EXHIBIT 4.1
CREDIT AGREEMENT
($325,000,000 CREDIT FACILITY)
Dated as of
December 21, 2001
By and Among
ALLEGHENY TECHNOLOGIES INCORPORATED
as the Borrower,
THE BANKS HERETO
as the Lenders hereunder,
MELLON BANK, N.A.,
JPMORGAN CHASE BANK,
AND
BANK OF AMERICA, N.A.
as Syndication Agents,
and
PNC BANK, NATIONAL ASSOCIATION
as the Documentation and Administrative Agent,
and
PNC CAPITAL MARKETS, INC.
as Lead Arranger
TABLE OF CONTENTS
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PAGE
ARTICLE I. DEFINITIONS......................................................................2
1.1 Defined Terms....................................................................2
1.2 GAAP Definitions................................................................23
1.3 Other Definitional Conventions and Rules of Construction........................23
ARTICLE II. THE LOANS.......................................................................23
2.1 The Revolving Credits...........................................................23
2.2 Bid Rate Loans..................................................................28
2.3 Swingline Loans.................................................................32
2.4 Interest Rates, Interest Payment and Certain Provisions
Relating to Interest and Fees..................................................36
2.5 Yield-Protection, Capital Adequacy and Miscellaneous
Provisions Relating to LIBOR...................................................41
2.6 Fees............................................................................43
2.7 Calculation of Interest and Certain Fees........................................45
2.8 Extension of Short Term Revolving Credit Termination Date.......................45
2.9 Substitution or Replacement of a Lender.........................................47
2.10 Loan Repayment..................................................................47
2.11 Additional Payments by the Borrower.............................................48
2.12 Voluntary Reduction of Availability.............................................48
2.13 Loan Account....................................................................49
2.14 Payment from Accounts Maintained by Borrower....................................49
2.15 Time, Place and Manner of Payments..............................................49
2.16 Letter of Credit Sub-Facility...................................................50
ARTICLE III. REPRESENTATIONS AND WARRANTIES..................................................56
3.1 Corporate Existence.............................................................56
3.2 Corporate Authority.............................................................56
3.3 Enforceability..................................................................56
3.4 No Restrictions.................................................................57
3.5 Financial Statements............................................................57
3.6 Absence of Litigation...........................................................57
3.7 Tax Returns and Payments........................................................57
3.8 Pension Plans...................................................................57
3.9 Compliance with Applicable Laws.................................................58
3.10 Environmental Matters...........................................................58
3.11 Governmental Approval...........................................................58
3.12 Regulations T, U and X..........................................................58
3.13 Investment Company Act..........................................................58
3.14 Public Utility Holding Company Act..............................................58
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3.15 Disclosure......................................................................59
ARTICLE IV. AFFIRMATIVE COVENANTS...........................................................59
4.1 Use of Proceeds.................................................................59
4.2 Furnishing Information..........................................................59
4.3 Visitation......................................................................60
4.4 Preservation of Existence; Qualification........................................61
4.5 Compliance with Laws and Contracts..............................................61
4.6 Payment of Taxes and Other Liabilities..........................................61
4.7 Insurance.......................................................................61
4.8 Maintenance of Properties.......................................................61
4.9 Plans and Benefit Arrangements..................................................62
4.10 Senior Debt Status..............................................................62
4.11 Ownership of Operating Subsidiaries.............................................62
ARTICLE V. NEGATIVE COVENANTS..............................................................62
5.1 Indebtedness....................................................................62
5.2 Encumbrances....................................................................63
5.3 Leverage Ratio..................................................................63
5.4 Interest Coverage Ratio.........................................................63
5.5 Sales of Assets.................................................................63
5.6 Merger..........................................................................64
5.7 Restriction on Dividends........................................................64
5.8 Restriction on Guarantees.......................................................64
5.9 Regulation T, U and X Compliance................................................64
5.10 ERISA...........................................................................64
ARTICLE VI. CONDITIONS PRECEDENT TO ALL DISBURSEMENTS.......................................65
6.1 All Disbursements...............................................................65
6.2 Conditions Precedent to the Initial Disbursement Under the
Commitment.....................................................................65
ARTICLE VII. DEFAULTS........................................................................67
7.1 Payment Default.................................................................67
7.2 Nonpayment of Other Indebtedness................................................67
7.3 Insolvency......................................................................67
7.4 Termination of Existence........................................................68
7.5 Failure to Comply with Covenants................................................68
7.6 Misrepresentation...............................................................68
7.7 Adverse Judgments, Etc..........................................................68
7.8 Invalidity or Unenforceability..................................................69
7.9 ERISA...........................................................................69
7.10 Change of Control...............................................................69
7.11 Consequences of an Event of Default.............................................70
7.12 Remedies Upon Default...........................................................70
7.13 Cash Collateral.................................................................70
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ARTICLE VIII. AGREEMENT AMONG LENDERS........................................................71
8.1 Appointment and Grant of Authority..............................................71
8.2 Non-Reliance on Agent...........................................................71
8.3 Responsibility of Agent and Other Matters.......................................72
8.4 Action on Instructions..........................................................72
8.5 Indemnification.................................................................73
8.6 Agent's Rights as a Lender......................................................73
8.7 Payment to Lenders..............................................................73
8.8 Pro Rata Sharing................................................................73
8.9 Successor Agent.................................................................74
8.10 Syndication Agents..............................................................74
ARTICLE IX. GENERAL PROVISIONS..............................................................74
9.1 Amendments and Waivers..........................................................74
9.2 Expenses........................................................................76
9.3 Notices.........................................................................76
9.4 Tax Withholding.................................................................77
9.5 Successors and Assigns..........................................................78
9.6 Assignments and Participations..................................................78
9.7 Severability....................................................................80
9.8 Survival........................................................................80
9.9 Governing Law...................................................................80
9.10 Non-Business Days...............................................................80
9.11 Integration.....................................................................80
9.12 Set-Off.........................................................................80
9.13 Forum...........................................................................81
9.14 Waiver of Jury Trial............................................................81
9.15 Indemnity.......................................................................81
9.16 Termination of Existing Bank Credit Agreements..................................82
9.17 Counterparts....................................................................82
9.18 Permitted Adjustments to Commitment Percentages and Short Term Revolving
Credit Commitment Percentages..................................................82
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TABLE OF EXHIBITS AND SCHEDULES
-------------------------------
EXHIBITS
Exhibit A-1 - Form of Long Term Revolving Credit Note
Exhibit A-2 - Form of Short Term Revolving Credit Note
Exhibit B-1 - Form of Bid Rate Note (Allocated to Long Term Revolving
Credit Note)
Exhibit B-2 - Form of Bid Rate Note (Allocated to Short Term Revolving
Credit Note)
Exhibit C - Form of Bid Rate Quote Request
Exhibit D - Form of Bid Rate Quote
Exhibit E - Form of Swingline Note
Exhibit F - Form of Swingline Quote Request
Exhibit G - Form of Swingline Quote
Exhibit H - Form of Compliance Certificate
Exhibit I - Form of Opinion of Counsel
Exhibit J - Form of Assignment and Assumption Agreement
Exhibit K - Form of Term Note
SCHEDULES
3.8 - Plans
5.1 - Existing Indebtedness
5.2 - Existing Encumbrances Securing Indebtedness
5.5 - Assets Held For Sale
9.3 - Notices
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CREDIT AGREEMENT
($325,000,000 CREDIT FACILITY)
THIS CREDIT AGREEMENT, dated as of December 21, 2001, by and among
ALLEGHENY TECHNOLOGIES INCORPORATED, a Delaware corporation (the "Borrower"),
the FINANCIAL INSTITUTIONS listed on the signature pages hereto, and each other
financial institution which, from time to time, becomes a party hereto in
accordance with Subsection 9.6a (individually, a "Lender", and collectively, the
"Lenders"), MELLON BANK, N.A., JPMORGAN CHASE BANK, and BANK OF AMERICA, N.A.,
as Syndication Agents (individually a "Syndication Agent", and collectively the
Syndication Agents) and PNC BANK, NATIONAL ASSOCIATION, a national banking
association, as Documentation and Administrative Agent for the Lenders and the
issuer of Letters of Credit hereunder (in such capacity the "Agent").
WITNESSETH:
WHEREAS, the Borrower desires to obtain a Long Term Revolving Credit
Commitment (as defined below) from each of the Lenders pursuant to which Long
Term Revolving Credit Loans, in a maximum aggregate principal amount at any one
time outstanding not to exceed $195,000,000, will be made to the Borrower from
time to time prior to the Long Term Revolving Credit Termination Date (as
defined below); and
WHEREAS, the Borrower desires to obtain a Short Term Revolving Credit
Commitment (as defined below) from each of the Lenders pursuant to which Short
Term Revolving Credit Loans, in a maximum aggregate principal amount at any one
time outstanding not to exceed $130,000,000, will be made to the Borrower from
time to time prior to the Short Term Revolving Credit Termination Date (as
defined below); and
WHEREAS, the Borrower has requested a letter of credit sub-facility
under the Commitments herein established in the amount of $50,000,000; and
WHEREAS, the Borrower, the Syndication Agents, the Agent and the
Lenders acknowledge that PNC Capital Markets ("PNC Capital") has acted as the
lead arranger for the credit herein describe notwithstanding, PNC Capital is not
and shall not be a party this Agreement; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth, to extend such Commitments, to make such Loans
to the Borrower and to issue certain Letters of Credit for the account of the
Borrower.
NOW, THEREFORE, in consideration of mutual promises contained herein
and other valuable consideration and with the intent to be legally bound hereby,
the parties hereto agree as follows:
ARTICLE I. DEFINITIONS.
1.1 DEFINED TERMS. As used herein the following terms shall have the
meaning specified unless the context otherwise requires:
"Absolute Rate Auction" means a solicitation of Bid Rate Quotes setting
forth Bid Rate Absolute Rates pursuant to Subsection 2.2c.
"ALC" means Allegheny Xxxxxx Corporation, a Pennsylvania corporation,
which is an indirect wholly owned Subsidiary of the Borrower.
"Adjusted Long Term Revolving Credit LIBOR" means the interest rate
relating to the LIBOR Option as described in item (B) of Subsection 2.4b(i).
"Adjusted Short Term Revolving Credit LIBOR" means the interest rate
relating to the LIBOR Option as described in item (B) of Subsection 2.4b(ii).
"Adjusted Term Loan LIBOR" means the interest rate relating to the
LIBOR Option as described in item (B) of Subsection 2.4b(iii).
"Agent" has the meaning set forth in the preamble to this Agreement.
"Agent's Fees" means those certain fees for the sole account of the
Agent or PNC Capital set forth in that certain letter agreement by and between
the Agent and the Borrower dated September 4, 2001.
"Agent's Letter" means that certain letter agreement dated September 4,
2001 by PNC Bank, National Association and PNC Capital and accepted by the
Borrower, which sets forth the Agent's Fee.
"Agreeing Lenders" shall have the meaning ascribed to such term in
Section 2.8a hereof; and the term "Agreeing Lender" shall refer to any of the
Agreeing Lenders.
"Agreement" means this Credit Agreement together with the exhibits and
schedules hereto and all extensions, renewals, amendments, modifications,
substitutions and replacements hereto and hereof.
"Applicable Long Term Revolving Credit LIBOR Margin" means for each
LIBOR Portion of the Long Term Revolving Credit Loans, the percentage (expressed
in basis points) determined from time to time based upon the Senior Ratings then
in effect from Xxxxx'x and S&P set forth under the relevant column heading
below:
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Applicable Long Term Revolving Credit
Senior Ratings LIBOR Margin
------------------------------------------------------------ ------------------------------------------
LEVEL I
Senior Ratings are equal to or better than A from S&P or
A2 from Xxxxx'x 32.5 Basis Points
------------------------------------------------------------ ------------------------------------------
LEVEL II
Senior Ratings are A- from S&P or A3 from Xxxxx'x 40 Basis Points
------------------------------------------------------------ ------------------------------------------
LEVEL III
Senior Ratings are BBB+ from S&P or Baa1 from Xxxxx'x
47.5 Basis Points
------------------------------------------------------------ ------------------------------------------
LEVEL IV
Senior Ratings are BBB from S&P or Baa2 from Xxxxx'x
57.5 Basis Points
------------------------------------------------------------ ------------------------------------------
LEVEL V
Senior Ratings are equal to or less than BBB-
from S&P and Baa3 from Xxxxx'x 77.5 Basis Points
------------------------------------------------------------ ------------------------------------------
PROVIDED, however, that (i) in the event the Senior Ratings of S&P and Xxxxx'x
do not coincide, the Applicable Long Term Revolving Credit LIBOR Margin shall be
determined utilizing the higher of such Senior Ratings; and (ii) in the event
only one Senior Rating is in effect, the Applicable Long Term Revolving Credit
LIBOR Margin set forth opposite such Senior Rating shall apply.
"Applicable Short Term Revolving Credit LIBOR Margin" means for each
LIBOR Portion of the Short Term Revolving Credit Loans, the percentage
(expressed in basis points) determined from time to time based upon the Senior
Ratings then in effect from Xxxxx'x and S&P set forth under the relevant column
heading below:
------------------------------------------------------------ ------------------------------------------
Applicable Short Term Revolving Credit
Senior Ratings LIBOR Margin
------------------------------------------------------------ ------------------------------------------
LEVEL I
Senior Ratings are equal to or better than A from S&P or
A2 from Xxxxx'x 34.5 Basis Points
------------------------------------------------------------ ------------------------------------------
LEVEL II
Senior Ratings are A- from S&P or A3 from Xxxxx'x
42.5 Basis Points
------------------------------------------------------------ ------------------------------------------
LEVEL III
Senior Ratings are BBB+ from S&P or Baa1 from Xxxxx'x
50.0 Basis Points
------------------------------------------------------------ ------------------------------------------
LEVEL IV
Senior Ratings are BBB from S&P or Baa2 from Xxxxx'x
62.5 Basis Points
------------------------------------------------------------ ------------------------------------------
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------------------------------------------------------------ ------------------------------------------
Applicable Short Term Revolving Credit
Senior Ratings LIBOR Margin
------------------------------------------------------------ ------------------------------------------
LEVEL V
Senior Ratings are equal to or less than BBB- from S&P
Baa3 and from Xxxxx'x 82.5 Basis Points
------------------------------------------------------------ ------------------------------------------
PROVIDED, however, that (i) in the event the Senior Ratings of S&P and Xxxxx'x
do not coincide, the Applicable Short Term Revolving Credit LIBOR Margin shall
be determined utilizing the higher of such Senior Ratings; and (ii) in the event
only one Senior Rating is in effect, the Applicable Short Term Revolving Credit
LIBOR Margin set forth opposite such Senior Rating shall apply.
"Applicable Term Loan LIBOR Margin" means for each LIBOR Portion of the
Term Loans, the percentage (expressed in basis points) determined from time to
time based upon the Senior Ratings then in effect from Xxxxx'x and S&P set forth
under the relevant column heading below:
------------------------------------------------------------ ------------------------------------------
Applicable Term Loan
Senior Ratings LIBOR Margin
------------------------------------------------------------ ------------------------------------------
LEVEL I
Senior Ratings are equal to or better than A from S&P or
A2 from Xxxxx'x 95 Basis Points
------------------------------------------------------------ ------------------------------------------
LEVEL II
Senior Ratings are A- from S&P or A3 from Xxxxx'x
105 Basis Points
------------------------------------------------------------ ------------------------------------------
LEVEL III
Senior Ratings are BBB+ from S&P or Baa1 from Xxxxx'x
115 Basis Points
------------------------------------------------------------ ------------------------------------------
LEVEL IV
Senior Ratings are BBB from S&P or Baa2 from Xxxxx'x
130 Basis Points
------------------------------------------------------------ ------------------------------------------
LEVEL V
Senior Ratings are equal to or less than BBB- from S&P
and Baa3 from Xxxxx'x 155 Basis Points
------------------------------------------------------------ ------------------------------------------
PROVIDED, however, that (i) in the event the Senior Ratings of S&P and Xxxxx'x
do not coincide, the Applicable Term Loan LIBOR Margin shall be determined
utilizing the higher of such Senior Ratings; and (ii) in the event only one
Senior Rating is in effect, the Applicable Term Loan LIBOR Margin set forth
opposite such Senior Rating shall apply.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement in the form of Exhibit "J" hereto.
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"ATI Funding" means ATI Funding Corporation, a Delaware corporation,
which is a wholly owned Subsidiary of the Borrower.
"Authorized Officer" means the President, any Vice President, the Chief
Financial Officer, the Treasurer or the principal accounting officer of the
Borrower. The Agent and the Lenders shall be entitled to rely on the incumbency
certificate delivered pursuant to Subsection 6.2 (vi) for the initial
designation of each Authorized Officer. Additions or deletions to the list of
Authorized Officers may be made by the Borrower at any time by delivering to the
Agent for redelivery to each Lender a revised incumbency certificate.
"Bank Indebtedness" means the liability of the Borrower to pay the
Loans, the Facility Fees, the Utilization Fees, the Agent's Fees, the Letter of
Credit Fees, the Fronting Fees, the Closing Fees, the aggregate stated amount of
Letters of Credit Outstanding, the aggregate amount of unreimbursed draws on
Letters of Credit issued hereunder, interest thereon, and the other amounts,
including, without limitation, expenses, due hereunder.
"Base Rate" means, for any day, the higher of (i) the sum of (A) the
Federal Funds Effective Rate for such day PLUS (B) fifty (50) basis points
(1/2%) per annum and (ii) the Prime Rate, as of such day.
"Base Rate Option" means the interest rate option described in
Subsection 2.4b(i)(A), Subsection 2.4b(ii)(A) or Subsection 2.4b(iii)(A).
"Base Rate Portion" means a Revolving Credit Loan or Term Loan, as
applicable, or a portion thereof, which bears, or is to bear, interest at the
Base Rate.
"Bid Rate" means the rate or rates of interest from time to time in
effect pursuant to agreements reached between the Borrower and any or all of the
Lenders pursuant to Section 2.2.
"Bid Rate Absolute Rate" has the meaning set forth in Subsection
2.2c(iii)(B)(4).
"Bid Rate Interest Period" means any individual period of one (1) to
two hundred seventy (270) days, all determined in accordance with Section 2.2,
commencing on the date of the extension of the relevant Bid Rate Loan; PROVIDED,
however, that no Bid Rate Interest Period shall extend beyond the Business Day
immediately preceding (A) the Long Term Revolving Credit Termination Date in the
case of a Disbursement under the Long Term Revolving Credit Commitment or (B)
the Short Term Revolving Credit Termination Date in the case of a Disbursement
under the Short Term Revolving Credit Commitment.
"Bid Rate Loan" means a Disbursement by any Lender pursuant to Section
2.2.
"Bid Rate Margin" has the meaning set forth in Subsection
2.2c(iii)(B)(3).
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"Bid Rate Notes" means any one or all of the several promissory notes
of the Borrower evidencing Indebtedness of the Borrower under the Bid Rate
Option, which notes are substantially in the form of Exhibit "B-1" and Exhibit
"B-2" to this Agreement, together with all extensions, renewals, amendments,
modifications, substitutions and replacements thereto and thereof; and the term
"Bid Rate Note" shall mean any of the Bid Rate Notes.
"Bid Rate Option" means the interest rate option that may be agreed
upon between the Borrower and one or more of the Lenders pursuant to Section 2.2
hereof.
"Bid Rate Quote" means each offer by a Lender to make a Bid Rate Loan
which offer is substantially in the form of Exhibit "D" attached hereto.
"Bid Rate Quote Request" means the written request of the Borrower for
a Bid Rate Loan delivered to the Agent in accordance with the provisions of
Subsection 2.2c, which request shall be substantially in the form of Exhibit "C"
attached hereto.
"Borrower" has the meaning given it in the preamble to this Agreement.
"Borrowing Date" means the date on which any Disbursements are to be
made hereunder.
"Business Day" means, any day other than a Saturday or Sunday or a
legal holiday on which commercial banks are authorized or required to be closed
for business in Pittsburgh, Pennsylvania or New York, New York and, if the
applicable Business Day relates to any Disbursement or Term Loan to which the
LIBOR Option or the Bid Rate Margin applies, such day must also be a day on
which dealings are carried on in the London interbank market.
"Capital Adequacy Event" shall have the meaning given it in Subsection
2.5b.
"Capital Compensation Amount" shall have the meaning given it in
Subsection 2.5b.
"Closing" means the execution and delivery of this Agreement which
execution and delivery shall occur at the offices of Xxxxxx Xxxxxxxxx, P.C. in
Pittsburgh, Pennsylvania, at 10:00 A.M. (eastern time) on December 21, 2001, or
such other date and time as is mutually agreeable to the parties hereto.
"Closing Date" means the day on which the Closing occurs.
"Closing Fee" with respect to each Lender, means the closing fees set
forth in the fee letter dated September 4, 2001 among the Borrower, the Agent
and PNC Capital.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation thereto, together with all regulations
promulgated and rulings issued thereunder.
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"Commitment" means, as to each Lender, the sum of the Dollar amount set
forth opposite such Lender's name on its signature page hereto (i) under the
heading "Maximum Dollar Amount of Long Term Revolving Credit Commitment" PLUS
(ii) under the heading "Maximum Dollar Amount of Short Term Revolving Credit
Commitment" (as the same may be reduced at any time or from time to time
pursuant to Subsection 2.1Af, Subsection 2.1Bf, Subsection 2.1Bg and Section
2.12) and, as to all Lenders, the obligation of the Lenders to make Revolving
Credit Loans available to the Borrower in a maximum aggregate amount not to
exceed $325,000,000 as set forth in Section 2.1 (as the same may be reduced at
any time or from time to time pursuant to Subsection 2.1Af, Subsection 2.1Bf,
Subsection 2.1Bg and Section 2.12)
"Commitment Percentage" means, as to each Lender, the percentage of the
Commitments set forth opposite such Lender's name on the signature pages hereto,
as the same may be adjusted (i) pursuant to an Assignment and Assumption
Agreement delivered in connection with Section 9.6 hereof, or (ii) pursuant to
the terms of Section 9.18 hereof as applicable.
"Compliance Certificate" means a Compliance Certificate substantially
in the form of Exhibit "H" attached hereto.
"Consolidated" means the consolidation of the accounts of any two or
more Persons in accordance with GAAP.
"Consolidated EBITDA" means for any period Consolidated Net Income for
such period (x) excluding therefrom (A) any extraordinary items of gain or loss
(including without limitation those items created by mandated changes in
accounting treatment), (B) any gain or loss of any other Person accounted for on
the equity method, except to the extent of cash distributions received during
the relevant period, and (C) any other non-cash non-recurring items of gain or
loss not covered in clauses (A) and (B) of this definition, (y) plus the
aggregate amounts deducted in determining Consolidated Net Income for such
period in respect of (i) Consolidated Interest Expense (ii) depreciation
expense, (iii) any amortization of goodwill or other intangible and (iv) income
taxes.
"Consolidated Interest Expense" means, for the relevant period, on a
Consolidated basis, the sum of all interest (and all earned discount or similar
concept paid or incurred by a Special purpose Subsidiary pursuant to a
Securitization Contract) due and payable by the Borrower, its Consolidated
Subsidiaries and/or any Special Purpose Subsidiary with regard to Indebtedness
for such period.
"Consolidated Net Income" means the net income (or deficit) of the
Borrower and its Consolidated Subsidiaries, for the period in question, after
deducting all operating expenses, provisions for all taxes and reserves
(including reserves for all deferred income taxes) and all other proper
deductions, all determined on a Consolidated basis in accordance with GAAP,
consistently applied; provided that in the determination of the net income or
loss of the Borrower and its Consolidated Subsidiaries, for the period in
question, any earned discount or similar concept paid or accrued by a Special
Purpose Subsidiary pursuant to a Securitization Contract for
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such period shall be deducted from the Consolidated gross income of the Borrower
and its Consolidated Subsidiaries for the period in question.
"Consolidated Shareholders' Equity" means the total of those items
enumerated under the heading "Shareholders' Equity" in the Borrower's relevant
balance sheets determined on a Consolidated basis in accordance with GAAP,
consistently applied.
"Consolidated Subsidiary" means any Subsidiary (whether now existing or
hereafter organized or acquired) which shall, during the applicable period, be
Consolidated with the Borrower in any Consolidated financial statement furnished
to the Lenders.
"Consolidated Tangible Net Worth" means the Consolidated Shareholders'
Equity in the Borrower and its Consolidated Subsidiaries, except that there
shall be deducted therefrom (if not otherwise deducted or eliminated) the funded
amount under any Securitization Contract entered into by a Special Purpose
Subsidiary, good will, corporate organization expenses (other than initial
organization expenses and fees), unamortized debt discount and expense, patents,
trademarks, licenses, copyrights, franchises, research and development expenses,
any amounts for treasury stock and other intangibles not approved in writing by
the Required Lenders, all determined on a Consolidated basis and in accordance
with GAAP, consistently applied, plus the value of all Receivables, net of
allowance for bad debt, on the balance sheet of a Special Purpose Subsidiary, as
of the date of determination, determined in accordance with GAAP consistently
applied.
"Consolidated Total Assets" means as of any date of determination on a
Consolidated basis, the value of all properties and all right, title and
interest in such properties which would be classified as assets, determined in
accordance with GAAP exclusive of all write-ups above depreciated costs (other
than write-ups of assets resulting from foreign currency translations, write-ups
to market value of marketable securities and of swaps, xxxxxx and futures and
write-ups of assets of a going concern business made within twelve months after
the acquisition of such business).
"Consolidated Total Capitalization" means as of any date of
determination the sum of (i) Consolidated Total Indebtedness plus (ii)
Consolidated Shareholders' Equity.
"Consolidated Total Indebtedness" means the Indebtedness of the
Borrower and its Consolidated Subsidiaries determined on a Consolidated basis in
accordance with GAAP, consistently applied, together with the funded amount
under any Securitization Contract entered into by a Special Purpose Subsidiary.
"Disbursement" means each advance of funds by a Lender hereunder
whether as a Revolving Credit Loan, a Bid Rate Loan or a Swingline Loan or the
issuance, renewal or extension of a Letter of Credit by the Agent.
"Dollars" or "$" means the legal tender of the United States of
America.
"Drawing Date" has the meaning given it in Subsection 2.16d(B).
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"Encumbrance" means any encumbrance, mortgage, lien, charge, pledge,
security interest, priority payment, conditional sales agreement right, or other
title retention agreement right (including any right under a lease which, in
accordance with GAAP, would be treated as a capitalized item) in, upon or
against any asset of any Person.
"Environmental Law(s)" means any and all statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental restrictions of any
Federal, state or local governmental authority relating to the environment or
the release of any materials into the environment, whether now in existence or
hereafter enacted, agreed to, issued or otherwise becoming effective.
"ERISA" means the Employee Retirement Income Security Act of 1974,
together with the regulations thereunder, as now in effect and as hereafter from
time to time amended or any successor statute.
"ERISA Affiliate" means, as of any date, any member of a controlled
group of corporations of which the Borrower or any Subsidiary is a member,
which, in any event together with the Borrower are treated as of such date as a
single employer under Section 414 of the Code.
"Event of Default" has the meaning given it in Article VII.
"Existing Bank Credit Agreement" means the Credit Agreement dated as of
August 30, 1996, as amended, by and among the Borrower, the financial
institutions party thereto as lenders and PNC Bank, National Association as
agent.
