THIRD AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.5
THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement is dated March 11, 2011, by and among ATI Funding
Corporation, a Delaware corporation (“ATI Funding”), TDY Holdings, LLC, a Delaware limited
liability company (“TDYH”) (ATI Funding and TDYH are each, a “Borrower” and collectively, the
“Borrowers”), the Guarantors (as defined in the Credit Agreement (as hereinafter defined)) party
hereto, the Lenders (as hereinafter defined) party hereto and PNC Bank, National Association (“PNC
Bank”) as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) (the
“Third Amendment”).
W I T N E S S E T H:
WHEREAS, the Borrowers, the Guarantors, PNC Bank and various other financial institutions
party thereto (PNC Bank and such other financial institutions are each, a “Lender” and
collectively, the “Lenders”) and the Administrative Agent entered into that certain Credit
Agreement, dated July 31, 2007, as amended by that certain First Amendment to Credit Agreement,
dated May 29, 2009, among the Borrowers, the Guarantors, the Lenders and the Administrative Agent,
and as further amended by that certain Second Amendment to Credit Agreement, dated December 22,
2010, among the Borrowers, the Guarantors, the Lenders and the Administrative Agent (as further
amended, restated, modified or supplemented from time to time, the “Credit Agreement”); and
WHEREAS, the Borrowers and the Guarantors desire to amend certain provisions of the Credit
Agreement and the Lenders and the Administrative Agent shall permit such amendments pursuant to the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. All capitalized terms used herein that are defined in the Credit Agreement shall have the
same meaning herein as in the Credit Agreement unless the context clearly indicates otherwise.
2. Section 1.1 of the Credit Agreement is hereby amended by inserting the following defined
terms in appropriate alphabetical order:
Ladish shall mean Xxxxxx Co., Inc., a Wisconsin
corporation.
Ladish LLC shall mean, at all times after consummation
of the Ladish LLC Merger, Ladish Co., LLC, a Wisconsin limited
liability company and a wholly owned Subsidiary of ATI.
Xxxxxx LLC Merger shall mean the merger of Ladish with
and into PADL, with PADL, renamed “Ladish LLC” as a result of
the Ladish LLC Merger, continuing as the surviving entity which
merger shall occur after the LPAD Merger.
Xxxxxx Notes shall mean, collectively, (y) the 6.14%
Senior Notes, Series B, due May 16, 2016, issued by Xxxxxx pursuant
to and in accordance with that certain Series B Terms Agreement to
Note Purchase Agreements, dated as of May 16, 2006, as amended, and
(z) the 6.41% Senior Notes, Series C, due September 2, 2015, issued
by Xxxxxx pursuant to and in accordance with that certain Series C
Terms Agreement to Note Purchase Agreement, dated as of September 2,
2008, as amended.
Xxxxxx Notes Amendment Date shall mean the date, if
any, on which the Xxxxxx Notes have been amended (or the Xxxxxx
noteholders have otherwise consented) to permit Xxxxxx and its
Domestic Subsidiaries to Guaranty the Obligations.
Xxxxxx Notes Payoff Date shall mean the earliest date
on which all obligations of Ladish under the Ladish Notes have been
paid in full or otherwise discharged.
LPAD shall mean LPAD Co., a Wisconsin corporation and a
wholly owned Subsidiary of ATI.
LPAD Merger shall mean the merger of LPAD with and into
Ladish, with Ladish continuing as the surviving entity.
PADL shall mean, PADL LLC, a Wisconsin limited
liability company and a wholly owned Subsidiary of ATI.
3. Section 7.2.3(ii) of the Credit Agreement is hereby amended to delete therefrom the
reference to “(A)” and “(B)”, respectively, and to insert in their place a reference to “(a)” and
“(b)”, respectively.
4. Section 7.2.3(ii)(A) of the Credit Agreement is hereby amended by inserting the following
proviso at the end of such Section:
provided that, in the event that the Xxxxxx LLC Merger
occurs prior to the Xxxxxx Notes Payoff Date or the Xxxxxx Notes
Amendment Date, Xxxxxx LLC shall not be required to execute a
Guarantor Joinder or such other documents required by Section 10.13
[Joinder of Guarantors] until the twentieth (20th)
Business Day after (i) the Xxxxxx Notes Payoff Date, or (ii) the
Xxxxxx Notes Amendment Date, whichever occurs first.
5. Section 7.2.3 of the Credit Agreement is hereby amended by deleting the “.” at the end of
such Section and in its stead inserting the following: “; and”.
- 2 -
6. Section 7.2.3 of the Credit Agreement is hereby amended by inserting the following
subsection (iii) at the end of such Section:
(iii) each of the LPAD Merger and the Xxxxxx LLC Merger may be
consummated.
