Exhibit 4.1
REVOLVING CREDIT AND
LETTER OF CREDIT ISSUANCE AGREEMENT
BY AND AMONG
RTI INTERNATIONAL METALS, INC.,
AS BORROWER
AND
THE FINANCIAL INSTITUTIONS PARTY HERETO,
AS LENDERS
AND
U.S. BANK,
NATIONAL CITY BANK OF PENNSYLVANIA
AND
LASALLE BANK NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENTS
AND
PNC BANK, NATIONAL ASSOCIATION,
AS AGENT AND AS L/C ISSUER
DATED AS OF APRIL 12, 2002
AND ARRANGED BY:
PNC CAPITAL MARKETS, INC.,
AS LEAD ARRANGER
TABLE OF CONTENTS
PAGE
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SCHEDULES.........................................................................................................v
EXHIBITS .........................................................................................................v
ARTICLE I CERTAIN DEFINITIONS; CONSTRUCTION...............................................................1
1.01. Certain Definitions......................................................................................1
1.02. Construction............................................................................................21
ARTICLE II REVOLVING CREDIT FACILITY......................................................................23
2.01. Revolving Credit Commitments............................................................................23
2.02. Nature of Lenders' Obligations with Respect to Revolving Credit Loans...................................23
2.03. Fees....................................................................................................24
2.04. Voluntary Reduction of Revolving Credit Commitment......................................................24
2.05. Revolving Credit Loan Requests..........................................................................25
2.06. Making Revolving Credit Loans...........................................................................25
2.07. Revolving Credit Notes..................................................................................26
2.08. Interest Payments, Interest Rates and Certain Related Payments Pertaining to the
Revolving Credit Loans..............................................................................26
2.09. Prepayments: Allocation of Repayments...................................................................29
2.10. Yield Protection........................................................................................30
2.11. Special Provisions Relating to the Euro-Rate Option.....................................................32
2.12. Capital Adequacy........................................................................................34
2.13. Swingline Loans.........................................................................................34
2.14. Loan Account............................................................................................35
2.15. All Advances to Constitute One Loan.....................................................................35
2.16. Use of Proceeds.........................................................................................36
2.17. Letter of Credit Subfacility............................................................................36
2.18. Taxes...................................................................................................44
2.19. Payments................................................................................................44
2.20. Substitution of Lender..................................................................................45
ARTICLE III LOAN DISBURSEMENT ACCOUNT, GUARANTEES, ETC.....................................................45
3.01. Loan Disbursement Account...............................................................................45
3.02. Designation of Subsidiary Guarantors....................................................................46
3.03. Further Cooperation.....................................................................................46
3.04. Solvency................................................................................................46
ARTICLE IV REPRESENTATIONS AND WARRANTIES.................................................................46
4.01. Organization and Qualification..........................................................................46
4.02. Capitalization and Ownership............................................................................47
4.03. Subsidiaries............................................................................................47
4.04. Power and Authority.....................................................................................47
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4.05. Validity and Binding Effect.............................................................................47
4.06. No Conflict ............................................................................................47
4.07. Litigation..............................................................................................48
4.08. Financial Statements....................................................................................48
4.09. Margin Stock; Section 20 Subsidiaries...................................................................48
4.10. Full Disclosure.........................................................................................49
4.11. Tax Returns and Payments................................................................................49
4.12. Consents and Approvals..................................................................................49
4.13. No Event of Default; Compliance with Instruments........................................................50
4.14. Compliance with Laws....................................................................................50
4.15. Investment Company; Public Utility Holding Company......................................................50
4.16. Plans and Benefit Arrangements..........................................................................50
4.17. Title to Properties.....................................................................................51
4.18. Insurance...............................................................................................51
4.19. Employment Matters......................................................................................52
4.20. Environmental Matters...................................................................................52
4.21. Senior Debt Status......................................................................................53
4.22. Solvency................................................................................................53
4.23. Material Contracts; Burdensome Restrictions.............................................................54
4.24. Patents, Trademarks, Copyrights, Licenses, Etc..........................................................54
4.25. Brokers.................................................................................................54
4.26. No Material Adverse Change..............................................................................54
ARTICLE V CONDITIONS OF LENDING OR ISSUANCE OF LETTER OF CREDIT..........................................54
5.01. Conditions to Initial Borrowings........................................................................54
5.02. Each Additional Revolving Credit Loan, Swingline Loan or Issuance of a
Letter of Credit...................................................................................57
5.03. Location of Closing.....................................................................................58
ARTICLE VI AFFIRMATIVE COVENANTS..........................................................................58
6.01. Preservation of Existence, Etc..........................................................................59
6.02. Accounting System; Reporting Requirements...............................................................59
6.03. Notices Regarding Plans and Benefit Arrangements........................................................61
6.04. Payment of Liabilities, Including Taxes, etc............................................................62
6.05. Maintenance of Insurance................................................................................62
6.06. Maintenance of Properties and Leases....................................................................62
6.07. Maintenance of Permits and Franchises...................................................................62
6.08. Visitation Rights.......................................................................................63
6.09. Keeping of Records and Books of Account.................................................................63
6.10. Plans and Benefit Arrangements..........................................................................63
6.11. Compliance with Laws....................................................................................63
6.12. Use of Proceeds.........................................................................................63
6.13. Environmental Laws......................................................................................64
6.14. Senior Debt Status......................................................................................64
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ARTICLE VII NEGATIVE COVENANTS.............................................................................64
7.01. Indebtedness............................................................................................65
7.02. Liens...................................................................................................65
7.03. Loans, Acquisitions and Investments.....................................................................65
7.04. Liquidations, Mergers and Consolidations................................................................67
7.05. Dispositions of Assets or Subsidiaries..................................................................67
7.06. Affiliate Transactions..................................................................................68
7.07. Subsidiaries, Partnerships and Joint Ventures...........................................................68
7.08. Continuation of or Change in Business...................................................................68
7.09. Plans and Benefit Arrangements..........................................................................68
7.10. Fiscal Year ............................................................................................69
7.11. Changes in Organizational Documents.....................................................................69
7.12. Financial Covenants.....................................................................................69
7.13. Operating Leases........................................................................................70
7.14. Limitation on Negative Pledge Clauses...................................................................70
ARTICLE VIII DEFAULT........................................................................................70
8.01. Events of Default.......................................................................................70
8.02. Consequences of Event of Default........................................................................73
ARTICLE IX THE AGENTS.....................................................................................75
9.01. Appointment and Grant of Authority......................................................................75
9.02. Delegation of Duties....................................................................................75
9.03. Reliance by Agent on Lenders for Funding................................................................75
9.04. Non-Reliance on Agents..................................................................................76
9.05. Responsibility of Agents and Other Matters..............................................................76
9.06. Actions in Discretion of Agent; Instructions from the Lenders...........................................77
9.07. Indemnification.........................................................................................77
9.08. Agents' Rights as Lenders...............................................................................78
9.09. Notice of Default.......................................................................................78
9.10. Payment to Lenders......................................................................................78
9.11. Holders of Notes........................................................................................79
9.12. Equalization of Lenders.................................................................................79
9.13. Successor Agent.........................................................................................79
9.14. Calculations............................................................................................80
9.15. Beneficiaries...........................................................................................80
9.16. Termination of Existing Bank Credit Agreements..........................................................80
9.17. Waiver of Consequential Damages.........................................................................80
ARTICLE X GENERAL PROVISIONS.............................................................................80
10.01. Amendments and Waivers..................................................................................80
10.02. Taxes...................................................................................................81
10.03. Costs and Expenses, etc.................................................................................82
10.04. Notices.................................................................................................82
10.05. Participation and Assignment............................................................................85
10.06. Successors and Assigns..................................................................................87
10.07. No Implied Waivers; Cumulative Remedies; Writing Required...............................................88
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10.08. Severability............................................................................................88
10.09. Indemnity...............................................................................................88
10.10. Confidentiality.........................................................................................89
10.11. Survival................................................................................................90
10.12. Governing Law...........................................................................................90
10.13. Forum...................................................................................................90
10.14. Non-Business Days.......................................................................................91
10.15. Integration.............................................................................................91
10.16. Counterparts............................................................................................91
10.17. Funding by Branch, Subsidiary or Affiliate..............................................................91
10.18. Waiver of Jury Trial....................................................................................92
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SCHEDULES
Schedule 1.01(a) Lenders; Revolving Credit Commitments
Schedule 1.01(b) Locations of Inventory
Schedule 2.17(j) Existing Letters of Credit
Schedule 4.01 Jurisdictions of Incorporation and Qualification of Borrower
and Subsidiaries
Schedule 4.02 Capital Stock Options
Schedule 4.03 Interests in Subsidiaries and Other Entities
Schedule 4.07 Litigation
Schedule 4.11 Agreements Concerning Tax Returns
Schedule 4.12 Consents and Approvals
Schedule 4.16 Plans and Benefit Arrangements
Schedule 4.20 Environmental Matters
Schedule 7.01 Permitted Indebtedness
Schedule 7.03 Other Investments
Schedule 7.06 Affiliate Transactions
EXHIBITS
Exhibit "A" Form of Revolving Credit Note
Exhibit "B" Form of Swingline Note
Exhibit "C" Form of Borrowing Base Certificate
Exhibit "D" Form of Application and Agreement for Letter of Credit
Exhibit "E" Form of Loan Request
Exhibit "F" Form of Assignment and Assumption Agreement
Exhibit "G" Form of Compliance Certificate
Exhibit "H" Form of Opinion of Counsel
Exhibit "I" Form of Subsidiary Guaranty
Exhibit "J" Form of Landlord's Waiver
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REVOLVING CREDIT AND
LETTER OF CREDIT ISSUANCE AGREEMENT
THIS REVOLVING CREDIT AND LETTER OF CREDIT ISSUANCE AGREEMENT,
April 12, 2002, is made by and among RTI INTERNATIONAL METALS, INC., an Ohio
corporation (as more fully defined below, the "Borrower"), the Lenders (as
hereinafter defined), U.S. BANK, NATIONAL CITY BANK OF PENNSYLVANIA and LaSALLE
BANK NATIONAL ASSOCIATION, as documentation agents (the "Documentation Agents"),
and PNC BANK, NATIONAL ASSOCIATION, in its capacity as L/C Issuer (as
hereinafter defined) and as agent for the L/C Issuer and the Lenders under this
Agreement (in such capacity, as more fully defined below, the "Agent").
WITNESSETH:
WHEREAS, the Borrower has requested the Lenders to make
available to the Borrower Revolving Credit Loans in an aggregate principal
amount not exceeding One Hundred Million Dollars ($100,000,000) at any one time
outstanding; and the Borrower has requested the Lenders to provide for the
issuance for the account of the Borrower Letters of Credit with an aggregate
Stated Amount not exceeding Twenty-Five Million Dollars ($25,000,000) at any one
time outstanding; provided that at no time will Total Utilization exceed One
Hundred Million Dollars ($100,000,000); and
WHEREAS, the Lenders are willing to make the Revolving Credit
Loans available to the Borrower upon the terms and conditions hereinafter set
forth; and the L/C Issuer is willing to issue Letters of Credit for the account
of the Borrower upon the terms and conditions hereinafter set forth; and the
Lenders are willing to purchase risk participations with respect to each Letter
of Credit issued by the L/C Issuer hereunder upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises (each of
which is incorporated herein by reference) and the mutual covenants and
agreements hereinafter set forth, and other valuable consideration, and
intending to be legally bound hereby, the parties hereto hereby covenant and
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS; CONSTRUCTION
1.01. Certain Definitions. In addition to words and terms
defined elsewhere in this Agreement, the following words and terms shall have
the following meanings, respectively, unless the context hereof clearly requires
otherwise:
Affiliate as to any Person shall mean any other Person (i)
which directly or indirectly Controls, is Controlled by, or is under common
Control with such Person, (ii) which beneficially owns or holds 5 % or more of
any class of the voting or other equity interests of
such Person, or (iii) 5 % or more of any class of voting interests or other
equity interests of which is beneficially owned or held, directly or indirectly,
by such Person.
Agent shall mean PNC Bank, National Association, a national
banking association organized under the laws of the United States of America, in
its capacity as agent for the L/C Issuer and the Lenders pursuant to this
Agreement, and its successors and assigns in such capacity.
Agent's Letter shall mean that certain letter dated February
7, 2002 by and between the Agent and the Borrower which sets forth an agent's
fee to be paid by the Borrower to the Agent for its account from time to time
during the term of this Agreement.
Agreement shall mean this Revolving Credit and Letter of
Credit Issuance Agreement, as the same may be supplemented or amended from time
to time, including all schedules and exhibits hereto.
Applicable Facility Fee shall have the meaning ascribed to it
in Section 2.03 of this Agreement.
Applicable Euro-Rate Margin shall have the meaning ascribed to
it in Section 2.08(b)(ii) of this Agreement.
Applicable Letter of Credit Fee shall have the meaning
ascribed to it in Section 2.17(b) of this Agreement.
Application and Agreement for Letter of Credit shall mean an
application and agreement for either a standby letter of credit or for an
amendment thereto substantially in the form of Exhibit "D" hereto.
Assignment and Assumption Agreement shall mean an Assignment
and Assumption Agreement by and among a Purchasing Lender, a Transferor Lender
and the Agent, as the Agent and on behalf of the remaining Lenders,
substantially in the form of Exhibit "F" hereto.
Assignment Fee shall mean the fee described in Section
10.05(b).
Authorized Officer shall mean those persons designated
initially in the several incumbency certificates delivered pursuant to Section
5.01 hereof by the Borrower or a Subsidiary Guarantor, as the case may be. The
Borrower, or a Subsidiary Guarantor, as the case may be, may amend such list of
persons from time to time by giving written notice of such amendment to the
Agent.
Availability shall mean, as of any time of determination
either (i) the positive difference between the Borrowing Base and Total
Utilization, if the Borrowing Base is greater than Total Utilization at such
time, or (ii) zero, if the Borrowing Base is less than or equal to Total
Utilization at such time.
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Base Rate shall mean the greater of (i) the Prime Rate, or
(ii) the Federal Funds Effective Rate plus fifty basis points (1/2 of 1%) per
annum.
Base Rate Option shall mean the interest rate option described
in Section 2.08(b)(i) hereof.
Base Rate Portion shall mean the portion of the Revolving
Credit Loans or the Swingline Loan; which bears, or is to bear, interest under
the Base Rate Option.
Benefit Arrangement shall mean at any time an "employee
benefit plan", within the meaning of Section 3(3) of ERISA, which is neither a
Plan nor a Multiemployer Plan and which is maintained, sponsored or otherwise
contributed to, by any member of the ERISA Group.
Borrower shall mean RTI INTERNATIONAL METALS, INC., a
corporation organized and existing under the laws of the State of Ohio, and its
successors and permitted assigns.
Borrowing Base shall mean the sum of (i) 85% of the book
value of the Borrower's and the Guarantor Subsidiaries' Eligible Receivables
plus (ii) 60% of the book value of the Borrower's and the Guarantor
Subsidiaries' Eligible Inventory; provided, however, that the aggregate
outstanding principal amount of Revolving Credit Loans advanced against Eligible
Inventory shall not at any time exceed a Dollar amount equal to 60% of the
Borrowing Base.
Borrowing Base Certificate shall mean a borrowing base
certificate substantially in the form of Exhibit "C" which has been executed by
an Authorized Officer and delivered to the Agent.
Borrowing Date shall mean, with respect to any Revolving
Credit Loan or any Swingline Loan, the date for the making thereof, or as to
Revolving Credit Loans, the renewal or conversion thereof at or to the same or a
different Interest Rate Option, which shall be a Business Day.
Business Day shall mean (i) any day other than a Saturday or
Sunday or a legal holiday on which commercial banks in Pittsburgh, Pennsylvania
are authorized or required to be closed under the laws of the Commonwealth of
Pennsylvania, federal law or other applicable Law of an Official Body, and (ii)
if the applicable Business Day relates to any day for the determination of any
Euro-Rate, any day that satisfies the conditions of clause (i) above provided
that such day is a day on which dealings in Dollar deposits are carried on in
the London interbank market.
Capital Adequacy Event shall have the meaning ascribed to it
in Section 2.12 hereof.
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Capital Compensation Amount shall have the meaning ascribed to
it in Section 2.12 hereof.
Cash Collateral Account shall have the meaning ascribed to it
in Section 8.02(e) hereof.
Cash Equivalents shall mean (i) securities issued or directly
and fully guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than six months from the
date of acquisition, (ii) time deposits, certificates of deposit and eurodollar
time deposits with maturities of not more than six months from the date of
acquisition, bankers' acceptances with maturities not exceeding six months from
the date of acquisition and overnight bank deposits, in each case with any
Lender or with any domestic commercial bank having capital and surplus in excess
of $500,000,000, (iii) repurchase obligations with a term of not more than
thirty days for underlying securities of any of the types described in clause
(i) or (ii) and entered into with any bank meeting the qualifications specified
in clause (ii) above, (iv) commercial paper maturing in 180 days or less rated
not lower than A-1 by S&P or P-1 by Xxxxx'x on the date of acquisition, and (v)
interests in pooled investment funds the assets of which are invested in
investments referred to in clauses (i) through (iv) above.
Closing shall mean the execution and delivery of this
Agreement and the other Loan Documents by the parties hereto and thereto on the
Closing Date.
Closing Date shall mean April 12, 2002.
Closing Fee for a Lender shall mean a dollar amount equal to
0.5% (1/2 of 1%) times the Revolving Credit Commitment of such Lender.
Compliance Certificate shall mean a certificate executed by
the chief financial officer or the treasurer of the Borrower, substantially in
the form of Exhibit "G" hereto.
Consolidated EBIT shall mean, for any period, the consolidated
net income (or net loss) of the Borrower and its Subsidiaries for such period as
determined in accordance with GAAP, plus (a) the sum of (i) Interest Expense,
(ii) total income tax expense, (iii) extraordinary or unusual losses (including
after tax losses on sales of assets outside of the ordinary course of business
and not otherwise included in GAAP extraordinary or unusual losses), (iv) other
non-cash charges, and (v) the net loss of any Person that is accounted for by
the equity method of accounting, except to the extent of the amount of dividends
or distributions paid to the Borrower, less (b) the sum of (i) extraordinary or
unusual gains (including after tax gains on sales of assets outside of the
ordinary course of business and not otherwise included in GAAP extraordinary or
nonrecurring gains), (ii) other noncash credits, and (iii) the net income of any
Person that is accounted for by the equity method of accounting, except to the
extent of the amount of dividends or distributions paid to the Borrower;
provided, that for purposes of calculating Consolidated EBIT of the Borrower and
its Subsidiaries for any period, the Consolidated EBIT of any Person acquired by
the Borrower or its Subsidiaries during such period shall be included on a pro
forma basis for such period (assuming the consummation of each such acquisition
and the incurrence or assumption of any Indebtedness in connection therewith
occurred on the first
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day of such period) if the consolidated balance sheet of such acquired Person
and its consolidated Subsidiaries as at the end of the period preceding the
acquisition of such Person and related consolidated statements of income and
stockholders' equity and of cash flows for such period (i) have been previously
provided to the Agent and the Lender and (ii) either (A) have been reported on
without qualification arising out of the scope of the audit by independent
certified accountants of nationally recognized standing or (B) have been found
acceptable by the Agent.
Consolidated EBITDA shall mean, for any period, the
consolidated net income (or net loss) of the Borrower and its Subsidiaries for
such period as determined in accordance with GAAP, plus (a) the sum of (i)
depreciation expense, (ii) amortization expense, (iii) Interest Expense, (iv)
total income tax expense, (v) extraordinary or unusual losses (including after
tax losses on sales of assets outside of the ordinary course of business and not
otherwise included in GAAP extraordinary or unusual losses), (vi) other non-cash
charges, and (vii) the net loss of any Person that is accounted for by the
equity method of accounting, except to the extent of the amount of dividends or
distributions paid to the Borrower, less (b) the sum of (i) extraordinary or
unusual gains (including after tax gains on sales of assets outside of the
ordinary course of business and not otherwise included in GAAP extraordinary or
nonrecurring gains), (ii) other noncash credits, and (iii) the net income of any
Person that is accounted for by the equity method of accounting, except to the
extent of the amount of dividends or distributions paid to the Borrower;
provided, that for purposes of calculating Consolidated EBITDA of the Borrower
and its Subsidiaries for any period, the Consolidated EBITDA of any Person
acquired by the Borrower or its Subsidiaries during such period shall be
included on a pro forma basis for such period (assuming the consummation of each
such acquisition and the incurrence or assumption of any Indebtedness in
connection therewith occurred on the first day of such period) if the
consolidated balance sheet of such acquired Person and its consolidated
Subsidiaries as at the end of the period preceding the acquisition of such
Person and related consolidated statements of income and stockholders' equity
and of cash flows for such period (i) have been previously provided to the Agent
and the Lender and (ii) either (A) have been reported on without qualification
arising out of the scope of the audit by independent certified accountants of
nationally recognized standing or (B) have been found acceptable by the Agent.
Consolidated Intangible Assets shall mean, with respect to any
Person, all assets properly classified as intangible assets under GAAP,
including without limitation goodwill, patents, copyrights, trademarks, trade
names, franchises, licenses, organization costs and deferred charges.
Consolidated Interest Expense shall mean any Person's interest
expense, as determined in accordance with GAAP, as appearing on the Borrower's
financial statements.
Consolidated Net Worth shall mean stockholders' equity of any
Person determined on a consolidated basis, as determined in accordance with GAAP
consistently applied.
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Consolidated Tangible Net Worth shall mean the remainder
determined by subtracting from Consolidated Net Worth the aggregate amount of
Consolidated Intangible Assets.
Consolidated Total Indebtedness shall mean the Indebtedness of
any Person determined on a consolidated basis in accordance with GAAP,
consistently applied.
Consolidated Total Indebtedness to Consolidated EBITDA Ratio
shall mean, as of any date of determination, the ratio of the Borrower's
Consolidated Total Indebtedness as of the end of the Borrower's most recently
completed Fiscal Quarter to the Borrower's Consolidated EBITDA for the
Borrower's four most recently completed Fiscal Quarters treated as a single
accounting period.
Control shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, including the power to elect a majority of the directors or trustees
of a corporation or trust, as the case may be, and the terms "Controlled" and
"Controlling" shall have correlative meanings.
Default shall mean any event or condition which with notice or
passage of time or both, would constitute an Event of Default.
Documentation Agent shall mean each of U.S. Bank, National
City Bank of Pennsylvania and LaSalle Bank National Association in its capacity
as documentation agent hereunder.
Dollar, Dollars, U.S. Dollars and the symbol $ shall mean
lawful money of the United States of America.
Eligible Inventory: Any Inventory of the Borrower or any
Subsidiary Guarantor which the Agent, in its sole discretion exercised in good
faith, determines to have met all of the following minimum requirements:
(i) The Inventory is either (a) finished goods, (b) raw
materials other than supplies, or (c) work-in-process, but excluding in all
cases any goods which have been shipped, delivered, sold, purchased or provided
by or to the Borrower or a Subsidiary Guarantor on a xxxx-and-hold, consignment
sale, guaranteed sale or sale-or-return basis, or any other similar basis or
understanding other than an absolute sale;
(ii) The Inventory is new and of good and merchantable
quality, is not obsolete and represents no more than a 12-month supply of such
finished goods or raw materials;
(iii) The Inventory is located on premises listed on Schedule
1.01(b) hereto or is Inventory which is in transit and is so identified on the
relevant Schedule of Inventory; provided however, that in the event that total
Eligible Inventory absent the application of this provision is less than
$120,000,000, at any time, then for any Inventory situate at facilities leased
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to the Borrower or a Subsidiary Guarantor to meet the requirement of Eligible
Inventory hereunder, the Agent shall have received a Landlord's Waiver
concerning such leased site substantially in the form of Exhibit "J" hereto;
(iv) The Inventory is not stored with a bailee, warehouseman,
consignee or similar party unless the Agent has given its prior written consent
and the Borrower or such Subsidiary Guarantor has caused such bailee,
warehouseman, consignee or similar party to issue and deliver to the Agent, in
form and substance acceptable to the Agent, warehouse receipts or similar type
documentation therefor in the Agent's name;
(v) The Inventory is not subject to any Lien, however any
Inventory the subject of a Lien shall be excluded from Eligible Inventory only
to the amount of the dollar value of such Lien; and
(vi) The Inventory has not been manufactured in material
violation of any Federal minimum wage or overtime laws, including without
limitation the Fair Labor Standards Act, 29 U.S.C. Section 215(a)(1) or any
similar or successor legislation.
Notwithstanding the qualification standards specified above, upon prior notice
to and with the consent of the Borrower, not to be unreasonably withheld, the
Agent may at any time or from time to time revise such qualification standards
or, in its sole and reasonable discretion, determine that certain Inventory is
not eligible to be Eligible Inventory.
Eligible Receivable: Any Receivable of the Borrower or any
Subsidiary Guarantor which the Agent, in its sole discretion exercised in good
faith, determines to have met all of the following minimum requirements:
(i) The Receivable represents a complete bona fide transaction
for goods sold and delivered or services rendered (excluding any amounts in the
nature of a service charge added to the amount due on an invoice because the
invoice has not been paid when due) which requires no further act under any
circumstances on the part of the Borrower or such Subsidiary Guarantor to make
such Receivable payable by the Receivables Debtor;
(ii) The Receivable arises from an arm's-length transaction in
the ordinary course of the Borrower's or a Subsidiary Guarantor's business
between the Borrower or a Subsidiary Guarantor and a Receivables Debtor which is
not (A) an Affiliate or Subsidiary of the Borrower, (B) a Person Controlled by a
Subsidiary or Affiliate of the Borrower, (C) an officer, director, Significant
Stockholder or employee of the Borrower or any Subsidiary Guarantor or Affiliate
of the Borrower, or (D) a member of the family of an officer, director,
Significant Stockholder or employee of the Borrower or a Subsidiary or Affiliate
of the Borrower;
(iii) The Receivable shall not (A) be or have been unpaid more
than (1) 90 days from the original due date of the invoice or (2) 270 days from
the date of the invoice, whichever first occurs, or (B) be payable by a
Receivables Debtor (1) more than 50% of whose Receivables are not deemed
Eligible Receivables or (2) whose Receivables constitute 50% or more of the
aggregate amount of all outstanding Receivables;
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(iv) The goods the sale of which gave rise to the Receivable
were shipped, delivered or provided to the Receivables Debtor on an absolute
sale basis and not on a xxxx-and hold, consignment sale, guaranteed sale or
sale-or-return basis or on the basis of any other similar understanding, and no
part of such goods has been returned or rejected;
(v) The Receivable is not evidenced by chattel paper or an
instrument of any kind and has not been reduced to judgment;
(vi) The Receivables Debtor with respect to the Receivable (A)
is Solvent, (B) is not the subject of any bankruptcy or insolvency proceedings
of any kind or of any other proceeding or action, threatened or pending, which
might have a materially adverse effect on his or its business, operations or
properties, (C) has not made an assignment for the benefit of his or its
creditors, (D) has not failed, suspended business, dissolved or consented to or
suffered the appointment of a receiver, trustee, liquidator or custodian for him
or it or for all or a significant portion of his or its assets or affairs and
(E) is not, in the sole discretion of the Agent exercised in good faith, deemed
ineligible for credit for other reasons (including, without limitation,
unsatisfactory past experience of the Borrower or the Agent with such
Receivables Debtor or the unsatisfactory reputation of such Receivables Debtor);
(vii) The Receivables Debtor is not located outside of the
continental United States of America, unless the Borrower has delivered to the
Bank any or all letters of credit and/or cash against documents relating to such
Receivable or evidence of credit insurance, as requested by the Agent and deemed
adequate and acceptable by the Agent;
(viii) The Receivable is a valid, legally enforceable
obligation of the Receivables Debtor with respect thereto and is not subject to
any dispute, condition, contingency, offset, recoupment, reduction, claim for
credit, allowance, adjustment, counterclaim or defense on the part of such
Receivables Debtor, and the Receivable is not otherwise subject to any right of
setoff to the extent of any of the foregoing, and no facts or circumstances
exist which may provide a basis for any of the foregoing in the present or
future;
(ix) The Receivable is evidenced by an invoice or other
documentation in form acceptable to the Agent and arises from a contract which
is in form and substance satisfactory to the Agent;
(x) The Borrower has observed and complied with all Laws of
the state in which the Receivables Debtor is located or the Receivable is
payable, which Laws, if not observed and complied with, would deny to the
Borrower access to the courts of such state,
(xi) The Receivable is not subject to any provision
prohibiting its assignment or requiring notice of or consent to such assignment;
(xii) The goods giving rise to the Receivable were not, at the
time of sale thereof, subject to any Lien;
- 8 -
(xiii) The Receivable is payable in freely transferable
Dollars;
(xiv) The Borrower has not made any agreement with the
Receivables 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 Receivable;
(xv) The Borrower has not made any agreement with the
Receivables Debtor to extend the time of payment of such Receivable;
(xvi) The Receivable does not arise from a retail sale of
goods to a Person who is purchasing the same primarily for personal, family or
household purposes; and
(xvii) No covenant, representation or warranty contained in
this Agreement or any of the other Loan Documents with respect to such
Receivable has been breached.
In addition to the foregoing requirements, Receivables of any Receivables Debtor
which are otherwise Eligible Receivables shall be reduced to the extent of any
Receivables payable (including, without limitation, the Agent's good faith
estimate of any contingent liabilities) owing by the Borrower to such
Receivables Debtor, which Receivables payable are known as "contras"; provided,
however, that the Agent, in its sole discretion exercised in good faith, may
determine that none of the Receivables owned by such Receivables Debtor shall be
Eligible Receivables in the event that contras represent an unreasonably large
amount owing to such Receivables Debtor.
Notwithstanding the qualification standards specified above, upon prior notice
to the Borrower, the Agent may at any time or from time to time revise such
qualification standards.
Environmental Complaint shall mean any written complaint
setting forth a cause of action for personal or property damage or equitable
relief, or any order, notice of violation or citation issued pursuant to any
Environmental Laws by an Official Body, subpoena or other written notice of any
type relating to, arising out of, or issued pursuant to, any Environmental Laws
or any Environmental Conditions.
Environmental Conditions shall mean any conditions of the
environment, including, without limitation, the work place, the ocean, natural
resources (including flora or fauna), soil, surface water, ground water, any
actual or potential drinking water supply sources, substrata or the ambient air,
relating to or arising out of, or caused by the use, handling, storage,
treatment, recycling, generation, transportation, release, spilling, leaking,
pumping, emptying, discharging, injecting, escaping, leaching, disposal,
dumping, threatened release or other management or mismanagement of Regulated
Substances resulting from the use of, or operations on, any of the Property.
Environmental Laws shall mean all federal, state; local and
foreign Laws and regulations, including permits, licenses, authorizations,
bonds, orders, judgments and consent
- 9 -
decrees issued or entered into pursuant thereto, relating to pollution or
protection of human health or the environment or employee safety in the work
place.
ERISA shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
in each case as from time to time in effect.
ERISA Group shall mean, at any time, the Borrower and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control and all other entities which,
together with the Borrower, are treated as a single employer under Section 414
of the Internal Revenue Code.
Euro-Rate shall mean for any day, as used herein, for each
segment of the EuroRate Portion corresponding to a proposed or existing
Euro-Rate Interest Period, the interest rate per annum determined by the Agent
by dividing (the resulting quotient rounded upward to the nearest 1/l00th of 1%
per annum) (i) the rate of interest determined by the Agent in accordance with
its usual procedures (which determination shall be conclusive absent manifest
error) to be the average of the London interbank offered rates of interest for
U.S. Dollars quoted by the British Bankers' Association as set forth on Dow
Xxxxx Markets Service (formerly known as Telerate) display page 3750 (or
appropriate successor or, if British Banker's Association or its successor
ceases to provide such quotes, a comparable replacement determined by the Agent)
two (2) Business Days prior to the first day of such Euro-Rate Interest Period
for an amount comparable to such Euro-Rate Portion for such Euro-Rate Interest
Period and having a borrowing date and a maturity comparable to such Interest
Period by (ii) a number equal to 1.00 minus the Euro-Rate Reserve Percentage.