"Facility Fees" means collectively the Long Term Revolving Credit
Facility Fee and the Short Term Revolving Credit Facility Fee; and the term
"Facility Fee" shall mean any of the Facility Fees.
"Federal Funds Effective Rate" means, for any day, the rate per annum
(based on a year of 360 days and the actual days elapsed and rounded upward to
the nearest 1/100th of 1%) announced by the Federal Reserve Bank of New York (or
any successor) on such day as being the weighted average of the rates on
overnight federal funds transactions arranged by federal funds brokers on the
previous trading day, as computed and announced by Federal Reserve Bank New York
(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; PROVIDED, if such Federal
Reserve Bank (or its successor) does not announce such rate on any day, the
"Federal Funds Effective Rate" for such day shall be the Federal Funds Effective
Rate for the last day for which such rate was announced.
"Fees" means any of, or all of, a the case may be, the Facility Fees,
the Utilization Fees, the Agent's Fees, the Letter of Credit Fees, the Fronting
Fees and the Closing Fees.
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"Fiscal Quarter" means the three month fiscal period of the Borrower
beginning on each January 1, April 1, July 1 and October 1 and ending on the
succeeding March 31, June 30, September 30 and December 31.
"Fiscal Year" means each fiscal period of the Borrower beginning
January 1 and ending on the succeeding December 31.
"Fronting Fee" has the meaning given it in Subsection 2.16b.
"GAAP" means generally accepted accounting principles which shall
include, but not be limited to, the official interpretations thereof as defined
by the Financial Accounting Standards Board, its predecessors and its
successors.
"Governmental Authority" means the government of the United States or
the government of any state or locality therein, any political subdivision or
any governmental, quasi-governmental, judicial, public or statutory
instrumentality, authority, body or entity, or other regulatory bureau,
authority, body or entity of the United States or any state or locality therein,
including the Federal Deposit Insurance Corporation, the Office of the
Comptroller of the Currency and the Board of Governors of the Federal Reserve
System, and any central bank of any other country or any comparable authority.
"Governmental Acts" has the meaning given it in Subsection 2.16i.
"Governmental Rule" means any law, statute, rule, regulation,
ordinance, order, judgment, guideline or decision of any Governmental Authority.
"Guaranty" or "Guarantee" means any obligation, direct or indirect, by
which a Person undertakes to guaranty, assume or remain liable for the payment
or performance of another Person's obligations, including but not limited to (i)
endorsements of negotiable instruments, (ii) discounts with recourse, (iii)
agreements to pay or perform upon a second Person's failure to pay or perform,
(iv) remaining liable on obligations assumed by a second Person, (v) agreements
to maintain the capital, working capital solvency or general financial condition
of a second Person, (vi) 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 non-delivery of such products, materials or supplies
or the non-furnishing of such services, (vii) all Indebtedness of such other
Person to the extent secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any
Encumbrance on property owned or acquired by such Person, whether or not the
Indebtedness of such other Person secured thereby has been assumed by such
Person; provided however, such term shall not include the Borrower's or any
Subsidiary's Performance Guarantees.
"Hazardous Substances" means any (i) hazardous, toxic or polluting
substances or wastes as defined by any Environmental Law or (ii) petroleum
products.
"Indebtedness" as applied to any Person means, without duplication, all
liabilities of such Person for borrowed money, whether secured or unsecured
(other than trade accounts
- 10 -
payable arising in the ordinary course of business, but including in the term
borrowed money the funded amount of any Securitizations concerning the Borrower
or any Subsidiary of the Borrower, including a Special Purpose Subsidiary),
direct or contingent, whether evidenced by a bond, note, debenture, capitalized
lease obligation, deferred purchase price arrangement, title retention device,
any interest or currency swap, future, option or other interest rate protection
or similar agreement (but only the net xxxx to market liability arising from any
such interest or currency swap, future, option or other interest rate protection
or similar agreement), letter of credit obligation, reimbursement agreement,
Securitization Contract (but only to the extent of the funded amount of the
Securitization), Guaranty (but only to the extent of the funded amount of the
guaranteed Indebtedness), book entry or otherwise, provided, however, that the
term "Indebtedness" shall include liabilities of any less than wholly owned
Consolidated Subsidiary which would otherwise be included in such definition
only to the extent that the Borrower or a Subsidiary of the Borrower (excluding
any such less than wholly owned Consolidated Subsidiary) has guaranteed or
otherwise assumed liability with respect to such obligations.
"Interest Period" means any or all of a LIBOR Interest Period or a Bid
Rate Interest Period.
"Invitation for Bid Rate Quotes" means the written solicitation by the
Agent for Bid Rate Quotes delivered to the Lenders in accordance with the
provisions of Subsection 2.2c.
"Invitation for Swingline Quote" means the written solicitation by the
Agent for Swingline Quotes delivered to the Swingline Lenders in accordance with
the provisions of Subsection 2.3c.
"LC Participation Advance" means, with respect to any Lender, such
Lender's payment in respect of its participation in a Letter of Credit Borrowing
according to its Long Term Revolving Credit Commitment Percentage pursuant to
Subsection 2.16d.
"Lender" has the meaning given in the preamble to this Agreement.
"Letter of Credit" has the meaning given it in Subsection 2.16a.
"Letter of Credit Borrowing" means an extension of credit resulting
from a drawing under any Letter of Credit which shall not have been reimbursed
on the date when made and shall not have been converted into a Long Term
Revolving Credit Loan under Subsection 2.16d(B).
"Letter of Credit Fee" has the meaning given it in Subsection 2.16b.
"Letters of Credit Outstanding" means at any time the sum of (i) the
aggregate undrawn face amount of outstanding Letters of Credit and (ii) the
aggregate amount of all unpaid and outstanding Reimbursement Obligations.
"LIBOR" means, with respect to the Loans comprising any Disbursement to
which the LIBOR Option or the Bid Rate Margin applies for any Interest Period,
the interest rate
- 11 -
per annum determined by the Agent by dividing (the resulting quotient rounded
upward to the nearest 1/100th of 1% per annum) (i) the rate of interest
determined by the Agent in accordance with its usual procedures (which
determination shall be conclusive and binding upon the Borrower, absent manifest
error on the part of the Agent) to be equal to the offered rates for deposits in
Dollars for the applicable LIBOR Interest Period which appear on Page 3750 of
the TELERATE rate reporting system or other similar system as of approximately
11:00 a.m., Greenwich Mean Time, two (2) Business Days prior to the first day of
such LIBOR Interest Period for an amount comparable to such Loan and having a
borrowing date and a maturity comparable to such Interest Period by (ii) a
number equal to 1.00 minus the LIBOR Reserve Percentage. The LIBOR may also be
expressed by following formula:
LIBOR = Offered Rate On TELERATE Page 3750
----------------------------------
1.00 - LIBOR Reserve Percentage
If more than one offered rate appears on 3750 of the TELERATE rate reporting
system or similar system, the rate will be the arithmetic mean of such offered
rates.
"LIBOR Auction" means a solicitation of Bid Rate Quotes setting forth
Bid Rate Margins pursuant to Subsection 2.2c.
"LIBOR Interest Period" means, subject to the provisions of Subsection
2.4c, any individual period of one (1), two (2), three (3) or six (6) months
selected by the Borrower commencing on the Borrowing Date, conversion date or
renewal date of a LIBOR Portion or a Bid Rate Loan to which the Bid Rate Margin
applies, in either case, to which such period shall apply.
"LIBOR Option" means the interest rate option described in Subsection
2.4b(i)(B), Subsection 2.4b(ii)(B) or Subsection 2.4b(iii)(B).
"LIBOR Portion" means a Revolving Credit Loan or the Term Loan, as
applicable, or portion thereof, which bears, or is to bear, interest at the
Adjusted Long Term Revolving Credit LIBOR, the Adjusted Short Term Revolving
Credit LIBOR or the Adjusted Term Loan LIBOR.
"LIBOR Reserve Percentage" means the maximum effective percentage
(expressed as a decimal, rounded upward to the nearest 1/100th of 1%), as
determined in good faith by the Agent (which determination shall be conclusive),
which is in effect on such day as prescribed by the Board of Governors of the
Federal Reserve System (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").
"Loan" means with respect to any Lender as of any date, the aggregate
amount of all Disbursements then outstanding from such Lender to the Borrower
hereunder as of such date (including without limitation, the Revolving Credit
Loans, the Bid Rate Loans, the Swingline Loans and the Term Loans).
- 12 -
"Loan Account" means the individual loan account maintained by each
Lender as more fully described in Section 2.13.
"Loan Documents" means collectively this Agreement, the Notes, the
Letters of Credit and any other documents furnished in connection herewith.
"Long Term Revolving Credit Commitment" shall mean the several
obligations of the Lenders, each in accordance with its Long Term Revolving
Credit Commitment Percentage, to make available to the Borrower the Long Term
Revolving Credit Loans, all as set forth in Section 2.1A.
"Long Term Revolving Credit Commitment Percentage" shall mean as to any
Lender, the percentage set forth opposite such Lender's name on its signature
page hereto under the caption "Long Term Revolving Credit Commitment
Percentage", as the same may be adjusted pursuant to an Assignment and
Assumption Agreement delivered in connection with Section 9.6 hereof.
"Long Term Revolving Credit Facility Fee" means the fee described in
Subsection 2.6a.
"Long Term Revolving Credit Facility Fee Percentage" shall mean the
rate per annum (expressed in basis points) determined from time to time based
upon the Senior Ratings in effect by S&P and Moody's set forth under the
relevant column heading below opposite such Senior Ratings:
---------------------------------------------------------- -----------------------------------
Long Term Revolving Credit
Senior Ratings Facility Fee Percentage
---------------------------------------------------------- -----------------------------------
LEVEL I
Senior Ratings are equal to or better than A from S&P or
A2 from Moody's 12.5 Basis Points
---------------------------------------------------------- -----------------------------------
LEVEL II
Senior Ratings are A- from S&P or A3 from Moody's 15 Basis Points
---------------------------------------------------------- -----------------------------------
LEVEL III
Senior Ratings are BBB+ from S&P or Baa1 from Moody's 17.5 Basis Points
---------------------------------------------------------- -----------------------------------
LEVEL IV
Senior Ratings are BBB from S&P or Baa2 from Moody's 22.5 Basis Points
---------------------------------------------------------- -----------------------------------
LEVEL V
Senior Ratings are equal to or less than BBB- from S&P
and Baa3 from Moody's 27.5 Basis Points
---------------------------------------------------------- -----------------------------------
provided that, in the event that the Senior Ratings of S&P and Moody's do not
coincide, the Long Term Revolving Credit Facility Fee Percentage set forth above
opposite the higher of such
- 13 -
Senior Ratings will apply; and provided further, in the event that one Senior
Rating is in effect, the Long Term Revolving Credit Facility Fee Percentage set
forth above for such Senior Rating will apply.
"Long Term Revolving Credit Loan" shall mean any Disbursements made by
the Lenders under the Long Term Revolving Credit Commitment, which Disbursements
in the aggregate shall not exceed more than $195,000,000 at any one time
outstanding.
"Long Term Revolving Credit Notes" shall mean any one or all of the
several promissory notes of the Borrower evidencing Indebtedness under the Long
Term Revolving Credit Commitment, which notes are substantially in the form of
Exhibit "A-1" hereto, together with and all extensions, renewals, amendments,
substitutions and replacements thereto and thereof; and the term "Long Term
Revolving Credit Note" shall mean any of the Long Term Revolving Credit Notes.
"Long Term Revolving Credit Termination Date" shall mean December 21,
2006.
"Margin Stock" is defined herein as defined in Regulation U.
"Material Adverse Effect" means, with respect to any Person relative to
any occurrence of whatever nature (including, without limitation, any adverse
determination in any litigation, arbitration or governmental investigation or
proceeding), a materially adverse effect on (i) the business, operations,
affairs, condition (financial or otherwise), properties, assets or revenues of
the affected Person, or (ii) the ability of the affected Person to perform any
of its obligations under or with respect to any Loan Document to which it is a
party.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Non-Agreeing Lenders" shall have the meaning ascribed to such term in
Section 2.8a hereof; and the term "Non-Agreeing Lender" shall refer to any of
the Non-Agreeing Lenders.
"Note" means any one of the several Revolving Credit Notes, Bid Rate
Notes, Swingline Notes or the Term Notes; and the term "Notes" means all of the
several Revolving Credit Notes, Bid Rate Notes, Swingline Notes and the Term
Notes.
"Notice of Bid Rate Borrowing" has the meaning set forth in Subsection
2.2c(v).
"Option" means any one or more of the Base Rate Option, the LIBOR
Option, the Bid Rate Option, or the Swingline Option.
"OREMET" means Oregon Metallurgical Corporation, an Oregon corporation,
which is an indirect wholly owned Subsidiary of the Borrower.
- 14 -
"Participant" means any financial institution or other Person to which
a Lender sells a Participation in one or more of its Loans and its interests in
the Letters of Credit Outstanding.
"Participation" means the sale by a Lender to any Participant of an
undivided interest in all or any part of such Lender's Loans and interest in
Letters of Credit Outstanding.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
Person.
"Performance Guarantee" means any undertaking by the Borrower or any
Subsidiary of the Borrower pursuant to which, in the ordinary course of such
Person's business, such Person guarantees the performance by a Subsidiary of
such Subsidiary's performance under a contract for the production or delivery of
goods or services.
"Permitted Encumbrance" shall mean, as to any Person, any of the
following:
(i) Encumbrances for taxes, assessments, governmental charges or
levies on any of such Person's properties, which taxes, assessments,
governmental charges or levies are at the time due and payable or if they can
thereafter be paid without penalty or are being contested in good faith by
appropriate proceedings diligently conducted and with respect to which the
affected Person has created adequate reserves;
(ii) Pledges or deposits to secure payment of workers'
compensation obligations, unemployment insurance, deposits or indemnities to
secure public or statutory obligations or for similar purposes;
(iii) Encumbrances arising out of judgments or awards against
such Person but only to the extent that the creation of any such encumbrance
shall not be an event or condition which, with or without notice or lapse of
time or both, would cause the Borrower to be in violation of Section 7.7;
(iv) Mechanics', carriers', workmen's, repairmen's and other
similar statutory Encumbrances incurred in the ordinary course of such Person's
business, so long as the obligation secured is not overdue or, if overdue, is
being contested in good faith by appropriate actions or proceedings diligently
conducted;
(v) Security interests in favor of lessors of personal property,
which property is the subject of a true lease between such lessor and such
Person;
(vi) Encumbrances securing Indebtedness existing on the Closing
Date without enlargement or extension of the Indebtedness secured thereby or the
assets encumbered thereby (any such Encumbrance securing Indebtedness in excess
of $1,000,000 on the Closing Date is listed on Schedule 5.2);
- 15 -
(vii) Encumbrances created against production contracts to secure
Indebtedness incurred to acquire equipment and facilities required to produce
the items being sold pursuant to such production contracts, provided that the
Indebtedness secured thereby together with all other outstanding Indebtedness
permitted by such item does not exceed the limitation set forth in item (iii) of
Section 5.1;
(viii) Encumbrances created in the ordinary course of business in
favor of lenders granting an extension of credit to the Borrower in the form of
bankers acceptances, provided that the Indebtedness secured thereby, together
with the sum of the principal amount of all Loans then outstanding plus Letters
of Credit Outstanding does not exceed the aggregate Commitments of the Lenders,
plus the outstanding Term Loans, if any, and provided further, that such
Encumbrances shall be limited to the goods (or documents evidencing the goods)
the purchase or shipment of which shall have been financed by such bankers'
acceptances;
(ix) Easements, rights-of-way, restrictions, leases or subleases
to others or other similar Encumbrances created in the ordinary course of
business which Encumbrances do not interfere in any material respect with the
ordinary conduct of the business of the Borrower and its Subsidiaries;
(x) Encumbrances in favor of any Governmental Authority created
pursuant to production contracts with such Governmental Authority;
(xi) Encumbrances securing (i) the non-delinquent performance of
bids, trade contracts (other than for borrowed money), leases, statutory
obligations, (ii) contingent obligations on surety and appeal bonds, and (iii)
other non-delinquent obligations of a like nature; in each case, incurred in the
ordinary course of business, provided all such Encumbrances in the aggregate
would not (even if enforced) cause a Material Adverse Effect on the Borrower and
its Consolidated Subsidiaries taken as a whole;
(xii) Encumbrances arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Borrower or its Subsidiaries in excess of those set forth by
regulations promulgated by the Federal Reserve Board, and (ii) such deposit
account is not intended by the Borrower or any Subsidiary to provide collateral
to the depository institution;
(xiii) Encumbrances consisting of pledges of cash collateral or
government securities to secure obligations under Swap Contracts entered into in
the ordinary course of business as bona fide hedging transactions, provided that
the counterparty to such Swap Contract is under a similar requirement to deliver
similar collateral from time to time to the Borrower or the Subsidiary party
thereto; and
(xiv) Encumbrances consisting of assignments of Receivables in
connection with a Securitization permitted by Section 5.5 hereof.
- 16 -
"Person" means any individual, partnership, corporation, trust, joint
venture, limited liability company, banking association, unincorporated
organization or any other entity or enterprise or government or department or
agency thereof.
"Plan" means an employee pension benefit plan (other than a
multiemployer plan) which is maintained by the Borrower or any ERISA Affiliate
for employees of the Borrower or any ERISA Affiliate and which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 302
of ERISA and Section 412 of the Code.
"PNC Capital" shall have the meaning set forth in the "Whereas" clauses
to this Agreement.
"Portion" means either the Base Rate Portion, the LIBOR Portion, the
Bid Rate Loans, the Swingline Loans, or all of the foregoing, as the case may
be.
"Potential Default" means an event which, with the passage of time or
the giving of notice or both, shall be an Event of Default.
"Prime Rate" means the interest rate per annum announced from time to
time by the PNC Bank, National Association as its prime rate, which rate may not
be the lowest rate of interest then being charged by the PNC Bank, National
Association to its commercial borrowers.
"Purchase Money Indebtedness" means Indebtedness incurred by a Person
solely for the acquisition of an asset, which Indebtedness is secured by an
Encumbrance only on the asset so acquired, additions and accessions thereto and
any proceeds thereof and which Indebtedness does not exceed ninety percent (90%)
of the purchase price of such asset.
"Purchasing Lender" has the meaning given it in Subsection 9.6a.
"Receivable" shall mean, with respect to the Borrower or any Subsidiary
of the Borrower, any or all accounts, accounts receivable, contract rights
related to such accounts, instruments, chattel paper, general intangibles
related to such accounts 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, 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 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.
"Register" has the meaning given it in Subsection 9.6b.
"Regulation D" means Regulation D promulgated by the Board of Governors
of the Federal Reserve System (12 C.F.R. Part 204 et seq.) as such regulation is
now in effect and as may hereafter be amended.
- 17 -
"Regulation T" means Regulation T promulgated by the Board of Governors
of the Federal Reserve System (12 C.F.R. Part 220 et seq.) as such regulation is
now in effect and as may hereafter be amended.
"Regulation U" means Regulation U promulgated by the Board of Governors
of the Federal Reserve System (12 C.F.R. Part 221 et seq.) as such regulation is
now in effect and as may hereafter be amended.
"Regulation X" means Regulation X promulgated by the Board of Governors
of the Federal Reserve System (12 C.F.R. Part 224 et seq.) as such regulation is
now in effect and as may hereafter be amended.
"Reimbursement Obligation" has the meaning given it in Subsection
2.16d(B).
"Reportable Event" means any one or more event, defined in Section
4043(b) of ERISA and in 29 C.F.R. Part 2615, other than an event for which the
requirement for the thirty (30) day notice to the PBGC is waived.
"Required Lenders" means as of a particular date (i) prior to the
termination of the Commitments, the Lenders whose Commitment Percentages
aggregate at least fifty-one percent (51%) of the aggregate Commitment
Percentages of all the Lenders and (ii) after the termination of the
Commitments, fifty-one (51%) of the aggregate principal amount of the Loans and
the Letters of Credit Outstanding at the particular time outstanding.
"Revolving Credit Loans" means Disbursements by a Lender pursuant to
Section 2.1A or Section 2.1B.
"Revolving Credit Note" means any one of the several Long Term
Revolving Credit Notes, and the Short Term Revolving Credit Notes, and the term
"Revolving Credit Notes" means all of the several Long Term Revolving Credit
Notes and the Short Term Revolving Credit Notes.
"S&P" means Standard & Poor's Rating Group, a division of XxXxxx-Xxxx,
Inc.
"Securitization" shall mean the monetizing of Receivables of the
Borrower and/or any its Subsidiaries.
"Securitization Contract" shall mean, individually or collectively, as
the context requires, (i) a contract between the Borrower and/or one or more of
the Subsidiaries of the Borrower on the one hand and a Special Purpose
Subsidiary on the other for the sale of Receivables to such Special Purpose
Subsidiary on a "true sale" basis and (ii) a separate contract concurrently
entered into with the contract described in clause (i) of this definition
between such Special Purposes Subsidiary on the one hand and the purchaser of
any, all or an undivided portion of such Receivables on the other hand, each
relating to a Securitization.
- 18 -
"Senior Ratings" means (i) if the Borrower has a long term senior
unsecured public debt rating, such long term senior unsecured public debt rating
in effect from time to time as assigned by Xxxxx'x and S&P; provided that if the
ratings issued by Xxxxx'x and S&P are not at the same level the rating at the
higher level shall be selected; and (ii) if the Borrower has no long term senior
unsecured public debt rating in effect but either of its two principal operating
Subsidiaries, ALC or TDY Industries does have a long term senior unsecured
public debt rating in effect such long term unsecured public debt rating;
provided further that if both such Subsidiaries have long term senior unsecured
public debt ratings the rating selected shall be the highest of such ratings.
For the purposes of this definition a level of rating is the smallest increment
of adjustment used by Xxxxx'x or S&P. By way of example, the difference between
a Baa1 and Baa2 rating by Xxxxx'x or a BBB+ and a BBB rating by S&P represents
one level of rating.
"Short Term Revolving Credit Commitment" shall mean the several
obligations of the Lenders, each in accordance with its Short Term Revolving
Credit Commitment Percentage, to make available to the Borrower the Short Term
Revolving Credit Loans, all as set forth in Section 2.1B.
"Short Term Revolving Credit Commitment Percentage" shall mean as to
any Lender, the percentage set forth opposite such Lender's name on its
signature page hereto under the caption "Short Term Revolving Credit Commitment
Percentage", as the same may be adjusted pursuant to an Assignment and
Assumption Agreement delivered in connection with Section 9.6 hereof or pursuant
to the terms of Section 9.18 hereof.
"Short Term Revolving Credit Facility Fee Percentage" shall mean the
rate per annum (expressed in basis points) determined from time to time based
upon the Senior Ratings in effect by S&P and Xxxxx'x set forth under the
relevant column heading below opposite such Senior Ratings:
-------------------------------------------------------------- -----------------------------------
Short Term Revolving Credit
Senior Ratings Facility Fee Percentage
-------------------------------------------------------------- -----------------------------------
LEVEL I
Senior Ratings are equal to or better than A from S&P or
A2 from Xxxxx'x 10.5 Basis Points
-------------------------------------------------------------- -----------------------------------
LEVEL II
Senior Ratings are A- from S&P or A3 from Xxxxx'x 12.5 Basis Points
-------------------------------------------------------------- -----------------------------------
LEVEL III
Senior Ratings are BBB+ from S&P or Baa1 from Xxxxx'x 15 Basis Points
-------------------------------------------------------------- -----------------------------------
- 19 -
-------------------------------------------------------------- -----------------------------------
Short Term Revolving Credit
Senior Ratings Facility Fee Percentage
-------------------------------------------------------------- -----------------------------------
LEVEL IV
Senior Ratings are BBB from S&P or Baa2 from Xxxxx'x 17.5 Basis Points
-------------------------------------------------------------- -----------------------------------
LEVEL V
Senior Ratings are equal to or less than BBB- from S&P
and Baa3 from Xxxxx'x 22.5 Basis Points
-------------------------------------------------------------- -----------------------------------
provided that, in the event that the Senior Ratings of S&P and Xxxxx'x do not
coincide, the Short Term Revolving Credit Facility Fee Percentage set forth
above opposite the higher of such Senior Ratings will apply; and provided
further, in the event that one Senior Rating is in effect, the Short Term
Revolving Credit Facility Fee Percentage set forth above for such Senior Rating
will apply.
"Short Term Revolving Credit Facility Fee" means the fee described in
Subsection 2.6b.
"Short Term Revolving Credit Loans" shall mean any Disbursements made
by the Lenders under the Short Term Revolving Credit Commitment which
Disbursements in the aggregate shall not exceed more than $130,000,000 at any
one time outstanding.
"Short Term Revolving Credit Notes" shall mean any one or all of the
several promissory notes of the Borrower evidencing Indebtedness under the Short
Term Revolving Credit Commitment, which notes are substantially in the form of
Exhibit "A-2" hereto, together with all extensions, renewals, amendments,
substitutions and replacements thereto and thereof; and the term "Short Term
Revolving Credit Note" shall mean any of the Short Term Revolving Credit Notes.
"Short Term Revolving Credit Termination Date" shall mean December 20,
2002, or such later date as is ultimately determined in accordance with Section
2.8a hereof. In the event that one or more Lenders elects not to extend the
Short Term Revolving Credit Termination Date pursuant to Section 2.8a hereof,
then the definition of the Short Term Revolving Credit Termination Date shall
remain the current Short Term Revolving Credit Termination Date for the
Non-Agreeing Lenders (as defined in Section 2.8a) and shall be amended in
accordance with Section 2.8a for the Agreeing Lenders (as defined in Section
2.8a).
"Significant Subsidiary" means, as of any date of determination, (i)
any Subsidiary of the Borrower that has on that date total assets constituting
five percent (5%) or more of the Borrower's Consolidated Total Assets, and (ii)
any Special Purpose Subsidiary.
"Solvent" means, with respect to any person on a particular date, that
on such date (i) the fair value of the assets of such person is greater than the
total amount of liabilities, (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
- 20 -
matured, (iii) such person is able to realize upon its assets and pay its debts
and other liabilities and commitments as they mature in the normal course of
business, and (iv) 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
assets would constitute unreasonably small capital.
"Special Purpose Subsidiary" shall mean any corporation, business trust
or other entity formed by the Borrower or any Consolidated Subsidiary of the
Borrower to engage only in the purchase of Receivables from the Borrower and/or
its Consolidated Subsidiaries pursuant to a Securitization transaction permitted
by Section 5.5(iv) and the financing of such Receivable pursuant to a customary
transaction; and such Special Purpose Subsidiary shall be a direct or an
indirect wholly owned Subsidiary of the Borrower.
"Subsidiary" of any Person at any time shall mean (i) any corporation
or trust of which more than 50% (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 more than 50% of the partnership interests is at the time directly or
indirectly owned by such Person or one or more of such Person's Subsidiaries, or
(iii) any limited liability company of which such Person is a member or of which
more than 50% 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.
"Supermajority Lenders" shall have the meaning ascribed to such term in
Section 2.8a hereof.
"Swap Contract" means swap agreements (as such term is defined in
Section 101 of the Federal Bankruptcy Reform Act of 1978, as amended), and any
other agreements or arrangements designed to provide protection against
fluctuations of interest or currency exchange rates or commodity prices.
"Swingline Interest Rate" means, as to the relevant Swingline Loan, the
interest rate therefor mutually agreed upon by the Borrower and the relevant
Swingline Lender, all pursuant to Section 2.3
"Swingline Lender" means each of PNC Bank, National Association, Mellon
Bank, N.A., JPMorgan Chase Bank, and Bank of America, N.A.
