULC | Red Man Pipe and Supply Canada, Ltd. | corporation | Y | ||||||
Midfield Supply USA, Ltd. | Midfield Supply ULC | corporation | N | ||||||
Material | |||||||||
Subsidiary | |||||||||
Name | Owner | Type | (Y/N) | ||||||
Mega Production Testing Inc. | Midfield Supply ULC | corporation | N | ||||||
Northern Boreal Supply Ltd. | Midfield Supply ULC | corporation | N | ||||||
Red Man Pipe & Supply International, Ltd. | Red Man Pipe & Supply Co. | corporation | N | ||||||
Hagan Oilfield Supply Ltd. | Midfield Supply ULC | corporation | N | ||||||
1048025 Alberta Ltd. | Midfield Supply ULC | corporation | N | ||||||
1236564 Alberta Ltd. | Midfield Supply ULC | corporation | N | ||||||
Action | Date | ||||
1. | Deed of Trust for property located in Davis County, Utah | 10 Business Days | |||
2. | Opinion from Utah counsel relating to item (1) | 10 Business Days | |||
3. | Indemnity Agreement relating to item (1) | 10 Business Days | |||
4. | Title insurance relating to item (1) | 10 Business Days | |||
5. | Mortgage for property located in Tulsa County, Oklahoma | 10 Business Days | |||
6. | Fixture filing for property located in Tulsa County, Oklahoma | 10 Business Days | |||
7. | Opinion from Oklahoma counsel relating to item (5) | 10 Business Days | |||
8. | Title insurance relating to item (5) | 10 Business Days | |||
9. | Corrective/quit claim vesting deed for Red Man Pipe & Supply Co relating to OK property | 10 Business Days | |||
10. | Deed of Trust Amendment for property located in Harris County, Texas | 10 Business Days | |||
11. | Title Insurance relating to item (10) | 10 Business Days | |||
12. | Mortgage Amendment for property located in West Baton Rouge Parish, Louisiana | 10 Business Days | |||
13. | Title insurance relating to item (12) | 10 Business Days | |||
14. | Deed of Trust Amendment for property located in Kanawha County, West Virginia | 10 Business Days | |||
15. | Title insurance relating to item (13) | 10 Business Days | |||
16. | Deed of Trust Amendment for property located in Putnam County, West Virginia | 10 Business Days | |||
17. | Title insurance relating to item (16) | 10 Business Days | |||
18. | Delivery of original stock certificates, and and executed stock powers in blank, for Red Man Pipe & Supply Co., Wesco Acquisition Partners, Inc., Red Man Pipe & Supply Canada, Ltd. and | 3 Business Days | |||
2
West Oklahoma PVF Company | |||
19. Releases of mortgages set forth on Schedule 10.2, other than those mortgages relating to the Oklahoma and Utah properties which shall be released within 10 Business Days of the closing | 20 Business Days | ||
20. Termination of fixture filings relating the terminated Bank of America revolving loan and security agreement naming Red Man Pipe & Supply Co. and its Subsidiaries as debtor, other than that fixture filing relating to the Utah property, which shall be released within 10 Business Days of the closing | 20 Business Days | ||
21. Loss payable endorsements contemplated by Section 6.14 | 10 Business Days | ||
22. Delivery of documents effecting name change of McJunkin Corporation | 5 Business Days | ||
23. Certified copies of name change certificate for recording in all necessary county recorder offices | 5 Business Days | ||
24. Ministerial revisions to insurance certificates as agreed | 5 Business Days | ||
25. Payment of final, approved title company invoice | 10 Business Days | ||
26. Execute and deliver title company closing instructions | 10 Business Days | ||
Beneficiary | Expiration Date | Amount | Purpose | Issuing Bank | ||||||||||||
Brickstreet | 11/1/08 | $ | 200,000 | Worker’s Comp | JPMorgan Chase | |||||||||||
St. Paul Travelers | 12/31/07 | $ | 1,775,000 | Insurance | United Bank | |||||||||||
State of West Virginia | 1/31/08 | $ | 1,000,000 | Worker’s Comp | JPMorgan Chase | |||||||||||
Sentry Insurance | 11/1/08 | $ | 75,000 | Insurance | JPMorgan Chase | |||||||||||
Lumberman’s Mutual | 7/1/08 | $ | 45,000 | Insurance | JPMorgan Chase | |||||||||||
Lease Expiration | ||||||||||||||
Warehouse | State | County | Lessor | Date | ||||||||||
Little Rock | AR | Pulaski | Hansford Associates, LP | 12/31/2016 | ||||||||||
Bakersfield | CA | Kern | Hansford Associates, LP | 3/31/2012 | ||||||||||
Augusta | GA | Richmond | Hansford Associates, LP | 12/31/2009 | ||||||||||
Granite City | IL | Madison | Hansford Associates, LP | 9/30/2009 | ||||||||||
Calvert City | KY | Marshall | Hansford Associates, LP | 10/31/2011 | ||||||||||
Cleveland | OH | Summit | Hansford Associates, LP | 10/31/2010 | ||||||||||
North Charleston | SC | Charleston | Hansford Associates, LP | 12/31/2009 | ||||||||||
LaMarque | TX | Galveston | Hansford Associates, LP | 12/31/2012 | ||||||||||
Rock Springs | WY | Sweetwater | Hansford Associates, LP | 3/31/2012 | ||||||||||
Commitment/ | ||||||||||||||
Original | ||||||||||||||
Debtor | Debt Description | Principal | Lender/Obligee | Date | ||||||||||