7. Section 7.2.5 of the Credit Agreement is hereby deleted in its entirety and in its stead
is inserted the following:
7.2.5 Subsidiaries and Partnerships.
Each of the Loan Parties shall not, and shall not permit any of
its Domestic Subsidiaries to own or create directly or indirectly
any Subsidiaries other than (i) any Subsidiary which has joined this
Agreement as Guarantor on the Closing Date; and (ii) any Subsidiary
formed or acquired after the Closing Date (other than LPAD and PADL)
which joins this Agreement as a Guarantor pursuant to Section 10.13
[Joinder of Guarantors]; provided, however, such
Subsidiary shall not be required to join this Agreement as a
Guarantor pursuant to Section 10.13 [Joinder of Guarantors] (1) if
such Subsidiary (a) exists on the date of this Agreement or is
acquired by a Loan Party or Subsidiary of a Loan Party and is a
Foreign Subsidiary or (b) is formed or organized as a Foreign
Subsidiary by a Loan Party or Subsidiary of a Loan Party after the
date of this Agreement, or (2) if the total assets of such
Subsidiary are less than Fifty Million and 00/100 Dollars
($50,000,000.00), such Subsidiary shall not be required to join this
Agreement as a Guarantor pursuant to Section 10.13 [Joinder of
Guarantors]; provided further that, in the event
that the Xxxxxx LLC Merger occurs prior to the Xxxxxx Notes Payoff
Date or the Xxxxxx Notes Amendment Date, no Domestic Subsidiary of
Xxxxxx LLC with assets equal to or greater than Fifty Million and
00/100 Dollars ($50,000,000.00) shall be required to execute a
Guarantor Joinder or such other documents required by Section 10.13
[Joinder of Guarantors] until the twentieth (20th)
Business Day after (i) the Xxxxxx Notes Payoff Date, or (ii) the
Xxxxxx Notes Amendment Date, whichever occurs first.
8. The provisions of Sections 2 through 7 of this Third Amendment shall not become effective
until the Administrative Agent has received the following items, each in form and substance
acceptable to the Administrative Agent and its counsel:
(a) this Third Amendment, duly executed by each of the Loan
Parties and the Required Lenders;
- 3 -
(b) payment of all fees and expenses owed to the Lenders, the
Administrative Agent, and the Administrative Agent’s counsel in
connection with this Third Amendment; and
(c) such other documents as may be reasonably requested by the
Administrative Agent.
9. Each Loan Party hereby reconfirms and reaffirms all representations and warranties,
agreements and covenants made by it pursuant to the terms and conditions of the Credit Agreement,
except as such representations and warranties, agreements and covenants may have heretofore been
amended, modified or waived in writing in accordance with the Credit Agreement.
10. Each Loan Party acknowledges and agrees that each and every document, instrument or
agreement, which at any time has secured the Obligations including, without limitation, the
Guaranty Agreements, hereby continues to secure the Obligations.
11. Each Loan Party hereby represents and warrants to the Lenders and the Administrative
Agent that (i) such Loan Party has the legal power and authority to execute and deliver this Third
Amendment, (ii) the officers of such Loan Party executing this Third Amendment have been duly
authorized to execute and deliver the same and bind such Loan Party with respect to the provisions
hereof, (iii) the execution and delivery hereof by such Loan Party and the performance and
observance by such Loan Party of the provisions hereof and of the Credit Agreement and all
documents executed or to be executed in connection herewith or therewith, do not violate or
conflict with the organizational agreements of such Loan Party or any law applicable to such Loan
Party or result in a breach of any provision of or constitute a default under any other agreement,
instrument or document binding upon or enforceable against such Loan Party, and (iv) this Third
Amendment, the Credit Agreement and the documents executed or to be executed by such Loan Party in
connection herewith or therewith constitute valid and binding obligations of such Loan Party in
every respect, enforceable in accordance with their respective terms.
12. Each Loan Party represents and warrants that (i) no Event of Default exists under the
Credit Agreement, nor will any occur as a result of the execution and delivery of this Third
Amendment or the performance or observance of any provision hereof, (ii) the schedules attached to
and made a part of the Credit Agreement, are true and correct in all material respects as of the
date hereof, except as such schedules may have heretofore been amended or modified or updated in
writing in accordance with the Credit Agreement, and (iii) it presently has no known claims or
actions of any kind at law or in equity against any Lender or the Administrative Agent arising out
of or in any way relating to the Credit Agreement or the other Loan Documents.
13. Each reference to the Credit Agreement that is made in the Credit Agreement or any other
document executed or to be executed in connection therewith shall hereafter be construed as a
reference to the Credit Agreement as amended hereby.