"Swingline Loan" means a Disbursement made by one or more Swingline
Lenders to Borrower pursuant to Section 2.3.
"Swingline Loan Period" means as to each respective Swingline Loan a
period of one (1) Business Day; PROVIDED, however, that no Swingline Loan Period
shall extend beyond (A) the Long Term Revolving Credit Termination Date in the
case of a Disbursement under the Long Term Revolving Credit Commitment or (B)
the Short Term Revolving Credit Termination Date in the case of a Disbursement
under the Short Term Revolving Credit Commitment.
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"Swingline Notes" means any one or all of the promissory notes of the
Borrower evidencing Indebtedness of the Borrower under the Swingline Option
which notes are substantially in the form of Exhibit "E" to the Agreement,
together with all extensions, renewals, amendments, modifications, substitutions
and replacements thereto and thereof; and the term "Swingline Note" shall mean
any of the Swingline Notes.
"Swingline Option" means the loan and interest rate option that may be
agreed upon between the Borrower and one or more of the Swingline Lenders
pursuant to Section 2.3 hereof.
"Swingline Quote" means each offer by a Swingline Lender to make a
Swingline Loan which offer is substantially in the form of Exhibit "G".
"Swingline Quote Request" means the written request of the Borrower for
a Swingline Loan delivered to the Agent in accordance with the provision of
Subsection 2.3c.
"TDY Industries" means TDY Industries, Inc., a California corporation,
which is an indirect wholly owned Subsidiary of the Borrower.
"Term Loan" and "Term Loans" shall mean separately all term loans or
any term loan made by the Lenders or one of the Lenders pursuant to Section
2.1Bg.
"Term Loan Maturity Date" means with respect to any Lender the one year
anniversary of the Short Term Revolving Credit Termination Date applicable to
such Lender at the time of the conversion of the outstanding Short Term
Revolving Credit Loans due to such Lender to the Term Loans due to such Lender
pursuant to the Term-Out Option.
"Term Note" and "Term Notes" shall have the meanings ascribed to such
terms in Section 2.1Bg hereof.
"Term-Out Option" shall have the meaning ascribed to such term in
Section 2.1Bg hereof.
"Termination Proceedings" means any action taken by the PBGC under
ERISA to terminate any plan.
"TILLC" means TDY Holdings, LLC, a Delaware limited liability company,
having as its sole member the Borrower.
"Transfer Effective Date" has the meaning given it in each respective
Assignment and Assumption Agreement.
"Transferor Lender" has the meaning given it in Subsection 9.6a.
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"Utilization Fee" means the fee described in Subsection 2.6c of this
Agreement.
1.2 GAAP DEFINITIONS. Accounting terms used herein but not defined herein
shall have the meanings ascribed to them under GAAP in effect at the time of the
execution of this Agreement as modified by any changes to GAAP adopted and in
full force and effect as of January 1, 2002.
1.3 OTHER DEFINITIONAL CONVENTIONS AND RULES OF CONSTRUCTION. (i) The words
"hereof", "herein" and "hereunder" and words of similar import when used in this
Agreement shall, unless otherwise expressly specified, refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Article,
Section and Subsection references are to this Agreement unless otherwise
expressly specified.
(ii) All terms defined in this Agreement in the singular shall have
comparable meanings when used in plural, and vice versa, unless otherwise
specified.
(iii) The word "or" as used herein shall mean and connote nonexclusive
alternatives, unless expressly stated or the context clearly requires otherwise.
(iv) Captions, headings and Articles, Section and Subsection references
used in this Agreement are for convenience only and shall not, and are not
intended to, in any way or manner affect the scope or intent of this Agreement
or of any provisions or subdivisions hereof.
ARTICLE II. THE LOANS.
2.1 THE REVOLVING CREDITS.
2.1A THE LONG TERM REVOLVING CREDIT.
2.1Aa LONG TERM REVOLVING CREDIT LOANS. The Lenders hereby severally establish,
upon the terms and conditions hereinafter set forth and relying upon the
representations and warranties herein set forth, a long term revolving credit
commitment in favor of the Borrower in the maximum aggregate amount of ONE
HUNDRED NINETY-FIVE MILLION AND NO/100 DOLLARS ($195,000,000.00) (the "Long Term
Revolving Credit Commitment"). The Borrower shall have the right to borrow,
repay and reborrow from the Lenders from the date hereof until the Long Term
Revolving Credit Termination Date pursuant to draws upon the Long Term Revolving
Credit Commitment the principal amount of which, together with Letters of Credit
Outstanding and the principal amount of Bid Rate Loans and Swingline Loans
(other than Bid Rate Loans or Swingline Loans allocated to the Short Term
Revolving Credit Commitment) then outstanding, shall not exceed $195,000,000 in
the aggregate at any one time outstanding.
2.1Ab LONG TERM REVOLVING CREDIT COMMITMENT OF EACH LENDER. Each Lender agrees,
for itself only, and subject to the terms and conditions of this Agreement, to
make Long Term Revolving Credit Loans to the Borrower, to purchase
participations in accordance with Section 2.16d(A), and to make LC Participation
Advances, all from time to time not to exceed an
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aggregate principal amount at any one time outstanding equal to the amount of
its respective Long Term Revolving Credit Commitment Percentage of the Long Term
Revolving Credit Commitment (as such amounts may be reduced by Section 2.2f and
Section 2.3f hereof).
2.1Ac LONG TERM REVOLVING CREDIT NOTES. The obligation of the Borrower to repay,
on or before the Long Term Revolving Credit Termination Date, the aggregate
unpaid principal amount of all Long Term Revolving Credit Loans shall be
evidenced by the several Long Term Revolving Credit Notes, each substantially in
the form of Exhibit "A-1" hereto, drawn by the Borrower to the order of a Lender
in the maximum amount of such Lender's Long Term Revolving Credit Commitment.
The principal amount actually due and owing to a Lender at any time shall be the
then aggregate unpaid principal amount of all Long Term Revolving Credit Loans
made by such Lender as shown on the Loan Account established and maintained by
such Lender in accordance with Section 2.13. Each Long Term Revolving Credit
Note shall be dated the date hereof and shall be delivered to the Lenders on
such date.
2.1Ad DISBURSEMENTS. The amount (i) of any Disbursement of Long Term Revolving
Credit Loans consisting of a Base Rate Portion shall be in the minimum aggregate
principal amount of $1,000,000 or an integral multiple thereof and (ii) of any
Disbursement of Long Term Revolving Credit Loans consisting of a LIBOR Portion
shall be in the minimum aggregate principal amount of $5,000,000; provided,
however that each incremental unit in excess of $5,000,000 shall be $1,000,000
or an integral multiple thereof.
2.1Ae METHOD OF MAKING DISBURSEMENTS. (i) Each request for Disbursements of Long
Term Revolving Credit Loans under the Long Term Revolving Credit Commitment
shall be made by an Authorized Officer to the Agent orally or in writing (A) in
the case of Disbursements of Long Term Revolving Credit Loans to bear interest
at the Base Rate, by 11:00 A.M. (eastern time) on the Borrowing Date, and (B) in
the case of Disbursements of Long Term Revolving Credit Loans to bear interest
at the Adjusted Long Term Revolving Credit LIBOR, by 11:00 A.M. (eastern time)
at least three (3) Business Days prior to the Borrowing Date. Each such request
shall (i) specify the Borrowing Date, (ii) specify the amount of the
Disbursements of Long Term Revolving Credit Loans and each Lender's ratable
share thereof, (iii) select the Option or Options therefor and (iv) in the case
of Disbursements of Long Term Revolving Credit Loans which will bear interest of
Long Term Revolving Credit Loans at the Adjusted Long Term Revolving Credit
LIBOR, the Interest Period therefor. Any oral request for Disbursements
hereunder shall be followed by the Borrower's written confirmation of such
request immediately thereafter. A request from the Borrower with respect to any
Disbursements of Long Term Revolving Credit Loans bearing interest at an
Adjusted Long Term Revolving Credit LIBOR shall irrevocably commit the Borrower
to take such Disbursements on the Borrowing Date specified in the request. The
Borrower may, without liability or cost hereunder, cancel any request for
Disbursements of Long Term Revolving Credit Loans bearing interest at the Base
Rate at any time prior to the funding thereof by each of the Lenders by
delivering notice of such cancellation to the Agent.
(ii) The Agent shall promptly notify the Lenders of each request
for a Disbursement of Long Term Revolving Credit Loans.
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(iii) Not later than 2:00 P.M. (eastern time) on the Borrowing
Date, each Lender shall make available to the Agent in immediately available
funds at the principal office of the Agent such Lender's pro-rata share of the
Disbursements of Long Term Revolving Credit Loans, for the account of the
Borrower. No Lender's obligation to make a Disbursement of Long Term Revolving
Credit Loans shall be affected by any other Lender's failure to make funds
available for the same or any other Disbursement of Long Term Revolving Credit
Loans. Nothing in this Subsection 2.1Ae shall be deemed to relieve any Lender
from its obligation to fulfill its obligations to the Borrower under this
Agreement or to prejudice any rights which the Borrower may have against any
Lender as a result of any default by such Lender under this Agreement.
2.1Af TEMPORARY REDUCTION OF AVAILABLE LONG TERM REVOLVING CREDIT COMMITMENT.
While each Bid Rate Loan advanced pursuant to Section 2.2 and each Swingline
Loan advanced pursuant to Section 2.3 (and in either case is allocated to the
Long Term Revolving Credit Commitment) is outstanding, the principal amount
available to be borrowed under the aggregate Long Term Revolving Credit
Commitment shall be reduced by an amount equal to the principal amount of each
such Bid Rate Loan or Swingline Loan then outstanding and allocated to the Long
Term Revolving Credit Commitment pursuant to Section 2.2f or Section 2.3f
hereof. Such temporary reduction shall not affect the calculation of the Long
Term Revolving Credit Facility Fee.
2.1B THE SHORT TERM REVOLVING CREDIT.
2.1Ba SHORT TERM REVOLVING CREDIT LOANS. The Lenders hereby severally
establish, upon the terms and conditions hereinafter set forth and relying upon
the representations and warranties herein set forth, a short term revolving
credit commitment in favor of the Borrower in the maximum aggregate amount of
ONE HUNDRED THIRTY MILLION AND NO/100 DOLLARS ($130,000,000.00) (the "Short Term
Revolving Credit Commitment"). The Borrower shall have the right to borrow,
repay and reborrow from the Lenders from the date hereof until the Short Term
Revolving Credit Termination Date pursuant to draws upon the Short Term
Revolving Credit Commitment the principal amount of which, together with the
principal amount of Bid Rate Loans and Swingline Loans (other than Bid Rate
Loans or Swingline Loans allocated to the Long Term Revolving Credit Commitment)
then outstanding, shall not exceed $130,000,000 in the aggregate at any one time
outstanding.
2.1Bb SHORT TERM REVOLVING CREDIT COMMITMENT OF EACH LENDER. Each Lender
agrees, for itself only, and subject to the terms and conditions of this
Agreement, to make Short Term Revolving Credit Loans to the Borrower from time
to time not to exceed an aggregate principal amount at any one time outstanding
equal to the amount of its respective Short Term Revolving Credit Commitment
Percentage of the Short Term Revolving Credit Commitment (as such amounts may be
reduced by Section 2.2f and Section 2.3f hereof).
2.1Bc SHORT TERM REVOLVING CREDIT NOTES. The obligation of the Borrower to
repay, on or before the Short Term Revolving Credit Termination Date, the
aggregate unpaid principal amount of all Short Term Revolving Credit Loans shall
be evidenced by the several Short Term Revolving Credit Notes, each
substantially in the form of Exhibit "A-2" hereto, drawn by the
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Borrower to the order of a Lender in the maximum amount of such Lender's Short
Term Revolving Credit Commitment. The principal amount actually due and owing to
a Lender at any time shall be the then aggregate unpaid principal amount of all
Short Term Revolving Credit Loans made by such Lender as shown on the Loan
Account established and maintained by such Lender in accordance with Section
2.13. Each Short Term Revolving Credit Note shall be dated the date hereof and
shall be delivered to the Lenders on such date.
2.1Bd DISBURSEMENTS. The amount (i) of any Disbursement of Short Term Revolving
Credit Loans consisting of a Base Rate Portion shall be in the minimum aggregate
principal amount of $1,000,000 or an integral multiple thereof and (ii) of any
Disbursement of Short Term Revolving Credit Loans consisting of a LIBOR Portion
shall be in the minimum aggregate principal amount of $5,000,000; provided,
however that each incremental unit in excess of $5,000,000 shall be $1,000,000
or an integral multiple thereof.
2.1Be METHOD OF MAKING DISBURSEMENTS. (i) Each request for Disbursements of
Short Term Revolving Credit Loans under the Short Term Revolving Credit
Commitment shall be made by an Authorized Officer to the Agent orally or in
writing (A) in the case of Disbursements of Short Term Revolving Credit Loans to
bear interest at the Base Rate, by 11:00 A.M. (eastern time) on the Borrowing
Date, and (B) in the case of Disbursements of Short Term Revolving Credit Loans
to bear interest at the Adjusted Short Term Revolving Credit LIBOR, by 11:00
A.M. (eastern time) at least three (3) Business Days prior to the Borrowing
Date. Each such request shall (i) specify the Borrowing Date, (ii) specify the
amount of the Disbursements of Short Term Revolving Credit Loans and each
Lender's ratable share thereof, (iii) select the Option or Options therefor and
(iv) in the case of Disbursements of Short Term Revolving Credit Loans which
will bear interest at the Adjusted Short Term Revolving Credit LIBOR, the
Interest Period therefor. Any oral request for Disbursements of Short Term
Revolving Credit Loans hereunder shall be followed by the Borrower's written
confirmation of such request immediately thereafter. A request from the Borrower
with respect to any Disbursements of Short Term Revolving Credit Loans bearing
interest at an Adjusted Short Term Revolving Credit LIBOR shall irrevocably
commit the Borrower to take such Disbursements of Short Term Revolving Credit
Loans on the Borrowing Date specified in the request. The Borrower may, without
liability or cost hereunder, cancel any request for Disbursements of Short Term
Revolving Credit Loans bearing interest at the Base Rate at any time prior to
the funding thereof by each of the Lenders by delivering notice of such
cancellation to the Agent.
(ii) The Agent shall promptly notify the Lenders of each request
for a Disbursement of Short Term Revolving Credit Loans.
(iii) Not later than 2:00 P.M. (eastern time) on the Borrowing
Date, each Lender shall make available to the Agent in immediately available
funds at the principal office of the Agent such Lender's pro-rata share of the
Disbursements of Short Term Revolving Credit Loans, for the account of the
Borrower. No Lender's obligation to make a Disbursement of Short Term Revolving
Credit Loans shall be affected by any other Lender's failure to make funds
available for the same or any other Disbursement of Short Term Revolving Credit
Loans. Nothing in this Subsection 2.1Be shall be deemed to relieve any Lender
from its obligation to fulfill its obligations to the Borrower under this
Agreement or to prejudice any rights which the
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Borrower may have against any Lender as a result of any default by such Lender
under this Agreement.
2.1Bf TEMPORARY REDUCTION OF AVAILABLE SHORT TERM REVOLVING CREDIT COMMITMENT.
While each Bid Rate Loan advanced pursuant to Section 2.2 and each Swingline
Loan advanced pursuant to Section 2.3 (and in either case is allocated to the
Short Term Revolving Credit Commitment) is outstanding, the principal amount
available to be borrowed under the aggregate Short Term Revolving Credit
Commitment shall be reduced by an amount equal to the principal amount of each
such Bid Rate Loan or Swingline Loan then outstanding and allocated to the Short
Term Revolving Credit Commitment pursuant to Section 2.2f or Section 2.3f
hereof. Such temporary reduction shall not affect the calculation of the Short
Term Revolving Credit Facility Fee.
2.1Bg OPTION OF BORROWER TO TERM-OUT THE SHORT TERM REVOLVING CREDIT LOANS UPON
SHORT TERM REVOLVING CREDIT TERMINATION DATE. Subject to Section 6.1 hereof, the
Borrower may elect, by written request which shall be delivered ten (10) days
prior to the Short Term Revolving Credit Termination Date, to repay all amounts
or a portion thereof of principal outstanding under the Short Term Revolving
Credit Loans due and payable on such Short Term Revolving Credit Termination
Date on the applicable Term Loan Maturity Date (the "Term-Out Option").
Notwithstanding, any provision of this Agreement to the contrary all outstanding
principal of, and accrued and unpaid interest on a Term Loan shall be due and
payable on the applicable Term Loan Maturity Date. If the Borrower elects the
Term-Out Option, it shall deliver to each applicable Lender, on or before the
Short Term Revolving Credit Termination Date, a term note, substantially in the
form of Exhibit "K" attached hereto, for the aggregate principal amount of the
Short Term Revolving Credit Loans due such Lender and the subject of the
Term-Out Option and setting forth such obligation of the Borrower to repay such
Term Loan due to such Lender (each term note, together with all extensions,
renewals, amendments, modifications, substitutions and replacements thereto and
thereof; herein referred to individually as the "Term Note"; and collectively
the "Term Notes"). Any request for the conversion of all or a portion of the
outstanding of Short Term Revolving Credit Loans to Terms Loans shall be made by
an Authorized Officer to the Agent in writing which shall state (A) whether upon
such conversion the Term Loans or a portion thereof will bear interest at the
Base Rate Option or the LIBOR Option, (B) the amount of Term Loans to bear
interest initially at the Base Rate Option or the LIBOR Option, and (C) in the
case of Portions of the Term Loans which will bear interest at the Adjusted Term
Loan LIBOR, the Interest Period(s) therefor. A request from the Borrower with
respect to the selection of a Portion of the Term Loans to bear interest at an
Adjusted Term Loan LIBOR shall irrevocably commit the Borrower to accept the
LIBOR Option for the period in question. Additionally, the Borrower hereby
agrees to execute such amendments and modifications to the Loan Documents, prior
to the Short Term Revolving Credit Termination Date, as Agent shall reasonably
request to evidence and govern the Term Loan; provided that no amendments or
modifications to the Loan Documents shall be made with respect to any covenants
of the Borrower or to the rate of interest under any Interest Rate Option. The
Term-Out Option may be applied for each Lender that elects not to extend the
Short Term Revolving Credit Termination Date pursuant to Section 2.8b at the
option of the Borrower as set forth in Section 2.8b.
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2.2 BID RATE LOANS.
2.2a BID RATE. Subject to the provisions of this Section 2.2, each Lender
severally agrees that the Borrower may request Bid Rate Loans, in an aggregate
amount at any one time outstanding not to exceed $325,000,000 (or the sum of
$195,000,000 plus any remaining Short Term Revolving Credit Commitment on and
after any Short Term Revolving Credit Termination Date) LESS the Letters of
Credit Outstanding and the aggregate principal amount of all Revolving Credit
Loans and Swingline Loans then outstanding, which shall bear interest at the Bid
Rate Option. In selecting a Bid Rate Option from any Lender, such Lender may
make an advance in excess of such Lender's Commitment.
2.2b LIMITATIONS ON AND EVIDENCE OF BID RATE LOANS. Except as provided under
Section 2.2c(vi) hereof, each Bid Rate Loan or repayment of a Bid Rate Loan must
be in the minimum principal amount of $5,000,000 or, if in excess of $5,000,000,
in integral multiples of $1,000,000. The obligation of the Borrower to repay, on
the Long Term Revolving Credit Termination Date (if the Borrower has requested a
Disbursement under the Long Term Revolving Credit Commitment), the aggregate
unpaid principal amount of such Bid Rate Loans advanced by each Lender shall be
evidenced by the Bid Rate Notes substantially in the form of Exhibit "B-1"
hereto, one made payable to each Lender in the amount of $195,000,000. The
obligation of the Borrower to repay, on the Short Term Revolving Credit
Termination Date (if the Borrower has requested the Disbursement under the Short
Term Revolving Credit Commitment), the aggregate unpaid principal amount of such
Bid Rate Loans advanced by each Lender shall be evidenced by the Bid Rate Notes
substantially in the form of Exhibit "B-2" hereto, one made payable to each
Lender in the amount of $130,000,000. The Borrower shall have, with the prior
written consent of the Lender making such Bid Rate Loan, the right to prepay any
Bid Rate Loan prior to the end of the relevant Bid Rate Interest Period. The
Borrower shall repay each individual Bid Rate Loan, together with interest
thereon on the last day of the Bid Rate Interest Period applicable to it. The
principal amount actually due and owing each Lender shall be the aggregate
unpaid principal amount of all Disbursements of Bid Rate Loans made by such
Lender, all as shown on the Loan Account established pursuant to Section 2.13
hereof.
2.2c BID RATE LOAN PROCEDURE.
(i) BID RATE LOAN REQUEST. When the Borrower wishes to request offers
to make Bid Rate Loans under this Section, it shall transmit to the Agent by
telex or facsimile transmission a Bid Rate Quote Request substantially in the
form of Exhibit "C" hereto so as to be received no later than 11:00 A.M.
(eastern time) on (x) the fifth Business Day prior to the date of Disbursement
proposed therein, in the case of a LIBOR Auction or (y) the Business Day next
preceding the date of Disbursement proposed therein, in the case of an Absolute
Rate Auction (or, in either case, such other time or date as the Borrower and
the Agent shall have mutually agreed and shall have informed the Lenders of not
later than the date of the Bid Rate Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective) specifying:
(A) the proposed date of Disbursement, which shall be a Business
Day,
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(B) the aggregate amount of such Disbursement, which shall be
$5,000,000 or a larger multiple of $1,000,000,
(C) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period,
(D) whether the Bid Rate Quotes requested are to set forth a Bid
Rate Margin or a Bid Rate Absolute Rate, and
(E) whether the requested Disbursement shall be allocated to the
Long Term Revolving Credit Commitment or the Short Term Revolving Credit
Commitment or split between both Commitments, if applicable, and how split.
The Borrower may request offers to make Bid Rate Loans for more than one
Interest Period in a single Bid Rate Quote Request. The Borrower may request
offers to make Bid Rate Loans allocated to each of the Commitments in a single
Bid Rate Quote Request.
(ii) INVITATION FOR BID RATE QUOTES. Promptly upon receipt of a Bid
Rate Quote Request, the Agent shall send to the Lenders by telex or facsimile
transmission an Invitation for Bid Rate Quotes, which shall constitute an
invitation by the Borrower to each Lender to submit Bid Rate Quotes offering to
make the Bid Rate Loans to which such Bid Rate Quote Request relates in
accordance with this Subsection.
(iii) SUBMISSION AND CONTENTS OF BID RATE QUOTES. (A) Each Lender may
submit a Bid Rate Quote containing an offer or offers to make Bid Rate Loans in
response to any Bid Rate Quote Request. Each Bid Rate Quote must comply with the
requirements of this paragraph (iii) and must be submitted to the Agent by telex
or facsimile transmission at its offices specified in or pursuant to Section 9.3
not later than (x) 2:00 P.M. (eastern time) on the fourth Business Day prior to
the proposed date of Disbursement, in the case of a LIBOR Auction or (y) 9:45
A.M. (eastern time) on the proposed date of Disbursement, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall have informed the
Lenders of not later than the date of the Bid Rate Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be
effective); PROVIDED that Bid Rate Quotes submitted by the Agent (or any
affiliate of the Agent) in the capacity of a Lender may be submitted, and may
only be submitted, if the Agent or such affiliate notifies the Borrower of the
terms of the offer or offers contained therein not later than (x) one hour prior
to the deadline for the other Lenders, in the case of a LIBOR Auction or (y) 15
minutes prior to the deadline for the other Lenders, in the case of an Absolute
Rate Auction.
(B) Each Bid Rate Quote shall be in substantially the form of
Exhibit "D" hereto and shall in any case specify:
(1) the proposed date of Disbursement and the Interest
Period therefor,
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(2) the principal amount of the Bid Rate Loan for which each
such offer is being made, which principal amount (w) may be greater than or less
than the Commitment of the quoting Lender, (x) must be $5,000,000 or a larger
multiple of $1,000,000, (y) may not exceed the principal amount of Bid Rate
Loans for which offers were requested and (z) may be subject to an aggregate
limitation as to the principal amount of Bid Rate Loans for which offers being
made by such quoting Lender may be accepted,
(3) in the case of a LIBOR Auction, the margin above or
below the applicable LIBOR (the "Bid Rate Margin") offered for each such Bid
Rate Loan, expressed as a percentage (specified to the nearest 1/10,000th of 1%)
to be added to or subtracted from such base rate,
(4) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%) (the "Bid Rate
Absolute Rate") offered for each such Bid Rate Loan, and
(5) the identity of the quoting Lender.
A Bid Rate Quote may set forth up to three separate offers by the quoting Lender
with respect to each Interest Period specified in the related Bid Rate Quote
Request.
(C) Any Bid Rate Quote shall be disregarded if it:
(1) is not substantially in conformity with Exhibit "D"
hereto or does not specify all of the information required by paragraph (iii)(B)
immediately above;
(2) contains qualifying, conditional or similar language or,
in particular, is conditioned on acceptance by the Borrower of all or some
specified minimum principal amount of the Bid Rate Loan for which such Bid Rate
Quote is being made;
(3) proposes terms other than or in addition to those set
forth in the applicable Bid Rate Quote Request; or
(4) arrives after the time set forth in paragraph (iii)(A)
above.
(iv) NOTICE TO BORROWER. The Agent shall notify the Borrower promptly,
and in the case of an Absolute Rate Auction no later than 45 minutes after
receipt by the Agent, of the terms (x) of any Bid Rate Quote submitted by a
Lender that is in accordance with paragraph (iii) above and (y) of any Bid Rate
Quote that amends, modifies or is otherwise inconsistent with a previous Bid
Rate Quote submitted by such Lender with respect to the same Bid Rate Quote
Request. Any such subsequent Bid Rate Quote shall be disregarded by the Agent
unless such subsequent Bid Rate Quote is submitted solely to correct a manifest
error in such former Bid Rate Quote. The Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Bid Rate Loans for which offers
have been received for each Interest Period specified in the related Bid Rate
Quote Request, (B) the respective principal amounts and Bid Rate Margins or
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Bid Rate Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Bid Rate Loans for which offers
in any single Bid Rate Quote may be accepted.
(v) ACCEPTANCE AND NOTICE BY BORROWER. Not later than 11:00 A.M.
(eastern time) on (x) the third Business Day prior to the proposed date of
Disbursement, in the case of a LIBOR Auction or (y) the proposed date of
Disbursement, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Agent shall have mutually agreed and
shall have informed the Lenders of not later than the date of the Bid Rate Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective), the Borrower shall notify the Agent of its
acceptance or non-acceptance of the offers so presented to it pursuant to
Subsection (iv). In the case of acceptance, such notice (a "Notice of Bid Rate
Borrowing") shall specify the aggregate principal amount of offers for each
Interest Period that are accepted and the types of Commitments to be borrowed
against. The Borrower may accept any Bid Rate Quote in whole or in part;
PROVIDED that:
(A) the aggregate principal amount of each Bid Rate Disbursement
may not exceed the applicable amount set forth in the related Bid Rate Quote
Request,
(B) the principal amount of each Bid Rate borrowing must be
$5,000,000 or a larger multiple of $1,000,000 (subject to Subsection 2.2c(vi)
below),
(C) acceptance of offers may only be made on the basis of
ascending Bid Rate Margins or Bid Rate Absolute Rates, as the case may be, and
(D) the Borrower may not accept any offer that is described in
subsection (iii)(C) of this Section 2.2c or that otherwise fails to comply with
the requirements of this Agreement.