Midfield Supply ULC | Loan and Security Agreement | CAD $150,000,000 | Bank of America N.A. | 11/2/06 | ||||||||||
Midfield Supply ULC | Revolving Term Loan Facility | CAD $15,000,000 | Alberta Treasury Branch | 5/17/07 | ||||||||||
Midfield Supply ULC | Note Payable | CAD $2,500,000 | Dougins Halwa, Daryl Loney, Don Dashney | 3/31/07 | ||||||||||
Midfield Supply ULC | Note Payable | CAD $750,000 | Selling shareholders of Hagan Oilfield | 4/3/07 | ||||||||||
Midfield Supply ULC | Note Payable | CAD $16,389,500 | Midfield Holdings, Inc. | 11/2/06 | ||||||||||
Midfield Supply ULC | Note Payable | CAD $8,156,115 | Midfield Holdings, Inc. | 4/27/07 | ||||||||||
Debtor | Debt Description | Commitment | Lender/Obligee | Date | ||||||||||||||||
Midfield Supply ULC | Loan and Security Agreement | CAD $150,000,000 | Bank of America, N.A. | 11/2/06 | ||||||||||||||||
Midfield Supply ULC | Revolving Term Loan Facility | CAD $15,000,000 | Alberta Treasury Branch | 5/17/07 | ||||||||||||||||
Red Man Pipe & Supply Co. and its Subsidiaries | Mortgages relating to the terminated Bank of America revolving loan and security agreement, to the extent such mortgage releases are not filed on the Closing Date | N/A | Bank of America, N.A. | N/A | ||||||||||||||||
Midfield Supply USA, Ltd. | All indebtedness and proceeds relating thereto of Canadian Advanced Inc. owing to the Debtor | N/A | Canadian Western Bank | N/A | ||||||||||||||||
Midfield Supply USA, Ltd. | All indebtedness and proceeds relating thereto of Stanley Smith Professional Corporation owing to the Debtor | N/A | HSBC Bank Canada | N/A | ||||||||||||||||
Investment | Percentage Of Interest | ||
Greenbrier Development Drilling Partners 1976 P.O. Box 513 Charleston, West Virginia 25322 | 47 Units, 8.07% | ||
W.T. Massey 200 N.W. 66th, Suite 935 Oklahoma City, Oklahoma 73116 | Own various overriding royalty interests in oil and gas wells in Oklahoma | ||
& | |||
H.A. Moore 4013 N.W. Expressway Suite 605 Oklahoma City, Oklahoma 73116 | Own various overriding royalty interests in oil and gas wells in Oklahoma. | ||
PrimeEnergy Corporation One Landmark Square Stamford, Connecticut 06901 | Purchased 49.8% interest in K.R.M. Petroleum Company in 1984. Name changed on 5/17/90 from K.R.M. Petroleum to PrimeEnergy (percentage owned approximately 19.33% as of 11/13/06 | ||
Investment | Percentage Of Interest | ||
Butcher & Singer C/O Butcher & Singer, Inc. 211 South Broad Street Philadelphia, Pennsylvania 15105 | |||
Buttes 1976-1 (931) | Overriding royalty interest | ||
Cabot Oil & Gas Corporation (formerly Appalachian Exploration & Development) C/O Cabot Petroleum Corporation Joint Interest Section 921 Main Street, Suite 900 Houston, Texas 77002 | |||
B & H Partnership (935) | 60% working interest | ||
Investment | Percentage of Interest | ||||
Milton Option (938) P & H Partnership (942) | 60% working interest 60% working interest | ||||
Dunne Equities C/O Dunne Equities 8100 E. 22nd Street North Building 1100 Wichita, Kansas 67226 Currently (16) Productive Wells/Programs | Various % | ||||
Quad D Operating P.O. Box 5567 Huntington, West Virginia 25703 Closterman M-1 And M-2 (952) Closterman M-3 And M-4 (953) Closterman M-5 (954) Closterman M-6 (955) D.P. Morris Lease Well (956) | 25% working interest 18.75% working interest 18.75% working interest 18.75% working interest 25% working interest | ||||
Devon Energy Production Co LP 20 North Broadway Oklahoma City, Oklahoma 73102 Clifton #1 (946) Hawkins #1 (948) Prichard #1 (949), #2, #3 Whisenhunt (950) Clifton #2 (947) Clifton #3 (951) | 0.90868% working interest 1.82364% working interest 0.32835% over-riding royalty interest 0.161948% over-riding royalty interest 1.0138% working interest 1.0447% working interest | ||||
Investment | Percentage of Interest | ||||
Auburn Lakes — Cost Basis 185 Acres + 370 Units Condominium 2901 Cedar Road Cleveland, Ohio | 2.08% | ||||
First Interstate Elyria Shopping Center Elyria, Ohio | 1.04% | ||||
First Interstate Hawthorne — Cost Basis | 1.85% | ||||
Investment | Percentage Of Interest | ||
Equity Investors Shopping Center 29425 Chagrin Boulevard Cleveland, Ohio | |||
First Interstate Mentor Centers Equity Investors Shopping Center 29425 Chagrin Boulevard Cleveland, Ohio | 1.39% | ||
Merc-Ex Investors Ltd. Partnership. - Cost Basis Equity Investors, Inc. Apartment Complex Beachwood, Ohio | 7.75% | ||
One Congress Square - Cost Basis Sovereign Realty Office Building - Historic Structure Chicago, Illinois | 1.5% | ||
4. | Investments held by Midfield Supply ULC, a non-wholly owned subsidiary of McJunkin Corporation: |
Investment | Percentage Of Interest | ||
Altus Energy Services, Inc. 1,000,000 shares of common stock | Not Available | ||
Altus Energy Services, Inc. Warrants with respect to 1,000,000 shares of common stock | Not available | ||
Energize Oil & Gas | 6.6% equity interest | ||
Brooks, Clay & Feathers Ltd. | 6.6% equity interest | ||