The Euro-Rate may also be expressed by the following formula:
Average of London interbank offered rates
quoted by British Banker's Association, as
shown on Dow Xxxxx Market
Euro-Rate = Service display page 3750, or appropriate successor
---------------------------------------------------
1.00 - Euro-Rate Reserve Percentage
The Euro-Rate shall be adjusted with respect to any Euro-Rate Option outstanding
on the effective date of any change in the Euro-Rate Reserve Percentage as of
such effective date. The Agent shall give prompt notice to the Borrower of the
Euro-Rate as determined or adjusted in accordance herewith, which determination
shall be conclusive absent manifest error.
Euro-Rate Interest Period shall mean any individual period
equal to one (1), two (2), three (3) or six (6) months selected by the Borrower
commencing on the Borrowing Date, a conversion date or a renewal date of a
Euro-Rate Portion to which such period shall apply; provided, however, that
prior to the date which is the Business Day following the Syndication Date, only
such periods as the Agent and the Borrower mutually agree upon, not to exceed a
period of one month, shall be available.
Euro-Rate Option shall mean the interest rate option described
in Section 2.08b(ii) hereof.
- 10 -
Euro-Rate Portion shall mean each portion of the Revolving
Credit Loans which bears, or is to bear, interest under the Euro-Rate Option;
and the term Euro-Rate Portions shall mean collectively all such portions of the
Revolving Credit Loans which bear, or are to bear, interest under the Euro-Rate
Option.
Euro-Rate Reserve Percentage shall mean for any day the
maximum effective percentage as determined by the Agent in accordance with its
usual procedures (which determination shall be conclusive absent manifest error)
as prescribed by the Federal Reserve Board (or any successor) for determining
the reserve requirements (including, without limitation, supplemental, marginal
and emergency reserve requirements) with respect to eurocurrency funding
(currently referred to as "Eurocurrency Liabilities") of a member bank in such
System.
Event of Default shall have the meaning ascribed to it in
Section 8.01 hereof.
Existing Credit Agreement shall mean the Revolving Credit and
Letter of Credit Issuance Agreement dated as of September 30, 1998, as amended,
entered into by and among the Borrower, the banks which are lender parties
thereto, as lenders, and PNC Bank, as agent for such banks and issuer of certain
letters of credit thereunder.
Existing Letters of Credit shall mean all letters of credit
outstanding on the Closing Date issued by PNC Bank under and pursuant to the
terms of the Existing Credit Agreement, and Existing Letter of Credit shall mean
any of the Existing Letters of Credit.
Expiration Date shall mean May 31, 2005.
Facility Fee shall have the meaning ascribed to it in Section
2.03 of this Agreement.
Federal Bankruptcy Code shall mean the bankruptcy code of the
United States of America codified in Title 11 of the United States Code, as from
time to time amended or supplemented.
Federal Funds Effective Rate shall mean for any day the rate
per annum (based on a year of 360 days and actual days elapsed and rounded
upward to the nearest 1/100 of 1 %) announced by the Federal Reserve Bank of New
York (or any successor) on such day (or if such day is not a Business Day, the
previous Business Day) as being the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers on the previous trading day, as computed and announced
by such Federal Reserve Bank (or any successor) in substantially the same manner
as such Federal Reserve Bank computes and announces the weighted average it
refers to as the "Federal Funds Effective Rate" as of the date of this
Agreement.
Federal Reserve Board shall mean the Board of Governors of the
United States Federal Reserve System as constituted from time to time.
- 11 -
Fee shall mean any of the Closing Fee, the Facility Fee, the
Letter of Credit Fee, the L/C Fronting Fee, any arrangement or agent's fee
payable to the Agent or its Affiliate, and any other fee payable under any of
the other Loan Documents.
Fiscal Quarter shall mean each three month fiscal period of
the Borrower beginning respectively on each January 1, April 1, July 1 and
October 1 during the term hereof and ending on the immediately succeeding March
31, June 30, September 30 and December 31.
Fiscal Year shall mean each 12-month fiscal period of the
Borrower beginning January 1 and ending on the immediately succeeding December
31.
GAAP shall mean, subject to the provisions of Section 1.03
hereof, generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be recognized by a significant segment of the accounting profession, which
are applicable to the circumstances as of the date of determination.
Guaranty or Guarantee shall mean any obligation, direct or
indirect, by which a Person undertakes to guaranty, assume or remain liable for
the payment of another Person's obligations, including but not limited to (i)
endorsements of negotiable instruments, (ii) discounts with recourse, (iii)
agreements to pay upon a second Person's failure to pay, (iv) agreements to
maintain the capital, working capital solvency or general financial condition of
a second Person and (v) agreements for the purchase or other acquisition of
products, materials, supplies or services, if in any case payment therefor is to
be made regardless of the nondelivery of such products, materials or supplies or
the non-furnishing of such services.
Indebtedness shall mean as to any Person at any time, any and
all indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent or joint
and several) of such Person for or in respect of: (i) borrowed money, (ii)
amounts raised under or liabilities in respect of any note purchase or
acceptance credit facility, (iii) reimbursement obligations (contingent or
otherwise) under any letter of credit, currency swap agreement, hedging
contracts, Interest Hedge Agreement or other interest rate management device,
raw materials management device or commodities management device (except raw
materials or commodity management devices entered into in the ordinary course of
business), (iv) any other transaction (including forward sale or purchase
agreements, capitalized leases, and conditional sales agreements) having the
commercial effect of a borrowing of money entered into by such person to finance
its operations or capital requirements (but not including trade payables and
accrued expenses incurred in the ordinary course of business which are not
represented by a promissory note or other evidence of indebtedness), or (v) any
Guaranty of any of the foregoing.
Ineligible Security shall mean any security which may not be
underwritten or dealt in by member banks of the Federal Reserve System under
Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as
amended.
- 12 -
Interest Hedge Agreement shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate insurance or any other agreement or arrangement designed to provide
protection against fluctuations in interest rates.
Interest Rate Option shall mean the Euro-Rate Option or the
Base Rate Option.
Internal Revenue Code shall mean the Internal Revenue Code of
1986, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.
Inventory shall mean, with respect to the Borrower or any
Subsidiary Guarantor, any and all now owned or hereafter acquired goods,
merchandise, raw material, work-in-process and finished goods inventory and
other tangible personal property intended for sale or lease and all materials
and supplies which are used or consumed in selling or furnishing such goods,
merchandise or other personal property, in the custody or possession, actual or
constructive, of the Borrower or any Subsidiary Guarantor, as the case maybe,
including such inventory as is on consignment to third parties, leased to
customers of the Borrower or any Subsidiary Guarantor, as the case maybe, or
otherwise temporarily out of the custody or possession of the Borrower or any
Subsidiary Guarantor, as the case may be.
L/C Fronting Fee shall have the meaning ascribed to it in
Section 2.17(b) of this Agreement.
L/C Issuer shall mean PNC Bank, National Association, as the
issuer of Letters of Credit pursuant to Section 2.17, and any successor to PNC
Bank, National Association as the issuer of Letters of Credit hereunder.
Labor Contracts shall have the meaning ascribed to it in
Section 4.19 hereof.
Law shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree or award of any Official Body.
Lender Obligations shall mean collectively, (i) all unpaid
principal and accrued and unpaid interest under the Revolving Credit Loans and
the Swingline Loan, (ii) all accrued and unpaid Fees hereunder or under any of
the other Loan Documents, (iii) the face amount of all Letters of Credit then
outstanding, together with all Unreimbursed L/C Draws and all accrued and unpaid
interest on such Unreimbursed L/C Draws, (iv) the actual (as opposed to nominal)
credit exposure determined in accordance with standard industry practices to any
Lender or Affiliate of a Lender under an Interest Hedge Agreement between such
Person and the Borrower, (v) any other amounts payable hereunder or under any of
the other Loan Documents, including all reimbursements, indemnities, fees,
costs, expenses, prepayment premiums and other obligations of the Borrower to a
Lender (in any capacity hereunder) or any indemnified party hereunder, (vi) all
out-of-pocket costs and expenses incurred by the Agent in connection with this
Agreement or any other Loan Documents, including but not limited to the
reasonable fees and expenses of the Agent's counsel, (vii) all out-of-pocket
costs and expenses incurred by a
- 13 -
Lender after an Event of Default in connection with any administration or
enforcement of the Loan Documents, including but not limited to the reasonable
fees and expenses of such Lender's counsel, and (viii) all other liabilities,
obligations, covenants, duties and Indebtedness of the Borrower to the Agent,
the Documentation Agents, the L/C Issuer and the Lenders of any and every kind
and nature, arising under this Agreement or the other Loan Documents, whether
heretofore, now or hereafter owing, arising, due or payable from the Borrower to
the Agent, the L/C Issuer or the Lenders.
Lenders shall mean the financial institutions named on
Schedule 1.01(a) hereto and their respective successors and assigns as permitted
hereunder, each of which is referred to herein as a Lender.
Letter of Credit shall mean any standby letter of credit
issued by the L/C Issuer for the account of the Borrower upon the application of
the Borrower pursuant to this Agreement and any Existing Letter of Credit, and
all extensions, renewals, amendments, substitutions and replacements thereto and
thereof.
Letter of Credit Fee shall have the meaning ascribed to it in
Section 2.17.
Lien shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement of any
nature whatsoever, whether voluntarily or involuntarily given, including but not
limited to any conditional sale or title retention arrangement, and any
assignment, deposit arrangement or lease intended as, or having the effect of,
security and any filed financing statement or other notice of any of the
foregoing (whether or not a lien or other encumbrance is created or exists at
the time of the filing).
Loans shall mean Revolving Credit Loans and Swingline Loans;
and the term Loan shall mean separately any Revolving Credit Loan or Swingline
Loan.
Loan Account shall mean the loan account maintained by a
Lender as more fully described in Section 2.14 hereof.
Loan Disbursement Account shall have the meaning ascribed to
it in Section 3.01 hereof.
Loan Documents shall mean this Agreement, the Notes, any
Application and Agreement for Letter of Credit, the Subsidiary Guarantees, any
Interest Rate Hedge Agreement executed by a Lender or an affiliate of a Lender,
and any other agreements, instruments, certificates or documents contemplated
thereby, as any of the same may be supplemented or amended from time to time in
accordance herewith or therewith; and Loan Document shall mean any of the Loan
Documents.
Loan Parties shall mean the Borrower and the Subsidiary
Guarantors and Loan Party shall mean any of the Loan Parties.
- 14 -
Loan Request shall mean a request for Revolving Credit Loans
made in accordance with Section 2.05 hereof which request shall be substantially
in the form of Exhibit "E" hereto.
March 31, 2002 Delivery Date shall mean the date on which the
Borrower's financial statements and Compliance Certificate for the Fiscal
Quarter ending March 31, 2002 are delivered to the Agent pursuant to the terms
of the Existing Credit Agreement.
Margin Regulations shall mean Regulation T, U or X as
promulgated by the Board of Governors of the Federal Reserve System, as amended
from time to time.
Material Adverse Change shall mean any set of circumstances or
events which (a) has or could reasonably be expected to have any material
adverse effect upon the validity or enforceability of this Agreement or any of
the other Loan Documents, (b) is or could reasonably be expected to be material
and adverse to the business, properties, assets, financial condition or results
of operations of the Borrower and its Subsidiaries, taken as a whole, (c)
impairs materially or could reasonably be expected to impair materially the
ability of the Borrower and its Subsidiaries taken as a whole to duly and
punctually pay their Indebtedness, or (d) impairs materially or could reasonably
be expected to impair materially the ability of the Agent or any of the Lenders
to enforce their legal remedies pursuant to this Agreement or any other Loan
Document.
Moody's shall mean Xxxxx'x Investors Service, Inc., a
corporation organized and existing under the laws of the State of Delaware, its
successors and assigns, and, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Agent, with the approval of the
Borrower, by notice to the Lenders.
Multiemployer Plan shall mean any employee benefit plan which
is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and
to which the Borrower or any member of the ERISA Group is then making or
accruing an obligation to make contributions or, within the preceding five Plan
years, has made or had an obligation to make such contributions.
Multiple Employer Plan shall mean a Plan which has two or more
contributing sponsors (including the Borrower or any member of the ERISA Group)
at least two of whom are not under common control, as such a plan is described
in Sections 4063 and 4064 of ERISA.
Notes shall mean collectively all of the Revolving Credit
Notes and the Swingline Note and Note separately shall mean any Revolving Credit
Note and the Swingline Note.
Official Body shall mean any national, federal, state, local
or other government or political subdivision or any agency, authority, bureau,
central bank, commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
- 15 -
Participant shall mean any bank or financial institution which
acquires from any Lender an undivided interest in the Lender' s Ratable Share of
the Revolving Credit Commitments, Revolving Credit Loans, Letters of Credit and
Unreimbursed L/C Draws, pursuant to Section 10.05.
Participation shall mean the sale, made in accordance with the
provisions of Section 10.05, by any Lender to any Participant of an undivided
interest in such Lender's Ratable Share of the Revolving Credit Commitments,
Revolving Credit Loans, Letters of Credit and Unreimbursed L/C Draws.
PBGC shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any successor.
Permitted Liens shall mean:
(i) Liens for taxes, assessments, governmental levies or
similar charges incurred in the ordinary course of business and which are not
yet due and payable, or if due and payable, (aa) are being contested in good
faith and by appropriate and lawful proceedings diligently conducted, but only
so long as such proceedings could not subject the Agent, the Lenders or the L/C
Issuer to any civil or criminal penalties or liabilities and (bb) for which such
reserves or other appropriate provisions, if any, as shall be required by GAAP
shall have been made and (cc) which shall be paid in accordance with the terms
of any final judgments or orders relating thereto within thirty (30) days after
the entry of such judgments or orders;
(ii) Pledges or deposits made in the ordinary course of
business to secure payment of workmen's compensation, or to participate in any
fund in connection with workmen's compensation, unemployment insurance, old-age
pensions, other social security programs or similar program or to secure
liability to insurance carriers under insurance or self insurance agreements or
arrangement;
(iii) Liens of mechanics, materialmen, warehousemen, carriers,
or other like Liens, securing obligations incurred in the ordinary course of
business that are not yet due and payable and Liens of landlords securing
obligations to pay lease payments that are not yet due and payable or in
default, or if such Liens are due and payable, (aa) are being contested in good
faith and by appropriate and lawful proceedings diligently conducted and (bb)
for which such reserves or other appropriate provisions, if any, as required by
GAAP shall have been made and (cc) which shall be paid in accordance with the
terms of any final judgments or orders relating thereto within thirty (30) days
after the entry of such judgments or orders;
(iv) Pledges or deposits made in the ordinary course of
business to secure performance of bids, tenders, contracts (other than for the
repayment of borrowed money) or leases, not in excess of the aggregate amounts
due thereunder, or to secure statutory obligations, or surety, appeal,
indemnity, performance or other similar bonds required in the ordinary course of
business;
- 16 -
(v) (aa) Encumbrances consisting of zoning restrictions,
easements, rights-of-way, or other restrictions on the use of real property,
(bb) defects in title to real property, and (cc) Liens, encumbrances and title
defects affecting real property not known by the Borrower or a Subsidiary, as
applicable, and not discoverable by a search of the public records, none of
which materially impairs the use of such property;
(vi) (aa) Liens on assets of a Person which is merged into or
acquired by the Borrower or a Subsidiary of the Borrower on or after the date of
this Agreement, and (bb) Liens on assets acquired after the date of this
Agreement, provided that (A) such Liens existed at the time of such merger or
acquisition and were not created in anticipation thereof, (B) no such Lien is
spread to cover any property or assets of the Borrower or any Subsidiary of the
Borrower; and (C) the principal amount of Indebtedness secured thereby is not
increased from the amount outstanding immediately prior to such merger or
acquisition;
(vii) Liens created by or resulting from any litigation or
legal proceedings which are currently being contested in good faith by
appropriate and lawful proceedings diligently conducted and for which such
reserves or other appropriate provisions, if any, as shall be required by GAAP
shall have been made and Liens arising out of judgments or orders for the
payment of money which do not constitute an Event of Default hereunder;
(viii) Liens placed upon fixed assets or equipment hereafter
acquired to secure all or a portion of the purchase price thereof, provided that
any such Lien shall not encumber any other property of the Borrower or any
Subsidiary;
(ix) Other Liens incidental to the conduct of the Borrower's
or any Subsidiary's business or the ownership of its property and assets which
were not incurred in connection with the borrowing of money or the obtaining of
advances or credit, and which do not in the aggregate materially detract from
the value of the Borrower's or any Subsidiary's property or assets or which do
not materially impair the use thereof in the operation of the Borrower's
business;
(x) Liens arising with respect to the UCC financing statements
described on Schedule 1.01(c) provided that no Indebtedness of the Borrower or
any of its Subsidiaries, or any accrued and unpaid interest, fees, costs,
expenses or otherwise, is outstanding to any secured party identified on such
Schedule, all rights to borrow funds from such secured parties have been
terminated, during the term hereof none of the Borrower nor any of its
Subsidiaries will borrow any funds or incur any other indebtedness to such
secured parties and the Borrower will proceed to cause the termination of such
UCC financing statements; and
(xi) Leases or subleases not otherwise prohibited by this
Agreement or other Loan Documents; provided, however, except as set forth in
items (i) through (x) of this definition the Borrower shall not permit or
authorize Liens on any of the Borrower's or any of its Subsidiaries' properties,
except in favor of the Agent for the benefit of the Agent, the Lenders and the
L/C Issuer.
- 17 -
Person or person shall mean any individual, corporation,
partnership, limited liability company, association, joint-stock company, trust,
unincorporated organization, joint venture, government or political subdivision
or agency thereof, or any other entity.
Plan shall mean at any time an employee pension benefit plan
(including a Multiple Employer Plan but not a Multiemployer Plan) which is
covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Internal Revenue Code and either (i) is maintained by
any member of the ERISA Group for employees of any member of the ERISA Group or
(ii) has at any time within the preceding five years been maintained by any
entity which was at such time a member of the ERISA Group for employees of any
entity which was at such time a member of the ERISA Group.
PNC Bank shall mean PNC Bank, National Association, and its
successors and assigns.
Portions shall mean collectively the Base Rate Portions and
the Euro-Rate Portions; and the term Portion shall mean individually any of the
Portions.
Prime Rate shall mean for any day, a fluctuating interest rate
per annum equal to the rate of interest which the Agent announces from time to
time as its prime lending rate, which rate may not be the lowest rate then being
charged by the Agent to commercial borrowers.
Principal Office shall mean the principal commercial banking
office of the Agent in Pittsburgh, Pennsylvania.
Prohibited Transaction shall mean any prohibited transaction
as defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA
for which neither an individual nor a class exemption has been issued by the
United States Department of Labor.
Property shall mean, and refer to, each parcel of real
property, whether owned in fee or leased, of any Loan Party.
Purchasing Lender shall mean a Lender which becomes a party to
this Agreement by executing an Assignment and Assumption Agreement.
Ratable Share shall mean the proportion that a Lender's
Revolving Credit Commitment bears to the Revolving Credit Commitments of all of
the Lenders.
Receivable shall mean, with respect to the Borrower or any
Subsidiary Guarantor, all accounts receivable, contract rights related to such
account receivable, instruments, chattel paper, general intangibles related to
such Receivables and all other rights to payments of moneys for any reason
(whether or not evidenced by a contract, instrument, chattel paper or document),
and all other rights, powers and privileges of the Borrower or any Subsidiary
Guarantor, as the case may be, arising thereunder or related thereto (including
but not limited to all guarantees, collateral security, surety bonds, rights
under letters of credit, insurance or other direct or indirect
- 18 -
security), assertible against any Person whatever and all rebates, refunds,
adjustments and returned, rejected, or repossessed goods relating thereto and
all proceeds of any of the foregoing.
Receivables Debtor shall mean any Person who is obligated to
pay a Receivable to the Borrower or any Subsidiary Guarantor.
Register shall have the meaning ascribed to it in Section
10.05(c).
Regulated Substances shall mean any substance, including
without limitation Solid Waste, the generation, manufacture, processing,
distribution, treatment, storage, disposal, transport, recycling, reclamation,
use, reuse or other management or mismanagement of which is regulated by the
Environmental Laws.
Reportable Event shall mean a reportable event described in
Section 4043 of ERISA and regulations thereunder with respect to a Plan or
Multiemployer Plan.
Required Lenders shall mean Lenders whose Revolving Credit
Commitments aggregate at least 51% of the Revolving Credit Commitments of all of
the Lenders.
Revolving Credit Commitment shall mean, as to any Lender at
any time, the amount initially set forth opposite its name on Schedule l.0l(a)
in the column labeled "Amount of Commitment for Revolving Credit Loans", and
thereafter on Schedule I to the most recent Assignment and Assumption Agreement,
as the same may be reduced pursuant to Sections 2.04 or 2.10 hereof, and
Revolving Credit Commitments shall mean the aggregate Revolving Credit
Commitments of all of the Lenders.
Revolving Credit Loans shall mean collectively, all Revolving
Credit Loans and Revolving Credit Loan shall mean any Revolving Credit Loan made
by the Lenders or one of the Lenders to the Borrower pursuant to Section 2.01
hereof.
Revolving Credit Notes shall mean collectively all the
promissory notes of the Borrower in the form of Exhibit "A" hereto and Revolving
Credit Note shall mean separately each promissory note of the Borrower
substantially in the form of Exhibit "A" hereto in each case evidencing the
Revolving Credit Loans together with all amendments, extensions, renewals,
replacements, refinancings or refundings thereof or thereto in whole or in part.
S&P shall mean Standard & Poor's Ratings Group, a division of
McGraw Hill Corporation, and, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "S&P" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Agent, with the approval of the
Borrower, by notice to the Lenders.
Section 20 Subsidiary shall mean the Subsidiary of the bank
holding company controlling any Lender, which Subsidiary has been granted
authority by the Federal Reserve Board to underwrite and deal in certain
Ineligible Securities.
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Significant Stockholder shall mean, on the date of
determination, a person that owns directly or indirectly 5% or more of the
capital stock of the Borrower.
Solid Waste shall mean any garbage, refuse or sludge from any
waste treatment plant, water supply treatment plant or air pollution control
facility generated by activities on the Property, and any unpermitted release
into the environment or the work place of any material as a result of activities
on the Property, including without limitation used Regulated Substances.
Solvent shall mean, with respect to any person on a particular
date, that on such date (i) the fair value of the property of such person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such person, (ii) the present fair salable value of
the assets of such person is not less than the amount that will be required to
pay the probable liability of such person on its debts as they become absolute
and matured, (iii) such person is able to realize upon its assets and pay its
debts and other liabilities, contingent obligations and other commitments as
they mature in the normal course of business, (iv) such person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
person's ability to pay as such debts and liabilities mature, and (v) such
person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such person's property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such person is engaged. In computing the
amount of contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably.
be expected to become an actual or matured liability.
Stated Amount shall mean as to any Letter of Credit, the
lesser of (i) the face amount thereof or (ii) the remaining available undrawn
amount thereof (regardless of whether any conditions for drawing could then be
met).
Subsidiary of any Person at any time shall mean (i) any
corporation or trust of which 50% or more (by number of shares or number of
votes) of the outstanding capital stock or shares of beneficial interest
normally entitled to vote for the election of one or more directors or trustees
(regardless of any contingency which does or may suspend or dilute the voting
rights) is at such time owned directly or indirectly by such Person or one or
more of such Person's Subsidiaries, (ii) any partnership of which such Person is
a general partner or of which 50% or more of the partnership interests is at the
time directly or indirectly owned by such Person or one or more of such Person's
Subsidiaries, (iii) any limited liability company of which such Person is a
member or of which 50% or more of the limited liability company interests is at
the time directly or indirectly owned by such Person or one or more of such
Person's Subsidiaries or (iv) any corporation, trust, partnership, limited
liability company or other entity which is Controlled or capable of being
Controlled by such Person or one or more of such Person's Subsidiaries.
Subsidiary Guarantor shall mean each Subsidiary of the
Borrower incorporated or organized in the United States of America.
- 20 -
Subsidiary Guaranty shall mean a guaranty agreement executed
by a Subsidiary Guarantor substantially in the form of Exhibit "I" attached
hereto, together in each case with all extensions, renewals, amendments,
substitutions and replacements thereto and thereof.
Swingline Loan shall mean a disbursement made by PNC Bank to
the Borrower pursuant to Section 2.13.
Swingline Note shall mean the promissory note of the Borrower
evidencing Indebtedness of the Borrower under the Swingline Option which note is
substantially in the form of Exhibit "B" attached hereto, together with all
extensions, renewals, amendments, modifications, substitutions and replacements
thereto and thereof.
Swingline Option shall mean the loan option between the
Borrower and PNC Bank pursuant to Section 2.13 hereof.
Syndication Date shall mean the earlier of (i) the date of
completion of syndication hereunder, as determined by the Agent, or (ii) ninety
(90) days after the Closing Date.
Total Utilization shall mean as of the time of determination
the sum of Revolving Credit Loans outstanding, Swingline Loans outstanding, the
Unreimbursed L/C Draws outstanding and the aggregate Stated Amount of the
Letters of Credit outstanding.
Transfer Effective Date shall have the meaning ascribed to it
in the applicable Assignment and Assumption Agreement.
Transferor Lender shall mean the selling Lender pursuant to an
Assignment and Assumption Agreement.
Uniform Commercial Code or UCC shall mean the Pennsylvania
Uniform Commercial Code and, if applicable, the Uniform Commercial Code in
effect in the state in which the place of business of the Borrower is located,
or, if the Borrower has more than one place of business, the state in which the
Borrower has its chief executive office.
Unreimbursed L/C Draw shall have the meaning ascribed to it in
Section 2.17(f).
1.02. Construction.
(a) Unless the context of this Agreement otherwise
clearly requires, the following rules of construction shall apply to this
Agreement and each of the other Loan Documents:
(i) Number: Inclusion. References to the
plural include the singular, the singular the plural and the part the whole,
"or" has the inclusive meaning represented by the phrase "and/or," and
"including" has the meaning represented by the phrase "including without
limitation".
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(ii) Determination. References to
"determination" of or by the Agent, the L/C Issuer, PNC Bank or the Lenders
shall be deemed to include good faith estimates by the Agent, the L/C Issuer,
PNC Bank or the Lenders (in the case of quantitative determinations) and good
faith beliefs by the Agent, the L/C Issuer, PNC Bank or the Lenders (in the case
of qualitative determinations) and such determination shall be conclusive absent
manifest error.
(iii) Discretion and Consent. Whenever the
Agent, the L/C Issuer, PNC Bank or the Lenders are granted the right herein to
act in its or their sole discretion or to grant or withhold consent such right
shall be exercised in good faith.
(iv) Documents Taken as a Whole. The words
"hereof," "herein," "hereunder", "hereto" and similar terms in this Agreement or
any other Loan Document refer to this Agreement or such other Loan Document as a
whole and not to any particular provision of this Agreement or such other Loan
Document.
(v) Headings. The article, section and other
headings contained in this Agreement or such other Loan Documents and the Table
of Contents (if any) preceding this Agreement or such other Loan Document are
for reference purposes only and shall not control or affect the construction of
this Agreement or such other Loan Document or the interpretation thereof in any
respect.
(vi) Implied References. Article, section,
subsection, item, clause, schedule and exhibit references are to this Agreement
or to such other Loan Document, as the case may be, unless otherwise specified.
(vii) Persons. Reference to any Person
includes such Person's successors and assigns, but, if applicable, only if such
successors and assigns are permitted by this Agreement or such other Loan
Document, as the case may be, and reference to a Person in a particular capacity
excludes such Person in any other capacity.
(viii) Laws and Agreements. Reference to any
Law, agreement or contract includes such Law, agreement or contract as the same
may be amended, supplemented, modified, extended, waived, consolidated, replaced
or renewed from time to time, but only to the extent permitted by, and effected
in accordance with, the terms thereof and of this Agreement and the other Loan
Documents.
(ix) From, To and Through. Relative to the
determination of any period of time, "from" means "from and including", "to"
means "to but excluding", and "through" means "through and including".
(x) Shall; Will. References to "shall" and
"will" are intended to have the same meaning.
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(xi) UCC Terms. All terms used in Article 9
of the UCC and not specifically defined in this Agreement or in any other Loan
Document shall herein have the meanings assigned to such terms in the UCC as
from time to time in effect in the Commonwealth of Pennsylvania.
(xii) Writing; Written. References to
"writing" include printing, typing, lithography and other means of reproducing
words in a tangible visible form. References to "written" include "printed",
"typed", "lithographed" and other adjectives relating to words reproduced in a
tangible visible form consistent with the preceding sentence and also include
electronic images and images stored on computer disks, magnetic tape and like
media.
1.03. Accounting Principles. Except as otherwise provided in
this Agreement, all computations and determinations as to accounting or
financial matters and all financial statements to be delivered pursuant to this
Agreement shall be made and prepared in accordance with GAAP (including
principles of consolidation where appropriate), and all accounting or financial
terms shall have the meanings ascribed to such terms by GAAP.
ARTICLE II
REVOLVING CREDIT FACILITY
2.01. Revolving Credit Commitments. Subject to the terms and
conditions hereof and relying upon the representations and warranties herein set
forth, each Lender severally agrees to make revolving credit loans (the
"Revolving Credit Loans") to the Borrower at any time or from time to time on or
after the date hereof to, but not including, the Expiration Date, provided that
the aggregate principal amount of each Lender's Revolving Credit Loans
outstanding hereunder to the Borrower shall not exceed at any one time such
Lender's Ratable Share of the aggregate Revolving Credit Commitments or the
Borrowing Base, whichever is less, minus such Lender's Ratable Share of the sum
of (i) the Swingline Loans outstanding, (ii) the aggregate Stated Amount of
outstanding Letters of Credit and (iii) the aggregate amount of Unreimbursed L/C
Draws. Within such limits of time and amount and subject to the other provisions
of this Agreement, the Borrower may borrow, repay and reborrow pursuant to this
Section 2.01. The aggregate amount of the Revolving Credit Commitments on the
Closing Date is $100,000,000. All Revolving Credit Commitments shall expire on
the Expiration Date; and all Revolving Credit Loans outstanding on the
Expiration Date shall become due and payable in full on such date.
2.02. Nature of Lenders' Obligations with Respect to Revolving
Credit Loans. Each Lender shall be obligated to participate in each request for
Revolving Credit Loans pursuant to Section 2.05 hereof in accordance with its
Ratable Share. The aggregate principal amount of each Lender's Revolving Credit
Loans outstanding hereunder to the Borrower at any time shall never exceed such
Lender's Ratable Share of the aggregate Revolving Credit Commitments or the
Borrowing Base, whichever is less, minus such Lender's Ratable Share of the sum
of (i) Swingline Loans outstanding, (ii) the aggregate Stated Amount of
outstanding Letters of Credit and (iii) the aggregate amount of Unreimbursed L/C
Draws. The obligations of each Lender hereunder are several. The failure of any
Lender to perform its obligations hereunder shall not affect the obligations of
the Borrower, or any other Lender, to any other party
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nor shall the Borrower, or any other Lender, be liable for the failure of such
Lender to perform its obligations hereunder. The Lenders shall have no
obligation to make Revolving Credit Loans hereunder on or after the relevant
Expiration Date.
2.03. Fees
(a) Facility Fee. Accruing from the Closing Date
until the Expiration Date, the Borrower agrees to pay to the Agent for the
account of each Lender as consideration for such Lender's Revolving Credit
Commitment hereunder a Facility Fee determined by multiplying the relevant
Applicable Facility Fee by such Lender's Revolving Credit Commitment. The
Facility Fee from the Closing Date until June 30, 2002 shall be 37.5 basis
points. The Facility Fee shall be payable (i) quarterly in arrears on the last
day of each Fiscal Quarter, (ii) upon the relevant Expiration Date, and (iii)
upon acceleration of the Notes, all computed at the opening of business and on
the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed.