(vi) ALLOCATION BY AGENT. If offers are made by two or more Lenders
with the same Bid Rate Margins or Bid Rate Absolute Rates, as the case may be,
for a greater aggregate principal amount than the amount in respect of which
such offers are accepted for the related Interest Period, the principal amount
of Bid Rate Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Lenders as nearly as possible (in multiples of
$1,000,000, as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Agent of the amounts of
Bid Rate Loans shall be conclusive in the absence of manifest error.
(vii) NOTICE TO LENDERS. If the Borrower accepts one or more of the
offers made by any Lender pursuant to clause (v) of this Section 2.2c above, the
Agent shall in turn promptly notify (A) each Lender of the date of such Bid Rate
Loan, and the aggregate amount, interest rate, type of Commitment to be borrowed
against and maturity of such Bid Rate Loan and whether or not any offer or
offers made by such Lender pursuant to clause (iii) of this Section 2.2c above
have been accepted by the Borrower and (B) each Lender which is to make a Bid
Rate Loan, of the amount of each Bid Rate Loan to be made by such Lender. Each
Lender which is to make a Bid Rate Loan shall, before 1:00 p.m. (Pittsburgh,
Pennsylvania time) on the
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date of such Bid Rate Loan specified in the notice received from the Agent
pursuant to clause (A) of the preceding sentence or any later time when such
Lender shall have received notice from the Agent pursuant to clause (B) of the
preceding sentence, make available to the Agent such Lender's Bid Rate Loan, in
immediately available funds. Promptly after 1:00 p.m. (Pittsburgh, Pennsylvania
time) and in any event before 3:00 p.m. (Pittsburgh, Pennsylvania time) on each
date of the making of Bid Rate Loans, the Agent shall make the aggregate amount
available to the Borrower.
(viii) BID RATE LOAN PREPAYMENT. No Bid Rate Loan shall be prepaid
prior to the end of the relevant Bid Rate Interest Period without the prior
consent of the Lender extending such Bid Rate Loan.
2.2d BID RATE LOAN INTEREST. Interest on the Bid Rate Loans for a Bid Rate
Interest Period shall accrue at the rate per annum agreed upon between the
Lender or Lenders making such Bid Rate Loans and the Borrower pursuant to the
Bid Rate selection procedures set forth in Subsection 2.2c above.
2.2e BASE RATE OPTION BORROWING IN EVENT OF CANCELLED BID RATE LOAN REQUEST. In
the event of cancellation by the Borrower of a Bid Rate Loan Request pursuant to
paragraph (v) of Subsection 2.2c, the Borrower may, before 1:00 P.M. (eastern
time) on the day of such cancellation, submit to the Agent a request for a
Disbursement under the Long Term Revolving Credit Commitment or the Short Term
Revolving Credit Commitment to be made on the day of such cancellation and to
bear interest at the Base Rate Option. The Lenders shall use their best efforts
to make their respective pro rata shares of such Disbursement available at the
office of the Borrower prior to 2:00 P.M. (eastern time) on the date of such
Disbursement in accordance with the procedures set forth in Subsection
2.1Ae(iii) or Subsection 2.1Be(iii), as applicable.
2.2f REDUCTION OF AVAILABLE COMMITMENTS. While each such Bid Rate Loan is
outstanding hereunder, the outstanding principal amount thereof shall reduce
correspondingly availability under either or both of (i) the Long Term Revolving
Credit Commitment and (ii) the Short Term Revolving Credit Commitment, as
applicable, and shall reduce, as to each Lender availability under either or
both of (i) that Lender's Long Term Revolving Credit Commitment or (ii) that
Lender's Short Term Revolving Credit Commitment, as applicable, by an amount
equal to such Lender's Long Term Revolving Credit Commitment Percentage or
Lender's Short Term Revolving Credit Commitment Percentage, as applicable, of
the aggregate outstanding principal balance of Bid Rate Loans issued by any
Lender.
2.3 SWINGLINE LOANS.
2.3a SWINGLINE RATE. Subject to the provisions of this Section 2.3, each
Swingline Lender severally agrees that the Borrower may request that Swingline
Loans, in an aggregate amount at any one time outstanding not to exceed the
lesser of (i) $25,000,000 or (ii) an amount which, when added to the Letters of
Credit Outstanding and the aggregate principal amount of all other Loans then
outstanding, does not exceed $325,000,000 (so long as both the Long Term
Revolving Credit Commitments and all of the initial Short Term Revolving Credit
Commitments are outstanding; the sum of $195,000,000 plus the sum of any
remaining Short Term Revolving
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Credit Commitments if a Short Term Revolving Credit Termination Date has
occurred with respect to one or more Lenders plus the outstanding balance of the
Term Loans, if any; and the sum of $195,000,000 plus the outstanding Term Loans,
if any, in the event that only the Long Term Revolving Credit Commitment is
outstanding), which shall bear interest at the Swingline Option.
2.3b LIMITATIONS ON AND EVIDENCE OF SWINGLINE LOANS. Except as provided under
Subsection 2.3c(iv), each Swingline Loan or repayment of a Swingline Loan must
be in the minimum principal amount of $10,000 or, if in excess of $10,000 in
integral multiples of $10,000. Each Swingline Loan shall be for a Swingline Loan
Period. The obligation of the Borrower to repay, prior to the Long Term
Revolving Credit Termination Date, the aggregate unpaid principal amount of such
Swingline Loans advanced by each Swingline Lender shall be evidenced by the
Swingline Notes substantially in the form of Exhibit "E" hereto, one made
payable to each Swingline Lender in the amount of $25,000,000. The principal
amount actually due and owing each Swingline Lender shall be the aggregate
unpaid principal amount of all Disbursements of Swingline Loans made by such
Swingline Lender, all as shown on such Lender's Loan Account established
pursuant to Section 2.13.
2.3c SWINGLINE LOAN PROCEDURE.
(i) SWINGLINE LOAN REQUEST. When the Borrower wishes to request offers
to make Swingline Loans under this Section, it shall transmit to the Agent by
telex or facsimile transmission for each Swingline Loan Period a Swingline Quote
Request, substantially in the form of Exhibit "F" hereto, so as to be received
no later than 11:00 A.M. (eastern time) on the Business Day of Disbursement
proposed therein specifying:
(A) the proposed date of Disbursement, which shall be a Business
Day,
(B) the aggregate amount of such Disbursement, which shall be
$10,000 or a larger multiple of $10,000, and
(C) whether the requested Disbursement shall be allocated to the
Long Term Revolving Credit Commitment or the Short Term Revolving Credit
Commitment or split between both Commitments, if applicable, and how split.
(ii) INVITATION FOR SWINGLINE QUOTES. Promptly upon receipt of a
Swingline Quote Request, the Agent shall send to the Swingline Lenders by telex
or facsimile transmissions an Invitation for Swingline Quote, which shall
constitute an invitation by the Borrower to each Swingline Lender to submit
Swingline Quotes offering to make the Swingline Loan for such Swingline Loan
Period to which such Swingline Quote Request relates in accordance with this
Subsection.
(iii) SUBMISSION AND CONTENTS OF SWINGLINE QUOTES. (A) Each Swingline
Lender may submit a Swingline Quote containing an offer to make a Swingline Loan
for such Swingline Loan Period in response to any Swingline Quote Request. Each
Swingline Quote must comply with the requirements of this paragraph (iii) and
must be submitted to the Agent by
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telex or facsimile transmission at its offices specified in or pursuant to
Section 9.3 not later than (x) 1:00 P.M. (eastern time) on the Business Day on
the proposed date of Disbursement (or such other time or date as the Borrower
and the Swingline Lenders shall have mutually agreed); provided that Swingline
Quotes submitted by the Agent (or any affiliate of the Agent) in the capacity of
a Swingline Lender may be submitted, and may only be submitted, if the Agent or
such affiliate notifies the Borrower of the terms of the offer or offers
contained therein not later than 15 minutes prior to the deadline for the other
Swingline Lenders.
(B) Each Swingline Quote shall be in substantially the form of
Exhibit "G" hereto and shall in any case specify:
(1) the proposed date of Disbursement,
(2) the principal amount of the Swingline Loan for which
each such offer is being made, which principal amount, (x) must be $10,000 or a
larger multiple of $10,000, (y) may not exceed the principal amount of Swingline
Loan for which offers were requested and (z) may be subject to an aggregate
limitation as to the principal amount of Swingline Loans for which offers being
made by such quoting Swingline Lender may be accepted,
(3) the rate of interest per annum (specified to the nearest
1/10,000th of 1%) offered for each such Swingline Loan; and
(4) the identity of the quoting Swingline Lender.
(C) Any Swingline Quote shall be disregarded if it:
(1) is not substantially in conformity to Exhibit "G" hereto
or does not supply all of the information required by paragraph (iii)(B)
immediately above;
(2) contains qualifying, conditional or similar language or,
in particular, is conditioned on acceptance by the Borrower of all or some
specified minimum principal amount of the Swingline Loan for which such
Swingline Quote is being made;
(3) proposes terms other than or in addition to those set
forth in the applicable Swingline Loan Request; or
(4) arrives after the time set forth in paragraph (iii)(A)
above.
(iv) NOTICE TO BORROWER. The Agent shall notify the Borrower, no later
than 45 minutes after receipt by the Agent, of the terms (x) of any Swingline
Quote submitted by a Swingline Lender that is in accordance with paragraph (iii)
above (y) of any Swingline Quote that amends, modifies or is otherwise
inconsistent with a previous Swingline Quote submitted by such Swingline Lender
with respect to the same Swingline Quote Request. Any such subsequent Swingline
Quote shall be disregarded by the Agent unless such subsequent Swingline Quote
is submitted solely to correct a manifest error. The Agent's notice to the
Borrower shall specify (A)
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the aggregate principal amount of Swingline Loans for which offers have been
received, (B) the respective principal amounts so offered and (C), if
applicable, limitations on the aggregate principal amount of the Swingline Loans
for which offers in any single Swingline Quote may be accepted.
(v) ACCEPTANCE AND NOTICE BY BORROWER. Not later than 2:30 P.M.
(eastern time) on the proposed date of Disbursement (or such other time or date
as the Borrower and the Swingline Lenders shall have mutually agreed), the
Borrower shall notify the Agent of its acceptance or non-acceptance of the
offers so presented to it pursuant to Subsection (iii). In the case of
acceptance, such notice (a "Notice of Swingline Borrowing") shall specify the
aggregate principal amount of offers that are accepted. The Borrower may accept
any Swingline Quote in whole or in part; PROVIDED that:
(A) the aggregate principal amount of each Swingline Disbursement
may not exceed the applicable amount set forth in the related Swingline Quote
Request,
(B) the principal amount of each Swingline borrowing must be
$10,000 or a larger multiple of $10,000,
(C) acceptance of offers may only be made on the basis of
ascending Swingline Interest Rate, and
(D) the Borrower may not accept any offer that fails to comply
with the requirements of this Agreement.
(vi) ALLOCATION BY BORROWER. If offers are made by two or more
Swingline Lenders with the same Swingline Interest Rate for a greater aggregate
principal amount than the amount in respect of which such offers are accepted
for the related Swingline Loan, the principal amount of Swingline Loans in
respect of which such offers are accepted shall be allocated by the Borrower
among such Swingline Lenders as nearly as possible (in multiples of $10,000, as
the Agent may deem appropriate) in proportion to the aggregate principal amounts
of such offers. Determinations by the Borrower of the amounts of Swingline Loans
shall be conclusive.
(vii) SWINGLINE LOAN PREPAYMENT. A Swingline Loan may be prepaid at any
time without the prior consent of the Swingline Lender extending such Swingline
Loan.
2.3d SWINGLINE LOAN INTEREST. Interest on the Swingline Loans for each
Swingline Loan Period shall accrue at the rate per annum agreed upon between the
Swingline Lender or Swingline Lenders making such Swingline Loans and the
Borrower, pursuant to the Swingline selection procedures set forth in Subsection
2.3c above; provided that upon the occurrence and during the continuance of an
Event of Default interest on outstanding Swingline Loans shall be adjusted
automatically as provided in Subsection 2.4f. Any interest paid on a Swingline
Loan will be retained for the benefit of the applicable Swingline Lender subject
to the provisions of Section 2.3e below.
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2.3e 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 non-recourse participation in such Swingline Loan, in an amount equal
to (i) such Lender's Long Term Revolving Credit Commitment Percentage (and in
the event the Long Term Revolving Credit Commitment is fully drawn at the time
of the Disbursement of such Swingline Loan, such Lender's Short Term Revolving
Credit Commitment Percentage), (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 which Swingline Loan
is made after a notice of an Event of Default has been given. If and to the
extent any Swingline Lender receives payment of principal or interest on a
participated Swingline Loan, such Swingline Lender shall deliver to each Lender
such Lender's pro rata share of such payment.
2.3f REDUCTION OF AVAILABLE COMMITMENTS. While each such Swingline Loan is
outstanding hereunder, the outstanding principal amount thereof shall
correspondingly reduce availability first under the Long Term Revolving Credit
Commitment and first shall reduce, as to each Lender availability under the
Lender's Long Term Revolving Credit Commitment by an amount equal to such
Lender's Long Term Revolving Credit Commitment Percentage share of the aggregate
outstanding principal balance of Swingline Loans issued by the Agent. If at any
time the sum of the Long Term Revolving Credit Loans outstanding plus the
Swingline Loans outstanding exceed the Long Term Revolving Credit Commitment,
such excess shall correspondingly reduce availability under the Short Term
Revolving Credit Commitment and shall reduce, as to each Lender availability
under the Lender's Short Term Revolving Credit Commitment by an amount equal to
such Lender's Short Term Revolving Credit Commitment Percentage share of such
excess.
2.4 INTEREST RATES, INTEREST PAYMENT AND CERTAIN PROVISIONS RELATING TO
INTEREST AND FEES.
2.4a PAYMENTS OF INTEREST. The Borrower shall pay interest on the principal
amount of the Loans from time to time outstanding hereunder, from the date
thereof until payment in full, at the rates of interest determined pursuant to
this Section 2.4 (except to the extent expressly set forth to the contrary in
Section 2.2d and 2.3d). The Borrower shall pay accrued interest on the unpaid
principal balance of the Loans in arrears: (i) with respect to each Base Rate
Portion, at the Base Rate on the last Business Day of each month during the term
thereof; (ii) with respect to each LIBOR Portion, at the Adjusted Long Term
Revolving Credit LIBOR, the Adjusted Short Term Revolving Credit LIBOR, or the
Adjusted Term Loan LIBOR, on the last day of each LIBOR Interest Period as
provided for in Subsection 2.4c (provided, however, if the LIBOR Interest Period
chosen for a LIBOR Portion exceeds three (3) months, interest on that LIBOR
Portion shall be due and payable on the day which is (A) three months after the
first day of LIBOR Interest Period and (B) the last day of such LIBOR Interest
Period); (iii) with respect to each Bid Rate Loan, at the Bid Rate on the last
day of each Bid Rate Interest Period as provided for in Subsection 2.4c
(provided, however, if the Bid Rate Interest Period chosen for a Bid Rate Loan
exceeds ninety (90) days, interest on that Bid Rate Loan shall be due and
payable every ninety (90) days during such Bid Rate Interest Period and on the
last day of such Bid Rate Interest Period); (iv) with respect to each Swingline
Loan at the Swingline Rate on the last day of
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the Swingline Loan Period; and (v) with respect to all such Portions, at the
applicable interest rate (A) when due, whether at maturity of such Note, by
acceleration or otherwise, and (B) after maturity, on demand until paid in full.
2.4b INTEREST RATE OPTIONS FOR CERTAIN LOANS.
(i) LONG TERM REVOLVING CREDIT LOANS. The unpaid principal amount of
the Long Term Revolving Credit Loans shall bear interest, for each day until
due, at one or more rates of interest selected by the Borrower from among the
Options set forth below; it being understood that, subject to the provisions of
this Agreement, the Borrower may select different Options to apply
simultaneously to different Portions of the Long Term Revolving Credit Loans and
may select different Interest Periods to apply simultaneously to different
Portions of the LIBOR Portions of the Long Term Revolving Credit Loans.
(A) BASE RATE OPTION: A rate of interest per annum (computed
upon the basis of a year of 365 or 366 days, as the case may be, and
the actual number of days elapsed) equal to the Base Rate. The rate of
interest per annum under the Base Rate Option shall be adjusted
automatically, from time to time, upon each change in the Base Rate.
(B) LIBOR OPTION: A rate of interest per annum (computed on
the basis of a year of 360 days and the actual number of days elapsed)
equal to the sum of (x) the LIBOR PLUS (y) the Applicable Long Term
Revolving Credit LIBOR Margin (the "Adjusted Long Term Revolving Credit
LIBOR"). The Applicable Long Term Revolving Credit LIBOR Margin for
each LIBOR Portion then outstanding shall be adjusted automatically,
from time to time, effective upon each change in the Senior Ratings.
(ii) SHORT TERM REVOLVING CREDIT LOANS. The unpaid principal amount of
the Short Term Revolving Credit Loans shall bear interest, for each day until
due, at one or more rates of interest selected by the Borrower from among the
Options set forth below; it being understood that, subject to the provisions of
this Agreement, the Borrower may select different Options to apply
simultaneously to different Portions of the Short Term Revolving Credit Loans
and may select different Interest Periods to apply simultaneously to different
Portions of the LIBOR Portions of the Short Term Revolving Credit Loans.
(A) BASE RATE OPTION: A rate of interest per annum (computed
upon the basis of a year of 365 or 366 days, as the case may be, and
the actual number of days elapsed) equal to the Base Rate. The rate of
interest per annum under the Base Rate Option shall be adjusted
automatically, from time to time, upon each change in the Base Rate.
(B) LIBOR OPTION: A rate of interest per annum (computed on
the basis of a year of 360 days and the actual number of days elapsed)
equal to the sum of (A) the LIBOR PLUS (B) the Applicable Short Term
Revolving Credit LIBOR Margin (the "Adjusted Short Term Revolving
Credit LIBOR"). The
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Applicable Short Term Revolving Credit LIBOR Margin for each LIBOR
Portion then outstanding shall be adjusted automatically, from time to
time, effective upon each change in the Senior Ratings.
(iii) TERM LOANS. The unpaid principal amount of the Term Loans shall
bear interest, for each day until due, at one or more rates of interest selected
by the Borrower from among the Options set forth below; it being understood
that, subject to the provisions of this Agreement, the Borrower may select
different Options to apply simultaneously to different Portions of the Term
Loans and may select different Interest Periods to apply simultaneously to
different Portions of the LIBOR Portions of the Term Loans.
(A) BASE RATE OPTION: A rate of interest per annum (computed
upon the basis of a year of 365 or 366 days, as the case may be, and
the actual number of days elapsed) equal to the Base Rate. The rate of
interest per annum under the Base Rate Option shall be adjusted
automatically, from time to time, upon each change in the Base Rate.
(B) LIBOR OPTION: A rate of interest per annum (computed on
the basis of a year of 360 days and the actual number of days elapsed)
equal to the sum of (A) the LIBOR PLUS (B) the Applicable Term Loan
LIBOR Margin (the "Adjusted Term Loan LIBOR"). The Applicable Term Loan
LIBOR Margin for each LIBOR Portion then outstanding shall be adjusted
automatically, from time to time, effective upon each change in the
Senior Ratings.
2.4c INTEREST PERIODS; LIMITATIONS ON ELECTIONS. At any time when the Borrower
shall select, convert to or renew at the LIBOR Option with respect to all or any
Portion of the outstanding Revolving Credit Loans or Term Loans or select,
convert or renew a Bid Rate Loan to which the Bid Rate Margin applies, it shall
fix one or more Interest Periods during which such Option(s) shall apply. All of
the foregoing, however, is subject to the following:
(i) any LIBOR 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
Business Day falls in the succeeding calendar month in which case such LIBOR
Interest Period shall end on the next preceding Business Day; and
(ii) any LIBOR 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 LIBOR Interest Period is to
end shall end on the last Business Day of such subsequent month.
In addition, elections by the Borrower of the LIBOR Option shall be
subject to the following further limitations:
(i) If a LIBOR Interest Period is elected with regard to amounts
outstanding under the Long Term Revolving Credit Commitment and such Interest
Period would end after
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the Long Term Revolving Credit Termination Date, such Interest Period shall end
on the Long Term Revolving Credit Termination Date; and
(ii) At no time may there be more than six (6) LIBOR Interest Periods
in effect relating to Long Term Revolving Credit Loans; provided, however if a
Base Rate Portion is outstanding there shall be not more than five (5) LIBOR
Interest Periods in effect relating to Long Term Revolving Credit Loans; and
(iii) If a LIBOR Interest Period is elected with regard to amounts
outstanding under the Short Term Revolving Credit Commitment and such Interest
Period would end after the Short Term Revolving Credit Termination Date, such
Interest Period shall end on the Short Term Revolving Credit Termination Date;
and
(iv) At no time may there be more than six (6) LIBOR Interest Periods
in effect relating to Short Term Revolving Credit Loans; provided, however if a
Base Rate Portion is outstanding there shall be not more than five (5) LIBOR
Interest Periods in effect relating to Short Term Revolving Credit Loans; and
(v) If a LIBOR Interest Period is elected with regard to amounts
outstanding under the Term Loan and such Interest Period would end after the
Term Loan Maturity Date, such Interest Period shall end on the Term Loan
Maturity Date; and
(vi) At no time may there be more than three (3) LIBOR Interest Periods
in effect relating to Term Loans; provided, however if a Base Rate Portion is
outstanding there shall be not more than two (2) LIBOR Interest Periods in
effect relating to Term Loans.
2.4d ELECTION, CONVERSION OR RENEWAL OF INTEREST RATE OPTIONS. Elections of or
conversions to the Base Rate Option shall continue in effect until converted to
the LIBOR Option as hereinafter provided. Elections of, conversions to or
renewals of the LIBOR Option shall expire as to each LIBOR Portion at the
expiration of the applicable Interest Period. Elections of Bid Rate Loans shall
expire as to each such Bid Rate Loan at the end of the applicable Bid Rate
Interest Period. Elections of Swingline Loans shall expire as to each such
Swingline Loan at the end of the applicable Swingline Interest Period.
At any time, with respect to any Base Rate Portion, or at the
expiration of the applicable Interest Period, with respect to any LIBOR Portion,
the Borrower (subject to Subsection 2.4c) may cause all or any part of the
principal amount of such Portion to be converted to and/or (in the case of a
LIBOR Portion) to be renewed under the LIBOR Option by notice to each of the
Lenders as hereinafter provided. Such notice (i) shall be irrevocable; (ii)
shall be given not later than 11:00 A.M. (eastern time) in the case of a
conversion to or renewal of, either in whole or in part, the LIBOR Option on the
third Business Day prior to the proposed effective date for the conversion or
renewal; and (iii) shall set forth:
(A) the effective date of such conversion or renewal, which shall be a
Business Day;
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(B) the new LIBOR Interest Period(s) selected; and
(C) with respect to each such Interest Period, the aggregate principal
amount of the corresponding LIBOR Portion.
At the expiration of each LIBOR Interest Period, any part (including
the whole) of the principal amount of the corresponding LIBOR Portion as to
which no notice of conversion or renewal has been received as provided above,
shall automatically be converted to the Base Rate Option. At the expiration of
each Bid Rate Interest Period or Swingline Interest Period, any part (including
the whole) of the principal amount of the corresponding Bid Rate Loan or
Swingline Loan, as applicable, as to which no notice of an invitation for bid
has been received as provided in Section 2.2 or Section 2.3, as applicable,
shall automatically be converted to Revolving Credit Loans under the Commitment
to which each was allocated and such principal amount shall bear interest at the
Base Rate Option.
2.4e NOTIFICATION OF ELECTION OF AN INTEREST RATE OPTION. The Borrower, by an
Authorized Officer, shall notify the Agent of (i) each election or renewal of an
Option and each conversion from one Option to another, (ii) the Portion of the
Long Term Revolving Credit Loans, the Short Term Revolving Credit Loans or the
Term Loans, as applicable, then outstanding to be allocated to each Option and
(iii) where relevant, the Interest Periods applicable to each Option, by
communication as provided for in this Agreement. Any such communication may be
oral or written and if oral, it shall be followed immediately by written
confirmation of such Option election executed by an Authorized Officer.
2.4f DEFAULT INTEREST. After the occurrence of and during the continuance of an
Event of Default and whether or not judgment has been entered against the
Borrower on the Revolving Credit Notes or the Term Notes, all Base Rate Portions
shall bear interest at a rate per annum which shall be two hundred (200) basis
points (2%) per annum above the rate otherwise in effect under the Base Rate
Option, such interest rate to change automatically from time to time, effective
as of the effective date of each change in the Base Rate. After the occurrence
of and during the continuance of an Event of Default and whether or not judgment
has been entered against the Borrower on the Revolving Credit Notes, the Term
Notes and the Bid Rate Notes, all such LIBOR Portions and Bid Rate Loans shall
bear interest (i) until the end of the then current Interest Period, at a rate
per annum which shall be two hundred (200) basis points (2%) per annum above the
rate otherwise in effect under the LIBOR Option and the Bid Rate Option, as the
case may be, and (ii) at the end of the then current Interest Period, and
thereafter at the sum of (A) the Base Rate PLUS (B) two hundred (200) basis
points (2%) per annum. After the occurrence of and during the continuance of an
Event of Default whether or not judgment has been entered against the Borrower
on the Swingline Notes, all Swingline Loans shall bear interest at the sum of
(A) the Base Rate plus (B) two hundred (200) basis points (2%) per annum.
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2.5 YIELD-PROTECTION, CAPITAL ADEQUACY AND MISCELLANEOUS PROVISIONS RELATING
TO LIBOR.
2.5a YIELD PROTECTION. Notwithstanding other provisions of this Section 2.5:
(i) If any Governmental Rule (including, without limitation, Regulation
D), or if any change therein on or after the date hereof, or in the
interpretation thereof by any Governmental Authority charged with the
administration thereof, shall:
(A) subject any Lender to any tax, levy, impost, charge, fee,
duty, deduction or withholding of any kind with respect to payments of principal
or interest or other amounts due hereunder (other than any tax imposed or based
upon the income of a Lender and payable to any Governmental Authority in the
United States of America or any state thereof); or
(B) 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 or any state thereof of the total net income of such Lender);
or
(C) impose, modify or deem applicable any reserve, special
deposit or similar requirements against assets held by any Lender applicable to
the Letters of Credit Outstanding or to the Commitment or Loans made hereunder
(other than such requirements which are included in the determination of the
applicable rate of interest hereunder); or
(D) 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 the affected
Lender, reduce the income receivable by the affected Lender, reduce the rate of
return on the affected Lender's capital, or impose any expenses upon the
affected Lender, all with respect to any of the Commitments, the Loans or the
Letters of Credit Outstanding (or any portion thereof) by an amount which the
affected Lender reasonably deems material, and if the affected Lender is then
demanding similar compensation for such occurrences from other borrowers who are
similarly situated and who have a similar relationship with the affected Lender
and from which the affected Lender has the right to demand such compensation,
then and in any such case:
(1) the affected Lender shall promptly notify the Borrower
of the happening of such event;
(2) the Borrower shall pay to the affected Lender, on
demand, such amount as will compensate the affected Lender for such reduction in
its rate of return; and
(3) the Borrower may pay the affected portion of the
affected Lender's Commitments, Loans or interest in the Letters of Credit
Outstanding in full without the payment of any additional amount, including
prepayment penalties, other than amounts payable on account of the affected
Lender's out-of-pocket losses (including funding loss, if any, as
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provided in Section 2.11) which are not otherwise provided for in subparagraph
(2) immediately above.