- 4 -
14. The agreements contained in this Third Amendment are limited to the specific agreements
made herein. Except as amended hereby, all of the terms and conditions of the Credit Agreement
and the other Loan Documents shall remain in full force and effect. This Third Amendment amends
the Credit Agreement and is not a novation thereof.
15. This Third Amendment may be executed in any number of counterparts and by the different
parties hereto on separate counterparts each of which, when so executed, shall be deemed to be an
original, but all such counterparts shall constitute but one and the same instrument.
16. This Third Amendment shall be governed by, and shall be construed and enforced in
accordance with, the Laws of the Commonwealth of Pennsylvania without regard to the principles of
the conflicts of law thereof. Each Loan Party hereby consents to the jurisdiction and venue of
the Court of Common Pleas of Allegheny County, Pennsylvania and the United States District Court
for the Western District of Pennsylvania with respect to any suit arising out of or mentioning
this Third Amendment.
[INTENTIONALLY LEFT BLANK]
- 5 -
IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused
this Third Amendment to be duly executed by their duly authorized officers the day and year first
above written.
| BORROWERS: |
||||||
| WITNESS: | ATI FUNDING CORPORATION | |||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | President | |||||
| WITNESS: | TDY HOLDINGS, LLC | |||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | President | |||||
GUARANTORS: |
||||||
| WITNESS: | ALLEGHENY TECHNOLOGIES INCORPORATED | |||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
| WITNESS: | OREGON METALLURGICAL CORPORATION |
|||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
WITNESS: |
ALLEGHENY XXXXXX CORPORATION |
|||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
| WITNESS: | ATI PROPERTIES, INC. | |||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxxxxx X. Xxxxxxx | ||||
| Name: | Xxxxxxx X. Xxxxxxx | |||||
| Title: | Vice President | |||||
WITNESS: |
TDY INDUSTRIES, INC. |
|||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
WITNESS: |
ALC FUNDING CORPORATION |
|||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | President | |||||
WITNESS: |
JEWEL ACQUISITION, LLC |
|||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
| WITNESS: | XXXXXX STEEL, LLC | |||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
| WITNESS: | INTERNATIONAL HEARTH MELTING, LLC | |||||
| /s/ X. X. Xxxxxxx | By: | OREGON METALLURGICAL CORPORATION, its Sole Manager |
||||
| By: | /s/ Xxxx X. Xxxx | |||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
| WITNESS: | ATI PRECISION FINISHING, LLC (formerly known as “ROME METALS, LLC”) |
|||||
| /s/ X. X. Xxxxxxx | ||||||
| By: | /s/ Xxxx X. Xxxx | |||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
| WITNESS: | TI OREGON, INC. |
|||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
| WITNESS: | TITANIUM WIRE CORPORATION | |||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
| WITNESS: | ATI CANADA HOLDINGS, INC. | |||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
| WITNESS: | ALLEGHENY TECHNOLOGIES INTERNATIONAL, INC. | |||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
| WITNESS: | AII INVESTMENT CORP. |
|||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | President | |||||
| WITNESS: | ENVIRONMENTAL, INC. |
|||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
| WITNESS: | AII ACQUISITION, LLC |
|||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
| WITNESS: | ATI TITANIUM LLC |
|||||
| /s/ X. X. Xxxxxxx | By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
| AGENTS AND LENDERS: PNC BANK, NATIONAL ASSOCIATION, as a Lender and as Administrative Agent |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President | |||
| CITIBANK, N.A., as a Lender and as Co- Syndication Agent |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| JPMORGAN CHASE BANK, N.A., as a Lender and as Co-Syndication Agent |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxxx | |||
| Title: | Vice President | |||
| BANK OF AMERICA N.A., for itself, as a Lender and as Co-Documentation Agent, and as successor by merger to LASALLE BANK NATIONAL ASSOCIATION, as a Lender |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Vice President | |||
| BANK OF TOKYO-MITSUBISHI UFJ TRUST COMPANY, as a Lender and as Co- Documentation Agent |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Vice President | |||
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender and as a Co-Managing Agent |
||||
| By: | / s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Director | |||
| By: | / s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Associate | |||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Lender and as Co- Managing Agent |
||||
| By: | /s/ Xxxxx Xxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxx | |||
| Title: | Director | |||
| THE BANK OF NEW YORK, as a Lender and as Co-Managing Agent |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
| XXXXXX XXXXXXX BANK, as a Lender |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Authorized Signatory | |||
| HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender |
||||
| By: | /s/ X. X. Xxxxxx | |||
| Name: | X. X. Xxxxxx | |||
| Title: | Senior Relationship Manager | |||