(b) Closing Fee. The Borrower agrees to pay on the
Closing Date, to the Agent for the account of each Lender as consideration for
such Lender's Revolving Credit Commitment hereunder a Closing Fee determined by
multiplying such Lender's Revolving Credit Commitment hereunder by 50 basis
points.
(c) Agent's and Arranger's Fee. The Borrower agrees
to pay to the Agent for its account the agent's fee and to PNC Capital Markets,
Inc. for its account the arrangement fee, all at the times and as more fully set
forth in the Agent's Letter.
(d) Applicable Facility Fee. For purposes of this
Agreement, the term "Applicable Facility Fee" shall mean the rate per annum set
forth in the chart below which corresponds to the range of ratios in which the
Borrower's Consolidated Total Indebtedness to Consolidated EBITDA Ratio, as at
the end of the preceding fiscal quarter, falls:
Consolidated Total Indebtedness Applicable
to Consolidated EBITDA Ratio Facility Fee
------------------------------- ------------
Less than or equal to 2.0 to 1.0 0.375%
Greater than 2.0 to 1.0 0.50%
All such adjustments shall be determined as of the date the Borrower's quarterly
financial statements and Compliance Certificate are required to be delivered to
the Lenders pursuant to items (i) and (iii) of Section 6.02.
2.04. Voluntary Reduction of Revolving Credit Commitment
Subject to the provisions of Section 2.09 hereof, at any time and from time to
time upon at least five (5) Business Days' prior written notice to the Agent,
the Borrower may terminate, in whole or in part, without penalty, the then
unused portion of the Revolving Credit Commitments, thereby causing a
corresponding abatement of the Facility Fee. Each such reduction shall be in a
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minimum principal amount of $5,000,000 or, if in excess of $5,000,000, in
integral multiples of $1,000,000. The Facility Fee shall cease to accrue with
respect to the Revolving Credit Commitments so terminated five (5) Business Days
after receipt of such notice. Notice of termination once given shall be
irrevocable and the portion of the Revolving Credit Commitments so terminated
shall not be available for borrowing once such notice has been given under the
terms hereof. The Agent shall promptly notify each Lender of its Ratable Share
of such terminated unused portion and the date of each such termination.
2.05. Revolving Credit Loan Requests. Except as otherwise
provided herein, the Borrower may from time to time prior to the relevant
Expiration Date request the Lenders to make Revolving Credit Loans to the
Borrower by the delivery to the Agent, not later than 10:00 a.m. (Pittsburgh,
Pennsylvania time) (i) three (3) Business Days prior to the proposed Borrowing
Date with respect to the making of Revolving Credit Loans to which the Euro-Rate
Option applies for any Revolving Credit Loans; and (ii) on the Business Day of
the proposed Borrowing Date with respect to the making of a Revolving Credit
Loan to which the Base Rate Option applies of a duly completed request therefor
substantially in the form of Exhibit "E" hereto or a request by telephone
immediately confirmed in writing by letter or facsimile in such form (each, a
"Loan Request"), it being understood that the Agent may rely on the authority of
any person making such a telephonic request without the necessity of receipt of
such written confirmation. Each Loan Request shall be irrevocable and shall
specify (i) the proposed Borrowing Date; (ii) the aggregate amount of the
proposed Revolving Credit Loans to be made on such Borrowing Date, which amount,
as to Base Rate Portions, shall be in integral multiples of $500,000 and not
less than $1,000,000 and, as to Euro-Rate Portions, shall be in integral
multiples of $1,000,000 and not less than $5,000,000; (iii) subject to Section
2.08(d), whether the Euro-Rate Option or the Base Rate Option shall apply to the
proposed Revolving Credit Loans to be made on such Borrowing Date; and (iv) in
the case of Revolving Credit Loans to which the Euro-Rate Option applies and
subject to Sections 2.08(d) and 2.08(e), an appropriate Euro-Rate Interest
Period for each Euro-Rate Portion of the Revolving Credit Loans to be made on
such Borrowing Date.
2.06. Making Revolving Credit Loans. Subject to Section 9.03,
the Agent shall, promptly after receipt by it of a Loan Request pursuant to
Section 2.05 (but not later than noon (Pittsburgh, Pennsylvania time) on the
Borrowing Date for same day funding and 2:00 p.m. (Pittsburgh, Pennsylvania
time) on the second Business Day preceding any Borrowing Date for which any
Portion of the Revolving Credit Loans to be made on such Borrowing Date bears
interest at the Euro-Rate Option), notify the Lenders of its receipt of such
Loan Request specifying: (i) the proposed Borrowing Date and the time and method
of disbursement of such Revolving Credit Loan; (ii) the amount of such Revolving
Credit Loan and the applicable Euro-Rate Portions and Euro-Rate Interest Periods
(if any); and (iii) the apportionment among the Lenders of the Revolving Credit
Loans as determined by the Agent in accordance with Section 2.02 hereof. Subject
to Section 9.03, each Lender shall remit the principal amount of each Revolving
Credit Loan to the Agent such that the Agent is able to, and the Agent shall, to
the extent the Lenders have made funds available to it for such purpose, fund
such Revolving Credit Loan to the Borrower in Dollars and immediately available
funds at the Principal Office prior to 2:00 P.M. (Pittsburgh, Pennsylvania time)
on the Borrowing Date, provided that if any Lender fails to remit such funds to
the Agent in a timely manner, or any Lender fails to advise
- 25 -
the Agent of its intention not to fund, then the Agent may elect in its sole
discretion to fund with its own funds the Revolving Credit Loan of such Lender
on the Borrowing Date.
2.07. Revolving Credit Notes. The obligation of the Borrower
to repay the aggregate unpaid principal amount of the Revolving Credit Loans
made to the Borrower by each Lender, together with interest thereon, shall be
evidenced by a promissory note of the Borrower dated the Closing Date in
substantially the form attached hereto as Exhibit "A" payable to the order of
each Lender in a face amount equal to the Revolving Credit Commitment of such
Lender.
2.08. Interest Payments, Interest Rates and Certain Related
Payments Pertaining to the Revolving Credit Loans.
(a) Interest. The Revolving Credit Notes shall bear
interest on the actual unpaid principal amount thereof from time to time
outstanding from the date thereof until payment in full at the rates of interest
set forth in Section 2.08(b). The Borrower shall pay accrued interest on the
unpaid principal balance of the Revolving Credit Notes in arrears:
(i) with respect to the Base Rate Portion,
at the rate specified in the Base Rate Option, (A) on the last Business Day of
each Fiscal Quarter during the term of the Revolving Credit Commitment, (B) at
maturity, whether by acceleration or otherwise, of the Revolving Credit Notes
and (C) thereafter on demand until all amounts evidenced by the Revolving Credit
Notes are paid in full; and
(ii) with respect to each Euro-Rate Portion,
at the rate specified in the Euro-Rate Option, (A) on the last day of the
Euro-Rate Interest Period applicable thereto; provided, however, if the
Euro-Rate Interest Period chosen for any EuroRate Portion exceeds three (3)
months, interest on that Euro-Rate Portion shall be due and payable at the end
of every three (3) months during such Euro-Rate Interest Period and on the last
day of such Euro-Rate Interest Period, (B) at the maturity, whether by
acceleration or otherwise, of the Revolving Credit Notes and (C) thereafter on
demand until all amounts evidenced by the Revolving Credit Notes are paid in
full.
(b) Interest Rate Options. During the term hereof,
the Borrower shall have the option of electing, from time to time, one or more
of the Interest Rate Options set forth below to be applied to the Revolving
Credit Loans.
(i) Base Rate Option. Interest under this
Interest Rate Option shall accrue, for the Base Rate Portion of the Revolving
Credit Loans outstanding, at a rate per annum equal to the Base Rate. The Base
Rate shall be adjusted automatically from time to time upon each change in the
Prime Rate or the Federal Funds Effective Rate, as the case may be, and in
accordance with the provisions of Section 2.08(c).
(ii) Euro-Rate Option. Interest under this
Interest Rate Option shall accrue, for each Euro-Rate Portion of the Revolving
Credit Loans outstanding, for any Euro-Rate Interest Period selected, at a rate
per annum equal to the sum of (A) the Euro-Rate
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plus (B) the Applicable Euro-Rate Margin as determined below. The rate of
interest established pursuant to the preceding sentence of this Section
2.08(b)(ii) for each Euro-Rate Portion shall be adjusted from time to time in
accordance with the provisions of Section 2.08(c).
For purposes of this Agreement, the term "Applicable Euro-Rate Margin" shall
mean the rate per annum set forth in the chart below which corresponds to the
range of ratios in which the Borrower's Consolidated Total Indebtedness to
Consolidated EBITDA Ratio as at the end of the preceding Fiscal Quarter falls:
Consolidated Total Indebtedness Applicable Euro-Rate
to Consolidated EBITDA Ratio Margin
------------------------------- --------------------
Less than or equal to 1.5 to 1.0 1.00%
Greater than 1.5 to 1.0 but less
than or equal to 2.0 to 1.0 1.25%
Greater than 2.0 to 1.0 but less
than or equal to 2.5 to 1.0 1.75%
Greater than 2.5 to 1.0 2.25%
All adjustments shall be determined as of the date the Borrower's quarterly
financial statements and Compliance Certificate are required to be delivered
pursuant to items (i) and (iii) of Section 6.02. The foregoing notwithstanding,
the Applicable Euro-Rate Margin from the Closing Date to and including the March
31, 2002 Delivery Date shall be 1.0%.
(c) Interest After Maturity. After the occurrence of
an Event of Default and during the continuation thereof, the Base Rate Portion
shall bear interest at a rate per annum which shall be two hundred (200) basis
points (2%) above the Base Rate otherwise in effect during such period. After
the occurrence of an Event of Default and during the continuation thereof, all
Euro-Rate Portions shall bear interest (i) until the end of the then current
Euro-Rate Interest Period for each such Euro-Rate Portion, at a rate per annum
which shall be two hundred (200) basis points (2%) above the sum of (A) the
Euro-Rate , plus (B) the Applicable Euro-Rate Margin otherwise in effect during
such period, and (ii) at the end of the then current Euro-Rate Interest Period
for each such Euro-Rate Portion, such Euro-Rate Portions shall automatically be
converted to the Base Rate Portion, and thereafter the interest rate shall be
calculated in accordance with the initial sentence of this Section 2.08(c).
(d) Interest Periods; Limitations on Elections. At
any time when the Borrower shall select, convert to or renew the Euro-Rate
Option to apply to all or any portion of the outstanding Revolving Credit Loans,
it shall elect one or more Euro-Rate Interest Periods as the case may be. All
the foregoing, however, is subject to the following:
(i) any Euro-Rate Interest Period which
would otherwise end on a day which is not a Business Day shall be extended to
the next Business Day unless such
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Business Day falls in the succeeding calendar month in which case such Euro-Rate
Interest Period shall end on the next preceding Business Day; and
(ii) any Euro-Rate Interest Period which
begins on the last day of a calendar month or on a day for which there is no
numerically corresponding day in the subsequent calendar month during which such
Euro-Rate Interest Period is to end shall end on the last Business Day of such
subsequent month.
Elections by the Borrower of the Euro-Rate
Option shall be subject to the following limitations:
(i) The Euro-Rate Portion for each Euro-Rate
Interest Period shall be in an aggregate principal amount of $5,000,000 or more;
provided, however, that each increment in excess of $5,000,000 shall be
$1,000,000 or an integral multiple thereof;
(ii) No Euro-Rate Interest Period may be
elected at any time that a Default or an Event of Default shall have occurred
and be continuing;
(iii) No Euro-Rate Interest Period may be
elected which would end later than the Expiration Date;
(iv) No Euro-Rate Interest Period may be
elected with regard to amounts outstanding which would be in excess of the
Revolving Credit Commitment or the Borrowing Base, whichever is less; and
(v) At no time may there be more than four
(4) separate EuroRate Interest Periods in effect.
(e) Election, Renewal or Conversion of Interest Rate
Options. Elections or renewals of, or conversions to, the Base Rate Option shall
continue in effect until converted or renewed as hereinafter provided. Elections
or renewals of, or conversions to, the Euro-Rate Option shall expire as to each
Euro-Rate Portion at the expiration of the applicable Euro-Rate Interest Period.
At any time with respect to the Base Rate Portion or at the expiration of the
applicable Euro-Rate Interest Period with respect to any Euro-Rate Portion, the
Borrower may cause (subject to Subsection 2.08(d)) all or any part of the
principal amount of such portion to be converted to, or to be renewed under, the
Euro-Rate Option by notice to the Agent as hereinafter provided. Such notice (i)
shall be irrevocable, (ii) shall be given not later than noon (Pittsburgh,
Pennsylvania time) in the case of a conversion to or renewal of, either in whole
or in part, the Euro-Rate Option, not less than three (3) Business Days prior to
the proposed effective date for such conversion or renewal, and (iii) shall set
forth:
(A) the effective date of such conversion or
renewal, which shall be a Business Day;
(B) the new Euro-Rate Interest Period(s)
selected; and
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(C) with respect to each such Euro-Rate
Interest Period, the aggregate principal amount of the corresponding
Euro-Rate Portion.
At the expiration of each Euro-Rate Interest Period, any part (including the
whole) of the principal amount of the corresponding Euro-Rate Portion as to
which no notice of conversion or renewal has been received shall automatically
be converted to the Base Rate Option. The Agent shall promptly notify the
Borrower and the Lenders of any such automatic conversion.
(f) Notification of Election of an Interest Rate
Option. The Borrower, by an Authorized Officer, shall notify the Agent of each
election of an Interest Rate Option, each conversion from one Interest Rate
Option to another, the amount of the Revolving Credit Loans then outstanding to
be allocated to each Interest Rate Option and, where relevant, the Euro-Rate
Interest Periods as provided for in this Agreement. Any such communication may
be oral or written and if oral it shall be followed promptly by written
confirmation of such Interest Rate Option election executed by an Authorized
Officer of the Borrower.
(g) Calculation of Interest. Interest on the Base
Rate Portion shall be calculated on the basis of a 365 or 366 day year, as the
case may be, and the actual days elapsed. Interest on each Euro-Rate Portion
shall be calculated on the basis of a 360-day year and the actual days elapsed.
The calculation of the amount of interest due and owing to the Lenders shall be
evidenced by posting the amount of interest due under the Revolving Credit Notes
to the Loan Account established by the Agent pursuant to Section 2.14.
(h) Lawful Interest Rates Intended. In no event
whatsoever shall the interest rates charged hereunder exceed the highest rate
permissible under any law which a court of competent jurisdiction shall, in a
final determination, deem applicable hereto. In the event that such a court
determines that any Lender has received interest hereunder in excess of the
highest applicable rate, such Lender shall promptly refund such excess to the
Borrower, or at such Lender's option, apply such excess in reduction of the
principal balance of the Lender Obligations owing to the affected Lender.
2.09. Prepayments; Allocation of Repayments; Payment of Excess
Loans.
(a) Prepayments of Base Rate Portion. The Borrower,
upon oral or written notice to the Agent by an Authorized Officer of Borrower
given not later than 12:00 noon (Pittsburgh, Pennsylvania time) on the proposed
date for prepayment, may prepay without penalty or premium any or all of the
Base Rate Portion. Any oral notice of election hereunder shall be followed
immediately by written confirmation of such prepayment election executed by an
Authorized Officer of Borrower
(b) Prepayments of Euro-Rate Portions. Except as
otherwise provided in Section 2.10(c), the Borrower, upon oral or written notice
to the Agent by an Authorized Officer of Borrower given at least three (3)
Business Days prior to the proposed date for repayment, may prepay, all or any
part of such Euro-Rate Portion. If such Euro-Rate Portion is prepaid on the last
day of the Euro-Rate Interest Period applicable thereto, such prepayment shall
be without premium or penalty. If the Borrower prepays a Euro-Rate Portion other
than on the
- 29 -
last day of the Euro-Rate Interest Period applicable thereto, the Borrower
agrees to pay, in addition to the other amounts set forth in this Section
2.09(b), such additional amounts as may be necessary to compensate each Lender
for any loss (including loss of profit on a pre-tax basis) and any direct or
indirect costs, including the costs of reemployment of funds prepaid at rates
lower than the cost to such Lender of such funds. Such losses and costs shall be
specified in writing to the Borrower by the affected Lenders (and such
specifications shall set forth in reasonable detail the calculation of such
losses and costs) and such specifications shall, absent manifest error, be
binding and conclusive on the Borrower. Such prepayment shall include the then
outstanding principal amount of the Euro-Rate Portion being prepaid together
with accrued interest, fees and other amounts then due and payable on the amount
prepaid, to the day of such prepayment. Except as provided in this Section
2.09(b), there shall be no voluntary prepayment of any Euro-Rate Portion.
(c) Allocation of Repayments of Principal. Any
voluntary prepayment pursuant to this Section 2.09 hereof shall be applied first
to the repayment of any Euro-Rate Portion of the Revolving Credit Loans for
which its associated Euro-Rate Interest Period expires on the date of such
payment, second, to the reduction of the Base Rate Portion of the Revolving
Credit Loans, and third, to the reduction of such Euro-Rate Portions of the
Revolving Credit Loans as directed by the Borrower, and if the Borrower fails to
give such directions, or if a Default or Event of Default has occurred and is
continuing, to the reduction of such Euro-Rate Portions of the Revolving Credit
Loans as the Agent may select in its sole and absolute discretion. Any reduction
in any Euro-Rate Portion on a date other than the date on which its associated
Euro-Rate Interest Period expires may result in a funding loss for which the
Borrower will owe the Lenders an indemnity payment pursuant to Section 2.10
hereof.
(d) Payment of Excess Loans. In the event that at any
time either any Loan Account or the Borrowing Base Certificate most recently
delivered by the Borrower to the Agent shows that Total Utilization exceeds the
Borrowing Base, the Borrower shall repay, simultaneously with the delivery of
any such Borrowing Base Certificate to the Agent or upon demand by the Agent,
whichever is earlier, an amount which is sufficient to reduce the Total
Utilization so that, after such repayment, does not exceed the Borrowing Base.
Until such repayment occurs, the Lenders shall not be required to make
additional Loans to the Borrower and the Issuing Bank shall not be required to
issue any Letters of Credit.
2.10. Yield Protection.
(a) If any change subsequent to the Closing Date in
any Law or in the interpretation or application thereof by any Official Body or
in the compliance with any guideline or request from any Official Body, shall
make it unlawful for any Lender to maintain or give effect to its obligations as
contemplated under the Revolving Credit Commitment or for PNC Bank to maintain
or give effect to its obligation to make Swingline Loans, such Lender shall
notify the Borrower and the Agent in writing of its determination of such
unlawfulness and an explanation thereof. Thereafter, such Lender's obligation to
make available any further Revolving Credit Loans hereunder, and PNC Bank's
obligation to make available any further Swingline Loans hereunder shall
forthwith be cancelled and the Borrower, within thirty (30) days, or within such
longer period as may be allowed by Law, if any, shall repay to such Lender
- 30 -
so affected its pro rata share of the outstanding principal amount of all
Revolving Credit Loans and/or Swingline Loans, together with interest thereon to
the date of repayment and fees, if any, due as of the date of termination;
provided, however, that the affected Lender's obligations which are lawful, if
severable from those which are unlawful, shall continue, and with respect to
those obligations, this Agreement shall not terminate.
(b) If any Law issued after the Closing Date
(including, without limitation, Regulation D of the Federal Reserve Board), or
if any change on or after the Closing Date in any Law (including, without
limitation, Regulation D) or in the interpretation thereof by any Official Body
charged with the administration thereof, shall
(i) subject any Lender to any tax, levy,
impost, charge, fee, duty, deduction or withholding or any kind hereunder (other
than any tax imposed or based upon the income of such Lender and payable to any
governmental or taxing authority in the United States of America, any state or
any municipality thereof); or
(ii) change the basis of taxation of any
Lender with respect to payments of principal or interest or other amounts due
hereunder (other than any change which affects, and only to the extent that it
affects, the taxation by the United States, any state or any municipality
thereof based upon the income of such Lender); or
(iii) impose, modify or deem applicable any
reserve, special deposit or similar requirements against assets held by any
Lender (other than such requirements which result solely from a change in the
credit quality of the Borrower or which are included in the determination of the
applicable rate of interest hereunder); or
(iv) impose upon any Lender any other
obligation or condition with respect to this Agreement,
and the result of any of the foregoing is to increase the cost to any Lender, to
decrease the yield to any Lender with respect to the Revolving Credit Loans, the
Swingline Loans or any Letters of Credit, to reduce the income receivable by any
Lender or to impose any expenses upon any Lender with respect to the Revolving
Credit Loans, the Swingline Loans or any Letters of Credit by an amount which
any Lender reasonably deems material, then and in any such case:
(A) the Lender so affected shall
promptly notify the Borrower and the Agent of the happening of such event;
(B) the Borrower shall pay to the
affected Lender, within five (5) Business Days of written demand such amount as
will compensate such Lender for such additional cost or reduced amount,
calculated from the date of the notification by such Lender; and
(C) the Borrower may pay to such
affected Lender the affected Revolving Credit Loan or Swingline Loan in full
without the payment of any additional amount other than on account of such
Lender's out-of-pocket losses (including funding losses, if
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any, as provided in paragraph (c) below) not otherwise provided for in
subparagraph (B) immediately above and reduce such Lender's Revolving Credit
Commitment to zero with a corresponding reduction in the Revolving Credit
Commitments.
The Lender so affected shall present to the Borrower and the Agent a certificate
setting forth such increased cost or reduced amount. Such certificate shall set
forth in reasonable detail the calculation of the amount due and such Lender's
reasons for invoking the provisions of this Section 2.10(b). Such certificate
shall be conclusive evidence of the amount due thereunder except in the case of
manifest error in computation.
(c) The Borrower agrees to indemnify each Lender, on
demand, against any loss or expense (including loss of profit) which such Lender
may sustain or incur in liquidating or employing deposits from third parties
acquired to effect, fund or maintain such Euro-Rate Portions or any part thereof
as a consequence of (i) the failure of the Borrower to make a payment on the due
date thereof, (ii) the failure of the Borrower to borrow under, convert to or
renew under the Euro-Rate Option on the proposed effective date of such
borrowing, conversion or renewal, or (iii) the payment, prepayment or conversion
by the Borrower of any Euro-Rate Portions for any reason on a day other than the
last day of the applicable Euro-Rate Interest Period. Any Lender's determination
of an amount payable under this paragraph (c) shall be conclusive absent
manifest error.
(d) The foregoing notwithstanding, if the affected
Lender can mitigate or eliminate such increased cost or reduced yield by
transferring the Loans to another existing lending office of such Lender, such
Lender agrees to so transfer the Loans; provided, such transfer would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender.
2.11. Special Provisions Relating to the Euro-Rate Option.
(a) Euro-Rate Unascertainable. In the event that on
any date on which a Euro-Rate Option would otherwise be set, the Agent shall
have determined (which determination shall be final and conclusive) that, by
reason of circumstances affecting the London interbank market, adequate,
reasonable means do not exist for ascertaining the EuroRate, the Agent shall
give prompt notice of such determination to the Borrower and the Lenders. Until
the Agent notifies the Borrower and the Lenders that the circumstances giving
rise to such determination no longer exist (which notice shall be given promptly
following receipt of knowledge thereof by the Agent), the right of the Borrower
to borrow under, convert to or renew the Euro-Rate Option shall be suspended.
Any notice of borrowing under, conversion to or renewal of the Euro-Rate Option
which was to become effective during the period of such suspension shall be
treated as a request to borrow under, convert to or renew the Base Rate Option
with respect to the principal amount therein specified.
(b) Inability to Offer Euro-Rate. In the event that
any Lender shall determine, in its sole discretion, that it is unable to obtain
deposits in the London interbank market in sufficient amounts and with
maturities related to such Euro-Rate Portions which would enable such Lender to
fund such Euro-Rate Portions, then such Lender shall notify the Borrower
- 32 -
and the Agent that the right of the Borrower to borrow under, convert to or
renew the Euro-Rate Option, shall be suspended with respect to such Lender. Such
notice shall set forth in reasonable detail such Lender's reasons for invoking
the provisions of this Section 2.11(b). Following notification of the suspension
of the Euro-Rate Option with respect to such Lender, the Borrower agrees to
negotiate with such Lender for a modified or alternative fixed rate of interest,
which will allow such Lender to realize its anticipated and bargained-for yield.
In the event that the Borrower and such Lender cannot agree on a modified or
alternative fixed rate of interest, any notice of borrowing under, conversion to
or renewal of the Euro-Rate Option which was to become effective during the
period of suspension shall be treated as a request to borrow under, convert to
or renew the Base Rate Option with respect to the principal amount specified
therein attributable to such Lender.
(c) Illegality. If any Lender shall determine in good
faith (which determination shall be final and conclusive) that compliance with
any Law (whether or not having the force of law) or the interpretation or
application thereof by any Official Body, has made it unlawful or impractical
for such Lender to make or maintain the Revolving Credit Loans under the
Euro-Rate Option, such Lender shall give notice of such determination to the
Borrower and the Agent, which notice shall set forth in reasonable detail such
Lender's reasons for invoking the provisions of this Section 2.11(c).
Notwithstanding any provision of this Agreement to the contrary, unless and
until such Lender shall have given notice to the Borrower and the Agent that the
circumstances giving rise to such determination no longer apply (which notice
shall be given promptly following receipt of knowledge thereof by such Lender):
(i) with respect to any Euro-Rate Interest Periods
thereafter commencing, interest in an amount equal to such Lender's Ratable
Share of the corresponding Euro-Rate Portion shall be computed and payable under
the Base Rate Option; and
(ii) on such date, if any, as shall be required by
law, an amount equal to such Lender's Ratable Share of any Euro-Rate Portion, as
the case may be, then outstanding shall be automatically converted to the Base
Rate Option and the Borrower shall pay to such Lender the accrued and unpaid
interest on such amounts to (but not including) such conversion date.
The Borrower shall pay any such Lender any additional amounts reasonably
necessary to compensate such Lender for any costs incurred by such Lender as a
result of any conversion pursuant to clause (ii) above which occurs on a day
other than the last day of the relevant Euro-Rate Interest Period, including,
but not limited to, any interest or fees payable by such Lender to lenders of
funds obtained by them to loan or maintain the lending of the Revolving Credit
Loans so converted. Such Lender shall furnish to the Borrower and the Agent a
certificate as to the amount necessary to compensate it for such costs, which
certificate shall set forth in reasonable detail the calculation of the amount
due. Such certificate shall constitute conclusive evidence of the amount due
thereunder absent any manifest error in computation. The Borrower shall pay such
amount to such Lender, as additional consideration hereunder, within ten (10)
days of the Borrower's receipt of such certificate.
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(d) The foregoing notwithstanding, if the affected
Lender can continue to offer the Euro-Rate Option to the Borrower by
transferring the Revolving Credit Loans to another existing lending office of
such Lender, such Lender agrees to so transfer the Revolving Credit Loans;
provided, such transfer would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender.
2.12. Capital Adequacy. If after the Closing Date (i) any
adoption of or any change in or in the interpretation by an Official Body of any
Law or (ii) compliance with any Law, guideline or request of any Official Body
exercising control over banks or financial institutions generally or any court
(whether or not having the force of law), affects or would affect the amount of
capital required or expected to be maintained by any Lender or any corporation
controlling such Lender other than those resulting solely from a change in the
credit quality of the Borrower (a "Capital Adequacy Event"), and the result of
such Capital Adequacy Event is to reduce the rate of return on capital of such
Lender or any corporation controlling such Lender as a consequence thereof to a
level below that which such Lender could have achieved but for such Capital
Adequacy Event, taking into consideration such Lender's policies with respect to
capital adequacy, by an amount which such Lender deems to be material, such
Lender shall promptly deliver to the Borrower and the Agent a statement of the
amount necessary to compensate such Lender for the reduction in the rate of
return on its capital attributable to the commitments under this Agreement or
any of the Loan Documents (the "Capital Compensation Amount"). Each Lender shall
determine the Capital Compensation Amount in good faith, using reasonable
attribution and averaging methods. Each Lender shall, from time to time, furnish
to the Borrower and the Agent a certificate setting forth the amount so
determined and the calculations of such amount. Such certificate shall
constitute conclusive evidence of the amount due thereunder absent any manifest
error in computation. Such amount shall be due and payable by the Borrower to
such Lender ten (10) days after such notice is given. As soon as practicable
after any Capital Adequacy Event, such Lender shall submit to the Borrower and
the Agent estimates of the Capital Compensation Amounts that would be payable as
a function of such Lender's Revolving Credit Commitment hereunder.
2.13. Swingline Loans.
(a) Swingline Option. Subject to the provisions of
this Section 2.13, PNC Bank agrees that the Borrower may request Swingline
Loans, in an aggregate amount at any one time outstanding not to exceed the
lesser of (i) $10,000,000 or (ii) an amount which, when added to the aggregate
principal amount of (A) all other Loans then outstanding, (B) the aggregate
Stated Amount of outstanding Letters of Credit issued pursuant to Section 2.17
and (C) the aggregate amount of Unreimbursed L/C Draws does not exceed the
lesser of (x) the Revolving Credit Commitments of all Lenders, or (y) the
Borrowing Base. PNC Bank shall have no obligation to make Swingline Loans
hereunder on or after the Expiration Date.
(b) Limitations on and Evidence of Swingline Loans.
Each Swingline Loan or repayment of a Swingline Loan must be in the minimum
principal amount of $1,000,000 or, if in excess of $1,000,000, in integral
multiples of $500,000. Swingline Loans shall be repaid on the date agreed upon
by the Borrower and PNC Bank, not more than five (5) days after the making of
the Swingline Loan and not after the Expiration Date. The obligation of the
Borrower
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to repay, prior to the Expiration Date, the aggregate unpaid principal amount
of such Swingline Loans advanced by PNC Bank shall be evidenced by the
Swingline Note substantially in the form of Exhibit "B" hereto. The principal
amount actually due and owing PNC Bank shall be the aggregate unpaid principal
amount of all disbursements of Swingline Loans made by PNC Bank, all as shown on
such PNC Bank Loan Account established pursuant to Section 2.14.
(c) Swingline Loan Procedure. The Borrower may from
time to time from the Closing Date to the Business Day prior to the Expiration
Date request a Swingline Loan. Such request shall be made not later than noon
(Pittsburgh, Pennsylvania time) on the date of the proposed Swingline Loan. Such
request may be made to the Agent orally or in writing and if orally confirmed in
writing. The Agent shall promptly notify PNC Bank of such request. PNC Bank
shall make the Swingline Loan available to the Borrower not later than 3:00 P.M.
(Pittsburgh, Pennsylvania time) on the same Business Day such Swingline Loan is
requested.
(d) Swingline Loan Interest. Interest on the
Swingline Loans shall accrue at the Base Rate or such other rate per annum as
offered by PNC Bank and accepted by the Borrower. After the occurrence of an
Event of Default and during the continuation thereof, the Swingline Loans shall
bear interest at a rate per annum which shall be two hundred (200) basis points
(2%) above the Base Rate otherwise in effect during such period.
(e) Risk Participation. Upon the disbursement of each
Swingline Loan and without any further action by or on behalf of such Lender,
each Lender hereby agrees to purchase, upon the occurrence of an Event of
Default, an undivided, full risk, nonrecourse participation in such Swingline
Loan, in an amount equal to (i) such Lender's Ratable Share (ii) multiplied by
the outstanding principal amount of such Swingline Loan on the date of the Event
of Default; provided, however, no Lender shall participate in any Swingline Loan
made after a notice of an Event of Default has been delivered pursuant to this
Agreement. If and to the extent PNC Bank receives payment of principal or
interest on a participated Swingline Loan, PNC Bank shall deliver to each Lender
such Lender's Ratable Share of such payment.