(ii) A certificate as to the increased cost or reduced amount as a
result of any event mentioned in this Subsection 2.5a shall be promptly
submitted by the affected Lender to the Borrower in accordance with the
provisions hereof. Such certificate shall be prima facie evidence as to the
amount of such increased cost or reduced amount.
(iii) Notwithstanding the foregoing provisions of this Section 2.5a,
the Borrower shall not be required to indemnify a Lender for the imposition by
the Agent of any federal income tax withholding in the event that such Lender
fails to complete, execute and deliver to the Agent a Withholding Certificate (a
defined under sec. 1.1441-1(c)(16) of the federal Income Tax Regulations).
2.5b CAPITAL ADEQUACY. If, after the date hereof, (i) any adoption of or any
change in or in the interpretation of any Governmental Rule, or (ii) compliance
with any Governmental Rule of any Governmental Authority exercising control over
banks or financial institutions generally or any court of competent
jurisdiction, requires that the Commitment (including, without limitation,
obligations in respect of any Revolving Credit Loans, Bid Rate Loans, Swingline
Loans or Letters of Credit Outstanding) hereunder be treated as an asset or
otherwise be included for purposes of calculating the appropriate amount of
capital to be maintained by any Lender or any corporation controlling any Lender
(a "Capital Adequacy Event"), the result of which is to reduce the rate of
return on a Lender's capital as a consequence of its Commitment to a level below
that which the affected Lender could have achieved but for such Capital Adequacy
Event, taking into consideration the Lender's policies with respect to capital
adequacy, by an amount which the affected Lender reasonably deems to be
material, the affected Lender shall promptly deliver to the Borrower a statement
of the amount necessary to compensate the affected Lender or the reduction in
the rate of return on its capital attributable to its Commitment (the "Capital
Compensation Amount"). The affected Lender shall determine the Capital
Compensation Amount in good faith, using reasonable attribution and averaging
methods. Each affected Lender shall from time to time notify the Borrower of the
amount so determined. Each such notification shall be prima facie evidence of
the amount of the Capital Compensation Amount set forth therein, and such
Capital Compensation Amount shall be due and payable by the Borrower to the
affected Lender thirty (30) days after such notice is given. As soon as
practicable after any Capital Adequacy Event, the affected Lender shall submit
to the Borrower estimates of the Capital Compensation Amounts that would be
payable as a function of the affected Lender's Commitment hereunder.
Notwithstanding the foregoing, however, no Lender shall demand Capital
Compensation Amounts hereunder unless it is demanding similar compensation from
other borrowers who are similarly situated and who have a similar relationship
with such Lender and from which such Lender has the right to demand such
compensation.
2.5c LIBOR UNASCERTAINABLE. If, on any date on which the Adjusted Long Term
Revolving Credit LIBOR, the Adjusted Short Term Revolving Credit LIBOR or the
Adjusted Term Loan LIBOR would otherwise be set, the Agent reasonably shall have
determined (which determination shall be final and conclusive) that by reason of
circumstances affecting the
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interbank Eurodollar market, adequate and reasonable means do not exist for
ascertaining the LIBOR, the Agent shall give prompt notice of such determination
to the Borrower and the Lenders and, until the Agent notifies the Borrower and
the Lenders that the circumstances giving rise to such determination no longer
exist, the right of the Borrower to borrow under, convert to or renew the LIBOR
Option shall be suspended. Any notice of borrowing under, conversion to or
renewal of the LIBOR 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 at the Base Rate Option with respect to the principal amount therein
specified.
2.5d ILLEGALITY. If a Lender shall determine in good faith (which determination
shall be final and conclusive) that compliance by such Lender with any
applicable law, treaty or other Governmental Rule, (whether or not having the
force of law), or the interpretation or application thereof by any Governmental
Authority, has made it unlawful for such Lender to make or maintain the
Revolving Credit Loans or the Term Loans under the LIBOR Option or Bid Rate
Loans to which the Bid Rate Margin applies (including but not limited to
acquiring Eurodollar liabilities to fund such Loans), such Lender shall give
notice of such determination to the Borrower and the other Lenders.
Notwithstanding any provision of this Agreement to the contrary, unless and
until the affected Lender shall have given notice to the Borrower and the other
Lenders that the circumstances giving rise to such determination no longer
apply:
(i) with respect to any Interest Periods thereafter commencing,
interest on the Revolving Credit Loans or Term Loans bearing interest at the
Adjusted Long Term Revolving Credit LIBOR, the Adjusted Short Term Revolving
Credit LIBOR or the Adjusted Term Loan LIBOR, as applicable, (in any such case
whichever one or more have been determined by the affected Lender to be
unlawful) shall, unless the Borrower shall have selected a different Option
which is then available, be computed and payable under the Base Rate Option; and
(ii) on such date, if any, as shall be required by law, any Loans
bearing interest at the Adjusted Long Term Revolving Credit LIBOR, the Adjusted
Short Term Revolving Credit LIBOR, the Adjusted Term Loan LIBOR or any Bid Rate
Loan to which the Bid Rate Margin applies then outstanding shall be
automatically converted to the Base Rate Option, and the Borrower shall pay to
the affected Lender the accrued and unpaid interest on such Loans to (but not
including) the date of such conversion at the applicable interest rate or rates
in effect for such Loans prior to such conversion.
2.6 FEES.
2.6a LONG TERM REVOLVING CREDIT FACILITY. The Borrower agrees to pay to the
Lenders, on a pro rata basis, beginning on March 31, 2002, and continuing
quarterly in arrears thereafter on the last day of each December, March, June
and September during the term hereof to and including the Long Term Revolving
Credit Termination Date, a Long Term Revolving Credit Facility Fee calculated at
the applicable Long Term Revolving Credit Facility Fee Percentage, on the daily
(computed at the opening of business) average amount of the Long Term Revolving
Credit Commitment for the quarter then ending; PROVIDED, however, the first
payment under this Subsection 2.6a shall be for the actual number of days
elapsed from and including the Closing Date to and including March 31, 2002, and
the last payment under this
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Subsection 2.6a shall be only for the actual number of days elapsed from the
last quarterly payment date to and including the Long Term Revolving Credit
Termination Date. The applicable Long Term Revolving Credit Facility Fee
Percentage shall be adjusted automatically, from time to time, effective upon
each change in the Senior Ratings.
2.6b SHORT TERM REVOLVING CREDIT FACILITY. The Borrower agrees to pay to the
Lenders, on a pro rata basis, beginning on March 31, 2002, and continuing
quarterly in arrears thereafter on the last day of each December, March, June
and September during the term hereof to and including the Short Term Revolving
Credit Termination Date, a Short Term Revolving Credit Facility Fee calculated
at the applicable Short Term Revolving Credit Facility Fee Percentage, on the
daily (computed at the opening of business) average amount of the Short Term
Revolving Credit Commitment for the quarter then ending; PROVIDED, however, the
first payment under this Subsection 2.6b shall be for the actual number of days
elapsed from and including the Closing Date to and including March 31, 2002, and
the last payment under this Subsection 2.6b shall be only for the actual number
of days elapsed from the last quarterly payment date to and including the Short
Term Revolving Credit Termination Date. The applicable Short Term Revolving
Credit Facility Fee Percentage shall be adjusted automatically, from time to
time, effective upon each change in the Senior Ratings.
2.6c UTILIZATION FEE. The Borrower agrees to pay to the Agent for the pro rata
benefit of all of the Lenders a fee (the "Utilization Fee") (i) equal to 0.125%
per annum on the aggregate amount of the sum of all outstanding Revolving Credit
Loans, Bid Rate Loans, Swingline Loans, plus Letters of Credit Outstanding
(computed on the basis of the actual number of days elapsed using a year of 360
days) for each date that the aggregate amount of the sum of all outstanding
Revolving Credit Loans, Bid Rate Loans, Swingline Loans, plus Letters of Credit
Outstanding exceeds an amount equal to thirty-three percent (33%) of the
Commitments, but is less than sixty-six percent (66%) of the Commitments, and
(ii) equal to 0.25% per annum on the aggregate amount of the sum of all
outstanding Revolving Credit Loans, Bid Rate Loans, Swingline Loans, plus
Letters of Credit Outstanding (computed on the basis of the actual number of
days elapsed using a year of 360 days) for each date that the aggregate amount
of the sum of all outstanding Revolving Credit Loans, Bid Rate Loans, Swingline
Loans, plus Letters of Credit Outstanding exceeds an amount equal to sixty-six
percent (66%) of the Commitments. The Utilization Fee shall be payable quarterly
in arrears on the last day of each September, December, March and June during
the term hereof and on the Long Term Revolving Credit Termination Date, with the
first such payment due March 31, 2002 and shall be calculated for the period
from and including the Closing Date to but excluding March 31, 2002.
2.6d AGENT'S FEE. The Borrower shall pay to the Agent for its own account the
Agent's Fee in the amounts and at such times as set forth in the Agent's Letter.
The Agent's Fee shall be retained by the Agent for its own account.
2.6e CLOSING FEE. The Borrower agrees to pay to the Agent, on behalf of each
Lender, on the Closing Date, the Closing Fee payable to each such Lender.
2.6f LETTER OF CREDIT FEE AND FRONTING FEE. The Borrower shall pay to the
Agent, from time to time, for the benefit of the Lenders, the Letter of Credit
Fee as set forth in
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Subsection 2.16b. The Borrower shall pay to the Agent, from time to time, for
its sole account, the Fronting Fee as set forth in Subsection 2.16b.
2.7 CALCULATION OF INTEREST AND CERTAIN FEES. The calculation of the amount of
interest due and owing to each Lender shall be made by each Lender and shall be
evidenced by such Lender posting the amount of interest due under such Lender's
Revolving Credit Loans, Term Loans, Bid Rate Loans, Swingline Loans and Letter
of Credit Borrowings to the Loan Account established by such Lender pursuant to
Section 2.13. The Facility Fees and the Utilization Fees shall be calculated on
the basis of a 360 day year and actual number of days elapsed. The calculation
of the amount of the Facility Fees due and owing to each Lender shall be made by
each Lender and shall be evidenced by posting such amount due under the Loan
Account established by such Lender pursuant to Section 2.13. The calculation of
the amount of the Utilization Fees due and owing to each Lender shall be made by
the Agent with notice thereof to each of the Lenders and shall be evidenced by
posting such amount due under the Loan Account established by each Lender
pursuant to Section 2.13. The calculation of the amount of the Letter of Credit
Fees due and owing to each Lender shall be made by the Agent with notice thereof
to each of the Lenders and shall be evidenced by posting such amount due under
the Loan Account established by each Lender pursuant to Section 2.13. The
calculation of the amount of the Fronting Fees due and owing to the Agent shall
be made by the Agent with notice thereof to the Borrower and shall be evidenced
by posting such amount due under the Loan Account established by the Agent
pursuant to Section 2.13.
2.8 EXTENSION OF SHORT TERM REVOLVING CREDIT TERMINATION DATE.
2.8a REQUESTS; APPROVAL BY ALL LENDERS OR SUPERMAJORITY LENDERS; OPTIONAL
CONVERSION TO TERM LOANS FOR NON-AGREEING LENDERS.
(i) No earlier than forty-five (45) days and no later than thirty (30)
days prior to the then applicable Short Term Revolving Credit Termination Date,
the Borrower may request a 364-day extension of the Short Term Revolving Credit
Termination Date by written notice to the Agent. Agent shall promptly notify the
Lenders of such request. No later than twenty (20) days prior to the then
applicable Short Term Revolving Credit Termination Date, each Lender shall
respond to the Agent in writing as to whether or not it agrees to the Borrower's
request for such extension; provided, however, that the failure of any Lender to
respond with such time period shall not in any manner constitute an agreement by
such Lenders to extend the Short Term Revolving Credit Termination Date and
shall be deemed a notice of an election not to extend the then applicable Short
Term Revolving Credit Termination Date.
(ii) If all Lenders elect in writing to extend the then applicable
Short Term Revolving Credit Termination Date, the Agent shall so notify the
Lenders and the Borrower promptly, that such Short Term Revolving Credit
Termination Date shall be extended for an additional period of 364 days.
Borrower hereby agrees to execute such amendments and modifications to the Loan
Documents, prior to the extension of the Short Term Revolving Credit Termination
Date, as Agent shall reasonably request to evidence and govern the extension of
such date.
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(iii) In the event that Lenders with at least seventy-five percent
(75%) of the Short Term Revolving Credit Commitments (the "Supermajority
Lenders"), but less than all of the Lenders, shall agree in writing to an
extension of the Short Term Revolving Credit Termination Date in accordance with
this Section 2.8a(iii), the Agent shall so notify the Lenders and the Borrower
promptly, but in no event earlier than twenty (20) days prior to the then
applicable Short Term Revolving Credit Termination Date, and: (i) the Short Term
Revolving Credit Commitments of those Lenders not agreeing in writing to an
extension of the Short Term Revolving Credit Termination Date (the "Non-Agreeing
Lenders") shall be terminated on the Short Term Revolving Credit Termination
Date (without giving effect to the extension thereof) and all Short Term
Revolving Credit Loans owing to the Non-Agreeing Lenders together with all
interest thereon and costs and expenses related thereto shall be due and payable
on such Short Term Revolving Credit Termination Date except to the extent that
(A) the Borrower shall substitute for such Non-Agreeing Lender another financial
institution pursuant to a duly executed Assignment and Assumption Agreement and
in accordance with the terms and conditions of Section 9.6 (except that such
financial institution may be assigned only the Short Term Revolving Credit Loan
and Short Term Revolving Credit Commitment of such Non-Agreeing Lender), or (B)
the Borrower has elected, by written notice received by the Agent no later than
ten (10) days prior to the Short Term Revolving Credit Termination Date, to
convert all or any portion of the Short Term Revolving Credit Loans of the
Non-Agreeing Lenders to Term Loans in accordance with Section 2.1Bg and, to the
extent that the less than the full aggregate amount of Short Term Revolving
Credit Loans of the Lender are to be so converted, then the Borrower shall
convert each and every Non-Agreeing Lender's Short Term Revolving Credit Loans
on a PRO RATA basis, (ii) the Short Term Revolving Credit Commitments of the
Lenders agreeing to an extension of the Short Term Revolving Credit Termination
Date (the "Agreeing Lenders") shall be extended for an additional period of 364
days, and (iii) none of the Agreeing Lenders shall be required to increase its
Short Term Revolving Credit Commitment. The Borrower hereby agrees to execute
such amendments and modifications to the Loan Documents, prior to any extension
of the Short Term Revolving Credit Termination Date, as Agent shall reasonably
request to evidence and govern the extension of such date and the Term Loans, if
any, arising under this Section 2.8.
2.8b FAILURE OF SUPERMAJORITY LENDERS TO EXTEND; OPTIONAL CONVERSION TO TERM
LOAN. In the event that less than the Supermajority Lenders shall agree to an
extension of the Short Term Revolving Credit Termination Date in accordance with
Section 2.8a (iii), the Agent shall promptly so notify the Borrower and the
Lenders, the Short Revolving Credit Commitments shall be terminated on the Short
Term Revolving Credit Termination Date, and all Short Term Revolving Credit
Loans, together with all interest thereon and costs and expenses related
thereto, shall be due and payable on the Short Term Revolving Credit Termination
Date, unless the Borrower has elected, by written notice received by the Agent
no later than ten (10) days prior to the Short Term Revolving Credit Termination
Date (which notice Agent shall promptly forward to the Lenders), to convert all
or a portion of the Short Term Revolving Credit Loans outstanding on the Short
Term Revolving Credit Termination Date to Term Loans in accordance with Section
2.1Bg. Term Loans advanced pursuant to this Section 2.8b shall be allocated pro
rata among the Lenders based upon their respective Short Term Revolving Credit
Commitment Percentage. Any failure of the Agent or any Lender to notify any
party hereto that the Short Term Revolving
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Credit Termination Date will not be extended shall not constitute a commitment
or agreement of any nature to extend such date.
2.9 SUBSTITUTION OR REPLACEMENT OF A LENDER. The Borrower shall have the right
(provided that at such time, no Event of Default and no Potential Default has
occurred and is continuing), in its sole discretion, to either:
(i) repay, (A) at any time if either no Loans are outstanding or if
Loans bearing interest under the Base Rate Option are the only Loans
outstanding, (B) subject to Section 2.11, upon three (3) days prior notice if
the Loans outstanding include Revolving Credit Loans bearing interest under the
LIBOR Option, the Bid Rate Loans or the Swingline Loans, the outstanding Loans
of a Lender described in clause (x) or (y) of this Section 2.9 in whole,
together with interest thereon and any other amount due such a Lender pursuant
to the terms of this Agreement, and to terminate the Commitment of such a
Lender; or
(ii) seek a substitute lending institution or institutions (which may
be one or more of the other Lenders) to purchase the Notes and assume the Loans,
the Commitment and the other obligations of such a Lender under this Agreement,
if any of the following conditions occur:
(x) the obligation of a Lender to make Revolving Credit Loans which
bear or are to bear interest under the LIBOR Option has been suspended pursuant
to Subsection 2.5d; or
(y) a Lender has responded negatively to a request for extension of the
Short Term Revolving Credit Termination Date pursuant to Section 2.8.
Any proposed substitute lending institution, which is not a Lender
prior to the Borrower's selection thereof, must be acceptable to the Agent,
whose consent shall not be unreasonably withheld, and the existing Lenders shall
be given an option to increase these respective Commitments before any outside
lending institution may purchase the Notes and assume the Loans, Commitments and
other obligations of the Lender the subject of clauses (x) or (y) of this
Section 2.9.
2.10 LOAN REPAYMENT. Each repayment of the Loans shall be in the minimum amount
of $1,000,000, in the aggregate, or an integral multiple thereof (other than the
Swingline Loans which shall be in the minimum amount of $10,000 and the Bid Rate
Loans which shall be in the minimum amount of $5,000,000 or integral multiples
of $1,000,000 for amounts in excess of $5,000,000), or such lesser amount as is
actually outstanding thereunder. The Borrower, upon (i) oral or written notice
to Agent by 11:00 A.M. (eastern time) on the day of the proposed repayment, in
the case of Revolving Credit Loans or Term Loans bearing interest at the Base
Rate or the Swingline Loans or (ii) three (3) Business Days' prior oral or
written notice to the Agent, in the case of Bid Rate Loans or Revolving Credit
Loans or Term Loans bearing interest at the Adjusted Long Term Revolving Credit
LIBOR, the Adjusted Short Term Revolving Credit LIBOR or the Adjusted Term Loan
LIBOR, followed immediately thereafter by the Borrower's written confirmation to
the Agent of any oral notice, may repay the outstanding amount of the
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Loans in whole or in part with accrued interest, fees, additional payments due
pursuant to Section 2.11 hereof, if any, and other amounts then due and payable
on the amount repaid to the date of such repayment. The Borrower may repay any
Portion of the Revolving Credit Loans bearing interest at the Base Rate or the
Swingline Loans without premium or penalty. All prepayments of the Bid Rate
Loans or Revolving Credit Loans or Term Loans bearing interest at the LIBOR
Option are subject to the terms of Section 2.11 hereof.
In the event that principal payments are received on a day on which
principal payments are due on Revolving Credit Loans, Term Loans, Bid Rate Loans
and Swingline Loans the principal payments shall be applied: first, to repay in
full outstanding Swingline Loans, if any; second, to repay in full the principal
amount of the Revolving Credit Loans and Term Loans then due and payable, if
any; and third, to repay in full the principal amount of the Bid Rate Loans then
due and payable, if any.
Any repayment of the Long Term Revolving Credit Loans shall increase,
by the amount of that repayment, the unborrowed balance of the Long Term
Revolving Credit Commitment; it being contemplated that the Borrower may repay
and reborrow from time-to-time under the Long Term Revolving Credit Commitment
until the Long Term Revolving Credit Termination Date. Any repayment of the
Short Term Revolving Credit Loans shall increase, by the amount of that
repayment, the unborrowed balance of the Short Term Revolving Credit Commitment;
it being contemplated that the Borrower may repay and reborrow from time-to-time
under the Short Term Revolving Credit Commitment until the Short Term Revolving
Credit Termination Date.
2.11 ADDITIONAL PAYMENTS BY THE BORROWER. If (i) the Borrower shall fail to
make any payment due hereunder on the due date thereof, (ii) the Borrower shall
make a payment, prepayment or conversion of any LIBOR Portion of the Revolving
Credit Loans or the Term Loans or any Bid Rate Loan on a day other than the last
day of the applicable Interest Period, (iii) the Borrower shall convert any
Portion to the Base Rate Option from another Option pursuant to Subsection 2.5d
on a day other than the last day of the relevant Interest Period, or (iv) the
Borrower shall fail on the date specified therefor to consummate any borrowing,
conversion or renewal after giving a request for a Disbursement or notice of
conversion or renewal or Notice of Bid Rate Borrowing, and, as a result of any
such action or inaction, a Lender reasonably incurs any losses and expenses
which it would not have incurred but for such action or inaction, the Borrower
shall pay such additional amounts as will compensate the affected Lender for
such losses and expenses, including the cost of reemployment of any funds
prepaid at rates lower than the cost to the affected Lender of such funds. Such
losses and expenses, which the affected Lender shall exercise reasonable efforts
to minimize, shall be specified in writing (setting forth, in reasonable detail,
the basis of calculation) to the Borrower by the affected Lender, which writing
shall be prima facie evidence of the amounts set forth therein, and such amounts
shall be payable within thirty (30) days of demand therefor.
2.12 VOLUNTARY REDUCTION OF AVAILABILITY. At any time and from time to time
upon no less than three (3) 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 Commitments, thereby causing a corresponding abatement of the
applicable Facility Fee. Each such reduction
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shall be in a minimum principal amount of $10,000,000 or in integral multiples
thereof. The applicable Facility Fee shall cease to accrue with respect to any
unused portion of the commitments so terminated on either (i) the date five (5)
Business Days after receipt of such notice or (ii) the date so designated in the
written notice if such written notice is given to the Agent more than five (5)
Business Days prior to the effective date of such termination. Notice of
termination once given shall be irrevocable and the portion of the 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
pro rata share of such terminated unused portion and the date of each such
termination. On the effective date for the reduction of the Long Term Revolving
Credit Commitment, the sum of (i) Letters of Credit Outstanding, PLUS (ii) Long
Term Revolving Credit Loans outstanding hereunder, PLUS (iii) Bid Rate Loans and
Swingline Loans outstanding hereunder and allocated to the Long Term Revolving
Credit Commitment may not exceed the Long Term Revolving Credit Commitment as so
reduced. On the effective date for the reduction of the Short Term Revolving
Credit Commitment, the sum of (i) the Short Term Revolving Credit Loans
outstanding hereunder, PLUS (ii) Bid Rate Loans and Swingline Loans outstanding
hereunder and allocated to the Short Term Revolving Credit Commitment may not
exceed the Short Term Revolving Credit Commitment as so reduced.
2.13 LOAN ACCOUNT. Each Lender and the Agent shall open and maintain on its
books a Loan Account in the name of the Borrower with respect to Disbursements
made, the Letters of Credit Outstanding, repayments, prepayments, conversion to
Term Loans, the computation and payment of interest and the Fees and the
computation of other amounts due and sums paid and payable to such Lender or
Agent pursuant to this Article II. Such Loan Account shall be prima facie
evidence as to the amount at any time due to such Lender or Agent from the
Borrower pursuant to this Article II; PROVIDED, however, that the failure of a
Lender to make notations, or to make accurate notations, on its Loan Account
including without limitation notations with respect to interest and Fees shall
not limit, expand or otherwise affect any obligations of the Borrower hereunder.
2.14 PAYMENT FROM ACCOUNTS MAINTAINED BY BORROWER. In the event that any
payment of principal, interest, Reimbursement Obligation, Letter of Credit
Borrowing, Fee or any other amount due to the Lenders or the Agent under the
Agreement, the Notes or the other Loan Documents is not paid when due, the Agent
is hereby authorized to effect such payment by debiting any demand deposit
account of the Borrower maintained with the Agent (excluding however any special
purpose fiduciary accounts, which are designated as such at the time of their
creation, and mandated by applicable statutes, regulations or rules) and
distributing such payment to the party to whom such amounts are due. This right
of debiting accounts of the Borrower is in addition to any right of set-off
accorded the Lenders or the Agent hereunder or by operation of law.
2.15 TIME, PLACE AND MANNER OF PAYMENTS. All payments to be made by the
Borrower under the Notes (other than those provided for in Sections 2.5 and 2.11
hereof), and of all fees and any other amounts due hereunder shall be made at
the principal office of the Agent. The Agent will promptly pay each such payment
received to each Lender or its order. All payments due a Lender by reason of
Sections 2.5 or 2.11 hereof shall be paid at the principal office of the Lender
which invoices the Borrower for such payment. All payments to be made by
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the Borrower under this Agreement shall be paid in immediately available funds
no later than 12:00 Noon (eastern time) on the date such payment is due.
Notwithstanding anything herein to the contrary, (i) the Agent's Fee, (ii) the
Fronting Fee, and (iii) any interest paid with respect to any Loan or any
unreimbursed draw on the Letter of Credit to the extent a Lender has not been
required to honor or has not honored its funding obligation with respect thereto
shall be solely for the account of the Agent.
2.16 LETTER OF CREDIT SUB-FACILITY.
2.16a ISSUANCE OF LETTERS OF CREDIT. The Borrower may request the issuance of
a letter of credit (each a "Letter of Credit") by delivering to the Agent a
completed application and agreement for letters of credit in such form as the
Agent may specify from time to time by no later than 10:00 A.M., Pittsburgh,
Pennsylvania time, at least five (5) business Days, or such shorter period as
may be agreed to by the Agent, in advance of the proposed date of issuance. Each
Letter of Credit shall be denominated in Dollars. Subject to the terms and
conditions hereof and in reliance on the agreements of the other Lenders set
forth in this Section 2.16, the Agent will issue a Letter of Credit provided
that each Letter of Credit shall (A) have a maximum maturity of one year from
the date of issuance, and (B) in no event expire later than ten (10) Business
Days prior to the Long Term Revolving Credit Termination Date and providing that
in no event shall the aggregate amount of Letters of Credit Outstanding exceed,
at any one time, $50,000,000. The amount of Letters of Credit Outstanding at any
time shall reduce the maximum amount otherwise available for Long Term Revolving
Credit Loans under the Long Term Revolving Credit Commitments. No Letters of
Credit may be issued hereunder to the extent that such issuance would cause the
sum of (i) the Letters of Credit Outstanding PLUS (ii) the aggregate amount of
Long Term Revolving Credit Loans outstanding to exceed the aggregate amount of
Long Term Revolving Credit Commitments then in effect.