2.14. Loan Account. The Agent shall open and maintain on its
books a Loan Account in the name of the Borrower, with respect to (i) Revolving
Credit Loans and Swingline Loans made, repayments and prepayments of the
principal thereof, and the computation and payment of interest thereon, (ii)
Letters of Credit issued, or participated in, as the case may be, and draws and
reimbursements thereon or thereof, and (iii) the computation and payment of the
Fees due hereunder to the Lenders, the L/C Issuer and the Agent, and the
computation of other amounts due and sums paid to the Agent hereunder. Upon the
request of the Borrower to the Agent, the Agent shall promptly furnish to the
Borrower a statement of the Loan Account. The failure to record any such amount
shall not limit or otherwise affect the obligations of the Borrower hereunder or
under the Notes to repay all amounts owed hereunder and thereunder together with
all interest accrued thereon and all other fees and charges provided herein. The
Loan Account shall be conclusive evidence as to the amount at any time due to
the Lenders, the L/C Issuer and the Agent from the Borrower except in the case
of manifest error.
2.15. All Advances to Constitute One Loan. Notwithstanding the
limitations set forth herein, all Revolving Credit Loans, the Swingline Loans
and all other Lender Obligations
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shall constitute one loan and all Indebtedness and obligations of the Borrower
to the Lenders under this Agreement and all other Loan Documents shall
constitute a general obligation of the Borrower. The parties hereto agree that
all of the rights of the Agent, the L/C Issuer, the Lenders and the Borrower set
forth in this Agreement and the other Loan Documents shall apply to any
amendment or modification of or supplement to this Agreement and the other Loan
Documents.
2.16. Use of Proceeds. The proceeds of the Revolving Credit
Loans and the Swingline Loans shall be used exclusively (i) to pay interest,
Fees and other costs, and expenses hereunder and under the other Loan Documents,
(ii) to repay any Unreimbursed L/C Draw, (iii) to repay in full any amounts
outstanding under the Existing Credit Agreement, and (iv) to fund capital
expenditures, working capital, acquisitions permitted by the terms hereof, and
general corporate purposes of the Borrower and its Subsidiaries. No proceeds of
any Loan may be used for any purpose which contravenes applicable law or any
provision of any Loan Document.
2.17. Letter of Credit Subfacility.
(a) At the request of the Borrower, the L/C Issuer
will issue for the account of the Borrower, on the terms and conditions
hereinafter set forth (including without limitation Article V hereof), one or
more Letters of Credit; provided, however, no Letter of Credit shall have an
expiry date later than the earlier of twenty-four (24) months from the date of
issuance or fifteen (15) days prior to the Expiration Date; and provided,
further, however, that in no event shall (i) the Stated Amount of the Letters of
Credit issued pursuant to this Section 2.17 exceed, at any one time,
$25,000,000, or (ii) the sum of aggregate outstanding principal balance of the
Revolving Credit Loans, the aggregate unpaid balance of outstanding Swingline
Loans, the aggregate unpaid balance of any Unreimbursed L/C Draws and the
aggregate Stated Amount of the Letters of Credit issued by the L/C Issuer under
this Section 2.17 exceed, at any one time, the aggregate Revolving Credit
Commitments or the Borrowing Base, whichever is less.
(b) (i) The Borrower shall pay (A) to the L/C Issuer
for its own account a fronting fee equal to 1/8 of 1% per annum (the "L/C
Fronting Fee") on the aggregate daily (computed at the opening of business and
on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed) Stated Amount of the outstanding Letters of Credit for the period in
question, and (B) to the Agent for the ratable account of the Lenders a fee (the
"Letter of Credit Fee") equal to the Applicable Letter of Credit Fee per annum,
as determined below, on the aggregate daily (computed at the opening of business
and on the basis of a year of 365 or 366 days, as the case may be, and actual
days elapsed) Stated Amount of the outstanding Letters of Credit for the period
in question. The Letter of Credit Fee and the L/C Fronting Fee shall be payable
(A) quarterly in arrears on the last Business Day of each Fiscal Quarter
occurring during the term of this Agreement, (B) on the Expiration Date or (C)
upon acceleration of the Notes. Any issuance of an amendment to extend the
stated expiration date of a Letter of Credit or an amendment to increase the
Stated Amount of a Letter of Credit shall be treated as an issuance of a new
Letter of Credit for purposes of calculation of the Letter of Credit Fee and the
L/C Fronting Fee due and payable hereunder. After the occurrence of an Event of
Default and during the continuation thereof, the rate at which the Letter of
Credit Fee is calculated shall be increased by two hundred (200) basis points
(2%) above the pre-default rate.
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(ii) The Borrower shall also pay to the L/C
Issuer for the L/C Issuer's own account the L/C Issuer's customary documentation
fees payable with respect to the Letters of Credit as the L/C Issuer may
generally charge from time to time. Without limitation, the foregoing shall
include all charges and expenses paid or incurred by the L/C Issuer in
connection with any Letter of Credit, including without limitation: (A)
correspondents' charges, if any, (B) any and all reasonable out-of-pocket
expenses and charges of the L/C Issuer in connection with the performance,
administration, interpretation, collection and enforcement of this Agreement and
any Letter of Credit, including all reasonable legal fees and expenses, and (C)
any and all applicable reserve or similar requirements and any and all premiums,
assessments, or levies imposed upon the L/C Issuer by any Official Body.
(iii) If by reason of (A) any change in any
Law or any change in the interpretation or application by any judicial or
regulatory authority of any Law or (ii) compliance by the L/C Issuer with any
direction, request or requirement (whether or not having the force of law) of
any Official Body:
(A) the L/C issuer shall be subject
to any tax, levy, charge or withholding of any nature or to any variation
thereof or to any penalty with respect to the maintenance or fulfillment of its
obligations under this Section 2.17, whether directly or by such being imposed
on or suffered by the L/C Issuer;
(B) any reserve, deposit or similar
requirement is or shall be applicable, imposed or modified in respect of the
Letters of Credit; or
(C) there shall be imposed on the
L/C Issuer any other condition regarding this Section 2.17 or the Letters of
Credit;
and if the result of any of the foregoing is to directly or indirectly increase
the cost to the L/C Issuer of issuing or maintaining any Letter of Credit, or to
reduce the amount receivable in respect thereof by, the L/C Issuer, then and in
any such case the L/C Issuer may, at any time after the additional cost is
incurred or the amount receivable is reduced, notify the Borrower and the Agent,
and the Borrower shall pay on demand such amounts as the L/C Issuer may specify
to be necessary to compensate the L/C Issuer for such additional cost or reduced
receipt, together with interest on such amount from the date of the notice of
such event which results in such increased cost or reduction in amount
receivable until payment in full thereof at a rate equal at all times to the
Base Rate. The determination by the L/C Issuer of any amount due pursuant to
this Subsection 2.17(b)(ii) as set forth in a certificate setting forth the
calculation thereof, shall, in the absence of manifest error, be final and
conclusive and binding on all of the parties hereto.
For purposes of this Agreement, the term "Applicable Letter of Credit Fee" shall
mean the rate per annum set forth in the chart below which corresponds to the
range of ratios in which the Borrower's Consolidated Total Indebtedness to
Consolidated EBITDA Ratio as at the end of the preceding Fiscal Quarter falls:
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Consolidated Total Indebtedness Applicable Letter of
to Consolidated EBITDA Ratio Credit Fee
------------------------------- --------------------
Less than or equal to 1.5 to 1.0 1.00%
Greater than 1.5 to 1.0 but less than or equal
to 2.0 to 1.0 1.25%
Greater than 2.0 to 1.0 but less than or equal
to 2.5 to 1.0 1.75%
Greater than 2.5 to 1.0 2.25%
All adjustments shall be determined as of the date the Borrower's quarterly
financial statements and Compliance Certificate are required to be delivered
pursuant to items (i) and (iii) of Section 6.02. The foregoing notwithstanding,
the Applicable Letter of Credit Fee from the Closing Date to and including the
March 31, 2002 Delivery Date shall be 1.00%.
(c) Immediately upon the issuance of each Letter of
Credit and each increase in the Stated Amount thereof, each Lender hereby agrees
to irrevocably purchase and shall be deemed to have irrevocably purchased from
the L/C Issuer an undivided, full risk, non-recourse participation in such
Letter of Credit and drawings thereunder in an amount equal to such Lender's
Ratable Share of the maximum amount which is or at any time may become available
to be drawn thereunder. In the event that the L/C Issuer is required for any
reason to refund or repay to the Borrower, any guarantor or any other Person all
or any portion of any amount remitted to the L/C Issuer pursuant to this
Agreement, the Lenders shall promptly remit to the L/C Issuer, upon three (3)
Business Days' demand therefor, their respective Ratable Shares of the amount
which is so refunded or repaid.
(d) In the event any restrictions are imposed upon
the L/C Issuer or any of the Lenders by any Law of any Official Body having
jurisdiction over the banking activities of the L/C Issuer or any Lender which
would prevent the L/C Issuer from issuing the Letters of Credit or amending the
Letters of Credit or would prevent any Lender from honoring its obligations
under this Section 2.17, the commitment of the L/C Issuer to issue the Letters
of Credit or enter into any amendment with respect thereto shall be immediately
suspended. If any Lender believes any such restriction would prevent such Lender
from honoring its obligations under this Section 2.17, it shall promptly notify
the Agent. The Agent shall promptly notify the Borrower, the L/C Issuer and the
other Lenders of the existence and nature of (i) any restriction which would
cause the suspension of the commitment of the L/C Issuer to issue the Letters of
Credit or to enter into amendments with respect thereto and (ii) any restriction
which would prevent any Lender from honoring its obligations under this Section
2.17. The Borrower will thereupon undertake reasonable efforts to obtain the
cancellation of all outstanding Letters of Credit; provided, however, that the
refusal of any beneficiary of a Letter of Credit to surrender such Letter of
Credit will not be an Event of Default hereunder, provided that the Borrower
shall undertake good faith efforts to obtain substitute letters of credit for
the then existing and outstanding Letters of Credit. Nothing contained in this
Section 2.17 shall be deemed a termination of the Revolving Credit Commitments
and, in the event of a suspension of the commitment of the L/C Issuer to issue
Letters of Credit as set forth above, the Borrower may
- 38 -
continue to borrow under the Revolving Credit Commitments provided the
requirements of Section 5.02 are complied with.
(e) When the Borrower desires the issuance of a
Letter of Credit, the Borrower shall deliver a duly completed Application and
Agreement for Letter of Credit to the L/C Issuer, with a copy to the Agent, no
later than 10:00 A.M. (Pittsburgh, Pennsylvania time) at least three (3)
Business Days, or such shorter period as may be agreed to by the L/C Issuer, in
advance of the proposed date of issuance. Upon satisfaction of the conditions
set forth in Section 5.01 and, if applicable, Section 5.02, the L/C Issuer shall
be obligated to issue the Letter of Credit and shall notify the Agent and each
Lender of such issuance. In determining whether to pay under a Letter of Credit,
the L/C Issuer shall be responsible only to determine that the documents and
certificates required to be delivered under the Letter of Credit have been
delivered and that they comply on their face with the requirements of the Letter
of Credit.
(f) In the event of any request for drawing under a
Letter of Credit by the beneficiary thereof, the L/C Issuer shall immediately
notify the Borrower and the Agent, and the Borrower shall reimburse, or cause
the reimbursement of, the L/C Issuer on demand as set forth in the applicable
Application and Agreement for Letter of Credit in an amount in same day funds
equal to the amount of such drawing; provided, however, that anything contained
in this Agreement to the contrary notwithstanding, unless the Borrower shall
have notified the Agent and the L/C Issuer prior to such time that the Borrower
intends to reimburse the L/C Issuer for all or a portion of the amount of such
drawing with funds other than the proceeds of Revolving Credit Loans, the
Borrower shall be deemed to have given a Loan Request to the Agent requesting
the Lenders to make Revolving Credit Loans on the first Business Day immediately
following the date on which such drawing is honored in an aggregate amount equal
to the excess of the amount of such drawing over the amount received by the L/C
Issuer from such other funds in reimbursement thereof (the "Unreimbursed L/C
Draw"), plus accrued interest on such amount at the rate set forth in Subsection
2.08. Any such Revolving Credit Loan shall be deemed advanced to the Borrower.
If the Borrower shall be deemed to have given a Loan Request, then, subject to
satisfaction or waiver of the conditions specified in Section 5.02, the Lenders
shall, all as set forth in Section 2.17(g) hereof, on the first Business Day
immediately following the date of such drawing, make Revolving Credit Loans in
the aggregate amount of the Unreimbursed L/C Draw plus accrued interest on such
amount at the applicable rate set forth in Section 2.08. The proceeds of any
such Revolving Credit Loans shall be applied directly by the Agent upon receipt
from the Lenders to reimburse the L/C Issuer for the Unreimbursed L/C Draw plus
accrued interest on such amount. The foregoing shall not limit or impair the
obligation of the Borrower to reimburse the L/C Issuer on demand.
(g) In the event that the Borrower shall fail to
reimburse the L/C Issuer on demand as provided in the applicable Application and
Agreement for Letter of Credit and Section 2.17(f) above in an amount equal to
the amount of any drawing honored by the L/C Issuer under a Letter of Credit
plus accrued interest, the L/C Issuer shall promptly notify the Agent and each
Lender of the Unreimbursed L/C Draw plus accrued interest on such amount of such
drawing and of such Lender's respective participation therein. Each Lender shall
make available to the L/C Issuer an amount equal to its respective participation
in same day funds, at the office of the L/C Issuer specified in such notice, not
later than 12:00 Noon (Pittsburgh,
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Pennsylvania time) on the Business Day after the date specified in such notice
by the L/C Issuer. In the event that any Lender fails to make available to the
L/C Issuer the amount of such Lender's participation in such Letter of Credit as
provided in this Section 2.17(g), the L/C Issuer shall be entitled to recover
such amount on demand from such Lender together with interest at the Federal
Funds Effective Rate for three (3) Business Days and thereafter at the Base
Rate. Nothing in this Section 2.17(g) shall be deemed to prejudice the right of
any Lender to recover its Ratable Share of the Unreimbursed L/C Draw from the
L/C Issuer pursuant to this Section 2.17(g) in the event that it is determined
by a court of competent jurisdiction that payment with respect to a Letter of
Credit by the L/C Issuer constituted gross negligence or willful misconduct on
the part of the L/C Issuer. The L/C Issuer shall distribute to each Lender which
has paid all amounts payable by it under this Section 2.17(g) with respect to a
Letter of Credit such other Lender's Ratable Share of all payments received by
the L/C Issuer from the Borrower in reimbursement of drawing honored by the L/C
Issuer under the Letter of Credit when such payments are received.
(h) The obligations of the Borrower under this
Agreement to reimburse the L/C Issuer for all drawings upon the Letters of
Credit shall be absolute, unconditional and irrevocable, and shall not be
subject to any right of set-off or counterclaim and shall be paid or performed
strictly in accordance with the terms of this Agreement, under all circumstances
whatsoever, including the following circumstances:
(i) any lack of validity or enforceability
of this Agreement, any Letter of Credit or any of the Loan Documents;
(ii) any amendment or waiver of any
provision of all or any of the Loan Documents;
(iii) the existence of any claim, set-off,
defense or other rights which the Borrower may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any Persons for whom
any such beneficiary or any such transferee may be acting), the L/C Issuer, the
Agent or any Lender (other than the defense of payment to the L/C Issuer in
accordance with the terms of this Agreement) or any other Person, whether in
connection with this Agreement, the Loan Documents or any transaction
contemplated hereby or thereby or any unrelated transaction;
(iv) any draft, demand, certificate,
statement or document presented under any Letter of Credit, appearing on its
face to be valid and sufficient, but proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(v) payment by the L/C Issuer under any
Letter of Credit against presentation of any document which does not comply with
the terms of the Letter of Credit, provided that such payment shall not have
constituted gross negligence or willful misconduct of the L/C Issuer;
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(vi) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, not resulting from
gross negligence or willful misconduct of the L/C Issuer; and
(vii) the fact that a Default or Event of
Default shall have occurred and be continuing.
(i) This Agreement is intended to supplement each
Application and Agreement for Letter of Credit executed by the Borrower and
delivered to the L/C Issuer. Whenever possible this Agreement is to be construed
as consistent with each Application and Agreement for Letter of Credit but, to
the extent that the provisions of this Agreement and each Application and
Agreement for Letter of Credit conflict, the terms of this Agreement shall
control.
(j) Existing Letters of Credit. As of the Closing
Date, each of the Existing Letters of Credit issued by the L/C Issuer and
outstanding on such date for the account of the Borrower and identified on
Schedule 2.17(j) shall be deemed to be Letters of Credit issued hereunder and
shall be subject to all of the terms and provisions of this Agreement. The
Borrower is hereby deemed to be the account party with respect to each such
Letter of Credit for all purposes thereunder and hereunder. Each Lender agrees
that its obligations with respect to Letters of Credit pursuant to this
Agreement shall include such Existing Letters of Credit. With respect to each
such Existing Letter of Credit, for the period commencing on the Closing Date,
the Borrower shall pay all fees and commissions set forth in this Agreement at
the times and in the manner herein set forth. The obligations of the Borrower
under each application for letter of credit and credit or reimbursement
agreement (together with any related amendments) executed with respect to the
Existing Letters of Credit are hereby expressly assumed by the Borrower and each
such application for letter of credit and credit or reimbursement agreement, as
amended, is hereby deemed an Application and Agreement for Letter of Credit
executed and delivered hereunder. Such existing credit or reimbursement
agreements shall be superseded in their entirety by this Agreement which shall
apply to Existing Letters of Credit as well as all Letters of Credit issued
hereunder on and after the Closing Date.
(k) Obligations Absolute. Notwithstanding any other
provision of this Agreement, each Lender hereby agrees that its obligation to
participate in each Letter of Credit issued in accordance herewith and its
obligation to make the payments to be made by it under this Section 2.17 is
absolute, irrevocable and unconditional and shall not be affected by any event,
condition or circumstance whatever. The failure of any Lender to make any such
payment shall not relieve any other Lender of its funding obligation hereunder
on the date due, but no Lender shall be responsible for the failure of any other
Lender to meet its funding obligations hereunder.
(l) In addition to amounts payable as elsewhere
provided in this Section 2.17, the Borrower hereby agrees to protect, indemnify,
pay and save the Agent or the L/C Issuer harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) which the Agent or the L/C Issuer may
incur or be subject to as a consequence, direct or indirect, of (i) the issuance
of the
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Letters of Credit or any amendment thereto, other than as a result of the gross
negligence or willful misconduct of the Agent or the L/C Issuer as determined by
a court of competent jurisdiction, (ii) the failure of the L/C Issuer to honor a
draw under any Letter of Credit if the L/C Issuer in good faith and upon advice
of counsel believes that it is prohibited from making such payment as a result
of any requirement of Law or of any Official Body, or (iii) any material breach
by the Borrower of any representation, warranty, covenant, term or condition in,
or the occurrence of any default under, any document related to the issuance or
any amendment of the Letters of Credit. If any proceeding shall be brought or
threatened against the Agent or the L/C Issuer by reason of or in connection
with any event described in clauses (i) through (iii) above, the Agent shall
promptly notify the Borrower in writing, and the Borrower shall assume the
defense thereof, including the employment of counsel and payment of all costs of
litigation. Notwithstanding the preceding sentence, the Agent and the L/C Issuer
shall have the right to employ their own counsel and to determine its own
defense of such action in any such case, but the fees and expenses of such
counsel shall be at the expense of the Agent or the L/C Issuer, as the case may
be, unless (x) the employment of such counsel shall have been authorized in
writing by the Borrower, (y) the Borrower, after the aforementioned notice of
the action, shall not have employed counsel to have charge of such defense or
(z) if the position of the Borrower is adverse or contrary to the position
advocated by the Agent or the L/C Issuer, as the case may be. In each case
described in clauses (x), (y) and (z) immediately above the reasonable fees and
expenses of counsel for the Agent or the L/C Issuer, as the case may be shall be
borne by the Borrower. The Borrower shall not be liable for any settlement of
any such action affected without its consent.
(m) The L/C Issuer is hereby expressly authorized and
directed to honor any request for payment which is made under and in compliance
with the terms of any Letter of Credit without regard to, and without any duty
on the L/C Issuer's part to inquire into, the existence of any disputes or
controversies between the Borrower, the beneficiary of any Letter of Credit or
any other Person, or the respective rights, duties or liabilities of any of them
or whether any facts or occurrences represented in any of the documents
presented under any Letter of Credit are true or correct. Furthermore, the
Borrower fully understands and agrees that the L/C Issuer's sole obligation to
the Borrower shall be limited to honoring requests for payment made under and in
compliance with the terms of any Letter of Credit, the Application and Agreement
for Letter of Credit therefor and this Agreement and the L/C Issuer's obligation
remains so limited even if the L/C Issuer may have assisted the Borrower in the
preparation of the wording of any Letter of Credit or any documents required to
be presented thereunder or that the L/C Issuer may otherwise be aware of the
underlying transaction giving rise to any Letter of Credit and this Agreement.
(n) As between the Borrower and the L/C Issuer, the
Borrower assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit by, the beneficiaries of the Letters of Credit. In furtherance
and not in limitation of the foregoing, the L/C Issuer shall not be responsible:
(i) for the form, validity, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the application for or
the issuance or amendment of the Letters of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged; (ii) for the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign the
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Letters 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;
(iii) for failure of a beneficiary of a Letter of Credit to comply fully with
conditions required in order to draw upon such Letter of Credit; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telecopy, telex or otherwise, whether or
not they be in cipher; (v) for errors in interpretation of technical terms; (vi)
for any loss or delay in the transmission or otherwise of any document required
in order to make a draw under the Letters of Credit or of the proceeds thereof;
(vii) for the misapplication by a beneficiary of any Letter of Credit of the
proceeds of any drawing under such Letter of Credit; (viii) for any consequences
arising from causes beyond the control of the L/C Issuer, including, without
limitation, any Law; and (ix) for any other circumstances whatsoever in making
or failing to make payment under a Letter of Credit; except that the Borrower
shall have a claim against the L/C Issuer, and the L/C Issuer shall be liable to
the Borrower, to the extent, but only to the extent, of any direct, as opposed
to consequential, damages suffered by the Borrower by a court of competent
jurisdiction to be the result of (i) the L/C Issuer's willful misconduct or
gross negligence in determining whether documents presented under a Letter of
Credit comply with the terms of the Letter of Credit, (ii) the L/C Issuer's
willful misconduct or gross negligence in paying a draw under a Letter of Credit
to any Person other than the beneficiary of such Letter of Credit or its lawful
successor, representative or assign (or as otherwise directed in writing by the
beneficiary of such Letter of Credit) or (iii) the L/C Issuer's willful failure
to pay under a Letter of Credit after the presentation to it by the beneficiary
of such Letter of Credit or its lawful successor, representative or assign of a
sight draft and certificate or other documents strictly complying with the terms
and conditions of such Letter of Credit, unless the L/C Issuer in good faith and
upon advice of counsel believes that it is prohibited by law or other legal
authority from making such payment. None of the above shall affect, impair, or
prevent the vesting of any of the L/C Issuer's rights or powers hereunder.
(o) Except for the L/C Issuer's obligations to issue
Letters of Credit hereunder and its obligations under such Letters of Credit,
the L/C Issuer shall have no liability to the Borrower from a reduction of the
L/C Issuer's credit rating or any deterioration in its financial condition.
(p) The Borrower shall bear and pay all reasonable
expenses of every kind (including all reasonable attorneys' fees) of the
enforcement of any of the L/C Issuer's rights under this Agreement or the
Letters of Credit, or of any claim or demand by the L/C Issuer against the
Borrower, or of any actual or attempted sale, exchange, enforcement, collection,
maintenance, retention, insurance, compromise, settlement, release, delivery on
trust receipt, or other security agreement, or delivery of any such security,
and of the receipt of proceeds thereof, and will repay to the L/C Issuer any
such expenses incurred by the L/C Issuer.
(q) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth, any action taken or
omitted by the L/C Issuer under or in connection with the Letters of Credit or
the related sight drafts or certificates or documents, if taken or omitted in
good faith, shall not put the L/C Issuer under any resulting liability to the
Borrower.
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(r) Whenever appropriate to prevent unjust enrichment
and to the end that the Borrower shall bear substantially all of the risks
relative to any Letter of Credit and the underlying transactions, the L/C Issuer
shall be subrogated (for purposes of defending against the Borrower's claims and
proceeding against others to the extent of the L/C Issuer's liability to the
Borrower) to the Borrower's rights against any Person who may be liable to the
Borrower on any underlying transaction, to the rights of any holder in due
course or Person with similar status against the Borrower, and to the rights of
the beneficiary or its assignee or person with similar status against the
Borrower.
(s) Except and to the extent inconsistent with the
specific provisions hereof, this Agreement, each Letter of Credit hereunder and
all transactions in connection therewith shall be interpreted, construed and
enforced according to: (i) the "Uniform Customs and Practice for Documentary
Credits" (1993 Revision), International Chamber of Commerce Publication No. 500
and subsequent revisions thereof which shall supersede inconsistent provisions
of applicable law to the extent not prohibited by applicable law and (ii) the
laws of the Commonwealth of Pennsylvania, including, without limitation, the
Uniform Commercial Code, and excluding conflict of laws rules.
2.18. Taxes. Each Lender that is not incorporated under the
laws of the United States of America or a state thereof agrees that it will
deliver to the Borrower and the Agent (i) two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224 or successor applicable form,
as the case may be (assuming that it is entitled to do so), and (ii) two duly
completed copies of Internal Revenue Service Form W-8 or W-9 or successor
applicable form. Each such Lender also agrees to deliver to the Borrower and the
Agent two further copies of the said Form 1001 or 4224 and Form W-8 or W-9, or
successor applicable forms or other manner of certification, as the case may be,
on or before the date that any such form expires or becomes obsolete or
otherwise is required to be resubmitted as a condition to obtaining an exemption
from withholding tax or after the occurrence of any event requiring a change in
the most recent form previously delivered by it to the Borrower and the Agent,
and such extensions or renewals thereof as may reasonably be requested by the
Borrower or the Agent, unless in any such case an event (including, without
limitation, any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender so advises the
Borrower and the Agent. Such Lender shall certify (i) in the case of Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes (assuming
that it is entitled to do so) and (ii) in the case of Form W-8 or W-9, that it
is entitled to an exemption from United States backup withholding tax.
2.19. Payments. All payments and prepayments to be made in
respect of principal, interest, Unreimbursed L/C Draws, Fees, or other amounts
due from the Borrower hereunder shall be payable prior to 11:00 A.M.
(Pittsburgh, Pennsylvania time) on the date when due without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived
by the Borrower, and without setoff, counterclaim or other deduction of any
nature, and an action therefor shall immediately accrue. Such payments shall be
made to the Agent at the Principal Office for the ratable account of the Lenders
or L/C Issuer, as the case
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may be, in Dollars and in immediately available funds, and the Agent shall
promptly distribute such amounts to the Lenders or L/C Issuer, as the case may
be, in immediately available funds in accordance with the terms and provisions
of Section 9.10 of this Agreement. The Agent's, the L/C Issuer's and each
Lender's statement of account, ledger or other relevant record shall, in the
absence of manifest error, be conclusive as the statement of the amount of
principal of and interest on the Revolving Credit Loans, the Swingline Loans,
the Unreimbursed L/C Draws, Fees and other amounts owing under this Agreement
and shall be deemed an "account stated." Notwithstanding anything herein to the
contrary, (i) any administration or underwriting fee paid by the Borrower to the
Agent shall be solely for the account of the Agent, (ii) any L/C Fronting Fees
paid by the Borrower shall be solely for the account of the L/C Issuer and (iii)
any interest paid on any Unreimbursed L/C Draw to the extent a Lender has not
been required to honor or has not honored its funding obligations pursuant to
Section 2.17(g) hereof shall be solely for the account of the L/C Issuer.
2.20. Substitution of Lender. In the event any Lender (i)
gives notice under Sections 2.10 (Yield Protection), 2.11(b) (Inability to Offer
Euro-Rate), 2.11(c) (Illegality) or 2.12 (Capital Adequacy), (ii) does not fund
Revolving Credit Loans because the making of such Loans would contravene any Law
applicable to such Lender, (iii) does not approve any action as to which consent
of the Required Lenders is requested by the Borrower and obtained hereunder, or
(iv) becomes subject to the control of an Official Body (other than normal and
customary supervision), then, if the Borrower designates one or more substitute
institutions to purchase the Loans and assume the Revolving Credit Commitments
of such Lender, such Lender will at the Borrower's request sell its Loans and
assign its rights under this Agreement to such substitution institutions, with
reasonable promptness after such designation in accordance with Section 10.05,
for a payment equal to the principal amount of its Loans, plus all accrued and
unpaid interest and Fees to but excluding the date of purchase, plus any other
amounts accrued or payable to such Lender under this Agreement to but excluding
the date of purchase, plus any amount that would be payable to such Lender under
Section 2.10(c) (as if such purchase were treated as a prepayment of the
outstanding Loans to such Lender), together with any other loss or expense
incurred by it (or by a Participant in the related Loans or Revolving Credit
Commitment); provided that all of the provisions of Section 10.05(b) must first
be complied with, and provided, further that the Agent may only be replaced
subject to the requirements of Section 9.13 (Successor Agent) . Nothing in this
Section 2.20 limits the rights of the Agent, the Documentation Agents, the
Lenders, PNC Bank, or the L/C Issuer under any provisions of any of the Loan
Documents.
ARTICLE III
LOAN DISBURSEMENT ACCOUNT, GUARANTEES, ETC.
3.01. Loan Disbursement Account. To induce the Lenders, the
Agent, the Documentation Agents and the L/C Issuer to enter into this Agreement
and to make available to the Borrower the credit accommodation herein set forth,
the Borrower shall maintain at all times during this Agreement with the Agent,
at the Agent's office in Pittsburgh, Pennsylvania, a demand deposit account (the
"Loan Disbursement Account"), into which proceeds of Revolving Credit Loans,
Swingline Loans and other monies transferred to the Borrower hereunder shall be
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deposited from time to time. The Loan Disbursement Account shall be in the name
of the Borrower and, subject to the other provisions of this Agreement and the
other Loan Documents, monies therein shall be disbursed as directed by the
Borrower, from time to time. To secure the payment and performance of Lender
Obligations, the Borrower hereby pledges and assigns, and grants to the Agent
for the benefit of the Agent, the L/C Issuer and the Lenders, a lien on and
security interest in the Loan Disbursement Account, all funds from time to time
deposited or held therein, all interest and other income derived therefrom, and
all proceeds of all the foregoing.
3.02. Designation of Subsidiary Guarantors. Each Subsidiary of
the Borrower incorporated or organized in the United States of America, whether
now in existence or hereafter acquired, that owns Receivables and Inventory
(priced at the lower of cost or market) shall be automatically designated as a
Subsidiary Guarantor by the Lenders. Any Subsidiary designated as a Subsidiary
Guarantor shall continue as a Subsidiary Guarantor until released in writing by
all Lenders.
3.03. Further Cooperation. The Borrower shall perform, or
cause a Subsidiary Guarantor to perform, on the reasonable request of the Agent
and at the Borrower's expense, such reasonable acts as may be necessary or
reasonably advisable to carry out the intent of this Agreement and the other
Loan Documents. Without limiting the generality of the preceding sentence, the
Borrower shall cause each newly-created or acquired Subsidiary Guarantor to
execute and deliver a Subsidiary Guaranty to the Agent with a reasonable period
of time following the creation or acquisition of such Subsidiary Guarantor.
3.04. Solvency. On the Closing Date, and on the date of each
Disbursement, the Borrower is, or will be, Solvent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Representations and Warranties. The Borrower represents and
warrants to the Agent, the Documentation Agents, each of the Lenders and the L/C
Issuer as follows:
4.01. Organization and Qualification.
(a) The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the State of Ohio, the
Borrower has the lawful power to own or lease its properties and to engage in
the business it presently conducts or proposes to conduct; and the Borrower is
duly licensed or qualified and in good standing in each jurisdiction listed on
Schedule 4.01 hereto and in all other jurisdictions where the property owned or
leased by it or the nature of the business transacted by it makes such licensing
or qualification necessary, except for those jurisdictions where the Borrower's
non-qualification would not cause there to be a Material Adverse Change.
(b) Each Subsidiary of the Borrower is a corporation,
business trust or limited partnership, as the case may be, duly organized,
validly existing and in good standing
- 46 -
under the laws of the state of its incorporation or organization, as the case
may be, shown on Schedule 4.01; each Subsidiary of the Borrower has the lawful
power to own or lease its properties and to engage in the business it presently
conducts or proposes to conduct; and each Subsidiary of the Borrower is duly
licensed or qualified and in good standing in each jurisdiction listed on
Schedule 4.01 hereto and in all other jurisdictions where the property owned or
leased by it or the nature of the business transacted by it makes such licensing
or qualification necessary, except for those jurisdictions where such
Subsidiary's non-qualification would not cause there to be a Material Adverse
Change.
4.02. Capitalization and Ownership. As of December 31, 2001,
the authorized capital stock of the Borrower consists of 30,000,000 shares of
common stock of which 20,730,604 shares were issued and outstanding, and
5,000,000 shares of preferred stock, of which no shares were issued and
outstanding. All of the capital stock of the Borrower has been validly issued
and is fully paid and nonassessable. Except as set forth in Schedule 4.02, there
are no options, warrants or other rights outstanding to purchase any such
capital stock.
4.03. Subsidiaries. Except for the Subsidiaries and
investments in other Persons set forth in Schedule 4.03, the Borrower does not
own directly or indirectly any capital stock of any other Person, is not a
partner (general or limited) of any partnership, is not a party to any joint
venture and does not own (beneficially or of record) any equity interest or
similar interest in any other Person.
4.04. Power and Authority. The Borrower and each Subsidiary
Guarantor has full power to enter into, execute, deliver, carry out and perform
this Agreement and the Loan Documents to which it is a party, to incur the
Indebtedness contemplated by the Loan Documents and to perform its obligations
under the Loan Documents to which it is a party and all such actions have been
duly authorized by all necessary corporate proceedings on its part.
4.05. Validity and Binding Effect. This Agreement has been,
and each Loan Document, when executed and delivered by the Borrower and each
Subsidiary Guarantor, will have been, duly and validly executed and delivered by
the Borrower or such Subsidiary Guarantor. This Agreement and each of the other
Loan Documents executed and delivered by the Borrower and each Subsidiary
Guarantor will constitute legal, valid and binding obligations of the Borrower
or such Subsidiary Guarantor, enforceable against the Borrower or such
Subsidiary Guarantor in accordance with their respective terms, except to the
extent that enforceability of any of the Loan Documents may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforceability of creditors' rights generally or limiting the
right of specific performance.
4.06. No Conflict.
(a) Neither the execution and delivery by the
Borrower of this Agreement or the Loan Documents to which the Borrower is a
party, nor the consummation of the transactions herein or therein contemplated,
nor compliance with the terms and provisions hereof or thereof by the Borrower
will (i) conflict with, constitute a default under or result in any breach of
(A) the terms and conditions of the certificate of incorporation, by-laws or
other
- 47 -
organizational documents of the Borrower or (B) any Law or any agreement or
instrument or order, writ, judgment, injunction or decree to which the Borrower
is a party or by which it is bound or to which it is subject, which conflict,
default or breach would cause a Material Adverse Change, or (ii) result in the
creation or enforcement of any Lien upon any property (now or hereafter
acquired) of the Borrower (other than the Permitted Liens).
(b) Neither the execution and delivery by a
Subsidiary Guarantor of a Subsidiary Guaranty to which such Subsidiary Guarantor
is a party, nor the consummation of the transactions contemplated by this
Agreement or the other Loan Documents, nor compliance with the terms and
provisions hereof or thereof by such Subsidiary Guarantor will (i) conflict
with, constitute a default under or result in any breach of (A) the terms and
conditions of the articles of incorporation, by-laws or other organizational
documents of such Subsidiary or (B) any Law or any agreement or instrument or
order, writ, judgment, injunction or decree to which such Subsidiary is a party
or by which it is bound or to which it is subject, which conflict, default or
breach would cause a Material Adverse Change, or (ii) result in the creation or
enforcement of any Lien upon any property (now or hereafter acquired) of such
Subsidiary (other than the Permitted Liens).
4.07. Litigation. Except for the litigation set forth on
Schedule 4.07, there are no actions, suits, proceedings or investigations
pending or, to the knowledge of the Borrower, threatened against the Borrower or
any Subsidiary of the Borrower, at law or in equity, before any Official Body
which individually or in the aggregate, if adversely determined, would be likely
to result in any Material Adverse Change. Neither the Borrower nor any
Subsidiary of the Borrower is in violation of any order, writ, injunction or
decree of any Official Body which could be expected to result in any Material
Adverse Change.
4.08. Financial Statements.
(i) Financial Statements. The Borrower has delivered
to the Agent the consolidated annual audited financial statements of the
Borrower and its Subsidiaries for the Fiscal Year ended December 31, 2001. All
such financial statements are complete and correct in all material respects and
fairly present the consolidated financial condition of the Borrower and its
Subsidiaries in all material respects and the results of their operations as of
the dates and for the periods referred to, and have been prepared in accordance
with GAAP throughout the period included.
(ii) Accuracy of Financial Statements. The Borrower
and its Subsidiaries have no liabilities, contingent or otherwise, that are not
disclosed in the financial statements referred to in clause (i) above and that
would be required to be disclosed in accordance with GAAP, except for those
incurred since the date of such financial statements in the ordinary course of
business.
4.09. Margin Stock; Section 20 Subsidiaries. Neither the
Borrower nor any of its Subsidiaries engage or intend to engage principally, or
as one of its important activities, in the business of incurring Indebtedness or
extending credit to others (including, without limitation, any of the
Subsidiaries of the Borrower) for the purpose, immediately, incidentally or
ultimately,
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of purchasing or carrying margin stock (within the meaning of any Margin
Regulation). No part of the proceeds of any Revolving Credit Loan or Swingline
Loan has been or will be used, immediately, incidentally or ultimately, to
purchase or carry any margin stock or to extend credit to others (including,
without limitation, any of its Subsidiaries) for the purpose of purchasing or
carrying any margin stock or to refund or retire Indebtedness originally
incurred for such purpose, or for any purpose which entails a violation of or
which is inconsistent with the provisions of the Margin Regulations of the Board
of Governors of the Federal Reserve System. The Borrower does not intend to
hold, and shall not permit its Subsidiaries to hold, margin stock. Neither the
Borrower not any of its Subsidiaries intends to use any portion of the proceeds
of the Loans, directly or indirectly, to purchase during the underwriting
period, or for thirty (30) days thereafter, Ineligible Securities being
underwritten by a Section 20 Subsidiary.
4.10. Full Disclosure. Neither this Agreement nor any Loan
Document, nor any certificate, statement, agreement or other document furnished
to the Agent, the L/C Issuer or any Lender in connection herewith or therewith,
contains any misstatement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein and therein, in light
of the circumstances under which they were made, not misleading. There is no
fact known to the Borrower which materially adversely affects the business,
property, assets, financial condition, results of operations or prospects of the
Borrower and its Subsidiaries, taken as a whole, which has not been set forth in
this Agreement or the Loan Documents or in the certificates, statements,
agreements or other documents furnished in writing to the Agent, the Lenders or
the L/C Issuer prior to or at the date hereof in connection with the
transactions contemplated hereby and thereby.
4.11. Tax Returns and Payments. The Borrower is a member of an
affiliated group of companies which files consolidated federal tax returns. All
such federal tax returns that are required by law to be filed have been filed or
properly extended. All taxes, assessments and other governmental charges levied
upon members of such affiliated group or any of their respective properties,
assets, income or franchises which are due and payable have been paid in full
other than (i) those presently payable without penalty or interest, (ii) those
which are being contested in good faith by appropriate proceedings and (iii)
those which, if not paid, would not, in the aggregate, constitute a Material
Adverse Change; and as to each of items (i), (ii) and (iii) the affiliated group
has established reserves for such claim as have been determined to be adequate
by application of GAAP consistently applied. There are no agreements or waivers
extending the statutory period of limitations applicable to any consolidated
federal income tax return of the Borrower and its consolidated Subsidiaries for
any period, except as set forth on Schedule 4.11.
4.12. Consents and Approvals. No consent, approval, exemption,
order or authorization of, or a registration or filing with any Official Body or
any other Person is required by any Law or any agreement in connection with the
execution, delivery and carrying out of this Agreement and the Loan Documents to
which the Borrower or any Subsidiary Guarantor is a party, except as listed on
Schedule 4.12 attached hereto, all of which items set forth on Schedule 4.12
shall have been obtained or made on or prior to the Closing Date.
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4.13. No Event of Default; Compliance with Instruments. No
event has occurred and is continuing and no condition exists or will exist after
giving effect to the borrowings to be made on the Closing Date under the Loan
Documents which constitutes an Event of Default or a Default. Neither the
Borrower nor any of its Subsidiaries is in violation of (i) any term of its
certificate of incorporation, by-laws or other organizational documents or (ii)
any material agreement or instrument to which it is a party or by which it or
any of its properties may be subject or bound where such violation would
constitute a Material Adverse Change.
4.14. Compliance with Laws. The Borrower and its Subsidiaries
are in compliance in all material respects with all applicable Laws (other than
Environmental Laws, which are addressed in Section 4.20) in all jurisdictions in
which the Borrower, and its Subsidiaries, are presently or will be doing
business except where the failure to do so would not, individually or in the
aggregate, constitute a Material Adverse Change.
4.15. Investment Company; Public Utility Holding Company.
Neither the Borrower nor any Subsidiary Guarantor is an "investment company"
registered or required to be registered under the Investment Company Act of 1940
or under the "control" of an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended from time to time, and shall not
become such an "investment company" or under such "control. " Neither the
Borrower nor any Subsidiary Guarantor is a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of a "holding company" within
the meaning the Public Utility Holding Company Act of 1935, as amended from time
to time. The Borrower is not subject to any Law of any Official Body (in each
case whether United States federal, state or local, or other) having
jurisdiction over the Borrower, which purports to restrict or regulate its
ability to borrow money, or to extend or obtain credit, or to pledge its
interests in the Loan Disbursement Account. No Subsidiary Guarantor is subject
to any Law of any Official Body (in each case whether United States federal,
state or local, or other) having jurisdiction over such Subsidiary Guarantor
which purports to restrict or regulate its ability to borrow money or to extend
or obtain credit.
4.16. Plans and Benefit Arrangements. Except as set forth on
Schedule 4.16 hereto:
(i) The Borrower and each member of the ERISA Group
are in compliance in all material respects with any applicable provisions of
ERISA with respect to all Benefit Arrangements, Plans and Multiemployer Plans.
There has been no Prohibited Transaction with respect to any Benefit Arrangement
or any Plan (other than a Multiemployer Plan) or, to the knowledge of the
Borrower, with respect to any Multiemployer Plan or Multiple Employer Plan,
which could result in any material liability of the Borrower or any other member
of the ERISA Group. The Borrower and all members of the ERISA Group have made
when due any and all payments required to be made under any agreement relating
to a Multiemployer Plan or a Multiple Employer Plan or any Law pertaining
thereto. With respect to each Plan and, to the knowledge of Borrower, each
Multiemployer Plan, the Borrower and each member of the ERISA Group (i) have
fulfilled in all material respects their obligations under the minimum funding
standards of ERISA, (ii) have not incurred any liability to the PBGC (other than
for premiums
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not yet due) and (iii) have not had asserted against them any penalty for
failure to fulfill the minimum funding requirements of ERISA.
(ii) To the best of the Borrower's knowledge, each
Multiemployer Plan and Multiple Employer Plan is able to pay benefits thereunder
when due.
(iii) Neither the Borrower nor any other member of
the ERISA Group has instituted or intends to institute proceedings to terminate
any Plan.
(iv) No event requiring notice to the PBGC under
Section 302(f)(4)(A) of ERISA has occurred or is reasonably expected to occur
with respect to any Plan, and no amendment with respect to which security is
required under Section 307 of ERISA has been made or is reasonably expected to
be made to any Plan.
(v) Neither the Borrower nor any other member of the
ERISA Group has incurred or reasonably expects to incur any material withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer Plan.
Neither the Borrower nor any other member of the ERISA Group has been notified
by any Multiemployer Plan or Multiple Employer Plan that such Multiemployer Plan
or Multiple Employer Plan has been terminated within the meaning of Title IV of
ERISA and, to the knowledge of the Borrower, no Multiemployer Plan or Multiple
Employer Plan is reasonably expected to be reorganized or terminated, within the
meaning of Title IV of ERISA.
(vi) To the extent that any Benefit Arrangement is
insured, the Borrower and all members of the ERISA Group have paid when due all
premiums required to be paid for all periods ending through and including the
Closing Date. To the extent that any Benefit Arrangement is funded other than
with insurance, the Borrower and all members of the ERISA Group have made when
due all contributions, to the extent required by applicable Law or the terms of
such Benefit Arrangement to be paid for all periods ending through and including
the Closing Date.
4.17. Title to Properties. The Borrower and each of its
Subsidiaries have good title to, or a valid leasehold interest in, all their
respective real and personal property, except to the extent the failure to have
such title or leasehold interests is not reasonably likely, individually or in
the aggregate, to result in a Material Adverse Change, and none of such property
is subject to any Lien except Permitted Liens.
4.18. Insurance. There are in full force and effect for the
benefit of the Borrower and its Subsidiaries insurance policies and bonds
providing adequate coverage from reputable and financially sound insurers in
amounts sufficient to insure the assets and risks of the Borrower and its
Subsidiaries in accordance with prudent business practice in the industry of the
Borrower and its Subsidiaries. No notice has been given or claim made and to the
knowledge of the Borrower, no grounds exist, to cancel or void any of such
policies or bonds or to reduce the coverage provided thereby.
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4.19. Employment Matters. The Borrower and each Subsidiary of
the Borrower are in compliance with all employee benefit plans, employment
agreements, collective bargaining agreements and labor contracts (the "Labor
Contracts") and all applicable federal, state and local labor and employment
Laws including, but not limited to, those related to equal employment
opportunity and affirmative action, labor relations, minimum wage, overtime,
child labor, medical insurance continuation, worker adjustment and relocation
notices, immigration controls and worker and unemployment compensation, except
where the failure to comply would not constitute a Material Adverse Change.
There are no outstanding grievances, arbitration awards or appeals therefrom
arising out of the Labor Contracts or current or, to the knowledge of the
Borrower, threatened strikes, picketing, handbilling or other work stoppages or
slowdowns at facilities of the Borrower or any Subsidiary of the Borrower which
in any case would constitute a Material Adverse Change. All payments due from
Borrower or any of its Subsidiaries on Receivable of employee health and welfare
insurance which could reasonably be expected to have a Material Adverse Change
if not paid have been paid or accrued as a liability on the books of Borrower or
such Subsidiary.
4.20. Environmental Matters. Except as disclosed on Schedule
4.20 hereto:
(i) The Borrower has not received any Environmental
Complaint from any Official Body or private person alleging that the Borrower,
any Subsidiary of the Borrower or any prior or subsequent owner of any of the
Property is a potentially responsible party under the Comprehensive
Environmental Response, Cleanup and Liability Act, 42 U.S.C. Section 9601, et
seq., in connection with the Property which Environmental Complaint is
reasonably expected to result in any Material Adverse Change, and the Borrower
has no reason to believe that such an Environmental Complaint is reasonably
likely to be received. There are no pending or, to the knowledge of the
Borrower, threatened Environmental Complaints relating to the Borrower, any
Subsidiary of the Borrower or, to the Borrower's knowledge, without any inquiry,
any prior or subsequent owner of the Property pertaining to, or arising out of,
any Environmental Conditions in connection with the Property, which
Environmental Complaints are reasonably expected to result in any Material
Adverse Change.
(ii) Except for conditions, violations or failures
which individually and in the aggregate are not reasonably likely to result in a
Material Adverse Change, there are no circumstances at, on or under the Property
that constitute a breach of or non-compliance with any of the Environmental
Laws, and there are no past or present Environmental Conditions at, on or under
the Property or, to the knowledge of the Borrower, without any inquiry at, on or
under adjacent property, that prevent compliance with the Environmental Laws at
the Property.
(iii) Neither the Property nor any structures,
improvements, equipment, fixtures, activities or facilities thereon or
thereunder contain or use Regulated Substances except in compliance with
Environmental Laws, other than such containment or use which individually and in
the aggregate is not reasonably likely to result in any Material Adverse Change.
There are no processes, facilities, operations, equipment or any other
activities at, on or under the Property, or, to the Borrower's knowledge,
without any inquiry, at, on or under adjacent property, that currently result in
the release or threatened release of Regulated Substances on to the Property in
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violation of the Environmental Laws, except to the extent that such releases or
threatened releases are not likely to result in a Material Adverse Change.
(iv) There are no underground storage tanks, or
underground piping associated with such tanks, used for the management of
Regulated Substances at, on or under the Property that are not in compliance
with all Environmental Laws, other than those with respect to which the failure
to comply with Environmental Laws is not reasonably likely, either individually
or in the aggregate, to result in a Material Adverse Change, and there are no
abandoned underground storage tanks or underground piping associated with such
tanks, previously used for the management of Regulated Substances at, on or
under the Property that have not been either abandoned in place, or removed, in
accordance with the Environmental Laws, other than those with respect to which
the failure to comply with Environmental Laws is not reasonably likely, either
individually or in the aggregate, to result in a Material Adverse Change.
(v) The Borrower and each Subsidiary of the Borrower
have all material permits, licenses, authorizations and approvals necessary
under the Environmental Laws for the conduct of the respective businesses of the
Borrower and each Subsidiary of the Borrower as presently conducted, other than
those with respect to which the failure to comply with Environmental Laws is not
reasonably likely, either individually or in the aggregate, to result in a
Material Adverse Change. The Borrower and each Subsidiary of the Borrower have
submitted all notices, reports and other filings required by the Environmental
Laws to be submitted to an Official Body which pertain to past and current
operations on the Property, except for any failure to submit which would not be
reasonably likely to result in a Material Adverse Change.
(vi) Except for violations which individually and in
the aggregate are not likely to result in a Material Adverse Change, all past
and present on-site generation, storage, processing, treatment, recycling,
reclamation or disposal of Solid Waste at, on, or under the Property and all
off-site transportation, storage, processing, treatment, recycling, reclamation
or disposal of Solid Waste has been done in accordance with the Environmental
Laws.
4.21. Senior Debt Status. The obligations of the Borrower
under this Agreement and the Notes rank at least pari passu in priority of
payment with all other Indebtedness of the Borrower, except Indebtedness of the
Borrower to the extent secured by Permitted Liens. The obligations of a
Subsidiary Guarantor under a Subsidiary Guaranty executed by such Subsidiary
Guarantor rank at least pari passu in priority of payment with all other
Indebtedness of such Subsidiary Guarantor except Indebtedness of such Subsidiary
Guarantor to the extent secured by Permitted Liens. There is no Lien upon or
with respect to any of the properties or income of the Borrower or any of its
Subsidiaries which secures Indebtedness or other obligations of any Person
except for Permitted Liens.
4.22. Solvency. On the date hereof, and as of the date of each
advance of the Revolving Credit Loan and issuance or renewal of any Letter of
Credit, as the case may be, and after giving effect to such advance or the
issuance or renewal of a Letter of Credit, each of the Borrower and each
Subsidiary Guarantor is, and will be, Solvent.
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4.23. Material Contracts; Burdensome Restrictions. All
material contracts relating to the business operations of each Loan Party,
including all employee benefit plans and Labor Contracts, are valid, binding and
enforceable upon such Loan Party and each of the other parties thereto in
accordance with their respective terms; and there is no default thereunder with
respect to such Loan Party which has given rise to, or would reasonably be
expected to give rise to, a Material Adverse Change; and there is no default
thereunder, to the Loan Parties' knowledge, with respect to the parties to such
contracts other than such Loan Party which has given rise to, or would
reasonably be expected to give rise to, a Material Adverse Change. No contract,
lease, agreement or other instrument to which Borrower or any of its
Subsidiaries is a party or is bound and no provision of any applicable Law or
governmental regulation would reasonably be expected to have a Material Adverse
Change.
4.24. Patents, Trademarks, Copyrights, Licenses, Etc. The
Borrower and each of its Subsidiaries owns or possesses all the material
patents, trademarks, service marks, trade names, copyrights, licenses,
registrations, franchises, permits and rights necessary to own and operate its
properties and to carry on its business as presently conducted and planned to be
conducted by the Borrower or such Subsidiary, without known possible, alleged or
actual conflict with the rights of others.
4.25. Brokers. No broker or finder acting on behalf of
Borrower brought about the obtaining, making or closing of the loans made
pursuant to this Agreement, and Borrower has no obligation to any other Person
in respect of any finder's or brokerage fees in connection with the loans
contemplated by this Agreement.
4.26. No Material Adverse Change. No event has occurred since
December 31, 2001, and is continuing which has had or would reasonably be
expected to have a Material Adverse Change.
ARTICLE V
CONDITIONS OF LENDING OR ISSUANCE OF LETTER OF CREDIT
The obligation of each Lender to make the Revolving Credit
Loans hereunder, or of the L/C Issuer to issue Letters of Credit hereunder, or
of PNC Bank to make Swingline Loans hereunder, is subject to the performance by
the Borrower of its obligations to be performed hereunder at or prior to the
making of any such Revolving Credit Loans or Swingline Loans, or the issuance of
any such Letter of Credit, as the case may be, and to the satisfaction of the
following further conditions.
5.01. Conditions to Initial Borrowings. On the Closing Date
the following actions shall be completed or satisfied to the sole satisfaction
of the Agent:
(a) The representations and warranties of the
Borrower or the Subsidiaries contained in Article IV and in the other Loan
Documents executed and delivered by the Borrower or any of its Subsidiaries in
connection with the Closing shall be true and accurate in all material respects
on and as of the Closing Date with the same effect as though such
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representations and warranties had been made on and as of such date (except
representations and warranties which relate solely to an earlier date or time,
which representations and warranties shall be true and correct on and as of the
specific date or times referred to therein), and the Borrower, and each
Subsidiary of the Borrower which has executed any Loan Documents, shall have
performed, observed and complied with all covenants and conditions hereof and
contained in the other Loan Documents; no Event of Default or Default under this
Agreement shall have occurred and be continuing or shall exist; no Material
Adverse Change shall have occurred; and there shall be delivered to the Agent,
for the benefit of each Lender, the L/C Issuer and the Agent, a certificate of
the Borrower, dated the Closing Date and signed by the chief executive officer
and president or chief financial officer of the Borrower, to each such effect.
(b) There shall be delivered to the Agent for the
benefit of each Lender and the L/C Issuer a certificate dated the Closing Date
and signed by the secretary or an assistant secretary of the Borrower,
certifying as appropriate as to:
(i) all corporate action taken by the
Borrower in connection with this Agreement and the other Loan Documents;
(ii) the names, offices and titles of the
Borrower's officer or officers authorized to sign this Agreement and the other
Loan Documents and the true signatures of such officer or officers and the
identities of the Authorized Officers permitted to act on behalf of the Borrower
for purposes of this Agreement and the other Loan Documents and the true
signatures of such officers, on which the Agent, each Lender and the L/C Issuer
may conclusively rely;
(iii) (A) copies of the Borrower's
organizational documents, including its articles of incorporation as in effect
on the Closing Date certified by the Secretary of State of its incorporation as
well as a copy of the Borrower's by-laws, (B) a certificate as to the continued
existence and good standing of the Borrower issued by the Secretary of State of
its incorporation, and (C) a certificate concerning the due qualification of the
Borrower as a foreign corporation authorized to due business, and the good
standing of the Borrower, issued by the Secretary of State of each jurisdiction
shown on Schedule 4.01;
(iv) all corporate or partnership action
taken by each Subsidiary Guarantor in connection with each Subsidiary Guaranty;
(v) the names, offices and titles of each
Subsidiary Guarantor's officer or officers authorized to sign each Subsidiary
Guaranty and the true signatures of such officer or officers and the identities
of the Authorized Officers permitted to act on behalf of each Subsidiary
Guarantor for purposes of each Subsidiary Guaranty and the true signatures of
such officers, on which the Agent, each Lender and the L/C Issuer may
conclusively rely;
(vi) (A) copies of each Subsidiary
Guarantor's organizational documents, as in effect on the Closing Date,
certified, by the secretary of state of the state of its organization, (B) a
certificate as to the continued existence and good standing of each Subsidiary
Guarantor issued by the secretary of state of the state of its organization, and
(C) a certificate
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concerning the due qualification of each Subsidiary Guarantor as a foreign
Person authorized to due business, and the good standing of such Subsidiary
Guarantor, issued by the Secretary of State of each jurisdiction shown on
Schedule 4.01 to this Agreement;
(vii) audited, consolidated financial
statements for Fiscal Year ending December 31, 2001 as required by the Existing
Credit Agreement; and
(viii) copies of projected financial
statements for the three (3) year period following the Closing Date.
(c) This Agreement and the other Loan Documents
required by the Agent to be executed and delivered by the Borrower or a
Subsidiary of the Borrower at the Closing shall have been duly executed and
delivered by the Borrower to the Agent for the benefit of the Lenders, the L/C
Issuer and the Agent.
(d) The Borrower shall pay to the Agent for
distribution to the Lenders the Closing Fee due each Lender.
(e) There shall be delivered to the Agent for the
benefit of each Lender a written opinion of Xxxxx X. Xxxxxxx, Esquire, Vice
President and General Counsel for the Borrower and the Subsidiary Guarantors,
dated the Closing Date and in form and substance reasonably satisfactory to the
Agent and its counsel as to the matters set forth on Exhibit "H".
(f) All legal details and proceedings in connection
with the transactions contemplated by this Agreement and the other Loan
Documents shall be in form and substance satisfactory to the Agent and its
counsel, and the Agent shall have received all such other counterpart originals
or certified or other copies of such documents and proceedings in connection
with such transactions, in form and substance reasonably satisfactory to the
Agent and said counsel, as the Agent or said counsel may reasonably request.
(g) No Material Adverse Change shall have occurred
since December 31, 2001, and no material litigation shall have been instituted
by or against the Borrower or any Subsidiary or any of their respective material
properties or assets; and there shall be delivered to the Agent for the benefit
of each Lender, the L/C Issuer and the Agent a certificate of the Borrower dated
the Closing Date and signed by the Chief Executive Officer, President or Chief
Financial Officer of the Borrower to each such effect.
(h) The Borrower shall deliver evidence acceptable to
the Agent that adequate insurance in compliance with Section 6.05 hereof is in
full force and effect.
(i) All material consents required to effectuate the
transactions contemplated hereby as set forth on Schedule 4.12 shall have been
obtained.
(j) The making and/or assumption of any Loan or the
issuance of a Letter of Credit or assumption of any reimbursement liability with
regard thereto, shall not
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contravene any Law applicable to the Borrower, any Subsidiary Guarantor, any of
the Agent, the Lenders or the L/C Issuer.
(k) Except as set forth on Schedule 4.07, no action,
suit, proceeding, investigation, regulation or legislation shall have been
instituted, threatened or proposed before any court or other Official Body (i)
with respect to the Borrower or its Subsidiaries or this Agreement, the other
Loan Documents or the consummation of the transactions contemplated hereby or
thereby to enjoin, restrain or prohibit, or to obtain damages in respect of,
their performance under this Agreement or any other Loan Documents or the
consummation of the transactions contemplated hereby or thereby or (ii) which in
the reasonable opinion of Agent would have a Material Adverse Change.
(l) The Agent and its counsel shall have received UCC
lien search reports of filings against the Borrower and each existing Subsidiary
Guarantor, and tax lien and judgment searches relating to the Borrower and each
existing Subsidiary Guarantor, which are satisfactory in form and substance to
the Lender.
(m) The Agent shall have received evidence that the
Existing Credit Agreement has been terminated and all amounts due thereunder,
except as expressly assumed hereunder, have been paid in full.
(n) The Agent on its own behalf and on behalf of the
Lenders and the L/C Issuer shall be in receipt of all Fees due and payable on or
prior to the Closing Date and all reimbursable expenses incurred on or prior to
the Closing Date.
(o) The Agent shall have completed a satisfactory due
diligence review concerning the Borrower and the Subsidiary Guarantors,
including matters concerning environmental liabilities and compliance with
environmental law, a field based audit of their accounts receivable and
inventory, determination of eligibility criteria and reserves for the Borrowing
Base and review of projected financial statements for the three (3) year period
following the Closing Date.
(p) All matters and circumstances set forth as
qualifications, limitations, exceptions, additional matters or other materials
set forth in the Schedules hereto provided by or on behalf of the Borrower or
its Subsidiaries shall be acceptable to the Agent, the L/C Issuer and the
Lenders in their reasonable discretion.
5.02. Each Additional Revolving Credit Loan, Swingline Loan or
Issuance of a Letter of Credit. At the time of making any Revolving Credit Loans
or Swingline Loans or the issuance of, or renewal of, a Letter of Credit and
after giving effect to the proposed borrowings or issuance:
(a) the representations and warranties of the
Borrower contained in Article IV hereof and in the other Loan Documents shall be
true and correct in all material respects on and as of the earlier of: (x) the
date of such additional Revolving Credit Loan or Swingline Loan or issuance of a
Letter of Credit or (y) the specific dates or times referred to
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therein, with the same effect as though such representations and warranties have
been made on and as of such date;
(b) the Borrower shall have performed and complied in
all material respects with all covenants and conditions hereof;
(c) no Default or Event of Default shall have
occurred and be continuing or shall exist;
(d) no material litigation shall have been instituted
against the Borrower or any Subsidiary or any of their respective materials
properties or assets;
(e) no Material Adverse Change shall have occurred;
(f) the making of any Loan or the issuance of any
Letter of Credit shall not contravene any Law applicable to the Borrower, any of
the Lenders or the L/C Issuer;
(g) the Borrower shall have delivered to the Agent a
duly executed and completed Loan Request and with respect to the issuance of a
Letter of Credit, the Borrower shall have complied with the reasonable
requirements of the L/C Issuer not inconsistent with the terms hereof; and
(h) Total Utilization shall not exceed the lesser of
the aggregate Revolving Credit Commitments or the Borrowing Base; provided,
however, that prior to the advance of any Loan on a Borrowing Date the proceeds
of which will repay any Unreimbursed L/C Draw, for the purpose of calculating
Total Utilization and compliance with this Subsection 5.02(h) on such date, the
existing Total Utilization immediately prior to such advance shall be reduced
pro tanto by the dollar amount of the Loans to be advanced on such Borrowing
Date which will be used to repay any outstanding Unreimbursed L/C Draws.
5.03. Location of Closing. The Closing shall take place at
10:00 A.M., Pittsburgh, Pennsylvania time, on the Closing Date at the offices of
Xxxxxx Xxxxxxxxx, P.C., 0000 Xxx XXX Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, or
at such other time and place as the parties agree.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, until payment in full
of the Loans and interest thereon, payment in full of all Letter of Credit
reimbursement obligations and interest thereon, satisfaction of all of the
Borrower's other obligations hereunder and termination of the Revolving Credit
Commitments, and the expiration and cancellation of all Letters of Credit issued
hereunder, the Borrower shall comply, or cause compliance, at all times with the
affirmative covenants set forth in Sections 6.01 through and including Section
6.14.
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6.01. Preservation of Existence, Etc.
(a) The Borrower shall maintain its corporate
existence and its license or qualification and its good standing in the state of
its incorporation and in each other jurisdiction in which its ownership or lease
of property or the nature of its businesses makes such license or qualification
necessary (except for such other jurisdictions in which such failure to be so
licensed or qualified individually and in the aggregate would not result in a
Material Adverse Change).