2.16b LETTER OF CREDIT FEES. The Borrower shall pay to the Agent for the
ratable account of the Lenders a fee (the "Letter of Credit Fee") equal to the
Applicable Long Term Revolving Credit LIBOR Margin for Long Term Revolving
Credit Loans (computed on the basis of a year of 360 days and actual days
elapsed), which fees shall be computed on the daily average amount of the
Letters of Credit Outstanding and shall be payable quarterly in arrears
commencing with the last Business Day of each March, June, September and
December following issuance of each Letter of Credit. The Borrower shall also
pay to the Agent for the Agent's sole account (i) one-eighth of one percent
(.125%) per annum of the amount of any Letters of Credit Outstanding (the
"Fronting Fee") quarterly in arrears, and (ii) as incurred the Agent's then
current customary fees and administrative expenses payable with respect to the
Letters of Credit as the Agent may generally charge or incur from time to time
in connection with the issuance, maintenance, modification (if any), assignment
or transfer (if any), negotiation, and administration of Letters of Credit.
2.16c LETTER OF CREDIT FEES UPON DEFAULT. (A) Upon the occurrence of an Event
of Default, and during the continuance of such Event of Default, upon notice
from the Agent (acting upon the instructions of the Required Lenders) to the
Borrower, or (B) upon the acceleration of the Bank Indebtedness for any reason
hereunder, the Letter of Credit Fee shall be
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automatically increased by two hundred (200) basis points (2%) per annum in
excess of the applicable Letter of Credit Fee then in effect.
2.16d DISBURSEMENTS, REIMBURSEMENT.
(A) Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Agent a participation in such Letter of Credit and each
drawing thereunder in an amount equal to such Lender's Long Term Revolving
Credit Commitment Percentage of the maximum amount available to be drawn under
such Letter of Credit and the amount of such drawing, respectively.
(B) In the event of any request for a drawing under a Letter of Credit
by the beneficiary or transferee thereof, the Agent will promptly notify the
Borrower of the amount of such drawing and the date such payment shall be made.
The Borrower shall reimburse (such obligation to reimburse the Agent shall
sometimes be referred to as a "Reimbursement Obligation") the Agent for any
amount paid by the Agent under any Letter of Credit (each such date of a payment
by the Agent under a Letter of Credit, a "Drawing Date") in an amount equal to
the amount so paid by the Agent. If the Agent gives the Borrower notice of the
presentation of, and payment date of, a drawing under a Letter of Credit at or
before 11:00 A.M., Pittsburgh, Pennsylvania time, on the Drawing Date, such
Reimbursement Obligation shall be paid prior to 3:00 P.M., Pittsburgh,
Pennsylvania time, on such Drawing Date; and if the Agent gives the Borrower
notice of the presentation of, and payment date of, a drawing under a Letter of
Credit after 11:00 A.M., Pittsburgh, Pennsylvania time, on a Drawing Date, such
Reimbursement Obligation shall be paid prior to 12:00 noon, Pittsburgh,
Pennsylvania time, on the Business Day following the Drawing Date. In the event
the Borrower fails to reimburse the Agent for the full amount of any drawing
under any Letter of Credit by 12:00 noon, Pittsburgh, Pennsylvania time, on the
date the payment of such Reimbursement Obligation is due hereunder, the Agent
will promptly notify each Lender thereof, and the Borrower shall be deemed to
have requested that Long Term Revolving Credit Loans be made by the Lenders
under the Base Rate Option to be disbursed on the Drawing Date under such Letter
of Credit, subject to the amount of the unutilized portion of the Long Term
Revolving Credit Commitments (without giving effect to outstanding Letters of
Credit) and subject to the conditions set forth in Section 6.1 other than any
notice requirements. Any notice given by the Agent pursuant to this Subsection
2.16d(B) may be oral if immediately confirmed in writing; PROVIDED that the lack
of such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(C) Each Lender shall upon any notice pursuant to Subsection 2.16d(B)
make available to the Agent an amount in immediately available funds equal to
its Long Term Revolving Credit Commitment Percentage of the amount of the
drawing, whereupon the participating Lenders shall (subject to Subsection
2.16d(D)) each be deemed to have made a Long Term Revolving Credit Loan under
the Base Rate Option to the Borrower in that amount. If any Lender so notified
fails to make available to the Agent for the account of the Agent the amount of
such Lender's Long Term Revolving Credit Commitment Percentage of such amount by
no later than 2:00 P.M., Pittsburgh, Pennsylvania time on the Drawing Date, then
interest shall accrue on such Lender's obligation to make such payment, from the
Drawing Date to the date on which such Lender makes such payment (i) at a rate
per annum equal to the Federal Funds
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Effective Rate during the first three days following the Drawing Date and (ii)
at a rate per annum equal to the rate applicable to Long Term Revolving Credit
Loans under the Base Rate Option on and after the fourth day following the
Drawing Date. The Agent will promptly give notice of the occurrence of the
Drawing Date to each Lender, but failure of the Agent to give any such notice on
the Drawing Date or in sufficient time to enable any Lender to effect such
payment on such date shall not relieve such Lender from its obligation under
this Subsection 2.16d(C).
(D) With respect to any unreimbursed drawing that is not converted into
Long Term Revolving Credit Loans under the Base Rate Option to the Borrower in
whole or in part as contemplated by Subsection 2.16d(B), because of the timing
of notice to the Borrower of the applicable Reimbursement Obligation or the
Borrower's failure to satisfy the conditions set forth in Section 6.1 other than
any notice requirements or for any other reason, the Borrower shall be deemed to
have incurred from the Agent a Letter of Credit Borrowing in the amount of such
drawing. Such Letter of Credit Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the rate per annum
applicable to the Long Term Revolving Credit Loans under the Base Rate Option as
adjusted to reflect the default rate provisions set forth in Subsection 2.4f.
Each Lender's payment to the Agent pursuant to Subsection 2.16d(C) shall be
deemed to be a payment in respect of its participation in such Letter of Credit
Borrowing and shall constitute an LC Participation Advance from such Lender in
satisfaction of its participation obligation under this Subsection 2.16d. The
provisions of this Subsection (D) are solely for the benefit of the Agent, as
issuer of the Letters of Credit, and shall not be deemed to excuse, waive or
consent to an Event of Default under Section 7.1 arising from an unreimbursed
drawing giving rise to an LC Participation Advance.
2.16e REPAYMENT OF LC PARTICIPATION ADVANCES.
(A) Upon (and only upon) receipt by the Agent for its account of
immediately available funds from the Borrower (i) in reimbursement of any
payment made by the Agent under the Letter of Credit with respect to which any
Lender has made a LC Participation Advance to the Agent, or (ii) in payment of
interest on such a payment made by the Agent under such a Letter of Credit, the
Agent will pay to each Lender, in the same funds as those received by the Agent,
the amount of such Bank's Long Term Revolving Credit Commitment Percentage of
such funds, except the Agent shall retain the amount of the Long Term Revolving
Credit Commitment Percentage of such funds of any Lender that did not make an LC
Participation Advance in respect of such payment by Agent.
(B) If the Agent is required at any time to return to the Borrower, or
to a trustee, receiver, liquidator, custodian, or any official in any proceeding
described in Section 7.3, any portion of the payments made by the Borrower to
the Agent pursuant to Subsection 2.16d(B) in reimbursement of a payment made
under the Letter of Credit or interest or fee thereon, each Lender shall, on
demand of the Agent, forthwith return to the Agent the amount of its Long Term
Revolving Credit Commitment Percentage of any amounts so returned by the Agent
plus interest thereon from the date such demand is made to the date such amounts
are returned by such Lender to the Agent, at a rate per annum equal to the
Federal Funds Effective Rate in effect from time to time.
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2.16f DOCUMENTATION. The Borrower agrees to be bound by the terms of the
Agent's application and agreement for letters of credit and the Agent's written
regulations and customary practices relating to letters of credit, though such
interpretation may be different from the Borrower's own. In the event of a
conflict between such application or agreement and this Agreement, this
Agreement shall govern. It is understood and agreed that, except in the case of
gross negligence or willful misconduct, the Agent shall not be liable for any
error and/or mistakes, whether of omission or commission, in following the
Borrower's instructions or those contained in the Letters of Credit or any
modifications, amendments or supplements thereto.
2.16g DETERMINATIONS TO HONOR DRAWING REQUESTS. In determining whether to honor
any request for drawing under any Letter of Credit by the beneficiary thereof,
the Agent shall be responsible only to determine that the documents and
certificates required to be delivered under such Letter of Credit have been
delivered and that they comply on their face with the requirements of such
Letter of Credit.
2.16h NATURE OF PARTICIPATION AND REIMBURSEMENT OBLIGATIONS. Each Lender's
obligation in accordance with this Agreement to make the Long Term Revolving
Credit Loans or Participation Advances, as contemplated by Subsection 2.16d, as
a result of a drawing under an LC Letter of Credit, and the obligation of the
Borrower to reimburse the Agent upon a draw under a Letter of Credit, shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Section 2.16 under all circumstances,
including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the Agent, the Borrower or any
other Person for any reason whatsoever;
(ii) the failure of the Borrower or any other Person to
comply, in connection with a Letter of Credit Borrowing, with the
conditions set forth in this Agreement for the making of a Long Term
Revolving Credit Loan, it being acknowledged that such conditions are
not required for the making of a Letter of Credit Borrowing and the
obligation of the Lenders to make LC Participation Advances under
Subsection 2.16d; provided, however the aggregate amount thereof shall
in no event exceed the unutilized Long Term Revolving Credit
Commitments;
(iii) any lack of validity or enforceability of any Letter of
Credit;
(iv) the existence of any claim, set-off, defense or other
right which the Borrower or any Lender may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any Persons
for whom any such transferee may be acting), the Agent or any Lender or
any other Person or, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction
(including any underlying transaction between the Borrower and the
beneficiary for which any Letter of Credit was procured);
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(v) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect even if the Agent has been notified thereof;
(vi) payment by the Agent under any Letter of Credit against
presentation of a demand, draft or certificate or other document which
does not comply with the terms of such Letter of Credit;
(vii) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of
the Borrower;
(viii) any breach of this Agreement or any other Loan Document
by any party thereto;
(ix) the occurrence or continuance of any proceeding described
in Section 7.3 with respect to the Borrower;
(x) the fact that an Event of Default shall have occurred and
be continuing;
(xi) the fact that the Long Term Revolving Credit Termination
Date shall have passed or this Agreement or the Long Term Revolving
Credit Commitments hereunder shall have been terminated; and
(xii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing.
2.16i INDEMNITY. In addition to amounts payable as provided in Section 9.15,
the Borrower hereby agrees to protect, indemnify, pay and save harmless the
Agent from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable fees, expenses and
disbursements of counsel and allocated costs of internal counsel) which the
Agent may incur or be subject to as a consequence, direct or indirect, of (i)
the issuance of any Letter of Credit, other than as a result of (A) gross
negligence or willful misconduct of the Agent as determined by a final judgment
of a court of competent jurisdiction or (B) subject to the following clause
(ii), the wrongful dishonor by the Agent of a proper demand for payment made
under any Letter of Credit, or (ii) the failure of the Agent to honor a drawing
under any such Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto Governmental
Authority (all such acts or omissions herein called "Governmental Acts").
2.16j LIABILITY FOR ACTS AND OMISSIONS. As between the Borrower and the Agent,
the Borrower assumes all risks of the acts and omission of, or misuse of the
Letters of Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, the Agent shall not be
responsible for: (i) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for an issuance of any such Letter of Credit, even if it should in
fact prove to be in
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any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) the failure of the beneficiary
of any such Letter of Credit, or any other party to which such Letter of Credit
may be transferred, to comply fully with any conditions required in order to
draw upon such Letter of Credit so long as the documents presented in connection
with such draw appear on their face to substantially comply with the terms and
conditions of the relevant Letter of Credit; (iv) any claim of the Borrower
against any beneficiary of any such Letter of Credit, or any transferee of such
Letter of Credit, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any such transferee; (v) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(vi) errors in interpretation of technical terms; (vii) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (viii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (ix) any consequences arising
from causes beyond the control of the Agent, including any Governmental Acts,
and none of the above shall affect or impair, or prevent the vesting of, any of
the Agent's rights or powers hereunder. Nothing in the preceding sentence shall
relieve the Agent from liability for the Agent's gross negligence or willful
misconduct in connection with actions or omissions described in such clauses (i)
through (viii) of such sentence.
2.16k UNIFORM CUSTOMS. 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
or the "International Standby Practices 1998", International Chamber of Commerce
Publication No. 590, as applicable, and in each case 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 jurisdiction in
which the office of the Agent is located for purposes of issuing Letters of
Credit hereunder including, without limitation, the Uniform Commercial Code, and
excluding conflict of laws rules.
2.16l CONDITIONS PRECEDENT TO ISSUANCE OF LETTERS OF CREDIT. The obligation of
the Agent to issue, or amend, any Letters of Credit hereunder is subject to the
satisfaction of each of the following conditions precedent:
(i) The Borrower shall have performed and complied, in all
material respects, with all agreements and conditions herein required
to be performed or complied with by it prior to any issuance of, or
amendment of, a Letter of Credit and, at the time of such issuance of,
or amendment of, a Letter of Credit, no Potential Default or Event of
Default shall exist.
(ii) The representations and warranties contained in Article
III hereof shall be correct in all material respects (A) when made and
(B) at the time of each issuance of, or amendment of, a Letter of
Credit except for such representations and warranties which
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relate solely to an earlier date (in which case such representations
and warranties shall have been true and correct in all material
respects as of such date); PROVIDED, however, that for purposes of
clause (B) of this Subsection 2.16l, the representations and warranties
contained in Section 3.6 shall be deemed updated if, and to the extent
that, an action, suit, investigation, litigation or governmental
investigation is set forth in any Form 10-K or 10-Q filed by the
Borrower in respect of any period subsequent to the date hereof or in
any Form 8-K filed by the Borrower subsequent to the date hereof.
(iii) The Borrower shall have complied with the requirements
of this Section 2.16l with respect to the requested Letter of Credit or
amendment thereto.
Each request for a Letter of Credit or amendment thereto shall constitute, as at
the time made, a representation and warranty by the Borrower that the matters
set forth in clause (i) and (ii) of this Subsections 2.16l are true and correct.
ARTICLE III. REPRESENTATIONS AND WARRANTIES.
To induce the Lenders and the Agent to enter into this Agreement
and to make the Loans and issue the Letters of Credit herein provided for, the
Borrower warrants to the Lenders and the Agent that:
3.1 CORPORATE EXISTENCE. The Borrower and each of its Significant Subsidiaries
is a corporation duly organized, validly existing and in good standing under the
laws of its respective state of incorporation and it is duly qualified and in
good standing as a foreign corporation authorized to do business in each
jurisdiction where, because of the nature of its respective properties or
businesses, such qualification is required or, if not so qualified or in good
standing in any state, the lack of such qualification or good standing will not
materially affect the Agent's or the Lender's ability to enforce this Agreement,
the Notes or the other Loan Documents or will not have a Material Adverse Effect
on the Borrower's or such Subsidiary's ability to carry on its business or the
Borrower's ability to comply with this Agreement, the Notes or the other Loan
Documents.
3.2 CORPORATE AUTHORITY. The Borrower is duly authorized to execute and deliver
this Agreement, the Notes and the other Loan Documents to which it is or will
become a party; all necessary corporate action to authorize the execution and
delivery of this Agreement, the Notes and the other Loan Documents to which it
is or will become a party has been properly taken; and it is and will continue
to be duly authorized to borrow hereunder and to perform all of the other terms
and provisions of this Agreement, the Notes and the other Loan Documents to
which it is or will become a party.
3.3 ENFORCEABILITY. This Agreement and the Notes have each been, and each other
Loan Document to which it will become a party will be, duly and validly executed
and delivered by the Borrower and each constitutes or will constitute a valid
and legally binding agreement of the Borrower enforceable in accordance with its
terms.
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3.4 NO RESTRICTIONS. Neither the execution and delivery of this Agreement, the
Notes and the other Loan Documents to which it is or will become a party, the
consummation of the transactions herein contemplated nor compliance with the
terms and provisions hereof or of the Notes, will conflict with or result in a
breach of any of the terms, conditions or provisions of the certificate of
incorporation or the by-laws of the Borrower or of any law or of any regulation,
order, writ, injunction or decree of any court or governmental agency or of any
agreement, indenture or other instrument to which the Borrower or any
Significant Subsidiary is a party or by which any of them is bound or to which
it is subject, or constitute a default thereunder or result in the creation or
imposition of any Encumbrance of any nature whatsoever upon any of the property
or assets of the Borrower pursuant to the terms of any agreement, indenture or
other instrument, except those restrictions which, individually or in the
aggregate, would not have a Material Adverse Effect upon the Borrower and its
Consolidated Subsidiaries taken as a whole.
3.5 FINANCIAL STATEMENTS. The Borrower has furnished to the Lenders and the
Agent the consolidated balance sheets and the related consolidated statements of
income, shareholders' equity and changes in financial position of the Borrower
as at Borrower's Fiscal Year ending December 31, 2000 and for its Fiscal Quarter
ending September 30, 2001. All such financial statements, including the related
notes, have been prepared in accordance with GAAP, except as expressly noted
therein, and fairly present the consolidated financial position of the Borrower
as at the dates thereof and the results and consolidated results of the
operations and the changes in the financial position of the Borrower and its
Consolidated Subsidiaries. Other than the Bank Indebtedness there were no
material liabilities of the Borrower and its Consolidated Subsidiaries, taken as
a whole, contingent or otherwise, not reflected in such financial statements.
3.6 ABSENCE OF LITIGATION. Except as set forth in the Forms 10-K, 10-Q, or 8-K
most recently filed by the Borrower as of the Closing Date, respectively, there
are no actions, suits, investigations, litigation or governmental proceedings
pending or, to the Borrower's knowledge, threatened against the Borrower or any
Consolidated Subsidiary or any of their respective properties, which would have
a Material Adverse Effect on the Borrower and the Consolidated Subsidiaries
taken as a whole, or which purport to affect the legality, validity or
enforceability of this Agreement or the Notes.
3.7 TAX RETURNS AND PAYMENTS. As of the date hereof, the Borrower and its
Subsidiaries have filed all Federal and other material tax returns required by
law to be filed and have paid all material taxes, material assessments and other
material governmental charges levied upon the Borrower and its Subsidiaries
taken as a whole, or any of the respective properties, assets, income or
franchises of the Borrower and its Subsidiaries taken as a whole, which are due
and payable, other than those currently payable or deferrable without penalty or
interest or those which are being contested in good faith and by appropriate
proceedings diligently conducted. As of the date hereof, the charges, accruals
and reserves on the books of the Borrower and its Subsidiaries in respect of
Federal, state and local income taxes for all fiscal periods are adequate, and
the Borrower knows of no unpaid assessments for additional Federal, state or
local income taxes for any such fiscal period or any basis therefor.
3.8 PENSION PLANS. Except as otherwise noted on Schedule 3.8, (i) each Plan has
been and will be maintained and funded, in all material respects, in accordance
with its terms and
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with all provisions of ERISA and the Code applicable thereto; (ii) no Reportable
Event has occurred and is continuing with respect to any Plan; (iii) no
liability to PBGC has been incurred with respect to any Plan, other than for
premiums due and payable; (iv) no Plan has been terminated, no proceedings have
been instituted to terminate any Plan, and there exists no intent to terminate
or institute proceedings to terminate any Plan, which has caused or would cause
the Borrower or any ERISA Affiliate to incur any liability to the PBGC under
Title IV of ERISA; (v) no withdrawal, either complete or partial, has occurred
or commenced with respect to any multiemployer Plan, and there exists no intent
to withdraw either completely or partially from any multiemployer Plan and (vi)
the Borrower is not subject to any liability for unpaid penalties or taxes
imposed under Section 502(i) of ERISA or Section 4975 of the Code and has not
engaged in a prohibited transaction as defined in Section 406 of ERISA and
Section 4975 of the Code.
3.9 COMPLIANCE WITH APPLICABLE LAWS. The Borrower and each Consolidated
Subsidiary (i) is not in default with respect to any order, writ, injunction or
decree of any court or of any Federal, state, municipal or other Governmental
Authority; and (ii) is substantially complying with all applicable statutes and
regulations of each Governmental Authority having jurisdiction over its
activities; except for those orders, writs, injunctions, decrees, statutes and
regulations, non-compliance with which would not have a Material Adverse Effect
upon the Borrower and its Consolidated Subsidiaries taken as a whole.
3.10 ENVIRONMENTAL MATTERS. To the Borrower's knowledge, except as set forth on
the Forms 10-K, 10-Q or 8-K most recently filed by the Borrower, the Borrower
and its Subsidiaries are in compliance with all applicable Environmental Laws;
except for matters which do not have a Material Adverse Effect on the financial
condition of the Borrower and its Consolidated Subsidiaries taken as a whole.
3.11 GOVERNMENTAL APPROVAL. No order, authorization, consent, license,
validation or approval of, or notice to, filing, recording, or registration
with, any Governmental Authority, or exemption by any Governmental Authority, is
required to authorize, or is required in connection with, (i) the execution,
delivery and performance of this Agreement or the Notes or (ii) the legality,
binding effect or enforceability of this Agreement or the Notes.
3.12 REGULATIONS T, U AND X. The Borrower is not engaged in the business of
purchasing or selling Margin Stock or extending credit to others for the purpose
of purchasing or carrying Margin Stock and no part of the proceeds of the Loans
(and no obligation supported by a Letter of Credit) will be used to purchase or
carry any Margin Stock or for any other purpose which would violate or be
inconsistent with Regulations T, U or X.
3.13 INVESTMENT COMPANY ACT. The Borrower is not an "investment company", or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
3.14 PUBLIC UTILITY HOLDING COMPANY ACT. The Borrower is not a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding
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company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
3.15 DISCLOSURE. Neither this Agreement nor any other document, certificate or
statement (financial or otherwise) furnished to the Lenders or the Agent by or
on behalf of the Borrower pursuant to this Agreement contains any untrue
statement of a material fact. There is no fact which materially and adversely
affects or in the future may (so far as the Borrower now foresees) have a
material adverse effect on the business, operations, affairs, condition,
prospects, properties, assets or revenues of the Borrower and its Consolidated
Subsidiaries, taken as a whole, which has not been set forth in this Agreement
or in the other documents, certificates and statements (financial or otherwise)
furnished to the Lenders or the Agent or otherwise disclosed in writing to the
Lenders or the Agent by or on behalf of the Borrower prior to the Closing Date.
3.16. SOLVENCY. On the Closing Date, and on the date of each Disbursement, the
Borrower is, or will be, Solvent.
ARTICLE IV. AFFIRMATIVE COVENANTS.
From the date hereof and thereafter until the termination of the
Commitments and until all of the Bank Indebtedness is paid in full, the Borrower
agrees that:
4.1 USE OF PROCEEDS. The proceeds of the Loans (and the proceeds of any
obligations supported by a Letter of Credit) will be used by the Borrower and
its Consolidated Subsidiaries for general corporate purposes and working capital
purposes of the Borrower and its Consolidated Subsidiaries.
4.2 FURNISHING INFORMATION. The Borrower shall:
(i) deliver to the Lenders, as soon as available but not later than
forty-five (45) days after the last day of each of the first three Fiscal
Quarters of each Fiscal Year, the Borrower's quarterly report to shareholders,
if any, and its quarterly report on Form 10-Q as filed with the Securities and
Exchange Commission and, within ninety (90) days after the end of each Fiscal
Year, the Borrower's annual report to shareholders and its annual report on Form
10-K as filed with the Securities and Exchange Commission, in each case
accompanied by a completed Compliance Certificate substantially in the form of
Exhibit "H" attached hereto duly executed by an Authorized Officer stating that
(A) such Authorized Officer has reviewed the terms of the Agreement and of the
Notes and has made, or caused to be made under his supervision, a review of the
transactions and condition of the Borrower during the accounting period covered
by such financial statements and that such review has not disclosed the
existence during such accounting period, and that the signer does not have
knowledge of the existence as at the date of such Officer's Certificate, of any
condition or event which constitutes, a Potential Default or an Event of Default
or, if a Potential Default or an Event of Default does exist, a statement
describing such a Potential Default or an Event of Default and the action the
Borrower has taken or proposes to take with respect thereto and (B) the Borrower
was in compliance with the covenants set forth in Sections 5.3 and 5.4 of this
Agreement;
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(ii) deliver to the Lenders promptly upon their becoming available,
copies of all financial statements, reports, notices and information statements
sent or made available generally by the Borrower to its security holders
(including, without limitation, proxy materials) and copies of all other regular
and periodic reports (including, without limitation, Form 8-K) filed by the
Borrower with the Securities and Exchange Commission or any Governmental
Authority succeeding to any of its functions, and of all press releases and
other statements made available generally by the Borrower to the public
concerning material developments in the business of the Borrower and any of its
Subsidiaries taken as a whole;
(iii) deliver to the Lenders, as soon as available but not later than
forty-five (45) days after the last day of each of the first three Fiscal
Quarters of each Fiscal Year, the financial statements of any Special Purpose
Subsidiary as of the Fiscal Quarter most recently ended and a report on the
outstanding funded balances as of the Fiscal Quarter most recently ended for any
Securitization entered into by the Borrower or any Subsidiary of the Borrower,
including any Special Purpose Subsidiary, and, within ninety (90) days after the
end of each Fiscal Year, the financial statements of any Special Purpose
Subsidiary as of the Fiscal year most recently ended and a report on the
outstanding funded balances as of the Fiscal Year most recently ended for any
Securitization entered into by the Borrower or any Subsidiary of the Borrower,
including any Special Purpose Subsidiary, as of the Fiscal Year most recently
ended, each in form and substance reasonably acceptable to the Agent;
(iv) promptly after receipt thereof, by the Borrower or the
administrator of any Plan, deliver to the Lenders a copy of any notice from the
PBGC that the PBGC is instituting Termination Proceedings;
(v) promptly and in any event within 30 days after the Borrower or the
administrator of any Plan knows or has reason to know that any Reportable Event
has occurred which would cause the PBGC to institute termination proceedings, if
the liability of the Borrower to the PBGC would exceed five percent (5%) of the
Consolidated Tangible Net Worth of the Borrower at the time of notice thereof,
give notice thereof to the Lenders;
(vi) promptly, but not later than five (5) Business Days, after any
Authorized Officer obtains knowledge of the happening of any event which
constitutes an Event of Default or a Potential Default, give written notice
thereof to the Lenders; and
(vii) promptly, deliver to the Lenders such other publicly available
information and data with respect to the Borrower or any of its Subsidiaries as
from time to time may be reasonably requested by any Lender.
4.3 VISITATION. The Borrower will permit the Lenders and the Lender's
designated employees and agents to have access, at any time and from time to
time, upon reasonable notice and during normal business hours at any reasonable
time, to visit any of the properties of the Borrower, to examine and make copies
of any of its books of record and account and such reports and returns as the
Borrower may file with any Governmental Authority and discuss the Borrower's
affairs and accounts with, and be advised about them, by any Authorized Officer.
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4.4 PRESERVATION OF EXISTENCE; QUALIFICATION. At its own cost and expense, the
Borrower will do all things necessary to preserve and keep in full force and
effect its and each of its Consolidated Subsidiaries' corporate existence and
qualification under the laws of their respective states of incorporation and
each state where, due to the nature of their respective activities or the
ownership of their respective properties, qualification to do business is
required except where (i) the lack of corporate existence of a Subsidiary or
(ii) the failure to be so qualified would not have a Material Adverse Effect
upon the Borrower and its Consolidated Subsidiaries taken as a whole or except
as permitted by Sections 5.6 and 7.4.