(b) Each Subsidiary of the Borrower shall maintain
its corporate existence and its license or qualification and its good standing
in the state of its incorporation and in each other jurisdiction in which its
ownership or lease of property or the nature of its businesses makes such
license or qualification necessary (except for such other jurisdictions in which
such failure to be so licensed or qualified individually and in the aggregate
would not result in a Material Adverse Change).
6.02. Accounting System; Reporting Requirements. The Borrower
will maintain, and will cause its Subsidiaries to maintain, a system of
accounting established and administered in accordance with GAAP, and will and
will cause its Subsidiaries to set aside on its books all such proper reserves
as shall be required by GAAP. Further, the Borrower will:
(i) deliver to the Agent within forty-five (45) days
after the end of each of the first three (3) Fiscal Quarters in each Fiscal Year
of the Borrower, (A) consolidated balance sheet as at the end of such period for
the Borrower and its Subsidiaries, (B) consolidated statements of income for
such period for the Borrower and its Subsidiaries and, in the case of the second
and third quarterly periods, for the period from the beginning of the current
Fiscal Year to the end of such quarterly period, and (C) consolidated statements
of cash flow for such period for the Borrower and its Subsidiaries and, in the
case of the second and third quarterly periods, for the period from the
beginning of the current Fiscal Year to the end of such quarterly period; and
each such statement shall set forth, in comparative form, corresponding figures
for the corresponding period in the immediately preceding Fiscal Year; and all
such statements shall be prepared in reasonable detail and certified, subject to
changes resulting from year-end adjustments, by the chief financial officer or
treasurer of the Borrower;
(ii) deliver to the Agent within ninety (90) days
after the end of each Fiscal Year of the Borrower, (A) consolidated balance
sheets as at the end of such year for the Borrower and its Subsidiaries, (B)
consolidated statements of income for such year for the Borrower and its
Subsidiaries, (C) consolidated statements of cash flow for such year for the
Borrower and its Subsidiaries, and (D) consolidated statements of shareholders
equity for such year for the Borrower and its Subsidiaries; and each such
statement shall set forth, in comparative form, corresponding figures for the
immediately preceding Fiscal Year; and all such financial statements shall
present fairly in all material respects the financial position of the Borrower
and its consolidated Subsidiaries, as at the dates indicated and the results of
its operations and its cash flow for the periods indicated, in conformity with
GAAP; and the Borrower shall cause each of the consolidated financial statements
described in clauses (A) through (D) of this Section 6.02(ii) to be audited and
certified without limitation as to scope or
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material qualification by Price Waterhouse Coopers, L.P. or other independent
certified public accountants acceptable to the Required Lenders;
(iii) deliver to the Agent, together with each
delivery of financial statements pursuant to items (i) and (ii) above, a
Compliance Certificate of the Borrower substantially in the form of Exhibit "G"
hereto, properly completed and signed by the chief financial officer or
treasurer of the Borrower, (A) stating (1) that such officer has reviewed the
terms of the Loan Documents and has made, or caused to be made under his
supervision, a review of the transactions and condition of the Borrower and its
Subsidiaries during the accounting period covered by such financial statements
and that such review has not disclosed the existence during such accounting
period, and (2) that the Borrower does not have knowledge of the existence, as
at the date of such Compliance Certificate, of any condition or event which
constitutes an Event of Default or a Default, or, if any such condition or event
existed or exists, specifying the nature and period of existence thereof and
what action the Borrower has taken or is taking or proposes to take with respect
thereto, and (B) demonstrating in reasonable detail compliance as at the end of
such accounting period with the restrictions contained in Sections 7.12 and 7.13
hereof;
(iv) Within ten (10) Business Days following the end
of each calendar month, a completed, executed Borrowing Base Certificate
substantially in the form of Exhibit "C" for the calendar month just ended,
executed by an Authorized Officer and containing such additional information as
may be requested by the Agent from time to time;
(v) promptly give written notice to the Agent of the
happening of any event (which is known to the Borrower) which constitutes an
Event of Default or a Default hereunder, but in no event shall any such notice
be given later than five (5) Business Days after the Borrower knows or should
have known of such event;
(vi) promptly give written notice to the Agent of any
pending or, to the knowledge of the Borrower, overtly threatened claim in
writing, litigation or threat of litigation which arises between the Borrower,
or any of its Subsidiaries, and any other party or parties (including, without
limitation, any Official Body) which claim, litigation or threat of litigation,
individually or in the aggregate, is reasonably likely to cause a Material
Adverse Change, any such notice to be given not later than five (5) Business
Days after any of the Borrower becomes aware of the occurrence of any such
claim, litigation or threat of litigation;
(vii) promptly deliver to the Agent, but in no event
later than ten (10) days after the Borrower, or any of its Subsidiaries,
receives, copies of (A) all reports, notices and proxy statements sent by the
Borrower to its shareholders, and (B) all regular and periodic reports and
definitive proxy materials (including but not limited to Forms 10-K, 10-Q and
8-K) filed by the Borrower with any securities exchange or the Federal
Securities and Exchange Commission; and
(viii) such other reports and information as the
Agent or the Required Lenders may from time to time reasonably request.
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6.03. Notices Regarding Plans and Benefit Arrangements.
(a) Promptly upon becoming aware of the occurrence
thereof, notice (including the nature of the event and, when known, any action
taken or threatened by the Internal Revenue Service or the PBGC with respect
thereto) shall be given to the Agent by the Borrower of:
(i) any Reportable Event with respect to the
Borrower or any member of the ERISA Group,
(ii) any Prohibited Transaction which could
subject the Borrower or any member of the ERISA Group to a civil penalty
assessed pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of
the Internal Revenue Code in connection with any Plan, Benefit Arrangement or
any trust created thereunder, if such tax and/or penalty is reasonably likely to
result in a Material Adverse Change,
(iii) any assertion of material withdrawal
liability with respect to any Multiemployer Plan,
(iv) any partial or complete withdrawal from
a Multiemployer Plan by the Borrower or any member of the ERISA Group under
Title IV of ERISA (or assertion thereof), where such withdrawal is likely to
result in material withdrawal liability,
(v) any cessation of operations (by the
Borrower of any member or the ERISA Group) at a facility in the circumstances
described in Section 4062(e) of ERISA,
(vi) withdrawal by the Borrower or any
member of the ERISA Group from a Multiple Employer Plan,
(vii) a failure by the Borrower or any
member of the ERISA Group to make a payment to a Plan required to avoid
imposition of a lien under Section 302(f) of ERISA,
(viii) the adoption of an amendment to a
Plan requiring the provision of security to such Plan pursuant to Section 307 of
ERISA, or
(ix) any change in the actuarial assumptions
or funding methods used for any Plan, where the effect of such change is to
materially increase or materially reduce the unfunded benefit liability or
obligation to make periodic contributions.
(b) Promptly after receipt thereof, copies of (i) all
notices received by the Borrower or any member of the ERISA Group of the PBGC's
intent to terminate any Plan administered or maintained by the Borrower or any
member of the ERISA Group, or to have a trustee appointed to administer any such
Plan; and (ii) at the request of the Agent or any Lender each annual report (IRS
Form 5500 series) and all accompanying schedules, the most recent
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actuarial reports, the most recent financial information concerning the
financial status of each Plan administered or maintained by the Borrower or any
member of the ERISA Group, and schedules showing the amounts contributed to each
such Plan by or on behalf of the Borrower or any member of the ERISA Group in
which any of their respective personnel participate or from which such personnel
may derive a benefit, and each Schedule B (Actuarial Information) to the annual
report filed by the Borrower or any member of the ERISA Group with the Internal
Revenue Service with respect to each such Plan shall be given to the Agent by
the Borrower.
(c) Promptly upon the filing thereof, copies of any
PBGC Form 200, 500, 600 or 601, or any successor form, filed with the PBGC in
connection with the termination of any Plan.
6.04. Payment of Liabilities, Including Taxes, etc. The
Borrower shall duly pay and discharge, and shall cause its Subsidiaries to pay
and discharge timely (subject, where applicable, to specified grace periods and,
in the case of trade payables, to normal payment practices), all liabilities
which singularly are in excess of $100,000 or which in the aggregate exceed
$500,000 to which they are subject or which are asserted against them, promptly
as and when the same shall become due and payable, including all taxes,
assessments and governmental charges upon them or any of their properties,
assets, income or profits, prior to the date on which penalties attach thereto;
provided, however, the Borrower may choose not to pay any such liabilities,
including taxes, assessments or charges, if the same are being contested in good
faith and for which such reserves (including reserves for any additional amounts
which would be payable as a result of the failure to discharge timely any such
liabilities) or other appropriate provisions, if any, as shall be required by
GAAP shall have been made.
6.05. Maintenance of Insurance. The Borrower shall insure, and
shall cause its Subsidiaries to insure, their respective properties and assets
against loss or damage in such amounts as similar properties and assets are
insured by prudent companies in similar circumstances carrying on similar
businesses, and with reputable and financially sound insurers, including
self-insurance to the extent customary. The Borrower will furnish to the Agent
on the Closing Date and thereafter simultaneously with the delivery of the
annual audited financial information delivered pursuant to Section 6.02(ii) a
certificate of the Borrower executed by an Authorized Officer of the Borrower
certifying that such insurance is in force, is adequate in nature and amount and
complies with the Borrower's obligations under this Section 6.05.
6.06. Maintenance of Properties and Leases. The Borrower and
its Subsidiaries shall maintain in good repair, working order and condition
(ordinary wear and tear excepted) in accordance with the general practice of
other businesses of similar character and size, all of those properties useful
or necessary to their respective businesses, and from time to time, the Borrower
will make or cause to be made all appropriate repairs, renewals or replacements
thereof.
6.07. Maintenance of Permits and Franchises. The Borrower and
its Subsidiaries shall maintain in full force and effect all franchises, permits
and other authorizations necessary for the ownership and operation of their
respective properties and business if the failure so to maintain the same,
individually or in the aggregate, would constitute a Material Adverse Change.
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6.08. Visitation Rights. The Borrower shall permit, and shall
cause its Subsidiaries to permit, any of the officers or authorized employees or
representatives of the Agent or any of the Lenders to visit and inspect any of
the properties of the Borrower, or a Subsidiary of the Borrower, and to examine
and make excerpts from its books and records and discuss its respective business
affairs, finances and accounts with its officers, all in such detail and at such
times and as often as any of the Lenders may reasonably request, provided that
each Lender shall provide the Borrower, or the Subsidiary of the Borrower, as
the case may be, and the Agent with reasonable notice prior to any visit or
inspection and that only the Agent and its authorized employees or
representatives are permitted to conduct audits.
6.09. Keeping of Records and Books of Account. The Borrower,
and its Subsidiaries, shall maintain and keep proper books of record and account
which enable the Borrower to issue financial statements in accordance with GAAP
and as otherwise required by applicable Laws of any Official Body having
jurisdiction over the Borrower and its Subsidiaries, and in which full, true and
correct entries shall be made in all material respects of all their respective
dealings and business and financial affairs.
6.10. Plans and Benefit Arrangements. The Borrower shall, and
shall cause each member of the ERISA Group to, comply with ERISA, the Internal
Revenue Code and other applicable Laws applicable to Plans and Benefit
Arrangements except where such failure, alone or in conjunction with any other
failure, would not result in a Material Adverse Change. Without limiting the
generality of the foregoing, the Borrower shall cause all of its Plans and all
Plans maintained by any member of the ERISA Group to be funded in accordance
with the minimum funding requirements of ERISA and shall make, and cause each
member of the ERISA Group to make, in a timely manner, all contributions due to
Plans, Benefit Arrangements and Multiemployer Plans.
6.11. Compliance with Laws. The Borrower and its Subsidiaries
shall comply with all applicable Laws (other than Environmental Laws) in all
respects, provided that they shall not be deemed to be a violation of this
Section 6.11 if any failure to comply with any Law would not result in fines,
penalties, other similar liabilities or injunctive relief which in the aggregate
would constitute a Material Adverse Change.
6.12. Use of Proceeds. The Borrower will use the proceeds of
the Loans only for lawful purposes in accordance with Section 2.16 hereof as
applicable and such uses shall not contravene any applicable Law or any other
provision hereof. The Borrower will permit the use of the Letters of Credit only
for lawful purposes in accordance with Section 2.17 hereof as applicable, and
such uses shall not contravene any applicable Law or any other provision hereof.
The Borrower and its Subsidiaries shall not use any portion of the proceeds of
the Loans, directly or indirectly, to purchase during the underwriting period,
or for thirty (30) days thereafter, Ineligible Securities being underwritten by
a Section 20 Subsidiary.
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6.13. Environmental Laws.
(i) The Borrower and its Subsidiaries shall comply in
all material respects, subject to the disclosure set forth in Schedule 4.20,
with all Environmental Laws and shall obtain and comply in all material respects
with and maintain any and all licenses, approvals, registrations or permits
required by Environmental Laws;
(ii) The Borrower and its Subsidiaries shall conduct
and complete in all material respects all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Official Bodies respecting Environmental Laws,
except to the extent that the same are being contested in good faith by
appropriate and lawful proceedings diligently conducted and for which such
reserves or other appropriate provisions, if any, required by GAAP shall have
been made; and
(iii) The Borrower shall defend, indemnify and hold
harmless the Agent and the Lenders, and their respective employees, agents,
officers and directors, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of or noncompliance with any Environmental Laws
applicable to the real property owned or operated by the Borrower or any of its
Subsidiaries, or any orders, requirements or demands of any Official Bodies
related thereto, including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees, court costs and litigation
expenses, except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification therefor.
6.14. Senior Debt Status. The obligations of the Borrower
under this Agreement and the Notes will rank at least pari passu in priority of
payment with all other Indebtedness of the Borrower except Indebtedness of the
Borrower to the extent secured by Permitted Liens. The obligations of a
Subsidiary Guarantor under the Subsidiary Guaranty, executed by it will rank at
least pari passu in priority of payment with all other Indebtedness of such
Subsidiary Guarantor except Indebtedness of such Subsidiary Guarantor to the
extent secured by Permitted Liens.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that, until payment in full
of the Loans and interest thereon, payment in full of all Letter of Credit
reimbursement obligations and interest thereon, satisfaction of all of the
Borrower's other obligations hereunder and termination of the Revolving Credit
Commitments, and the expiration and cancellation of all Letters of Credit issued
hereunder, the Borrower shall comply, or cause the compliance, with the negative
covenants set forth in this Article VII.
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7.01. Indebtedness. The Borrower and its Subsidiaries shall
not on a consolidated basis at any time, create, incur, assume or suffer to
exist any Indebtedness (including Indebtedness secured by Permitted Liens),
except:
(i) Indebtedness under the Loan Documents;
(ii) Existing Indebtedness as set forth on Schedule
7.01 hereto (including any extensions or renewals thereof provided there is no
increase in the amount thereof or other significant change in the terms
thereof);
(iii) Indebtedness of a Subsidiary of the Borrower to
the Borrower or to another Subsidiary of the Borrower or the Indebtedness of the
Borrower to a Subsidiary of the Borrower; provided that at no time shall
Indebtedness of the Borrower or a Subsidiary of the Borrower to a Subsidiary of
the Borrower, or Subsidiaries of the Borrower, organized or domiciled outside
the United States of America, exceed in the aggregate at any one time
$47,000,000;
(iv) Indebtedness with respect to foreign exchange
hedging transactions entered into in the ordinary course of business to manage
foreign currency risk for the Borrower and/or one or more of its Subsidiaries;
(v) Indebtedness incurred pursuant to Interest Hedge
Agreements with a Lender or an Affiliate of a Lender; and
(vi) Other Indebtedness of the Borrower not covered
by items (i) through (v) above, provided that the aggregate amount of such
Indebtedness permitted by this item (vi) shall not exceed $50,000,000 at any one
time outstanding.
7.02. Liens. The Borrower and its Subsidiaries shall not at
any time create, incur, assume or suffer to exist any Lien on any of their
respective property or assets, tangible or intangible, now owned or hereafter
acquired, or agree or become liable to do so, except Permitted Liens.
7.03. Loans, Acquisitions and Investments. The Borrower and
its Subsidiaries shall not at any time make any loan or advance to, or purchase
or otherwise acquire any stock, bonds, notes or securities of, or any
partnership interest (whether general or limited) or other equity interest in,
or assets of, or any other investment or interest in, or make any capital
contribution to, any other Person, or agree to or become liable to do any of the
foregoing, except for:
(i) trade credit extended on usual and customary
terms in the ordinary course of business;
(ii) fixed assets, equipment or Inventory acquired in
the ordinary course of business;
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(iii) loans and advances to employees to meet
expenses incurred by such employees in the ordinary course of business,
including without limitation relocation expenses;
(iv) Cash Equivalents;
(v) investments, capital contributions and advances
by the Borrower in existence as of the date hereof, which investments, capital
contributions and advances are set forth on Schedule 7.03 hereof;
(vi) investments and capital contributions by the
Borrower in, and loans and advances by Borrower to, a third Person so long as
(A) such third Person is engaged in business activities that are substantially
similar to the business activities of the Borrower and its Subsidiaries, (B)
after giving effect to each such investment or capital contribution the Borrower
shall not have caused a violation of any of the Loan Documents, (C) the lesser
of the Revolving Credit Commitments and the then applicable Borrowing Base shall
exceed Total Utilization by at least $10,000,000 immediately prior to and
following any such investment or capital contribution, and (D) prior to the
completion of each such investment or capital contribution, the Borrower shall
have provided the Agent with a certificate stating that (i) such investment or
capital contribution will not violate any covenants of this Agreement and (ii)
after giving effect to such investment or capital contribution, the leverage
ratio set forth in item (iii) of Section 7.12 hereof shall not exceed 2.00 to
1.00; provided that this requirement shall not be deemed to otherwise alter the
requirements of item (iii) of Section 7.12;
(vii) loans, advances and capital contributions by a
Subsidiary of the Borrower to the Borrower or any of the Borrower's other
Subsidiaries or loans, advances and capital contributions by the Borrower to any
of its Subsidiaries; and
(viii) the Borrower or any Subsidiary may acquire the
assets or voting securities of any other Person provided that (A) at the time of
such acquisition no Default or Event of Default shall have occurred and be
continuing or be caused by such acquisition, (B) the acquired Person, if any,
shall become a Subsidiary Guarantor simultaneously with such acquisition and
shall execute all Loan Documents required of a Subsidiary Guarantor, (C) the
board of directors or other equivalent governing body of such acquired Person
shall have approved such acquisition and, if the Borrower shall use any portion
of the Loans to fund such acquisition, the Borrower also shall have delivered to
the Lenders written evidence of the approval of the board of directors (or
equivalent governing body) of such Person for such acquisition, (D) the lesser
of the Revolving Credit Commitments and the then applicable Borrowing Base shall
exceed Total Utilization by at least $10,000,000 immediately prior to and
following any such acquisition, and (E) prior to the completion of each such
acquisition, the Borrower shall have provided the Agent with a certificate
stating that (i) such acquisition will not violate any covenants of this
Agreement and (ii) after giving effect to such acquisition, the leverage ratio
set forth in item (iii) of Section 7.12 hereof shall not exceed 2.00 to 1.00;
provided that this requirement shall not be deemed to otherwise alter the
requirements of item (iii) of Section 7.12.
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7.04. Liquidations, Mergers and Consolidations. The Borrower
shall not, and shall not permit any Subsidiary of Borrower to, dissolve,
liquidate or wind-up its affairs, or become a party to any merger, consolidation
or other business combination, whether accounted for under GAAP as a purchase or
a pooling of interests and regardless of whether the value of the consideration
paid or received is comprised of cash, common or preferred stock or other equity
interests, or other assets, or sell, lease, transfer, or otherwise dispose of
all or substantially all of its assets, provided that:
(i) any Subsidiary of Borrower may consolidate or
merge into the Borrower or another Subsidiary of the Borrower;
(ii) any Subsidiary of the Borrower may sell, lease,
transfer or otherwise dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or another Subsidiary of the
Borrower; and
(iii) the Borrower or any Subsidiary may consolidate
or merge with any Person, provided that (A) such Person must be engaged in
businesses in the non-ferrous, corrosion resistant engineered products segment,
(B) if the Borrower is a party to such merger or consolidation, the Borrower is
the surviving Person, (C) at the time of the consolidation or merger no Default
or Event of Default shall have occurred and be continuing or be caused by such
consolidation or merger, (D) the surviving Person, if not the Borrower, shall
become a Subsidiary Guarantor, (E) the consolidation or merger shall not be
contested by such Person or the holders of its equity securities and shall be
approved by such Person's board of directors or other governing body and, if the
Borrower shall use any portion of the Loans to fund such consolidation or
merger, the Borrower also shall have delivered to the Lenders written evidence
of the approval of the board of directors (or equivalent governing body) of such
Person for such consolidation or merger, (F) the lesser of the Revolving Credit
Commitments or the then applicable Borrowing Base shall exceed Total Utilization
by at least $10,000,000 immediately prior to and following such merger or
consolidation, and (G) the Borrower shall have provided the Agent with a
certificate stating that (i) such merger or consolidation will not violate any
covenants of this Agreement and (ii) after giving effect to such merger or
consolidation, the leverage ratio set forth in item (iii) of Section 7.12 hereof
shall not exceed 2.00 to 1.00; provided that this requirement shall not be
deemed to otherwise alter the requirements of item (iii) of Section 7.12.
7.05. Dispositions of Assets or Subsidiaries. Excluding the
payment of cash as consideration for assets purchased by, or services rendered
to, the Borrower or any Subsidiary, neither the Borrower nor any of its
Subsidiaries shall sell, convey, assign, lease, or otherwise transfer or dispose
of, voluntarily or involuntarily, any of its properties or assets, tangible or
intangible (including but not limited to sale, assignment, discount or other
disposition of Receivables, contract rights, chattel paper, equipment or general
intangibles with or without recourse or of capital stock, shares or beneficial
interests or partnership interests in Subsidiaries), except:
(i) any sale, transfer or disposition of surplus,
obsolete or worn out assets of the Borrower or a Subsidiary;
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(ii) any sale, transfer or lease of Inventory by the
Borrower or any Subsidiary of the Borrower in the ordinary course of business;
(iii) any sale, transfer or lease of assets by any
Subsidiary of the Borrower to the Borrower or any other Subsidiary of the
Borrower or by the Borrower to any Subsidiary of the Borrower; or
(iv) any sale, transfer or lease of assets, other
than those specifically excepted pursuant to clauses (i) through (iii) above,
which in any one sale, transfer or lease of assets, or in any number of sales,
transfers or leases of assets occurring in any consecutive twelve month period,
involves the sale, transfer or lease of assets having a book value of not more
than $25,000,000 (measured with respect to a series of sales, transfers or
leases of assets on the day of the first sale).
7.06. Affiliate Transactions. Except as set forth on Schedule
4.02 and as set forth on Schedule 7.06, neither the Borrower nor any Subsidiary
of the Borrower shall enter into or carry out any material transaction
(including, without limitation, purchasing property or services or selling
property or services) with an Affiliate unless such transaction is not otherwise
prohibited by this Agreement or the other Loan Documents, is entered into in the
ordinary course of business upon fair and reasonable arm's-length terms and
conditions which are fully disclosed to the Agent and is in accordance with all
applicable Law.
7.07. Subsidiaries, Partnerships and Joint Ventures. Except as
permitted by Section 7.03, (i) neither the Borrower nor any Subsidiary of the
Borrower shall own or create any Subsidiaries other than those listed in
Schedule 4.03 or 7.03; and (ii) neither the Borrower nor any Subsidiary of the
Borrower shall become or agree to become a general partner in any general or
limited partnership or a joint venturer in any joint venture, without the
consent of the Required Lenders, such consent not to be unreasonably withheld.
7.08. Continuation of or Change in Business. Neither the
Borrower nor any Subsidiary of the Borrower shall engage in any business other
than the business activities of such Persons substantially as conducted and
operated by the Borrower and its Subsidiaries on the Closing Date, and the
Borrower shall not permit any material change in such business.
7.09. Plans and Benefit Arrangements. The Borrower shall not,
and shall not permit any member of the ERISA Group to:
(i) fail to satisfy the minimum funding requirements
of ERISA and the Internal Revenue Code with respect to any Plan;
(ii) request a minimum funding waiver from the
Internal Revenue Service with respect to any Plan;
(iii) engage in a Prohibited Transaction with any
Plan, Benefit Arrangement or Multiemployer Plan which, alone or in conjunction
with any other
- 68 -
circumstances or set of circumstances resulting in liability under ERISA, would
constitute a Material Adverse Change;
(iv) fail to make when due any contribution to any
Multiemployer Plan that the Borrower or any member of the ERISA Group may be
required to make under any agreement relating to such Multiemployer Plan, or any
Law pertaining thereto;
(v) withdraw (completely or partially) from any
Multiemployer Plan or be deemed under Section 4062(e) of ERISA to withdraw from
any Multiple Employer Plan, where any such withdrawal is likely to result in a
material liability of the Borrower or any member of the ERISA Group;
(vi) terminate, or institute proceedings to
terminate, any Plan, where such termination is likely to result in a material
liability to the Borrower or any member of the ERISA Group;
(vii) make any amendment to any Plan with respect to
which security is required under Section 307 of ERISA; or
(viii) fail to give any and all notices and make all
disclosures and governmental filings required under ERISA or the Internal
Revenue Code, where such failure is likely to result in a Material Adverse
Change.
7.10. Fiscal Year. Neither the Borrower nor any Subsidiary of
the Borrower shall change its Fiscal Year from a period beginning January 1 and
ending on the immediately succeeding December 31.
7.11. Changes in Organizational Documents. The Borrower shall
not, and shall not permit any Subsidiary Guarantor of Borrower to, amend in any
respect its certificate or articles of incorporation without providing at least
thirty (30) calendar days' prior written notice to the Agent and the Lenders
and, in the event such change would be materially adverse to the Lenders as
determined by the Agent in its sole but reasonable discretion, obtaining the
prior written consent of the Required Lenders.
7.12. Financial Covenants.
(i) Minimum Consolidated Tangible Net Worth. The
Borrower will not at any time permit its Consolidated Tangible Net Worth to be
less than an amount equal to the sum of (i) $231,915,700 (being 85% of the
Consolidated Tangible Net Worth as of December 31, 2001), plus (ii) 50% of the
positive net income for each Fiscal Quarter ending after December 31, 2001 of
the Borrower and its Subsidiaries determined on a consolidated basis in
accordance with GAAP consistently applied, plus (iii) an amount equal to 75% of
all increases to equity from the issuance by the Borrower after December 31,
2001 of further equity securities or other equity capital investments.
- 69 -
(ii) Interest Coverage. As of the last day of each
Fiscal Quarter, the Borrower shall not permit its ratio, measured on a rolling
four Fiscal Quarter basis, of Consolidated EBIT to Consolidated Interest Expense
to be less than 2.5 to 1.0.
(iii) Leverage Ratio. As of the last day of each
Fiscal Quarter, the Borrower shall not permit its Consolidated Total
Indebtedness to Consolidated EBITDA Ratio to exceed 3.0 to 1.0.
7.13. Operating Leases. The Borrower and its Subsidiaries may
not incur operating leases which in the aggregate require rental payments in a
Fiscal Year to exceed $5,000,000.
7.14. Limitation on Negative Pledge Clauses. Neither the
Borrower nor any of its Subsidiaries shall enter into any agreement with any
Person (other than the Lenders pursuant hereto) which prohibits or limits the
ability of the Borrower or any of its Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired.
ARTICLE VIII
DEFAULT
8.01. Events of Default. An "Event of Default" shall mean the
occurrence or existence of any one or more of the following events or conditions
(whatever the reason therefor and whether voluntary, involuntary or effected by
operation of Law):
(a) (i) The Borrower shall fail to pay any principal
of any Loan (including scheduled installments, mandatory prepayments or the
payment due at maturity, whether by acceleration or otherwise) when due, or (ii)
the Borrower shall fail to pay any Unreimbursed L/C Draw when due, or (iii) the
Borrower shall fail to pay any interest on any Loan, any Unreimbursed L/C Draw,
any Fee, or any other amount owing hereunder or under any other Loan Documents
after such interest, Fee or other amount becomes due in accordance with the
terms hereof or thereof and such failure shall continue for a period of five (5)
days;
(b) Any representation or warranty made at any time
by the Borrower herein or in any other Loan Document or by a Subsidiary
Guarantor in any Loan Document executed by such Subsidiary Guarantor, or in any
certificate, other instrument or statement furnished pursuant to the provisions
hereof or thereof, shall prove to have been false or misleading in any material
respect as of the time it was made or furnished;
(c) The Borrower shall default in the observance or
performance of any covenant contained in Sections 6.13 or 6.14 or Article VII
hereof;
(d) The Borrower shall default in the observance or
performance of any other covenant, condition or provision hereof, or of any
other Loan Document and, if remediable, such default shall continue unremedied
for a period of thirty (30) days after any officer of the Borrower becomes aware
of the occurrence thereof; or a Subsidiary Guarantor shall
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default in the observance or performance of any other covenant, condition or
provision contained in a Subsidiary Guaranty or any other Loan Document executed
by such Subsidiary Guarantor, and, if remediable, such default shall continue
unremedied for a period of sixty (60) days after any officer of such Subsidiary
Guarantor becomes aware of the occurrence thereof;
(e) A default or event of default shall occur at any
time under the terms of any agreements involving Indebtedness under which the
Borrower or any Subsidiary of the Borrower may be obligated as borrower,
guarantor or otherwise in excess of One Million Dollars ($1,000,000 ) in the
aggregate, and such breach, default or event of default consists of the failure
to pay (beyond any period of grace permitted with respect thereto, whether
waived or not) any Indebtedness when due (whether at stated maturity, by
acceleration or otherwise) or if such breach or default causes the acceleration
of any such Indebtedness or such breach or default permits the acceleration of
any Indebtedness;
(f) Any judgments or orders for the payment of money
in excess of One Million Dollars ($1,000,000 ) in the aggregate shall be entered
against the Borrower or any of its Subsidiaries, by a court having jurisdiction
in the premises which judgments are not satisfied, discharged, vacated, bonded
or stayed pending appeal within a period of thirty (30) days from the respective
date of entry;
(g) Any of the Loan Documents shall cease to be
legal, valid and binding agreements enforceable against the party executing the
same or such party's successors and assigns (as permitted under the Loan
Documents) in accordance with the respective terms thereof (except to the extent
that enforceability of any of the Loan Documents may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforceability of creditors' rights generally or limiting the right of specific
performance) or shall in any way be terminated (except in accordance with terms)
or become or be declared ineffective or inoperative or shall in any way be
challenged or contested or cease to give or provide the respective rights,
titles, interests, remedies, powers or privileges intended to be created thereby
in all material respects;
(h) A notice of lien, levy or assessment in excess of
One Million Dollars ($1,000,000) in the aggregate is filed of record with
respect to all or any part of the assets of the Borrower or a Subsidiary
Guarantor by the United States, or any department, agency or instrumentality
thereof, or by any state, county, municipal or other governmental agency,
including, without limitation, the PBGC, or if any taxes or debts in excess of
One Million Dollars ($1,000,000) owing at any time or times hereafter to any one
of these becomes payable and the same is not paid within thirty (30) days after
the same becomes payable, or if such notice is filed or such payment is not so
made, unless the Borrower or such Subsidiary Guarantor (i) contests such lien,
assessment, tax or debt in good faith by appropriate and lawful proceedings
diligently conducted but only so long as such proceedings could not subject the
Agent, the Lenders or the L/C Issuer to any criminal penalties, (ii) establishes
such reserves or other appropriate provisions, if any, as shall be required by
GAAP and (iii) pays such Lien, assessment, tax or debt in accordance with the
terms of any final judgments or orders relating thereto within thirty (30) days
after the entry of such judgments or orders;
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(i) The Borrower or a Subsidiary Guarantor ceases to
be Solvent or admits in writing its inability to pay debts as they mature;
(j) Any of the following occurs: (i) any Reportable
Event, which constitutes grounds for the termination of any Plan by the PBGC or
the appointment of a trustee to administer or liquidate any Plan, shall have
occurred and be continuing; (ii) proceedings shall have been instituted or other
action taken to terminate any Plan, or a termination notice shall have been
filed with respect to any Plan; (iii) a trustee shall be appointed to administer
or liquidate any Plan; (iv) the PBGC shall give notice of its intent to
institute proceedings to terminate any Plan or Plans or to appoint a trustee to
administer or liquidate any Plan and, in the case of the occurrence of (i),
(ii), (iii) or (iv) of this Section 8.01(j), the amount of Borrower's liability
or the liability of the other members of the ERISA Group is likely to exceed
five percent (5%) of the Consolidated Tangible Net Worth; (v) the Borrower or
any member of the ERISA Group shall fail to make any contributions when due to a
Plan or a Multiemployer Plan; (vi) the Borrower or any member of the ERISA Group
shall make any amendment to a Plan with respect to which security is required
under Section 307 of ERISA; (vii) the Borrower or any member of the ERISA Group
shall withdraw completely or partially from a Multiemployer Plan; (viii) the
Borrower or any member of the ERISA Group shall withdraw (or shall be treated
under Section 4062(e) of ERISA as having withdrawn) from a Multiple Employer
Plan; or (ix) any applicable Law is adopted, changed or interpreted by any
Official Body with respect to or otherwise affecting one or more Plans,
Multiemployer Plans or Benefit Arrangements and, with respect to any of the
events specified in (v), (vi), (vii), (viii) or (ix), any such occurrence would
be reasonably likely to materially and adversely affect the total enterprise
represented by the Borrower and the other members of the ERISA Group;
(k) The Borrower or a Subsidiary Guarantor is
enjoined, restrained or in any way prevented by court order from conducting all
or any material part of its business and such injunction, restraint or other
preventive order is not stayed or dismissed within thirty (30) days after the
entry thereof;
(1) (i) any person or group of persons (within the
meaning of Sections 13(g) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended) shall have acquired beneficial ownership of (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said Act) 50%
or more of the voting capital stock of the Borrower;
(ii) within a period of twelve (12)
consecutive months, individuals who were directors of the Borrower on the first
day of such period and/or individuals who become directors of the Borrower
pursuant to a nomination or election that was recommended or approved by the
individuals who were directors on the first day of such period shall cease to
constitute a majority of the board of directors of the Borrower; or
(iii) the Borrower or a Subsidiary shall own
less than 80% of the voting capital stock or voting partnership or other equity
interest of any Subsidiary Guarantor;
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(m) A proceeding shall have been instituted in a
court having jurisdiction in the premises seeking a decree or order for relief
in respect of the Borrower, or a Subsidiary Guarantor, in an involuntary case
under any applicable bankruptcy, insolvency, reorganization or other similar law
now or hereafter in effect, or a receiver, liquidator, assignee, custodian,
trustee, sequestrator, conservator (or similar official) of the Borrower, or a
Subsidiary Guarantor, for any substantial part of such Person's property, or for
the winding-up or liquidation of such Person's affairs, and such proceeding
shall remain undismissed or unstayed and in effect for a period of thirty (30)
consecutive days or such court shall enter a decree or order granting any of the
relief sought in such proceeding;
(n) The Borrower, or a Subsidiary Guarantor, shall
commence a voluntary case under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, shall consent to
the entry of an order for relief in an involuntary case under any such law, or
shall consent to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator (or other similar
official) of itself or for any substantial part of property or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay
debts as they become due, or shall take any action in furtherance of any of the
foregoing;
(o) any of the Loan Documents shall cease to be in
full force and effect or shall be declared to be null and void by a court of
competent jurisdiction; or
(p) any garnishment proceeding concerning a sum in
excess of One Million Dollars ($1,000,000) shall be instituted by attachment,
levy or otherwise, against any deposit account maintained by the Borrower or a
Subsidiary Guarantor with any Lender.