4.5 COMPLIANCE WITH LAWS AND CONTRACTS. The Borrower shall and shall cause each
Subsidiary to comply with all applicable Governmental Rules (including, but not
limited to, Environmental Laws), except where failure to comply would not have a
Material Adverse Effect on the Borrower and its Consolidated Subsidiaries taken
as a whole.
4.6 PAYMENT OF TAXES AND OTHER LIABILITIES. The Borrower shall and shall cause
each Subsidiary to promptly pay and discharge all obligations, accounts and
liabilities to which it is subject or which are asserted against it and which
obligations, accounts and liabilities are, to the Borrower and the Subsidiaries
taken as a whole, material, including but not limited to all taxes, assessments
and governmental charges and levies upon it or upon any of its income, profits,
or property prior to the date on which penalties attach thereto; provided,
however, that for purposes of this Agreement, neither the Borrower nor the
relevant Subsidiary shall be required to pay any tax, assessment, charge or levy
(i) the payment of which is being contested in good faith by appropriate and
lawful proceedings diligently conducted and (ii) as to which the Borrower shall
have set aside on its books reserves for such claims as are determined to be
adequate pursuant to the accounting procedures employed by the Borrower, but
only to the extent that failure to discharge any such liabilities would not
result in any additional liability which would have a Material Adverse Effect
upon the Borrower and its Consolidated Subsidiaries taken as a whole.
4.7 INSURANCE. The Borrower will keep and maintain, and cause each Subsidiary
to keep and maintain, insurance with responsible insurance companies,
satisfactory to the Agent, on such of their respective properties, in such
amounts and against such risks as is customarily maintained by similar
businesses similarly situated and owning, leasing or operating similar
properties. The Borrower may satisfy the requirements of the preceding sentence
with self insurance and deductibles consistent with customary and prudent
industry standards. The Borrower will furnish to the Agent at the Closing and
together with the annual reports delivered pursuant to Subsection 4.2(ii)
hereof, a certificate of 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 and each Subsidiary's obligations under this Section 4.7.
4.8 MAINTENANCE OF PROPERTIES. The Borrower shall and shall cause its
Significant Subsidiaries to maintain, preserve, protect and keep their
respective properties in good repair, working order and condition (ordinary wear
and tear excepted), and make all necessary and proper repairs, renewals and
replacements so that their business carried on in connection therewith may be
properly and advantageously conducted at all times, except where the failure to
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maintain, preserve, protect or keep such properties would not have a Material
Adverse Effect upon the Borrower and its Consolidated Subsidiaries taken as a
whole.
4.9 PLANS AND BENEFIT ARRANGEMENTS. The Borrower shall, and shall cause each
ERISA Affiliate to, comply with ERISA, the Code and all other applicable laws
which are applicable to Plans, except where the failure to do so, alone or in
conjunction with any other failure to do so, would not have a Material Adverse
Effect upon the Borrower and its Consolidated Subsidiaries taken as a whole.
4.10 SENIOR DEBT STATUS. The Bank Indebtedness will rank at least PARI PASSU in
priority of payment with all other Indebtedness of the Borrower, except
Indebtedness of the Borrower which may be secured by Encumbrances pursuant to
Section 5.2.
4.11 OWNERSHIP OF OPERATING SUBSIDIARIES. The Borrower shall at all times,
directly or indirectly through one or more wholly-owned Subsidiaries, be the
legal and beneficial owner of, and shall retain all voting rights relating to,
all of the issued and outstanding capital stock of ATI Funding, TILLC, OREMET,
ALC, TDY Industries and any Special Purpose Subsidiary.
ARTICLE V. NEGATIVE COVENANTS.
From the date hereof and thereafter until the Commitments are
terminated and until the Bank Indebtedness is paid in full, the Borrower agrees
that:
5.1 INDEBTEDNESS. The Borrower shall not and shall not permit any Consolidated
Subsidiary to create, incur, assume, cause, permit or suffer to exist or remain
outstanding, any Consolidated Indebtedness except for:
(i) Bank Indebtedness;
(ii) Existing Indebtedness set forth on Schedule 5.1 hereof; provided,
however, the Indebtedness set forth on Schedule 5.1 outstanding under the
Existing Bank Credit Agreements must be repaid in full on the Closing Date; and
(iii) Additional Indebtedness (including additional Purchase Money
Indebtedness) PROVIDED such additional Indebtedness, when added to the
Borrower's then outstanding Consolidated Indebtedness, would not cause the
Borrower to be in violation of Sections 5.2, 5.3 and 5.4 hereof; and PROVIDED
FURTHER the additional Indebtedness permitted pursuant to this item (iii) which
is incurred by the Borrower's Consolidated Subsidiaries shall not exceed, in the
aggregate at any one time outstanding, $150,000,000.
In addition, Indebtedness incurred pursuant to item (iii) may not contain
covenants (other than covenants relating to collateral, if any, securing such
Indebtedness as such security interests are permitted hereby) more restrictive
than or in addition to those contained herein.
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5.2 ENCUMBRANCES. The Borrower shall not and shall not permit any Consolidated
Subsidiary to create, assume, incur, permit or suffer to exist upon any of their
respective assets and properties, whether tangible or intangible and whether now
owned or in existence or hereafter acquired or created and wherever located, any
Encumbrance except for:
(i) Permitted Encumbrances (including without limitation those listed
on Schedule 5.2),
(ii) Additional Encumbrances which secure additional Purchase Money
Indebtedness permitted pursuant to Section 5.1,
(iii) Additional Encumbrances on assets acquired by the Borrower or any
Consolidated Subsidiary, PROVIDED (A) those Encumbrances existed prior to the
acquisition of such assets by the Borrower or any Consolidated Subsidiary and
(B) the lien thereof is limited to the assets then being acquired and additions
or accessions to such assets and identifiable proceeds thereof; and
(iv) Additional Encumbrances which secure Indebtedness of the Borrower
and its Consolidated Subsidiaries, PROVIDED however Encumbrances permitted
pursuant to this item (iv), shall not, at any time, secure Indebtedness which
exceeds in the aggregate $70,000,000 at any one time outstanding.
5.3 LEVERAGE RATIO. At no time shall the Borrower's Consolidated Total
Indebtedness be more than sixty percent (60%) of its Consolidated Total
Capitalization.
5.4 INTEREST COVERAGE RATIO. (i) At no time prior to or on December 31, 2002
shall the ratio of the Borrower's Consolidated EBITDA for the four (4) most
recently completed Fiscal Quarters, taken as a single accounting period, to its
Consolidated Interest Expense for the four (4) most recently completed Fiscal
Quarters, taken as a single accounting period, be less than 3.0 to 1.0; and (ii)
at no time after December 31, 2002 shall the ratio of the Borrower's
Consolidated EBITDA for the four (4) most recently completed Fiscal Quarters,
taken as a single accounting period, to its Consolidated Interest Expense for
the four (4) most recently completed Fiscal Quarters, taken as a single
accounting period, be less than 3.5 to 1.0.
5.5 SALES OF ASSETS. The Borrower shall not nor shall it permit any
Consolidated Subsidiary to enter into any arrangement, direct or indirect,
pursuant to which the Borrower or any Consolidated Subsidiary shall sell or
otherwise transfer or dispose of any property, real, personal or mixed, whether
now owned or hereafter acquired, except (i) sales, transfers or dispositions in
the ordinary course of business, (ii) the sale, transfer or other disposition of
the stock or assets set forth on Schedule 5.5, (iii) sales, transfers or
dispositions not in the ordinary course of business provided that the aggregate
proceeds of all such sales, transfers and dispositions permitted by this item
(iii) shall not exceed (A) from the date hereof until November 30, 2006, thirty
percent (30%) of the Borrower's Consolidated Total Assets as of September 30,
2001, and (B) beginning with the first day of the Borrower's Fiscal Year
2002-2003 and thereafter, more than ten (10%) of the Borrower's Consolidated
Total Assets as of the beginning of the Fiscal Year in question, and (iv) any
absolute sale or assignment of Receivables in
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connection with a Securitization with a Special Purpose Subsidiary pursuant to a
Securitization Contract, provided that (A) such transaction, except for the
customary exceptions, is nonrecourse to the Borrower or any of its Subsidiaries
(including the Special Purpose Subsidiary), (B) such Securitization is
classified as "off balance sheet" for financial reporting purposes in accordance
with GAAP with respect to the Borrower on a Consolidated basis, and (C) the only
assets of the Special Purpose Subsidiary are Receivables acquired from the
Borrower or its other Subsidiaries pursuant to a Securitization Contract.
5.6 MERGER. The Borrower shall not merge or consolidate with any other Person
except a merger or consolidation in which each of the following conditions is
satisfied:
(i) the Borrower is the surviving Person;
(ii) no Event of Default or Potential Default occurs as a result of
such a merger or consolidation; and
(iii) the Borrower's Consolidated Shareholder's Equity immediately
after such merger or consolidation is not less than the Borrower's Consolidated
Shareholder's Equity immediately prior to such merger or consolidation.
5.7 RESTRICTION ON DIVIDENDS. The Borrower shall not and shall not permit any
Subsidiary to enter into any agreement which restricts in any manner dividends
or distributions to the Borrower from any Subsidiary; provided however this
restriction shall not apply to Subsidiaries, the assets of which, in the
aggregate, constitute less than five percent (5%) of the Borrower's Consolidated
Total Assets as of any date of determination.
5.8 RESTRICTION ON GUARANTEES. The Borrower shall not and shall not permit any
Subsidiary to enter into an agreement pursuant to which any such Subsidiary
guarantees either the payment of Indebtedness incurred by the Borrower or the
performance of the Borrower's contractual obligations.
5.9 REGULATION T, U AND X COMPLIANCE. The Borrower shall not and shall not
permit any Subsidiary to use the proceeds of a Loan (or the proceeds of any
obligation supported by a Letter of Credit) to purchase or carry Margin Stock or
otherwise act so as to cause any Lender, in extending credit hereunder, to be in
contravention of Regulations T, U or X.
5.10 ERISA. The Borrower shall not and shall not permit any ERISA Affiliate to
permit any Plan to:
(i) engage in any "prohibited transaction", as such term is defined in
Section 406 of ERISA and Section 4975 of the Code;
(ii) incur any "accumulated funding deficiency", as such term is
defined in Section 302 of ERISA, whether or not waived;
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(iii) be terminated in a manner which could result in liability to the
PBGC under Title IV of ERISA or the imposition of a lien on the property of the
Borrower or any ERISA Affiliate pursuant to Section 4068 of ERISA; or
(iv) partially or completely withdraw from any Plan, which withdrawal
shall subject the Borrower or any ERISA Affiliate to multiemployer withdrawal
liability pursuant to Section 4201 of ERISA.
ARTICLE VI. CONDITIONS PRECEDENT TO ALL DISBURSEMENTS.
6.1 ALL DISBURSEMENTS. The obligation of the Lenders to make any Disbursements
(or the obligation of the Lenders to convert any of the then outstanding Short
Term Revolving Credit Loans to the Term Loan on the Short Term Revolving Credit
Termination Date) is subject to the satisfaction of each of the following
conditions precedent:
6.1a NO DEFAULT. The Borrower shall have performed and complied, in all
material respects, with all agreements and conditions herein required to be
performed or complied with by it prior to any Disbursements (or the conversion
to the Term Loan) and, at the time of such Disbursements (or the conversion to
the Term Loan), no Potential Default or Event of Default shall exist.
6.1b REPRESENTATIONS CORRECT. The representations and warranties contained in
Article III hereof shall be correct in all material respects (i) when made and
(ii) at the time of each Disbursement (or the conversion to the Term Loan)
except for such representations and warranties which relate solely to an earlier
date (in which case such representations and warranties shall have been true and
correct in all material respects as of such date).
6.1c DISBURSEMENT REQUIREMENTS. The Borrower shall have complied with the
requirements of Section 2.1, Section 2.2, Section 2.3 or 2.16, as appropriate,
with respect to the requested Disbursements (or the conversion to the Term
Loan).
Each request for Disbursement (or the conversion to the Term Loan) shall
constitute, as at the time made, a representation and warranty by the Borrower
that the matters set forth in Subsections 6.1a and 6.1b above are true and
correct.
6.2 CONDITIONS PRECEDENT TO THE INITIAL DISBURSEMENT UNDER THE COMMITMENT. The
obligation of the Lenders to make the initial Disbursements is subject to the
satisfaction of each of the following conditions precedent in addition to the
applicable conditions precedent set forth in Section 6.1 above:
(i) Receipt by the Agent on behalf of each Lender of a counterpart
original of this Agreement executed by the other Lenders and the Borrower.
(ii) Receipt by the Agent on behalf of each Lender of a Long Term
Revolving Credit Note and a Short Term Revolving Credit Note, substantially in
the form of Exhibits "A-1"
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and "A-2" attached hereto, respectively, made payable to such Lender in the
amount of such Lender's Long Term Revolving Credit Commitment and Short Term
Revolving Credit Commitment, as applicable, and otherwise properly completed and
executed by the Borrower.
(iii) Receipt by the Agent on behalf of each Lender of a Bid Rate Note
substantially in the form of Exhibits "B-1" and "B-2" attached hereto, made
payable to such Lender and otherwise properly completed and executed by the
Borrower.
(iv) Receipt by the Agent on behalf of each Swingline Lender of a
Swingline Note substantially in the form of Exhibit "E" attached hereto, made
payable to such Swingline Lender and otherwise properly completed and executed
by the Borrower.
(v) Receipt by the Agent of a copy of a certified copy (certified by
the appropriate governmental official) of the Certificate of Incorporation, the
Borrower and each of ALC, TDY Industries and Oremet which certifications are
dated not more than 45 days prior to the Closing.
(vi) Receipt by the Agent of a certificate, duly certified as of the
date of the Closing by the secretary or assistant secretary of the Borrower and
each of ALC, TDY Industries and Oremet, as applicable, as to (A) the By-Laws of
the Borrower and each of ALC, TDY Industries and Oremet in effect as of the
Closing, (B) the resolutions of the Borrower's Board of Directors authorizing
the borrowings hereunder and the execution and delivery of this Agreement, the
Notes, and all documents supplemental hereto and (C) the names of the officers
of the Borrower authorized to sign this Agreement, the Notes, and all
supplemental documentation and which contains a true signature of each such
officer.
(vii) Receipt by the Agent of good standing certificates and no lien
certificates for the Borrower and each of ALC, TDY Industries and Oremet from
the Secretary of State of the States of Delaware, Pennsylvania, California and
Oregon, respectively, each dated not more than 45 days prior to the Closing.
(viii) Receipt by the Agent of the certificate of the Borrower required
pursuant to Section 4.7 of the Agreement.
(ix) Receipt by the Agent of a written payoff letter concerning the
termination and payoff of the Existing Credit Agreement.
(x) Receipt by the Agent of written instructions addressed to the Agent
and executed by an Authorized Officer of the Borrower relating to the initial
Disbursement including satisfaction of any outstanding amounts due under the
Existing Credit Agreement.
(xi) Receipt by the Agent for the benefit of the Lenders, the Closing
Fees payable to the Lenders.
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(xii) Receipt by the Agent on behalf of each Lender of a signed
favorable opinion of Xxx X. Xxxxxx, Senior Vice President and Chief Legal and
Administrative Officer, substantially in the form of Exhibit "I" attached
hereto.
(xiii) No event or condition shall have occurred, and be continuing,
which would have a Material Adverse Effect upon the Borrower and its
Consolidated Subsidiaries taken as a whole.
(xiv) Receipt by the Agent of such other documents, certificates and
opinions as reasonably requested by the Agent and its counsel.
ARTICLE VII. DEFAULTS.
Each of the events or occurrences described in Sections 7.1 to and
including 7.10 below shall constitute an "Event of Default" hereunder.
7.1 PAYMENT DEFAULT . Default in the payment of (A) interest on any Loan, any
Facility Fee, any Utilization Fee, any Letter of Credit Fee, any Fronting Fee,
any Agent's Fee or any other amount due hereunder (other than principal), and
continuance of any such nonpayment of such interest, any Facility Fee, any
Utilization Fee, any Letter of Credit Fee, any Fronting Fee, any Agent's Fee or
other amount (other than principal) for five (5) Business Days, or (B) principal
of any Loan or Letter of Credit Borrowing when due.
7.2 NONPAYMENT OF OTHER INDEBTEDNESS. The Borrower or any Subsidiary shall
fail to pay any Indebtedness of the Borrower or such Subsidiary, as the case may
be, other than the Bank Indebtedness, in an aggregate amount as to the Borrower
and its Subsidiaries collectively of $20,000,000 or more, as and when the same
shall become due, or the occurrence of any default under any agreement or
instrument under or pursuant to which such Indebtedness is incurred or issued
and continuance of such default beyond the period of grace, if any, allowed with
respect thereto; provided however, that the foregoing provisions shall not apply
to any such default or defaults by one or more Subsidiaries during the term
hereof where the aggregate assets of such Subsidiaries do not exceed five
percent (5%) of the Borrower's Consolidated Total Assets.
7.3 INSOLVENCY.
7.3a INVOLUNTARY PROCEEDINGS. A proceeding shall have been instituted in a
court having jurisdiction seeking a decree or order for relief in respect of the
Borrower or a Subsidiary in an involuntary case under the Federal bankruptcy
laws, or any other similar applicable Federal or state law, now or hereafter in
effect, or for the appointment of a receiver, liquidator, trustee, sequestrator
or similar official for the Borrower or any of its Subsidiaries or for a
substantial part of its or their property, or for the winding up or liquidation
of its or their affairs, and the same (i) is not controverted with a period
fifteen (15) days or (ii) shall remain undismissed or unstayed and in effect for
a period of sixty (60) days; provided however, that the foregoing provisions
shall not apply to any such event or events commenced by or against one or more
Subsidiaries
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during the term hereof where the aggregate assets of such Subsidiaries do not
exceed five percent (5%) of the Borrower's Consolidated Total Assets.
7.3b VOLUNTARY PROCEEDINGS. The Borrower or a Subsidiary shall institute
proceedings to be adjudicated a voluntary bankrupt, or any of them shall consent
to the filing of a bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking reorganization under the Federal bankruptcy laws, or
any other similar applicable Federal or state law now or hereinafter in effect,
or shall consent to the filing of any such petition or shall consent to the
appointment of a receiver, liquidator, trustee, sequestrator or similar official
for the Borrower or any of its Subsidiaries or for a substantial part of its or
their property, or shall make an assignment for the benefit of creditors, or
shall admit in writing its or their inability to pay its or their debts
generally as they become due, or corporate action shall be taken by the Borrower
or any of its Subsidiaries in furtherance of any of the aforesaid purposes;
provided however, that the foregoing provisions shall not apply to any such
event or events commenced by or against one or more Subsidiaries during the term
hereof where the aggregate assets of such Subsidiaries do not exceed five
percent (5%) of the Borrower's Consolidated Total Assets.
7.4 TERMINATION OF EXISTENCE. The Borrower shall terminate its existence or
cease to exist or any Subsidiary (other than any Subsidiary the capital of which
is less than $10,000,000 on the date hereof) shall terminate its existence or
cease to exist except by reason of a merger or liquidation into or a
consolidation with the Borrower or a Consolidated Subsidiary; provided however,
that the foregoing provisions shall not apply to any such terminations or
cessations of existence by one or more Subsidiaries during the term hereof where
the aggregate assets of such Subsidiaries do not exceed five percent (5%) of the
Borrower's Consolidated Total Assets.
7.5 FAILURE TO COMPLY WITH COVENANTS.
7.5a FAILURE TO COMPLY WITH ARTICLE V COVENANTS AND CERTAIN ARTICLE IV
COVENANTS. The Borrower shall default in the observance or performance of
Section 4.11 or of any covenant contained in Article V.
7.5b FAILURE TO COMPLY WITH OTHER COVENANTS. The Borrower shall default in the
due performance or observance of any other covenant, condition or provision set
forth herein and such default shall not be remedied for a period of thirty (30)
days after such default is known to any Authorized Officer of the Borrower or
notice thereof has been given to the Borrower by the Agent.
7.6 MISREPRESENTATION. Any representation or warranty made by the Borrower
herein proves to have been untrue in any material respect as of the date when
made, or any certificate or other document furnished by the Borrower to the
Agent pursuant to the provisions hereof proves to have been untrue in any
material respect on the date as of which the facts set forth therein are stated
or certified.
7.7 ADVERSE JUDGMENTS, ETC. Entry or filing of any one or more judgments,
writs or warrants of attachment or of any similar process in an aggregate
amount, as to the Borrower and
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its Subsidiaries collectively, of $10,000,000 or more in excess of any
third-party insurance protecting against such liability against the Borrower and
its Subsidiaries or against any of their respective properties and failure of
the Borrower or its Subsidiaries to vacate, pay, bond, stay or contest in good
faith such judgments, writs, warrants of attachment or other process within a
period of thirty (30) days; provided however, the foregoing provisions shall not
apply to any such judgment or judgments against one or more Subsidiaries during
the term hereof where the aggregate assets of such Subsidiaries do not exceed
five percent (5%) of the Borrower's Consolidated Total Assets.
7.8 INVALIDITY OR UNENFORCEABILITY. This Agreement, the Notes or any other
Loan Document ceases to be valid and binding on the Borrower or is declared null
and void, or the validity or enforceability thereof is contested by the Borrower
or the Borrower denies it has any or further liability under this Agreement, any
Note or under the other Loan Documents to which it is a party.
7.9 ERISA. (i) A trustee shall be appointed by a court of competent
jurisdiction to administer any Plan of the Borrower or any ERISA Affiliate; (ii)
the PBGC shall terminate any Plan of the Borrower or any ERISA Affiliate or
appoint a trustee to administer any such Plan; or (iii) the Borrower or any
ERISA Affiliate shall incur any liability to the PBGC in connection with any
Plan, which, in any such case, likely would have a Material Adverse Effect on
the Borrower and the Consolidated Subsidiaries, taken as a whole.
7.10 CHANGE OF CONTROL.
7.10a CHANGE OF BENEFICIAL OWNERSHIP. Any Person or group of Persons (within the
meaning of Sections 13(a) or 14(a) of the Securities and Exchange Act of 1934),
other than the then current officers or directors of the Borrower or an
underwriter which obtains such ownership as a result of effecting a firm
committed underwriting of a secondary offering of the Borrower's voting stock on
behalf of such officers or directors, shall have acquired beneficial ownership
of (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange
Commission under said Act) thirty percent (30%) or more of the voting stock of
the Borrower. For purposes of calculating the acquisition of beneficial
ownership, any transfer of voting stock of the Borrower by any Person or group
of Persons to a Permitted Transferee shall be deemed not to constitute a
conveyance and acquisition of such stock. A "Permitted Transferee" includes any
of the following with respect to any then current officer or director of the
Borrower: (i) spouse; (ii) lineal descendants of all generations and spouses of
such lineal descendants; (iii) a charitable corporation or trust established by
such then current officer or director or by a person described in (i) or (ii)
preceding; (iv) a trust (or in the case of a minor, a custodial account under a
Uniform Gifts or Transfers to Minors Act) of which the beneficiar(ies) are one
or more Persons described in (i), (ii) or (iii) preceding; and (v) an executor
or administrator upon the death of such then current officer or director or any
Person described in (i) or (ii) preceding.
7.10b CHANGE OF COMPOSITION OF BOARD OF DIRECTORS. Within a period of twelve
(12) consecutive calendar months individuals who were directors of the Borrower
on the first day of such period shall cease to constitute a majority of the
board of directors of the Borrower.
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7.11 CONSEQUENCES OF AN EVENT OF DEFAULT. If one or more of the Events of
Default occur then (a) if such Event of Default is set forth in Sections 7.3 or
7.4, the Commitments shall automatically terminate and the Bank Indebtedness
then outstanding shall become immediately due and payable, without necessity of
demand, presentation, protest, notice of dishonor or notice of default; or (b)
if such Event of Default is set forth in any of the remaining Sections of this
Article VII, then the Agent, at the request of the Required Lenders, and without
notice to the Borrower, shall declare the Borrower in default hereunder, and
upon such declaration, shall, at the request of the Required Lenders, terminate
the Commitment and/or declare the Bank Indebtedness then outstanding immediately
due and payable, without necessity of any further demand, presentation, protest,
notice of dishonor or further notice of default, whereupon such Bank
Indebtedness shall be immediately due and payable.
7.12 REMEDIES UPON DEFAULT. Upon the termination of the Commitments and
acceleration of the Notes following the occurrence of an Event of Default, the
Lenders shall, unless such termination and acceleration subsequently have been
rescinded, have the full panoply of rights and remedies granted to them under
this Agreement and all those rights and remedies granted by law to creditors,
and the Agent, at the direction of the Required Lenders, shall proceed to
protect and enforce the Lenders' rights by an action at law, suit in equity or
other appropriate proceeding, whether for the specific performance of any
agreement contained herein, in the Notes or in any of the other Loan Documents,
or for an injunction against a violation of any of the terms hereof or thereof,
or in aid of the exercise of any power granted hereby or thereby or by law. No
right, power or remedy conferred by this Agreement, in the Notes, or by any
other Loan Document, upon the Agent or the Lenders shall be exclusive of any
other right, power or remedy referred to herein or therein or now or hereafter
available at law, in equity, by statute or otherwise. No exercise of any one
right or remedy shall be deemed a waiver of other rights or remedies. The rights
and remedies of the Agent and the Lenders specified herein are for the sole and
exclusive benefit, use and protection of the Agent and the Lenders, and the
Agent and the Lenders shall be entitled, but shall have no duty or obligation,
to exercise or to refrain from exercising any right or remedy reserved to the
Agent or the Lenders hereunder.
7.13 CASH COLLATERAL. Upon the occurrence of any Event of Default or upon the
declaration by the Required Lenders of any other Event of Default and the
termination of the Commitments, the obligation of the Agent to issue or amend
Letters of Credit shall terminate, and, in addition to the other amounts payable
hereunder with respect to Letters of Credit, 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 such 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 Agent participations in the
unreimbursed amount of any drawings under the Letters of Credit issued by it as
provided in Subsection 2.16d. So long as the Letters of Credit shall remain
outstanding, any amounts declared due pursuant to this Section 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 and the Lenders over which the Agent
shall have sole
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dominion and control of withdrawals (the "Cash Collateral Account") as cash
collateral for the obligation of the Borrower to reimburse the Agent 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, the Agent
shall apply such amounts held by the Agent to reimburse the Agent 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 any of the Letters of Credit
outstanding, the Agent shall apply the amount then in the Cash Collateral
Account designated to reimburse the Agent for any drawings under the Letters of
Credit issued by it less the maximum amount available at any time for drawing
under the Letters of Credit remaining outstanding immediately after such
cancellation, expiration or reduction, if any, to the payment in full of the
outstanding Bank Indebtedness, and second, to the payment of any excess, to the
Borrower.
ARTICLE VIII. AGREEMENT AMONG LENDERS.
8.1 APPOINTMENT AND GRANT OF AUTHORITY. Each of the Lenders hereby appoints PNC
Bank, National Association, and PNC Bank, National Association hereby agrees to
act as, the Agent under this Agreement, the Notes and the other Loan Documents.
As such Agent, PNC Bank, National Association shall have and may exercise such
powers under this Agreement as are specifically delegated to the Agent, by the
terms hereto, of the Notes or of the other Loan Documents, together with such
other powers as are incidental thereto. Without limiting the foregoing, the
Agent, on behalf of the Lenders, 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.