8.02. Consequences of Event of Default.
(a) If an Event of Default specified in any of items
(a) through (1) or item (o) or (p) of Section 8.01 hereof shall occur and be
continuing, the Lenders shall be under no further obligation to make Loans
hereunder, the L/C Issuer shall be under no further obligation to issue or amend
Letters of Credit hereunder and the Agent may, and upon the request of the
Required Lenders shall, by written notice to the Borrower, terminate the
Revolving Credit Commitment and declare the unpaid principal amount of the Notes
then outstanding and all interest accrued thereon, any unpaid fees and all other
Indebtedness of the Borrower to the Lenders, the Agent and the L/C Issuer
hereunder and under the other Loan Documents to be forthwith due and payable,
and the same shall thereupon become and be immediately due and payable to the
Agent for the benefit of each Lender, the Agent and the L/C Issuer without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived; and
(b) If any Event of Default specified in item (m) or
(n) of Section 8.01 hereof shall occur, the Lenders shall be under no further
obligations to make Loans hereunder, the L/C Issuer shall be under no further
obligation to issue or amend Letters of Credit hereunder, the Revolving Credit
Commitment shall be terminated and the unpaid principal amount of the Notes then
outstanding and all interest accrued thereon, any unpaid fees and all other
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Indebtedness of the Borrower to the Lenders, the Agent and the L/C Issuer
hereunder and under the other Loan Documents shall be immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived; further, during the thirty (30) day period
referred to in item (m) the Lenders shall be under no further obligation to make
Loans and the L/C Issuer shall be under no further obligation to issue or amend
Letters of Credit hereunder; and
(c) If an Event of Default shall occur and be
continuing, any Lender, the Agent or the L/C Issuer to whom any obligation is
owed by the Borrower hereunder or under any other Loan Document, of such Lender,
Agent or L/C Issuer and any branch, subsidiary or affiliate of such Lender,
Agent or L/C Issuer anywhere in the world shall each have the right, in addition
to all other rights and remedies available to it, without notice to the
Borrower, to set-off against and apply to the then unpaid balance of all the
Loans and all other obligations of the Borrower hereunder or under any other
Loan Document, any debt owing to, and any other funds held in any manner for the
account of, the Borrower by such Lender, the Agent or the L/C Issuer or by such
branch, subsidiary or affiliate, including, without limitation, all funds in all
deposit accounts (whether time or demand, general or special, provisionally
credited or finally credited, or otherwise) now or hereafter maintained by the
Borrower for its own account (but not including funds held in custodian or trust
accounts) with such Lender, the Agent or the L/C Issuer or such branch,
subsidiary or affiliate. Such right shall exist in each case whether or not any
Lender, the Agent or the L/C Issuer shall have made any demand under this
Agreement or any other Loan Document, whether or not such debt owing to or funds
held for the account of the Borrower is or are matured or unmatured and
regardless of the existence or adequacy of any other security, right or remedy
available to any Lender, the Agent or the L/C Issuer; and
(d) In addition to all of the rights and remedies
contained in this Agreement or in any of the other Loan Documents, the Agent,
the L/C Issuer and the Lenders shall have all of the rights and remedies of a
creditor under applicable Law, all of which rights and remedies shall be
cumulative and non-exclusive, to the extent permitted by Law. The Agent may, and
upon the request of the Required Lenders shall, exercise all post-default rights
granted to the Agent, the L/C Issuer and the Lenders under the Loan Documents or
applicable Law; and
(e) Upon the occurrence of any Event of Default
described in the foregoing Sections 8.01(m) or (n) or upon the declaration by
the Required Lenders of any other Event of Default and the termination of the
Revolving Credit Commitments, the obligation of the L/C Issuer to issue or amend
Letters of Credit shall terminate, the L/C Issuer or the Agent may provide
written demand to any beneficiary of a Letter of Credit to present a draft
against such Letter of Credit, and an amount equal to the maximum amount which
may at any time be drawn under the Letters of Credit then outstanding (whether
or not any beneficiary of such Letters of Credit shall have presented, or shall
be entitled at such time to present, the drafts or other documents required to
draw under the Letters of Credit) shall automatically become immediately due and
payable, without presentment, demand, protest or other requirements of any kind,
all of which are hereby expressly waived by the Borrower; provided that the
foregoing shall not affect in any way the obligations of the Lenders to purchase
from the L/C Issuer participations in the unreimbursed amount of any drawings
under the Letters of Credit as provided in Section 2.17(c). So long as the
Letters of Credit shall remain outstanding, any amounts declared due pursuant to
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this Section 8.02(e) with respect to the outstanding Letters of Credit when
received by the Agent shall be deposited and held by the Agent in an interest
bearing account denominated in the name of the Agent for the benefit of the
Agent, the Lenders and the L/C Issuer over which the Agent shall have sole
dominion and control of withdrawals (the "Cash Collateral Account") as cash
collateral for the obligation of the Borrower to reimburse the L/C Issuer in the
event of any drawing under the Letters of Credit and upon any drawing under such
Letters of Credit in respect of which the Agent has deposited in the Cash
Collateral Account any amounts declared due pursuant to this Section 8.02(e),
the Agent shall apply such amounts held by the Agent to reimburse the L/C Issuer
for the amount of such drawing. In the event that any Letter of Credit in
respect of which the Agent has deposited in the Cash Collateral Account any
amounts described above is cancelled or expires or in the event of any reduction
in the maximum amount available at any time for drawing under the Letters of
Credit outstanding, the Agent shall apply the amount then in the Cash Collateral
Account designated to reimburse the L/C Issuer for any drawings under the
Letters of Credit less the maximum amount available at any time for drawing
under the Letters of Credit outstanding immediately after such cancellation,
expiration or reduction, if any, to the payment in full of the outstanding
Lender Obligations, and second, to the payment of any excess, to the Borrower.
ARTICLE IX
THE AGENTS
9.01. Appointment and Grant of Authority. Each of the Lenders
and the L/C Issuer hereby appoints PNC Bank, National Association, and PNC Bank,
National Association, hereby agrees to act, as the Agent under this Agreement
and the other Loan Documents. Each of the Lenders and the L/C Issuer hereby
appoints each of US Bank National City Bank of Pennsylvania and LaSalle Bank
National Association, as Documentation Agents hereunder. The Agent shall have
and may exercise such powers under this Agreement and the other Loan Documents
as are specifically delegated to it by the terms hereof or thereof, together
with such other powers as are incidental thereto. Without limiting the
foregoing, the Agent, on behalf of the Lenders and the L/C Issuer, is authorized
to execute all of the Loan Documents (other than this Agreement) and to accept
all of the Loan Documents and all other agreements, documents or instruments
reasonably required to carry out the intent of the parties to this Agreement.
9.02. Delegation of Duties. The Agent may perform any of its
duties hereunder by or through agents or employees (provided such delegation
does not constitute a relinquishment of duties as the Agent hereunder) and,
subject to Sections 9.07 and 10.03 hereof, shall be entitled to engage and pay
for the advice or services of any attorneys, accountants, or other experts
concerning all matters pertaining to duties hereunder and to rely upon any
advice so obtained.
9.03. Reliance by Agent on Lenders for Funding. Unless the
Agent shall have received notice from a Lender prior to any Borrowing Date that
such Lender will not make available to the Agent such Lender's portion of net
disbursements of Loans, the Agent may assume that such Lender has made such
portion available to the Agent and the Agent may, in reliance upon such
assumption, make Loans to the Borrower. If and to the extent that such
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Lender has not made such portion available to the Agent on or prior to any
Borrowing Date, such Lender and the Borrower severally agree to repay to the
Agent immediately upon demand, in immediately available funds, such unpaid
amount, together with interest thereon for each day from the applicable
Borrowing Date until such amount is repaid to the Agent, at (i) in the case of
the Borrower, at the rate of interest then in effect for such Loan and (ii) in
the case of such Lender, at the Federal Funds Effective Rate. If such Lender
shall repay to the Agent such corresponding amount, such amount shall constitute
a Loan made by such Lender for purposes of this Agreement. The failure by any
Lender to pay its portion of a Revolving Credit Loan made by the Agent shall not
relieve any other Lender of the obligation to pay its portion of net
disbursements of Revolving Credit Loans on any Borrowing Date, but no Lender
shall be responsible for the failure of any other Lender to make its net share
of Revolving Credit Loans to be made by such other Lender on such Borrowing
Date.
9.04. Non-Reliance on Agents. Each Lender and the L/C Issuer
agree that (i) it has, independently and without reliance on the Agent or the
Documentation Agents, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Borrower and its
Subsidiaries and decision to enter into this Agreement and (ii) that it will,
independently and without reliance upon the Agent or the Documentation Agents,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under this Agreement. Except as otherwise provided herein or under any
other Loan Document, neither the Agent nor any Documentation Agent shall have
any duty to keep the Lenders or the L/C Issuer informed as to the performance or
observance by the Borrower of this Agreement or any other document referred to
or provided for herein or to inspect the properties or books of the Borrower or
any of its Subsidiaries. The Agent and the Documentation Agents, in the absence
of gross negligence or willful misconduct, shall not be liable to any Lender or
the L/C Issuer for their failure to relay or furnish to the Lender any
information.
9.05. Responsibility of Agents and Other Matters.
(a) Ministerial Nature of Duties. As between the
Lenders, the L/C Issuer and itself, the Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in the
other Loan Documents, and those duties and responsibilities shall be subject to
the limitations and qualifications set forth in this Article IX. The duties of
the Agent shall be ministerial and administrative in nature. The Documentation
Agents shall have no duties as agents hereunder.
(b) Limitation of Liability. As between the Lenders,
the L/C Issuer, the Agent and the Documentation Agents, neither the Agent nor
either Documentation Agent nor any of their respective directors, officers,
employees or agents shall be liable, in the absence of gross negligence or
willful misconduct, for any action taken or omitted (whether or not such action
taken or omitted is within or without the Agent's responsibilities and duties
expressly set forth in this Agreement) under or in connection with this
Agreement or any other instrument or document in connection herewith. Without
limiting the foregoing, neither the Agent nor either Documentation Agent nor any
of their representative directors, officers, employees or its agents, shall be
responsible for, or have any duty to examine (i) the genuineness, execution,
validity,
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effectiveness, enforceability, value or sufficiency of (A) this Agreement or any
of the other Loan Documents or (B) any other document or instrument furnished
pursuant to or in connection with this Agreement, (ii) the collectability of any
amounts owed by the Borrower to the Agent, the Documentation Agents, the Lenders
or the L/C Issuer, (iii) the truthfulness of any recitals or statements or
representations or warranties made to the Agent, the Documentation Agents or the
Lenders in connection with this Agreement, (iv) any failure of any party to this
Agreement to receive any communication sent, including any telegram, telex,
teletype, telecopy, bank wire, cable, or telephone message or any writing,
application, notice, report, statement, certificate, resolution, request, order,
consent letter or other instrument or paper or communication entrusted to the
mails or to a delivery service, or (v) the assets or liabilities or financial
condition or results of operations or business or creditworthiness of the
Borrower or any of its Subsidiaries.
(c) Reliance. The Agent shall be entitled to act, and
shall be fully protected in acting upon, any telegram, telex, teletype,
telecopy, bank wire or cable or any writing, application, notice, report,
statement, certificate, resolution, request, order, consent, letter or other
instrument or paper or communication believed by the Agent in good faith to be
genuine and correct and to have been signed or sent or made by a proper Person.
The Agent may consult counsel and shall be entitled to act, and shall be fully
protected in any action taken in good faith, in accordance with advice given by
counsel. The Agent may employee agents and attorneys-in-fact and shall not be
liable for the default or misconduct of any such agents or attorneys-in-fact
selected by the Agent with reasonable care. The Agent shall not be bound to
ascertain or inquire as to the performance or observance of any of the terms,
provisions or conditions of this Agreement or any of the other Loan Documents on
the part of the Borrower.
(d) Copies of Notices. The Agent hereby undertakes to
promptly deliver to the Lenders copies of financial statements, written reports
and other written notices received by the Agent from the Borrower pursuant to
Sections 6.02, 6.03 or 6.05 hereof.
9.06. Actions in Discretion of Agent; Instructions from the
Lenders. The Agent agrees, upon the written request of the Required Lenders, to
take or refrain from taking any action of the type specified as being within the
Agent's rights, powers or discretion herein or under any Loan Documents,
provided that the Agent shall not be required to take any action which exposes
the Agent to personal liability or which is contrary to this Agreement or any
other Loan Document or applicable Law. In the absence of a request by the
Required Lenders, the Agent shall have authority, in its sole discretion, to
take or not to take any such action, unless this Agreement specifically requires
the consent of the Required Lenders or all of the Lenders. Any action taken or
failure to act pursuant to such instructions or discretion shall be binding on
the Lenders and the L/C Issuer, subject to Section 9.05(b) hereof. Subject to
the provisions of Section 9.05(b), no Lender shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting hereunder in accordance with the instructions of the Required Lenders.
9.07. Indemnification. To the extent the Borrower does not
reimburse and save harmless the Agent or the Documentation Agents according to
the terms hereof for and from all costs, expenses and disbursements in
connection herewith, such costs, expenses and disbursements, shall be borne by
the Lenders ratably in accordance with respective Lender's
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Ratable Share. Each Lender hereby agrees on such basis (i) to reimburse the
Agent and the Documentation Agents for such Lender's Ratable Share of all such
reasonable costs, expenses and disbursements on request and (ii) to the extent
of each such Lender's Ratable Share, to indemnify and save harmless the Agent
and the Documentation Agents against and from any and all losses, obligations,
penalties, actions, judgments and suits and other costs, expenses and
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent and the Documentation Agents, other than as a
consequence of gross negligence or willful misconduct on the part of the Agent
and the Documentation Agents, arising out of or in connection with this
Agreement, the other Loan Documents or any other agreement, instrument or
document in connection herewith or therewith, or any request of the Required
Lenders, including without limitation the reasonable costs, expenses and
disbursements in connection with defending itself against any claim or liability
related to the exercise or performance of any of its powers or duties under this
Agreement, the other Loan Documents, or any of the other agreements, instruments
or documents delivered in connection herewith or the taking of any action under
or in connection with any of the foregoing.
9.08. Agents' Rights as Lenders. With respect to the Revolving
Credit Commitment of the Agent and the Documentation Agents as Lenders
hereunder, any Loans of the Agent or the Documentation Agents under this
Agreement, the Agent's and the Documentation Agents' Ratable Share of any
Unreimbursed L/C Draws, the participation as a Lender, and as to PNC Bank, as
the L/C Issuer under this Agreement the other Loan Documents and any other
agreements, instruments and documents delivered pursuant hereto, and the
issuance of any Letter of Credit under the terms hereof, the Agent and the
Documentation Agents shall have the same rights and powers, duties and
obligations under this Agreement, the other Loan Documents or any other
agreement, instrument or document as any Lender and may exercise such rights and
powers and shall perform such duties and fulfill such obligations as though it
were not the Agent, as the case may be. The Agent and the Documentation Agents
may accept deposits from, lend money to, and generally engage, and continue to
engage, in any kind of business with the Borrower or any of its Subsidiaries.
9.09. Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of an Event of Default unless the Agent
has received written notice from a Lender or the Borrower referring to this
Agreement, describing such Event of Default and stating that such notice is a
"notice of default".
9.10. Payment to Lenders. Except as otherwise set forth in
Section 9.03 hereof, promptly after receipt from the Borrower of any principal
repayment of the Revolving Credit Loans or any Unreimbursed L/C Draw, interest
due on the Revolving Credit Loans or any Unreimbursed L/C Draws, and any Fees
(other than the underwriting fee and the administration fee paid to the Agent
and the L/C Fronting Fee paid to the L/C Issuer) or other amounts due under any
of the Loan Documents, the Agent shall distribute to each Lender that Lender's
Ratable Share of the funds so received except that funds received from the
Borrower or a Subsidiary Guarantor to reimburse the L/C Issuer for drawings on
Letters of Credit (other than a Lender's Ratable Share of such reimbursement
payment to the extent such Lender has complied fully with any funding
obligations under Section 2.17(g) hereof) or to fund any risk participant in the
Letters of Credit or to pay the L/C Fronting Fee shall be paid solely for the
account of L/C
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Issuer. If the Agent fails to distribute collected funds received by 2:00 P.M.
on any Business Day by 3:00 P.M. of such Business Day or collected funds
received after 2:00 P.M. on any Business Day by 3:00 P.M. the next Business Day
the funds shall bear interest until distributed at the Federal Funds Effective
Rate. The Agent agrees to make its best efforts to provide telephonic notice to
each Lender that it is in receipt of funds from the Borrower and the day on
which it will commence a wire transfer of such Lender's share of such funds.
9.11. Holders of Notes. The Agent may deem and treat any payee
of any Note as the owner thereof for all purposes hereof unless and until
written notice of the assignment or transfer thereof shall have been filed with
the Agent. Any request, authority or consent of any person who at the time of
making such request or giving such authority or consent is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
9.12. Equalization of Lenders. Each borrowing and each payment
or prepayment by, or for the account of, the Borrower with respect to principal,
interest, Fees, or other amounts due from the Borrower hereunder to the Lenders
with respect to the Revolving Credit Loans, shall (except as provided in Section
2.10, 2.12, 2.17(b) or 9.03 hereof) be made in proportion to the Revolving
Credit Loans outstanding from each Lender or, if no such Revolving Credit Loans
are then outstanding, in proportion to the Ratable Share of each Lender. Each
payment of Unreimbursed L/C Draws shall be made for the account of the L/C
Issuer. The Lenders agree among themselves that, with respect to all amounts
received by any Lender (in its capacity solely as a Lender) or any such holder
for application on any obligation hereunder or under any Note or under any such
participation, whether received by voluntary payment, by realization upon
security, by the exercise of the right of set-off or banker's lien, by
counterclaim or by any other non-pro rata source, equitable adjustment will be
made in the manner stated in the following sentence so that, in effect, all such
excess amounts will be shared ratably among the Lenders and such holders in
proportion to their interest in payments under the Notes, except as otherwise
expressly provided herein. The Lenders or any such holder receiving any such
amount shall purchase for cash, from each of the other Lenders, an interest in
such Lender's Revolving Credit Loans in such amount as shall result in a ratable
participation by the Lenders and each such holder in the aggregate unpaid amount
under the Notes, provided that if all or any portion of such excess amount is
thereafter recovered from the Lender or the holder making such purchase, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, together with interest or other amounts, if any, required by Law
(including court order) to be paid by the Lender or the holder making such
purchase.
9.13. Successor Agent. The Agent may resign as the Agent upon
sixty (60) days' written notice to the Lenders and the Borrower. If such notice
shall be given, the Lenders shall appoint from among the Lenders a successor
agent for the Lenders, during such 60-day period, which successor agent shall be
reasonably satisfactory to the Borrower, to serve as agent hereunder and under
the several documents, the forms of which are attached hereto as exhibits, or
which are referred to herein. If at the end of such 60-day period the Lenders
have not appointed such a successor, the Agent shall procure a successor
reasonably satisfactory to the Lenders and the Borrower, to serve as agent for
the Lenders hereunder and under the several documents, the forms of which are
attached hereto as exhibits, or which are referred to herein.
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Any such successor agent shall succeed to the rights, powers and duties of the
Agent. Upon the appointment of such successor agent or upon the expiration of
such 60-day period (or any longer period to which the Agent has agreed), the
former Agent's rights, powers and duties as Agent shall be terminated, without
any other or further act or deed on the part of such former Agent or any of the
parties to this Agreement. After any retiring Agent's resignation hereunder as
the Agent, the provisions of this Article IX shall inure to the benefit of such
retiring Agent as to any actions taken or omitted to be taken by it while it was
the Agent under this Agreement. A Documentation Agent may resign upon ten (10)
days prior written notice to the Agent.
9.14. Calculations. In the absence of gross negligence or
willful misconduct, the Agent shall not be liable for any error in computing the
amount payable to any Lender whether in respect of the Revolving Credit Loans,
fees or any other amounts due to the Lenders or the L/C Issuer under this
Agreement. In the event an error in computing any amount payable to any Lender
or the L/C Issuer is made, the Agent, the Borrower and each affected Person
shall, forthwith upon discovery of such error, make such adjustments as shall be
required to correct such error, and any compensation therefor will be calculated
at the Federal Funds Effective Rate.
9.15. Beneficiaries. Except as expressly provided herein, the
provisions of this Article IX are solely for the benefit of the Agent, the
Documentation Agents, the Lenders and the L/C Issuer, and the Borrower shall not
have any rights to rely on or enforce any of the provisions hereof. In
performing its functions and duties under this Agreement, the Agent shall act
solely as agent of the Lenders and does not assume and shall not be deemed to
have assumed any obligation toward or relationship of agency or trust with or
for the Borrower.
9.16. Termination of Existing Bank Credit Agreements. It is
the intent of the parties hereto that on the Closing Date the Borrower shall
comply with each of items (i) through (xiv) inclusive of Section 6.2. Upon
satisfaction of all of the provisions of Section 6.1 and Section 6.2 and the
satisfaction of the terms of any applicable payoff letter delivered in
connection with the Existing Credit Agreement, the Existing Credit Agreements
shall be terminated.
9.17. Waiver of Consequential Damages. To the extent permitted
by applicable law, the Borrower hereby waives its right to pursue any claim
against the Agent, the Syndication Agents, the Lenders and each of their
respective directors, officers, employees, attorneys, agents and Affiliates on
any theory of liability for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages).
ARTICLE X
GENERAL PROVISIONS
10.01. Amendments and Waivers. The Required Lenders, or the
Agent with the consent in writing of the Required Lenders, and the Borrower may,
subject to the provisions of this Section 10.01, from time to time enter into
written supplemental agreements to this Agreement and the other Loan Documents
for the purpose of adding or deleting any provisions or otherwise changing,
varying or waiving in any manner the rights of the Lenders, the Agent or
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the obligor thereunder or the conditions, provisions or terms thereof or waiving
any Event of Default thereunder or consenting to an action of any of the
Borrower or any of its Subsidiaries, but only to the extent specified in such
written agreements; provided, however, that no such supplemental agreement
shall, without the consent of all the Lenders:
(i) waive an Event of Default by the Borrower in any
payment of principal, interest, Fees or other amounts due hereunder and under
any of the other Loan Documents, or otherwise postpone any schedule payment date
of any of the foregoing;
(ii) reduce the interest rate relating to the
Revolving Credit Loans or change the definition of the terms Base Rate, Prime
Rate, Applicable Euro-Rate Margin, Euro-Rate, Euro-Rate Interest Period,
Euro-Rate Reserve Percentage or Federal Funds Effective Rate so as to decrease
the interest rate relating to the Revolving Credit Loans;
(iii) change the Expiration Date;
(iv) reduce any Fee;
(v) change the definition of the term Required
Lenders; or
(vi) amend or waive the provisions of this Section
10.01.
provided, further, however, that no such supplemental agreement hereto shall
increase any Lender's Revolving Credit Commitment without the consent of such
Lender.
Any such supplemental agreement shall apply equally to each of
the Lenders and the L/C Issuer and shall be binding upon the Borrower, the
Lenders, the Agent and the Documentation Agents, all future holders of the Notes
and all Participants. In the case of any waiver, the Borrower, the Lenders, the
L/C Issuer, the Agent and the Documentation Agents shall be restored to former
positions and rights, and any Event of Default waived shall be deemed to be
cured and not continuing, but no such waiver shall extend to any subsequent or
other Event of Default, or impair any right consequent thereon.
10.02. Taxes. The Borrower shall pay any and all stamp,
document, transfer and recording taxes, filing fees and similar impositions
payable or hereafter determined by the Agent, the Documentation Agents, the
Lenders or the L/C Issuer to be payable in connection with this Agreement, the
other Loan Documents and any other documents, instruments and transactions
pursuant to or in connection with any of the Loan Documents. The Borrower agrees
to save the Agent, the Documentation Agents, the Lenders and the L/C Issuer
harmless from and against any and all present and future claims or liabilities
with respect to, or resulting from, any delay in paying or failure to pay any
such taxes or similar impositions.
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10.03. Costs and Expenses, etc.
(a) The Borrower shall:
(i) pay or reimburse the Agent for all
reasonable out-of-pocket costs and expenses incurred by the Agent in connection
with (A) the preparation, negotiation and execution of this Agreement, any other
Loan Documents or any instrument or document prepared in connection herewith or
therewith; (B) the completion of the Agent's "due diligence" permitted as a
condition of the closing; (C) the syndication efforts of the Agent with respect
to this Agreement and the commitments hereunder; and (D) the consummation of the
transactions contemplated hereby and thereby (including, without limitation, in
each case the reasonable fees and out-of-pocket expenses of the counsel to the
Agent); and
(ii) reimburse the Agent, the Documentation
Agents, the L/C Issuer and each Lender on demand for all reasonable
out-of-pocket costs and expenses incurred by the Agent, the Documentation
Agents, the L/C Issuer or such Lender in connection with the enforcement of or
preservation of any of its rights, powers, interests or remedies under this
Agreement or any other Loan Document (including, without limitation, in each
case the reasonable fees and out-of-pocket expenses of the respective counsel to
the Agent, the Documentation Agents, the L/C Issuer and each Lender).
(b) All of such costs, expenses and indemnities shall
be payable by the Borrower to the Agent, the Documentation Agents, the Lenders
or the L/C Issuer as appropriate upon demand or as otherwise agreed upon by the
Agent, the Documentation Agents, the Lenders or the L/C Issuer as appropriate
and the Borrower, and shall constitute Lender Obligations under this Agreement.
10.04. Notices.
(a) Notice to the Borrower. All notices required to
be delivered to the Borrower pursuant to this Agreement shall be in writing and
shall be sent to the following address, by hand delivery, recognized national
overnight courier service with all charges prepaid, telex, telegram, telecopier
or other means of electronic data communication (which includes by means of
electronic transmission (i.e., "e-mail") or facsimile transmission or by setting
forth such Notice on a site on the World Wide Web (a "Website Posting") if
notice of such Website Posting (including the information necessary to access
such site) has previously been delivered to the applicable parties hereto by
another means set froth in this Section 10.04) or by United States certified
mail, postage prepaid:
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RTI International Metals, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx
Vice President, Chief
Financial Officer & Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
With a copy to:
Xxxxx X. Xxxxxxx, Esq.
Vice President and General Counsel
RTI International Metals, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
(b) Notice to the Agent. All notices required to be
delivered to the Agent pursuant to this Agreement shall be in writing and shall
be sent to the following address, by hand delivery, recognized national
overnight courier service with all charges prepaid, telex, telegram, telecopier
or other means of electronic data communication (which includes by means of
electronic transmission (i.e., "e-mail") or facsimile transmission or by setting
forth such Notice on a site on the World Wide Web (a "Website Posting") if
notice of such Website Posting (including the information necessary to access
such site) has previously been delivered to the applicable parties hereto by
another means set froth in this Section 10.04) or by United States certified
mail, postage prepaid:
PNC Bank, National Association
Agency Services
Xxx XXX Xxxxx, 00xx Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx
Vice President
Telephone: 000-000-0000
Telecopier: 000-000-0000
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(c) Notice to L/C Issuer. All notices required to be
sent to the L/C Issuer pursuant to this Agreement shall be in writing and shall
be sent to the following address by hand delivery, recognized national overnight
courier service with all charges prepaid, telex, telegram, telecopier or other
means of electronic data communication (which includes by means of electronic
transmission (i.e., "e-mail") or facsimile transmission or by setting forth such
Notice on a site on the World Wide Web (a "Website Posting") if notice of such
Website Posting (including the information necessary to access such site) has
previously been delivered to the applicable parties hereto by another means set
froth in this Section 10.04) or by United States certified mail, postage
prepaid:
PNC Bank, National Association
Agency Services
Xxx XXX Xxxxx, 00xx Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx
Vice President
Telephone: 000-000-0000
Telecopier: 000-000-0000
(d) Notice to Lenders. All notices required to be
sent to the Lenders pursuant to this Agreement shall be in writing and shall be
sent to the notice address of each Lender as set forth on Schedule 1.01 (a)
hereto or such Lender's signature page to the Assignment and Assumption
Agreement executed by it as a Purchasing Lender, as the case may be, by hand
delivery, overnight courier service with all charges prepaid, telex, telegram,
telecopier or other means of electronic data communication (which includes by
means of electronic transmission (i.e., "e-mail") or facsimile transmission or
by setting forth such notice on a site on the World Wide Web (a "Website
Posting") if notice of such Website Posting (including the information necessary
to access such site) has previously been delivered to the applicable parties
hereto by another means set froth in this Section 10.04) or other means of
electronic data communication or by the United States mail, first class postage
prepaid.
All such notices shall be effective:
(a) In the case of hand-delivery, when delivered;
(b) If given by mail, four days after such notice is
deposited with the United States Postal Service, with first-class postage
prepaid, return receipt requested;
(c) In the case of a telephonic notice, when a party
is contacted by telephone, if delivery of such telephonic notice is confirmed no
later than the next Business Day by hand-delivery, a facsimile or electronic
transmission, a Website Posting or an overnight courier delivery of a
confirmatory notice (received at or before noon on such next Business Day);
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(d) In the case of a facsimile transmission, when
sent to the applicable party's facsimile machine's telephone number, if the
party sending such notice receives confirmation of the delivery thereof from its
own facsimile machine;
(e)In the case of electronic transmission, when
actually received;
(f) In the case of a Website Posting, upon delivery
of a notice of such posting (including the information necessary to access such
site) by another means set froth in this Section 10.04; and
(g) If given by any other means (including by
overnight courier), when actually received.
The Borrower, the Lenders, the L/C Issuer and the Agent may
each change the address for service of notice upon it by a notice in writing to
the other parties hereto.
10.05. Participation and Assignment.
(a) Sale of Participation.
(i) Any Lender may, in the ordinary course
of its commercial lending business and in accordance with applicable law, and
without the consent of the Borrower, at any time sell to one or more
Participants (which Participants may be Affiliates of such Lender)
Participations in the Revolving Credit Commitment of such Lender or any
Revolving Credit Loan, the Note, or other interest of such Lender hereunder. In
the event of any such sale of a Participation, such Lender's obligations under
this Agreement to the Borrower shall remain unchanged, such Lender shall remain
solely responsible for its performance under this Agreement, such Lender shall
remain the holder of the Note made payable to it for all purposes under this
Agreement (including all voting rights hereunder) and the Borrower shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the other Loan
Documents.
(ii) As between a Participant and that
Participant's selling Lender only, the sole issues on which the Participant
shall have a contractual right to vote are: (A) an increase in such Lender's
Revolving Credit Commitment, (B) any change of the term Base Rate, Euro-Rate,
Euro-Rate Reserve Percentage, or Applicable Euro-Rate Margin so as to decrease
the interest rate relating to the Revolving Credit Loans, (C) extension of the
term of either Revolving Credit Commitment, or (D) postponement of the scheduled
payment of principal, interest or Fees due under any of the Loan Documents.
(b) Assignments. Subject to the remaining provisions
of this Section 10.05(b), any Lender may at any time, in the ordinary course of
its commercial lending business, in accordance with applicable law, sell to one
or more Purchasing Lenders (which Purchasing Lender may be affiliates of the
Transferor Lender), all or a portion of its rights and obligations under this
Agreement and the Note then held by it, pursuant to an Assignment and Assumption
Agreement substantially in the form of Exhibit "F" and satisfactory to the
Agent, executed by the
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Transferor Lender, such Purchasing Lender, the Agent and the Borrower; subject,
however to the following requirements:
(i) The Agent and the Borrower must each
give its prior consent to any such assignment which consent shall not be
unreasonably withheld; it being agreed that it shall not be deemed unreasonable
for the Borrower to decline to consent to such assignment if (A) such assignment
would result in incurrence of additional costs to the Borrower under Section
2.10, 2.11 or 2.12, or (B) the proposed assignee has not provided to the
Borrower any tax forms received under Section 10.05(d); provided, however, no
consent is required for the transfer by a Lender to its Affiliate so long as the
conditions in clauses (A) and (B) immediately above are satisfied;
(ii) Each such assignment must be in a
minimum amount of $5,000,000, or, if in excess of $5,000,000, in integral
multiples of $1,000,000;
(iii) each such assignment shall be of a
constant, and not a varying, percentage of the Transferor Lender's Revolving
Credit Commitment outstanding Revolving Credit Loans and all other rights and
obligations under this Agreement and the other Loan Documents; and
(iv) The Transferor Lender shall pay to the
Agent, for its own Account, a fee of $3,500 for each such assignment (the
"Assignment Fee").
Upon the execution, delivery, acceptance and recording of any
such Assignment and Assumption Agreement, from and after the Transfer Effective
Date determined pursuant to such Assignment and Assumption Agreement, (i) the
Purchasing Lender thereunder shall be a party hereto as a Lender and, to the
extent provided in such Assignment and Assumption Agreement, shall have the
rights and obligations of a Lender hereunder with a Revolving Credit Commitment
as set forth therein, and (ii) the Transferor Lender thereunder shall, to the
extent provided in such Assignment and Assumption Agreement, be released from
its obligations under this Agreement as a Lender. Such Assignment and Assumption
Agreement shall be deemed to amend this Agreement to the extent, and only to the
extent, necessary to reflect the addition of such Purchasing Lender as a Lender
and the resulting adjustment of Ratable Share arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of such
Transferor Lender under this Agreement and the Notes. On or prior to the
Transfer Effective Date, the Borrower shall execute and deliver to the Agent, in
exchange for the surrendered Notes held by the Transferor Lender, new Notes to
the order of such Purchasing Lender in an amount equal to the Revolving Credit
Commitment assumed by it and purchased by it pursuant to such Assignment and
Assumption Agreement, and new Notes to the order of the Transferor Lender in an
amount equal to the Revolving Credit Commitment retained by it hereunder.
(c) Assignment Register. The Agent shall maintain at
its address referred to in Section 10.04(b) a copy of each Assignment and
Assumption Agreement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the amount of the
Revolving Credit Loans owing to each Lender from time to time. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Borrower, the
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Agent, the Lender and the L/C Issuer may treat each Person whose
name is recorded in the Register as the owner of the Revolving Credit Loans
recorded therein for all purposes of this Agreement. The Register shall be
available at the office of the Agent for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Withholding of Income Taxes. At least five (5)
Business Days prior to the first date on which interest or fees are payable
hereunder for the account of any Purchasing Lender or Participant, each
Purchasing Lender or Participant that is not incorporated under the laws of the
United States or a state thereof shall deliver to the Borrower and the
Transferor Lender two duly completed copies of United States Internal Revenue
Service Form W-9, 4224 or 1001 or other applicable form prescribed by the
Internal Revenue Service. Such form shall certify that such Purchasing Lender or
Participant is entitled to receive payments under this Agreement and the Notes
without deduction or withholding of any United States Federal income taxes, or
is subject to such tax at a reduced rate under an applicable tax treaty or under
United States Internal Revenue Service Form W-8, or another applicable form or a
certificate of such Purchasing Lender or Participant indicating that no such
exemption or reduced rate is allowable with respect to such payments. Each
Purchasing Lender or Participant which delivers a Form W-8, W-9, 4224 or 1001
further undertakes to deliver to the Borrower and its Transferor Lender two
additional copies of such form (or a successor form) on or before the date that
such form expires or becomes obsolete or otherwise is required to be resubmitted
as a condition to obtaining an exemption from withholding tax or after the
occurrence of any event requiring a change in the most recent form so delivered
by it, and such amendments thereto or extensions or renewals thereof as may be
reasonably required by the Borrower or its Transferor Lender, either certifying
that such Purchasing Lender or Participant is entitled to receive payments under
this Agreement and the Notes without deduction or withholding of any United
States Federal income taxes or is subject to such tax at a reduced rate under an
applicable tax treaty or stating that no such exemption or reduced rate is
allowable. The Borrower, in the case of a Purchasing Lender or Transferor Lender
in the case of a Participant shall be entitled to withhold United States Federal
income taxes at the full withholding rate, unless the Purchasing Lender or
Participant as the case may be establishes an exemption, or at the applicable
reduced rate, as established pursuant to this provisions of this Section
10.05(d).
(e) Assignments to Federal Reserve Bank. In addition
to the assignments permitted above, any Lender may assign and pledge all or any
portion of its Loans and Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal Reserve Bank.
No such assignment shall release the assigning Lender from its obligations and
duties hereunder or under the other Loan Documents.
10.06. Successors and Assigns.
(i) This Agreement shall be binding upon the Borrower
and the Agent, the Documentation Agent, the Lenders, the L/C Issuer and their
respective successors and assigns, and shall inure to the benefit of the
Borrower, the Agent, the Documentation Agents, the Lenders, the L/C Issuer and
respective successors and assigns; provided, however, that the
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Borrower shall not assign its rights or duties hereunder or under any of the
other Loan Documents without the prior written consent of the Lenders.
(ii) Notwithstanding anything to the contrary
contained herein, any Lender (a "Granting Lender") may grant to a special
purpose funding vehicle (an "SPC") the option to fund all or any part of any
Loan that such Granting Lender would otherwise be obligated to fund pursuant to
this Agreement; provided that (A) nothing herein shall constitute a commitment
by any SPC to fund any Loan, and (B) if an SPC elects not to exercise such
option or otherwise fails to fund all or any part of such Loan, the Granting
Lender shall be obligated to fund such Loan pursuant to the terms hereof.
Further, (A) all credit decisions relating to any such funding by the SPC shall
be made by the Granting Lender for and on behalf of the SPC, (B) the SPC shall
have no voting rights under any of the Loan Documents and (C) except for the
payment of principal, interest and fees, if any, the Agent and the Documentation
Agents shall be entitled to treat the Granting Lender as the Lender for all
purposes hereunder as if the SPC had made no funding of any Loan. The funding of
a Loan by an SPC hereunder shall utilize the Revolving Credit Commitment of the
Granting Lender to the same extent, and as if, such Loan were funded by such
Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for
any indemnity or payment under this Agreement for which a Lender would otherwise
be liable for so long as, and to the extent, the Granting Lender provides such
indemnity or makes such payment. Notwithstanding anything to the contrary
contained in this Agreement, any SPC may 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 to such SPC. This
Section may not be amended without the prior written consent of each Granting
Lender, all or any part of whose Loan is being funded by an SPC at the time of
such amendment.
10.07. No Implied Waivers; Cumulative Remedies; Writing
Required. No course of dealing and no delay or failure of the Agent, the
Documentation Agents or any Lender in exercising any right, power, remedy or
privilege under this Agreement or any other Loan Document shall affect any other
or future exercise thereof or operate as a waiver thereof; nor shall any single
or partial exercise thereof or any abandonment or discontinuance of steps to
enforce such a right, power, remedy or privilege preclude any further exercise
thereof or of any other right, power, remedy or privilege. The rights and
remedies of the Agent, the Documentation Agents and the Lenders under this
Agreement and any other Loan Documents are cumulative and not exclusive of any
rights or remedies which they would otherwise have. Any waiver, permit, consent
or approval of any kind or character on the part of any Lender of any breach or
default under this Agreement or any such waiver of any provision or condition of
this Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing.
10.08. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or enforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
10.09. Indemnity. The Borrower hereby agrees to indemnify the
Agent, the Documentation Agents, the Lenders, the L/C Issuer, and the directors,
officers, employees,
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attorneys, agents and Affiliates or all of the foregoing (each of the foregoing
an "Indemnified Person") against, and hold each of them harmless from, any loss,
liabilities, damages, claims, costs and expenses (including reasonable
attorneys' fees and disbursements) suffered or incurred by any Indemnified
Person (except those caused by such Indemnified Person's gross negligence or
willful misconduct, ) arising out of, resulting from or in any manner connected
with, the execution, delivery and performance of each of the Loan Documents, the
Lender Obligations and any and all transactions related to or consummated in
connection with the Lender Obligations, including, without limitation, losses,
liabilities, damages, claims, costs and expenses suffered or incurred by any
Indemnified Person arising out of or related to investigating, preparing for,
defending against, or providing evidence, producing documents or taking any
other action in respect of any commenced or threatened litigation,
administrative proceeding or investigation under any Federal securities law or
by any Official Body of any jurisdiction, or at common law or otherwise, that is
alleged to arise out of or is based on (i) any untrue statement or alleged
untrue statement of any material fact of the Borrower or any Affiliate of the
Borrower in any document or schedule filed with the Securities and Exchange
Commission or any other Official Body, (ii) any omission or alleged omission to
state any material fact required to be stated in such document or schedule, or
necessary to make the statements made therein, in light of the circumstances
under which made, not misleading; (iii) any actual or alleged acts, practices or
omissions of the Borrower, any Subsidiary Guarantor, or any of their respective
directors, officers, partners, employees, attorneys, agents or Affiliates,
related to the making of any acquisition, purchase of shares or assets pursuant
thereto, financing of such purchases or the consummation of any other
transactions contemplated by any such acquisitions that are alleged to be in
violation of any Federal securities law or of any other statute, regulation or
other law of any jurisdiction applicable to the making of any such acquisition,
the purchase of shares or assets pursuant thereto, the financing of such
purchases or the consummation of the other transactions contemplated by any such
acquisition; or (iv) any withdrawals, termination or cancellation of any such
proposed acquisition for any reason whatsoever. The indemnity set forth in this
Section 10.9 shall be in addition to any other obligations or liabilities of the
Borrower to the Agent, the Documentation Agents, the Lenders or the L/C Issuer,
or at common law or otherwise. The provisions of this Section 10.9 shall survive
the payment of the Lender Obligations and the termination of this Agreement and
the other Loan Documents.
10.10. Confidentiality. The Agent, the Documentation Agents,
the Lenders and the L/C Issuer shall keep confidential and not disclose to any
Person, other than to their respective directors, officers, employees,
Affiliates and agents, and to actual and potential Purchasing Lenders and
Participants, all non-public information concerning the Borrower and the
Borrower's Affiliates which comes into the possession of the Agent, the
Documentation Agents, the Lenders or the L/C Issuer during the term hereof.
Notwithstanding the foregoing, the Agent, the Documentation Agents, the Lenders
and the L/C Issuer may disclose information concerning the Borrower (i) in
accordance-with normal banking practices and the Agent's, such Documentation
Agent's, such Lender's or the L/C Issuer's policies concerning disclosure of
such information in connection with syndication or sales of Participations,
subject to informing the recipient of such information of the duties of
confidentiality hereunder, (ii) pursuant to what the Agent, such Documentation
Agent, such Lender or the L/C Issuer believes to be the lawful requirements or
request of any Official Body regulating banks or banking, (iii) as required by
governmental regulation or rule, judicial process or subpoena; provided however,
if permitted by
- 89 -
law, the Agent, the Documentation Agents, or such Lender shall notify the
Borrower and permit the Borrower, at the Borrower's cost, to contest such
subpoena; and (iv) to their respective attorneys, accountants and auditors who
have been informed of the confidentiality hereunder.
10.11. Survival. All representations, warranties, covenants
and agreements of the Borrower contained herein or in the other Loan Documents
or made in writing in connection herewith shall survive the issuance of the
Notes and the Letters of Credit and shall continue in full force and effect so
long as the Borrower may borrow hereunder and so long thereafter until payment
in full of all the Notes and the Lender Obligations is made. The obligations of
the Borrower under Sections 6.13, 10.02 and 10.03 shall survive the termination
of this Agreement and the discharge of the other obligations of the Borrower
hereunder, and any other Loan Documents, and shall also survive the payment in
full of all Lender Obligations, the termination of the Revolving Credit
Commitment in accordance with the provisions of this Agreement and the
termination or expiration of all Letters of Credit in accordance with their
respective terms.
10.12. GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING
CONFLICT OF LAWS, EXCEPTING APPLICABLE FEDERAL LAW AND EXCEPT ONLY TO THE EXTENT
PRECLUDED BY THE MANDATORY APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
10.13. FORUM. THE PARTIES HERETO AGREE THAT ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS TO WHICH THE BORROWER IS A PARTY MAY BE COMMENCED IN THE COURT OF
COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA OR IN XXX XXXXXXXX XXXXX XX XXX
XXXXXX XXXXXX FOR THE WESTERN DISTRICT OF PENNSYLVANIA, AND THE PARTIES HERETO
AGREE THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION OR PROCEEDING IN EITHER
OF SUCH COURTS SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION
IF SERVED PERSONALLY OR BY CERTIFIED MAIL TO THE PARTIES AT THEIR ADDRESSES SET
FORTH IN SECTION 10.04, OR AS OTHERWISE PROVIDED UNDER THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA. FURTHER, THE BORROWER HEREBY SPECIFICALLY CONSENTS
TO THE PERSONAL JURISDICTION OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
PENNSYLVANIA AND THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF PENNSYLVANIA AND WAIVES AND HEREBY ACKNOWLEDGES THAT IT IS ESTOPPED
FROM RAISING ANY OBJECTION BASED ON FORUM NON CONVENIENS, ANY CLAIM THAT EITHER
SUCH COURT LACKS PROPER VENUE OR ANY OBJECTION THAT EITHER SUCH COURT LACKS
PERSONAL JURISDICTION OVER THE BORROWER SO AS TO PROHIBIT EITHER SUCH COURT FROM
ADJUDICATING ANY ISSUES RAISED IN A COMPLAINT FILED WITH EITHER SUCH COURT
AGAINST THE BORROWER BY THE AGENT, THE DOCUMENTATION AGENTS, THE LENDERS OR THE
L/C ISSUER CONCERNING THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR PAYMENT TO
THE LENDERS. THE BORROWER HEREBY ACKNOWLEDGES AND
- 90 -
AGREES THAT THE CHOICE OF FORUM CONTAINED IN THIS SECTION 10.13 SHALL NOT BE
DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OBTAINED IN ANY FORUM OR THE
TAKING OF ANY ACTION UNDER THE LOAN DOCUMENTS TO ENFORCE THE SAME IN ANY
APPROPRIATE JURISDICTION.
10.14. Non-Business Days. Whenever any payment hereunder or
under the Notes is due and payable on a day which is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of
time shall in each such case be included in computing interest in connection
with such payment.
10.15. Integration. This Agreement and the other Loan
Documents constitute the entire agreement between the parties relating to this
financing transaction and they supersede all prior understandings and
agreements, whether written or oral, between the parties hereto relating to the
transactions provided for herein.
10.16. Counterparts. This Agreement and any amendment hereto
may be executed in several counterparts and by each party on a separate
counterpart, each of which, when so executed and delivered, shall be an
original, but all of which together shall constitute but one and the same
instrument. In proving this Agreement, it shall not be necessary to produce or
account for more than one such counterpart signed by the other party against
whom enforcement is sought. Delivery of an executed counterpart of a signature
page to this Agreement by telecopier shall be as effective as delivery of a
manually executed counterpart of this Agreement.
10.17. Funding by Branch, Subsidiary or Affiliate.
(a) Notional Funding. Each Lender shall have the
right from time to time, without notice to the Borrower, to deem any branch,
subsidiary or affiliate (which for the purposes of this Section 10.17 shall mean
any corporation or association which is directly or indirectly controlled by or
is under direct or indirect common control with any corporation or association
which directly or indirectly controls such Lender) of such Lender to have made,
maintained or funded any Revolving Credit Loan to which the Euro-Rate Option
applies at any time, provided that immediately following (on the assumption that
a payment were then due from the Borrower to such other office) and as a result
of such change the Borrower would not be under any greater financial obligation
to such Lender hereunder, pursuant to Section 2.08, 2.10, 2.11 or 2.12 hereof
than it would have been in the absence of such change. Notional funding offices
may be selected by each Lender without regard to a Lender's actual methods of
making, maintaining or funding the Revolving Credit Loans or any sources of
funding actually used by or available to such Lender.
(b) Actual Funding. Each Lender shall have the right
from time to time to make or maintain any Revolving Credit Loan by arranging for
a branch, subsidiary or affiliate of such Lender to make or maintain such
Revolving Credit Loan subject to the last sentence of this Section 10.17(b). If
any Lender causes a branch, subsidiary or affiliate to make or maintain any part
of the Revolving Credit Loans hereunder, all terms and conditions of this
Agreement shall, except where the context clearly requires otherwise, be
applicable to such part of the
- 91 -
Revolving Credit Loans to the same extent as if such Revolving Credit Loans were
made or maintained by such Lender but in no event shall any Lender's use of such
a branch, subsidiary or affiliate to make or maintain any part of the Revolving
Credit Loans hereunder cause such Lender or such branch, subsidiary or affiliate
to incur any cost or expenses payable by the Borrower hereunder or require the
Borrower to pay any other compensation to any such Lender (including, without
limitation, any expenses incurred or payable pursuant to Section 2.08, 2.10,
2.11 or 2.12 hereof) which would otherwise not be incurred.
10.18. WAIVER OF JURY TRIAL. THE BORROWER, EACH LENDER, THE
AGENT, THE DOCUMENTATION AGENTS AND THE L/C ISSUER EACH HEREBY WAIVES THE RIGHT
TO TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY TYPE IN
WHICH THE BORROWER, THE LENDERS, THE AGENT, THE DOCUMENTATION AGENTS, THE L/C
ISSUER OR ANY OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL
MATTERS AND THINGS ARISING OUT OF THIS AGREEMENT, THE NOTES OR THE OTHER LOAN
DOCUMENTS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 92 -
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have caused this Revolving Credit and Letter of Credit
Issuance Agreement to be executed by their respective duly authorized officers
as of the date first written above.
ATTEST/WITNESS: RTI INTERNATIONAL METALS, INC.,
an Ohio corporation
By: By: (SEAL)
---------------------------- ---------------------------------
Name: Name: Xxxxxxxx X. Xxxxxx
Title: Title: Vice President, Chief Financial
Officer and Treasurer
PNC BANK, NATIONAL ASSOCIATION,
in its capacities as Agent and L/C Issuer
and as a Lender
By: (SEAL)
---------------------------------
Name:
Title:
U.S. BANK, in its capacity as
Documentation Agent and as a Lender
By: (SEAL)
---------------------------------
Name:
Title:
NATIONAL CITY BANK OF PENNSYLVANIA,
in its capacity as Documentation Agent and
as a Lender
By: (SEAL)
---------------------------------
Name:
Title:
- 93 -
LaSALLE BANK NATIONAL ASSOCIATION, in
its capacity as Documentation Agent and as
a Lender
By: (SEAL)
---------------------------------
Name:
Title:
CITIZENS BANK OF PENNSYLVANIA
By: (SEAL)
---------------------------------
Name:
Title:
COMERICA BANK
By: (SEAL)
---------------------------------
Name:
Title:
FLEET NATIONAL BANK
By: (SEAL)
---------------------------------
Name:
Title:
FIFTH THIRD BANK
By: (SEAL)
---------------------------------
Name:
Title:
HSBC BANK USA
By: (SEAL)
---------------------------------
Name:
Title:
- 94 -
EXHIBIT "A"
FORM OF REVOLVING CREDIT NOTE
SEE ATTACHED
EXHIBIT "B"
FORM OF SWINGLINE NOTE
SEE ATTACHED
EXHIBIT "C"
FORM OF BORROWING BASE CERTIFICATE
SEE ATTACHED
EXHIBIT "D"
FORM OF APPLICATION AND AGREEMENT FOR LETTER OF CREDIT
SEE ATTACHED
EXHIBIT "E"
FORM OF LOAN REQUEST
SEE ATTACHED
EXHIBIT "F"
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
SEE ATTACHED
EXHIBIT "G"
FORM OF COMPLIANCE CERTIFICATE
SEE ATTACHED
EXHIBIT "H"
FORM OF OPINION OF COUNSEL
SEE ATTACHED
EXHIBIT "I"
FORM OF SUBSIDIARY GUARANTY
SEE ATTACHED
EXHIBIT "J"
FORM OF LANDLORD'S WAIVER
SEE ATTACHED
SCHEDULE 1.01(a)
LENDERS; REVOLVING CREDIT COMMITMENTS
Amount of
Revolving
Lender Credit Commitment
------ -----------------
Name: PNC Bank, National Commitment $17,000,000
Association Ratable Share: 17%
Notice Address:
Agency Services
One PNC Plaza, 22nd Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Name: U.S. Bank, N.A. Commitment $13,000,000
Ratable Share: 13%
Notice Address:
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Mail Location: XX-XX-REN
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Name: National City Bank Commitment $13,000,000
of Pennsylvania Ratable Share: 13%
Notice Address:
Corporate Banking
20 Stanwix Center IDC: 00-000
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Name: LaSalle Bank National Association Commitment $13,000,000
Ratable Share: 13%
Notice Address:
0000 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Name: Citizens Bank of Pennsylvania Commitment $10,000,000
Ratable Share: 10%
Notice Address:
Xxx Xxxxxx Xxxxxx, Xxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Name: Comerica Bank Commitment $10,000,000
Ratable Share: 10%
Notice Address:
000 Xxxxxxxx Xxxxxx, XX 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Judge
Telephone: 000-000-0000
Telecopier: 000-000-0000
Name: Fleet National Bank Commitment $10,000,000
Ratable Share: 10%
Notice Address:
000 Xxxxxxx Xxxxxx, Xxxxx 0000
XXX Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Name: Fifth Third Bank Commitment $7,000,000
Ratable Share: 7%
Notice Address:
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Name: HSBC Bank USA Commitment $7,000,000
Ratable Share: 7%
Notice Address:
One HSBC Center
Commercial Banking Dept. - Lobby
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Agent Servicing
HSBC Bank USA
Xxx XXXX Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
SCHEDULE 1.01(b)
LOCATIONS OF INVENTORY
BUSINESS SEGMENT
I. TITANIUM GROUP
Name of Loan Party Address
------------------ -------
Galt Alloys, Inc. 000 Xxxxxxx Xxxxx X
Xxxxxx, XX 00000
RMI Metals, Inc., d/b/a Micron Metals 0000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
RMI Titanium Company 0000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
Service Center:
Xxxxx Xxxx & X. 00xx Xxxxxx
Xxxxxxxxx, XX 00000
Tube Division:
0000 Xxxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
XXX XX Xxxxxx Xxxxxxx
Tradco, Inc. 0000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
000 Xxxxx Xxxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
II. FABRICATION & DISTRIBUTION GROUP
Name of Loan Party Address
------------------ -------
Xxxxxx-Xxxxxxxx Metals Company, Inc. 0000 Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Bow Steel of Texas Corporation 00000 Xxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
RTI Energy Systems 0000 Xxxxxx Xxxxxxx Xxxx
Xxxxxx, XX 00000
TRADCO, Inc. 000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
RTI Fabrications, L.P. 0000 Xxxxx Xxxxx Xx,
Xxxxxxxx X
Xxxxxxx, XX 00000
Bow Steel Corporation 000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
RTI International Metals Limited Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx
Xxxxxxxxxxxxxx, X00 0XX,
Xxxxxxx
RTI International Metals Gmbh Xxxxxxxxxxxxxx 0x
00000 Xxxxxxxxx, Xxxxxxx
Reamet S.A. 0-0 xxx xx Xxxxxx
00000 Xxxxxxxx Xxxxxx
RTI International Metals Srl Xxx X.X. Xxxxxxxx, 00
00000 Xxxxx, Xxxxx
SCHEDULE 2.17(j)
EXISTING LETTERS OF CREDIT
LC NUMBER BENEFICIARY AMOUNT EXPIRY
--------- ----------- ------ ------
228242 UBS Cayman Islands, Ltd. $1,042,294.00 3/01/03
227583 UBS Cayman Islands, Ltd. $ 180,137.00 3/01/03
246723 Hyundai Heavy Industries $5,150,400.00 4/01/03
SCHEDULE 4.01
JURISDICTIONS OF INCORPORATION AND
QUALIFICATION OF BORROWER AND SUBSIDIARIES
RTI International Metals, Inc.
Qualified: Ohio
RMI Titanium Company
Qualified: Ohio, California, Missouri, Pennsylvania, Texas
RMI Delaware, Inc.
Qualified: Delaware
Galt Alloys, Inc.
Qualified: Ohio
RMI Metals, Inc. d/b/a Micron Metals
Qualified: Utah
TRADCO, Inc.
Qualified: Missouri
NaTi Gas Co.
Qualified: Ohio
Earthline Technologies, Inc.
Qualified: Ohio
RTI Energy Systems, Inc. (f/k/a WT Engineering)
Qualified: Ohio, Texas
Weld-Tech Engineering Services, L.P. d/b/a RTI Energy Systems
Qualified: Texas
Weld-Tech GP, Inc.
Qualified: Texas
Weld-Tech LP, Inc.
Qualified: Delaware
RTI Fabrications, L.P.
Qualified: Texas, California, Ohio
ETCA GP, L.L.C.
Qualified: Texas, Ohio
Schedule 4.01 continued
JURISDICTIONS OF INCORPORATION AND
QUALIFICATION OF BORROWER AND SUBSIDIARIES
ETCA LP, Inc.
Qualified: Delaware
New Century Metals, Inc.
Qualified: Ohio
New Century Metals Southeast, Inc.
Qualified: Delaware, California (d/b/a New Century Metals)
Extrusion Technology Corporation of America
Qualified: Ohio
Bow Steel Corporation
Qualified: Delaware, Connecticut
Bow Steel of Texas Corporation
Qualified: Delaware, Texas
Xxxxxx-Xxxxxxxx Metals Company, Inc.
Qualified: California
RTI Europe Limited
Qualified: United Kingdom
RTI International Metals Limited
Qualified: United Kingdom
RTI International Metals Gmbh
Qualified: Germany
RTI International Metals Srl
Qualified: Italy
RTI France S.A.S.
Qualified: France
Reamet S.A.
Qualified: France
SCHEDULE 4.02
CAPITAL STOCK OPTIONS
a. Reference is made to Note 15---Stock Options and restricted Stock Award
Plans, to the Consolidated Financial Statements for the Year Ended
December 31, 2001
b. Copy of 1995 Stock Plan attached.
SCHEDULE 4.03
INTERESTS IN SUBSIDIARIES AND OTHER ENTITIES
RTI International Metals, Inc. 100%
RMI Titanium Company 100%
RMI Delaware, Inc. 100%
Galt Alloys, Inc. 90%
RMI Metals, Inc. d/b/a Micron Metals 100%
TRADCO, Inc. 100%
NaTi Gas Co. 100%
Earthline Technologies, Inc. 100%
RTI Energy Systems, Inc. (f/k/a WT Engineering) 100%
Weld-Tech Engineering Services, L.P. d/b/a RTI Energy Systems 100%
Weld-Tech GP, Inc. 100%
Weld-Tech LP, Inc. 100%
RTI Fabrications, L.P. 100%
ETCA GP, L.L.C. 100%
ETCA LP, Inc. 100%
New Century Metals, Inc. 100%
New Century Metals Southeast, Inc. 100%
Extrusion Technology Corporation of America 100%
Bow Steel Corporation 100%
Bow Steel of Texas Corporation 100%
Xxxxxx-Xxxxxxxx Metals Company, Inc. 100%
RTI Europe Limited 100%
RTI International Metals Limited 100%
RTI International Metals Gmbh 100%
RTI International Metals Srl 100%
RTI France S.A.S. 100%
Reamet S.A. 100%
SCHEDULE 4.07
LITIGATION
NONE
SCHEDULE 4.11
AGREEMENTS CONCERNING TAX RETURNS
NONE
SCHEDULE 4.12
CONSENTS AND APPROVALS
NONE
SCHEDULE 4.16
PLANS AND BENEFIT ARRANGEMENTS
NONE
SCHEDULE 4.20
ENVIRONMENTAL MATTERS
Reference is hereby made to Legal Proceedings - Environmental and
Note 14 of the RTI 2001 Annual Report and Form 10K filed
with the Securities Exchange Commission
SCHEDULE 7.01
PERMITTED INDEBTEDNESS
NONE
SCHEDULE 7.03
OTHER INVESTMENTS
NONE
SCHEDULE 7.06
AFFILIATE TRANSACTIONS
NONE