8.2 NON-RELIANCE ON AGENT. Each Lender agrees that it has, independently and
without reliance on the Agent, based on such documents and information as it has
deemed appropriate, made its own credit analysis and evaluation of the Borrower
and its operations and decision to enter into this Agreement and that it will,
independently and without reliance upon the Agent, 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, the Agent shall have no duty to keep the
Lenders informed as to the performance or observance by the Borrower of this
Agreement or any other document or instrument referred to or provided for herein
or to inspect the properties or books of the Borrower. The Agent, in the absence
of gross negligence or willful misconduct, shall not be liable to any Lender for
its failure to relay or furnish to the Lender any information. The preceding
provisions of this Section 8.2 to the contrary notwithstanding, the Agent shall
notify each of the Lenders as soon as practicable after it receives a notice of
an Event of Default from the Borrower.
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8.3 RESPONSIBILITY OF AGENT AND OTHER MATTERS.
8.3a MINISTERIAL NATURE OF DUTIES. As among the Lenders and the Agent, the
Agent shall have no duties or responsibilities except those expressly set forth
in this Agreement, the Notes or in the other Loan Documents, and those duties
and responsibilities shall be subject to the limitations and qualifications set
forth in this Article VIII. The duties of the Agent shall be ministerial and
administrative in nature.
8.3b LIMITATION OF LIABILITY. As among the Lenders and the Agent, neither the
Agent nor any of its directors, officers, employees or agents shall be liable
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 except for gross negligence or
willful misconduct. Without limiting the foregoing, neither the Agent nor any of
its directors, officers or employees shall be responsible for, or have any duty
to examine (i) the genuineness, execution, validity, effectiveness,
enforceability, value or sufficiency of (A) this Agreement, the Notes 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 collectibility of any
amounts owed by the Borrower to the Lenders, (iii) the truthfulness of any
recitals, statements, representations or warranties made to the Agent 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, teletype,
facsimile transmission 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, liabilities, financial condition, results
of operations or business, or creditworthiness of the Borrower.
8.3c RELIANCE. The Agent shall be entitled to act, and shall be fully protected
in acting upon, any telegram, teletype, facsimile transmission or any writing,
application, notice, report, statement, certificate, resolution, request, order,
consent, letter or other instrument, 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 employ 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 or any other party
thereto.
8.4 ACTION ON INSTRUCTIONS. The Agent shall be required to act and shall be
fully protected in so acting and shall be entitled to refrain from acting, and
shall be fully protected in refraining from so acting, under this Agreement, the
Notes, the other Loan Documents or any other instrument or document executed or
delivered in connection herewith or therewith, in accordance with written
instructions from the Required Lenders or, in the case of the matters set forth
in items (A) through (G) of Section 9.1, from all of the Lenders.
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8.5 INDEMNIFICATION. To the extent the Borrower does not reimburse and save
harmless the Agent 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 their
respective Commitment Percentages. Each Lender hereby agrees on such basis (i)
to reimburse the Agent for such Lender's pro rata share of all such reasonable
costs, expenses and disbursements on request and (ii) to the extent of each such
Lender's pro rata share, to indemnify and save harmless the Agent 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, other than
as a consequence of gross negligence or willful misconduct on the part of the
Agent, arising out of or in connection with (i) this Agreement, the Notes, the
other Loan Documents or any other agreement, instrument or document executed or
delivered in connection herewith or therewith, or (ii) any action taken at the
request of the Required Lenders or all of the Lenders hereunder, as the case may
be, including without limitation the reasonable costs, expenses and
disbursements in connection with defending themselves against any claim or
liability, or answering any subpoena or other process related to the exercise or
performance of any of their powers or duties under this Agreement, the other
Loan Documents, or any of the other agreements, instruments or documents
executed or delivered in connection herewith or the taking or refraining from
any action under or in connection with any of the foregoing.
8.6 AGENT'S RIGHTS AS A LENDER. With respect to the Commitment of the Agent as
a Lender hereunder, and any Loans and Letters of Credit Outstanding of the Agent
under this Agreement, the other Loan Documents and any other agreements,
instruments and documents delivered pursuant hereto and any other amounts due to
the Agent under this Agreement, the Agent shall have the same rights and powers,
duties and obligations under this Agreement, the Notes, the other Loan Documents
or 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. The Agent may accept deposits from, lend money to,
issue letters of credit and generally engage, and continue to engage, in any
kind of business with the Borrower as if it were not the Agent.
8.7 PAYMENT TO LENDERS. Promptly after receipt from the Borrower of any
principal repayment of the Loans, the Letter of Credit Borrowings, interest due
on the Loans and the Letter of Credit Borrowings, any Facility Fees, any
Utilization Fees or any Letter of Credit Fees owing to the Lenders or other
amounts due under any of the Loan Documents (except for such amounts which are
payable for the sole account of any Lender or the Agent), the Agent shall
distribute to each Lender that Lender's share of the funds so received.
8.8 PRO RATA SHARING. All interest and principal payments on the Revolving
Credit Loans, the Letter of Credit Borrowings, all Facility Fees, all
Utilization Fees, and all Letter of Credit Fees are to be divided pro rata among
the Lenders in accordance with their respective Long Term Revolving Credit
Commitment Percentages or Short Term Revolving Credit Commitment Percentages, as
applicable; provided that the Agent shall retain for its account any sum due a
Lender that has failed to advance its pro rata share of any Loans or LC
Participation Advance with respect to the amount not advanced. All interest and
principal payments on the
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Term Loans are to be divided pro rata among the Lenders in accordance with their
respective pro rata share of the outstanding Term Loans at the time of
disbursement. Any sums obtained from the Borrower by any Lender by reason of the
exercise of its rights of set-off, banker's lien or in collection shall be
shared (net of costs) pro rata among the Lenders on the basis of the principal
amount of Loans outstanding. Nothing in this Section 8.8 shall be deemed to
require the sharing among the Lenders of collections specifically relating to,
or of the proceeds of any collateral securing, any other Indebtedness of the
Borrower to any Lender.
8.9 SUCCESSOR AGENT.
8.9a RESIGNATION OF AGENT. The Agent may resign as Agent hereunder by giving
ninety (90) days' prior written notice to the Lenders and the Borrower. If such
notice shall be given, the Lenders shall appoint a successor agent for the
Lenders, during such ninety (90) day period, which successor agent shall be
reasonably satisfactory to the Borrower, to serve as agent hereunder and under
the several Loan Documents. If at the end of such ninety (90) day period, the
Lenders have not appointed such a successor, the Agent shall use reasonable
commercial efforts to procure a successor reasonably satisfactory to the Lenders
and the Borrower, to serve as agent for the Lenders hereunder and under the
several Loan Documents. Any such successor agent shall succeed to the rights,
powers and duties of the Agent.
8.9b RIGHTS OF THE FORMER AGENT. Upon the appointment of such successor agent
or upon the expiration of such ninety (90) 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 Agent hereunder, the provisions of this Article
VIII shall inure to the benefit of such retiring Agent as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement.
8.10 SYNDICATION AGENTS. None of the Lenders identified herein as a
"Syndication Agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders identified as Syndication Agents in deciding to
enter into this Agreement or in taking action hereunder.
ARTICLE IX. GENERAL PROVISIONS.
9.1 AMENDMENTS AND WAIVERS. Subject to the remaining provisions of this
Section 9.1, the Agent, the Lenders and the Borrower may, from time to time,
enter into amendments, extensions, renewals, modifications, supplements and
replacements to and of this Agreement, the Notes or the other Loan Documents and
the Lenders or the Required Lenders, as the case may be, may, from time to time,
waive compliance with a provision thereof. No amendment, renewal, modification,
extension, supplement, replacement or waiver of any provision of the Agreement,
the Notes or the other Loan Documents or consent to any departure therefrom by
the Borrower shall be effective unless it is in writing and is signed by the
Required Lenders (or the Agent with the written consent of the Required
Lenders), and then such waiver or consent shall
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be effective only for the specific instance and for the specific purpose for
which it is given; PROVIDED, however, that no amendment, renewal, modification,
waiver or consent, unless in writing and signed by all of the Lenders (or the
Agent with the written consent of all of the Lenders), shall do any of the
following:
(A) increase the Commitment of any Lender or subject any Lender
to any additional obligations hereunder;
(B) except for changes permitted by Section 2.12 or Section 9.18
hereof or changes made pursuant to an Assignment and Assumption Agreement,
change any Lender's Commitment Percentage or the aggregate or individual unpaid
principal amount of the Notes, or forgive the payment of the principal or
interest payable on the Notes;
(C) waive an Event of Default in the payment of principal and/or
interest due hereunder and under any of the Notes;
(D) decrease the interest rate relating to the Loans or the
Letter of Credit Borrowings;
(E) postpone any date fixed for any payment of principal of or
interest on the Loans or the Letter of Credit Borrowings, the Facility Fees, the
Utilization Fees, the Letter of Credit Fees or any other obligations of the
Borrower set forth in Article II payable to all of the Lenders pursuant hereto;
(F) reduce the Long Term Revolving Credit Facility Fees, the
Short Term Revolving Credit Facility Fees, the Utilization Fees or the Letter of
Credit Fees; or
(G) amend the definition of the term "Required Lenders" or amend
or waive the provisions of Section 8.8 or this Section 9.1.
Any such supplemental agreement shall apply equally to the Borrower and each of
the Lenders and shall be binding upon the Borrower, the Lenders, the Agent and
all future holders of the Notes. In the case of any waiver, the Borrower, the
Lenders and the Agent shall be restored to their 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.
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9.2 EXPENSES. The Borrower shall pay:
(i) All reasonable costs and expenses of the Agent (including
without limitation the reasonable fees and disbursements of the Agent's special
counsel, Xxxxxx Xxxxxxxxx, P.C.), incurred in connection with the preparation,
negotiation, execution and delivery of this Agreement and the other Loan
Documents and any and all other documents and instruments prepared in connection
herewith, including but not limited to all amendments, extensions,
modifications, replacements, waivers, consents and other documents and
instruments prepared or entered into from time to time;
(ii) All reasonable costs and expenses of the Agent and the
Lenders (including without limitation the reasonable fees and disbursements of
the Agent's and the Lenders' counsels, which may be in house counsel) in
connection with (A) the enforcement of this Agreement and the other Loan
Documents arising pursuant to a breach by the Borrower of any of the terms,
conditions, representations, warranties or covenants of any Loan Document to
which it is a party, and (B) defending or prosecuting any actions, suits or
proceedings relating to any of the Loan Documents.
All of such costs and expenses shall be payable by the Borrower to the Lenders
or the Agent, as the case may be, upon demand or as otherwise agreed upon by the
Lenders or the Agent and the Borrower, and shall constitute Bank Indebtedness
under this Agreement. The Borrower further agrees to pay, and save the Agent and
the Lenders harmless from any and all liability for, any stamp or other taxes
which may be payable with respect to the execution or delivery of this
Agreement, the issuance of the Notes or of any Letters of Credit. The Borrower's
obligation to pay such costs and expenses shall survive the termination of this
Agreement and the repayment of the Bank Indebtedness.
9.3 NOTICES.
Any notice, request, demand, direction or other communication to
be given to or made upon any party hereto under any provision of this Agreement
and any financial report to be given pursuant to Section 4.2 hereof (each, for
purposes of this Section 9.3 only, a "NOTICE") shall be given or made by
telephone or in writing (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 forth in
this Section 9.3) in accordance with this Section 9.3, PROVIDED, that any
financial report to be given pursuant to Section 4.2 hereof shall be made in
writing. Any such Notice must be delivered to the applicable parties hereto at
the addresses and numbers set forth under their respective names on SCHEDULE 9.3
hereof or in accordance with any subsequent unrevoked Notice from any such party
that is given in accordance with this Section 9.3. Any Notice shall be
effective:
(a) In the case of hand-delivery, when delivered;
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(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);
(d) 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 forth in this Section 9.3, and
(g) If given by any other means (including by overnight courier), when
actually received. Any Lender giving a Notice to the Borrower shall concurrently
send a copy thereof to the Agent, and the Agent shall promptly notify the other
Lenders of its receipt of such Notice.
All such notices shall be effective three (3) days after mailing,
the date of electronic transmission or when received, whichever is earlier. The
Borrower, the Lenders and the Agent may each change the address for service of
notice upon it by a notice in writing to the other parties hereto.
9.4 TAX WITHHOLDING. Each Lender or assignee or participant of a Lender that
is not incorporated under the Laws of the United States of America or a state
thereof (and, upon the written request of the Agent, each other Lender or
assignee or participant of a Lender) agrees that it will deliver to each of the
Borrower and the Agent two (2) duly completed appropriate valid Withholding
Certificates (as defined under sec. 1.1441-1(c)(16) of the Income Tax
Regulations ("Regulations")) certifying its status (i.e., U.S. or foreign
person) and, if appropriate, making a claim of reduced, or exemption from
withholding tax on the basis of an income tax treaty or an exemption provided by
the Internal Revenue Code. Such delivery may be made by electronic transmission
as described in sec. 1.1441-1(e)(4)(iv) of the Regulations if the Agent
establishes an electronic delivery system. The term "Withholding Certificate"
means a Form W-9; a Form W-8BEN; a Form W-8ECI; a Form W-8IMY and the related
statements and certifications as required under sec. 1.1441-1(e)(3) of the
Regulations; a statement described in sec. 1.871-14(c)(2)(v) of the Regulations;
or any other certificates under the Code or Regulations that certify or
establish the status of a payee or beneficial owner as a U.S. or foreign person.
Each Lender, assignee or participant required to deliver to the Borrower and the
Agent a valid Withholding Certificate pursuant to the preceding sentences shall
deliver such valid Withholding Certificate as follows: (A) each Lender which is
a party hereto on the Closing Date shall deliver such valid Withholding
Certificate at least five (5) Business Days prior to the first date on which any
interest or fees are payable by the Borrower hereunder for the account of such
Lender; and (B) each assignee or participant shall deliver such valid
Withholding Certificate at least five (5) Business Days before the effective
date of such assignment or participation (unless the Agent in its sole
discretion shall permit such assignee or participant to deliver such Withholding
Certificate less than five (5) Business Days before such date in which case it
shall be due on the
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date specified by the Agent). Each Lender, assignee or participant which so
delivers a valid Withholding Certificate further undertakes to deliver to each
of the Borrower and the Agent two (2) additional copies of such Withholding
Certificate (or a successor form) on or before the date that such Withholding
Certificate expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent Withholding Certificate so delivered by
it, and such amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Borrower or the Agent. Notwithstanding the
submission of a Withholding Certificate claiming a reduced rate of, or exemption
from, U.S. withholding tax, the Agent shall be entitled to withhold United
States federal income taxes at the full 30% withholding rate if in its
reasonable judgment it is required to do so under the due diligence requirements
imposed upon a withholding agent under sec. 1.1441-7(b) of the Regulations.
Further, the Agent is indemnified under sec. 2.1461-1(e) of the Regulations
against any claims and demands of any Lender or assignee or participant of a
Lender for the amount of any tax it deducts and withholds in accordance with
regulations under sec. 1441 of the Internal Revenue Code.
9.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the Borrower,
the Agent and the Lenders and their respective successors and assigns, and shall
inure to the benefit of the Borrower, the Agent and the Lender and the
successors and assigns of the Agent and the Lender.
9.6 ASSIGNMENTS AND PARTICIPATIONS.
9.6a ASSIGNMENTS. Subject to the remaining provisions of this Subsection 9.6a,
any Lender (a "Transferor Lender"), at any time, in the ordinary course of its
commercial banking business and in accordance with applicable law, may sell to
one or more financial institutions (individually a "Purchasing Lender"), a
portion or all of its rights and obligations under this Agreement and the Notes
then held by it, pursuant to an Assignment and Assumption Agreement
substantially in the form of Exhibit "J" executed by the Transferor Lender, such
Purchasing Lender and the Agent; subject, however to the following requirements:
(i) Each such assignment must be in a minimum amount of
$5,000,000, or, if in excess thereof, in integral multiples of $1,000,000,
unless such Lender's Commitment is less than $5,000,000, in which case such
assignment shall be in the full amount of such Lender's Commitment;
(ii) During the first ninety (90) days following the Closing Date,
each assignment made shall become effective only on a date which coincides with
the expiration date of any LIBOR Interest Period then in effect, unless the
Agent agrees to waive this provision;
(iii) The Borrower and the Agent shall consent to each such
assignment, which consent shall not be unreasonably withheld (provided, that the
Borrower shall not be deemed to have unreasonably withheld its consent if the
proposed assignee is a "foreign person" as defined in sec. 1.1441-1(c)(2) of the
Regulations); and
(iv) The Transferor Lender shall pay to the Agent a $3,500 service
fee for each such transfer at the time of each such transfer;
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PROVIDED, however (x) the restrictions set forth in items (i) and (iii) above
shall not apply in the case of an assignment by a Lender to an Affiliate of such
Lender (other than an Affiliate of such Lender which is also a "foreign person"
as defined in sec. 1.1441-1(c)(2) of the Regulations) and (y) the restriction
set forth in item (i) above shall not apply in the case of any assignment by any
Transferor Lender upon the occurrence and during the continuation of an Event of
Default; and PROVIDED FURTHER, that upon the occurrence and during the
continuance of an Event of Default the consent of the Borrower to any assignment
is not required.
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, all parties
hereto agree that (a) 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
Commitment as set forth therein, and (b) the Transferor Lender thereunder shall,
to the extent provided in such Assignment and Assumption Agreement, be released
from its obligations as a Lender under this Agreement. Such Assignment and
Assumption Agreement shall be deemed to amend this Agreement (without further
action) 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 Commitment
Percentages 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 its 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 new Notes to the order of such Purchasing Lender in an amount equal
to the Commitment or the Loans 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 Commitment or the Loans retained by
it hereunder.
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.
9.6b ASSIGNMENT REGISTER. The Agent shall maintain, at its address referred to
in Subsection 9.3b, 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 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 Agent and the Lenders may treat each
Person whose name is recorded in the Register as the owner of the Loans recorded
therein for all purposes of this Agreement. The Register shall be available at
the office of the Agent set forth in Subsection 9.3b for inspection by either
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
9.6c PARTICIPATIONS. Each Lender, in the ordinary course of its commercial
banking business and in accordance with applicable law, may sell to one or more
Participants a participating interest in any Loan owing to such Lender, the
interest of such Lender in any Notes
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or any Letters of Credit Outstanding or the Commitment of such Lender. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of its Notes
for all purposes under this Agreement and the Borrower, the other Lenders and
the Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement or its
Notes and the Participants shall have voting rights only with respect to matters
described in items (B), (C), (D), (E) and (F) of Section 9.1. Each Lender agrees
to promptly notify the Agent of the sale of each participating interest in the
Loans and Commitments.
9.6d TAX WITHHOLDING COMPLIANCE. Any assignee or participant which is not
incorporated under the Laws of the United States of America or a state thereof
shall deliver to the Borrower and the Agent the form of certificate described in
Section 9.4 relating to federal income tax withholding.
9.7 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 unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
9.8 SURVIVAL. All representations, warranties, covenants and agreements of the
Borrower contained herein in the Notes or in the other Loan Documents or made in
writing in connection herewith or therewith 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 Bank Indebtedness.
9.9 GOVERNING LAW. This Agreement, each Note and each other Loan Document
shall be a contract made under, governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania without reference to the provision
thereof regarding conflicts of law except where such law is superseded by
applicable Federal law.
9.10 NON-BUSINESS DAYS. Except as otherwise specifically required pursuant to
the terms of this Agreement, 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.
9.11 INTEGRATION. This Agreement constitutes the entire agreement between the
parties relating to this financing transaction and it supersedes all prior
understandings and agreements, whether written or oral, between the parties
hereto concerning the subject matter of this Agreement.
9.12 SET-OFF. The Borrower hereby gives to the Lenders a lien and security
interest for the amount of any Bank Indebtedness upon and in any property,
credits, securities or money of the Borrower which may at any time be delivered
to, or be in the possession of, or owed by any Lender in any capacity whatever,
including the balance of any deposit account but excluding any
- 80 -
trust or fiduciary accounts, in each case maintained by the Borrower with such
Lender. The Borrower hereby authorizes each Lender in case of an Event of
Default, at such Lender's option, at any time and from time to time, to apply,
at the discretion of such Lender, to the payment of Bank Indebtedness, any and
all such property, credits, securities or money now or hereafter in the hands of
such Lender belonging or owed to the Borrower. Nothing herein shall restrict any
Lender's ability to set off any property, credits, securities or money of the
Borrower which may at any time be delivered to, or be in possession or owed to
any Lender in any capacity whatever to satisfy an independent obligation of the
Borrower to the Lender.
9.13 FORUM. The parties hereto agree that any action or proceeding arising out
of or relating to this Agreement, the Notes or the other Loan Documents shall be
commenced only in the Court of Common Pleas of Allegheny County, Pennsylvania,
or in the District Court of the United States for the Western District of
Pennsylvania and each party agrees 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
party at its respective address set forth in Section 9.3, or as otherwise
provided under the laws of the Commonwealth of Pennsylvania. Further, the
parties hereby specifically consent 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 waive and hereby
acknowledge that the parties are estopped from raising any claim that any such
court lacks personal jurisdiction over such party so as to prohibit either such
court from adjudicating any issues raised in a complaint filed with any such
court against the Borrower or the Lenders concerning this Agreement.
9.14 WAIVER OF JURY TRIAL. Each of the Agent, the Lenders and the Borrower
hereby knowingly, voluntarily and intentionally waive any rights they may have
to a trial by jury in respect of any litigation based hereon, or arising out of,
under, or in connection with, this Agreement or any other Loan Document, or any
course of conduct, course of dealing, statements (whether verbal or written) or
actions of the Agent, the Lenders or the Borrower relating hereto or thereto.
The Borrower acknowledges and agrees that it has received full and sufficient
consideration for this provision (and each other provision of each other Loan
Document to which it is a party) and that this provision is a material
inducement for the Lenders to enter into this Agreement and each such other Loan
Document.
9.15 INDEMNITY. The Borrower hereby agrees to indemnify the Agent, the
Syndication Agents, the Lenders and each of their respective directors,
officers, employees, attorneys, agents and Affiliates against, and hold each of
them harmless from, any loss, liabilities, damages, claims (including and to the
extent permitted by applicable law, any claim on any theory of liability for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages)), together with reasonable costs and expenses, joint or several,
(including reasonable attorneys' fees and disbursements reasonably incurred by
any such Person in connection with the preparation for or defense of any pending
or threatened claim, action or proceeding) suffered or incurred by any of them
under any applicable federal or state law or otherwise caused by, arising out
of, resulting from or in any manner connected with, the execution, delivery and
performance of each of the Loan Documents, the Loans and any and all
transactions related to or consummated in connection with the Loans or the
Letters of Credit. The indemnity set forth in
- 81 -
this Section 9.15 shall be in addition to any other obligations or liabilities
of the Borrower to the Agent, the Syndication Agents or the Lenders, or at
common law or otherwise. The provisions of this Section 9.15 shall survive the
payment of the Bank Indebtedness and the termination of this Agreement. The
foregoing provisions of this Section 9.15 to the contrary notwithstanding, the
Borrower shall not be obligated to indemnify the Agent, the Syndication Agents
or any Lender pursuant to this Section 9.15 for any losses, liabilities,
damages, claims, or costs which arise directly from the Agent's, such
Syndication Agent's or such Lender's gross negligence or willful misconduct. All
amounts owed pursuant to this Section 9.15 shall be part of the Bank
Indebtedness.
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 Bank Credit Agreements shall be terminated.
9.17 COUNTERPARTS. This Agreement and any amendment, modification, extension or
renewal hereto or hereof 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 or any amendment, modification,
extension or renewal, 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.
9.18 PERMITTED ADJUSTMENTS TO COMMITMENT PERCENTAGES AND SHORT TERM REVOLVING
CREDIT COMMITMENT PERCENTAGES. In the event a Non-Agreeing Lender is repaid in
full on the Short Term Revolving Credit Termination Date and no substitute
Lender assumes the Short Term Revolving Credit Commitment of the Non-Agreeing
Lender, the Agent will calculate the applicable Short Term Revolving Credit
Commitment Percentage and Commitment Percentage of each Lender based on the
reduced aggregate Short Term Revolving Credit Commitment. In the event the
Borrower elects the Term-Out Option for one or more Non-Agreeing Lenders, then
upon the execution and delivery by the Borrower of a Term Note to any
Non-Agreeing Lender, such Non-Agreeing Lender shall be deemed to have, so long
as the related Term Loan remains outstanding, but solely for the purpose of
determining the Required Lenders at any time that Term Loans outstanding and for
the purpose of defining the term "Commitment Percentage" as used in Section 8.5
hereof such a Non-Agreeing Lender shall have a Commitment Percentage based on
the ratio of the outstanding principal balance of the Term Loan at the time of
determination to the sum of the aggregate outstanding Commitments plus the
outstanding Term Loans; and in such event the Commitment Percentages of the
other Lenders will be adjusted to reflect the funded Term Loan then outstanding
and due to Non-Agreeing Lender(s).
9.19 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
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and Affiliates on any theory of liability for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 83 -
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be executed by their respective officers
thereunto duly authorized as of the date first written above.
ATTEST: ALLEGHENY TECHNOLOGIES INCORPORATED
By: /s/ Xxxx Xxxx Xxxxxx By: /s/ Xxxxxx X. Park
------------------------------ ---------------------------------------
Name: Xxxx Xxxx Xxxxxx Name: Xxxxxx X. Park
Title: Assistant Secretary Title: Vice President, Treasurer
PNC BANK, NATIONAL ASSOCIATION, in its
capacity as the Agent hereunder
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
- 84 -
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Agreement by and among ALLEGHENY TECHNOLOGIES
INCORPORATED, THE LENDERS PARTY HERETO and PNC BANK, NATIONAL ASSOCIATION, as
the Agent to be executed by its duly authorized officers as of the date first
above written.
Maximum Dollar Amount of Long Term PNC BANK, NATIONAL ASSOCIATION
Revolving Credit Commitment
$33,900,000
Long Term Revolving Credit Commitment By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Percentage Name: Xxxxx X. Xxxxxx
17.38461539% Title: Vice President
Maximum Dollar Amount of Short Term
Revolving Credit Commitment
$22,600,000
Short Term Revolving Credit Commitment
Percentage
17.38461539%
Commitment Percentage (Total)
17.38461539%
Addresses for notice purposes:
If by United States Mail: If by other means:
PNC Bank, National Association PNC Bank, National Association
PNC Agency Services PNC Agency Services
Xxx XXX Xxxxx, 00xx Xxxxx Xxx XXX Xxxxx, 00xx Xxxxx
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxx Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to: With a copy to:
PNC Bank, National Association PNC Bank, National Association
Metals Group Metals Group
One PNC Xxxxx - 0xx Xxxxx Xxx XXX Xxxxx - 0xx Xxxxx
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx Attention: Xxxxx X. Xxxxxx
Vice President Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Address for LIBOR Loan Funding if different from above:
N/A
---
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Agreement by and among ALLEGHENY TECHNOLOGIES
INCORPORATED, THE LENDERS PARTY HERETO and PNC BANK, NATIONAL ASSOCIATION, as
the Agent to be executed by its duly authorized officers as of the date first
above written.
Maximum Dollar Amount of Long Term BANK OF AMERICA, N.A.
Revolving Credit Commitment
$27,000,000
Long Term Revolving Credit Commitment By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Percentage Name: Xxxxxx X. Xxxxxx
13.84615385% Title: Managing Director
Maximum Dollar Amount of Short Term
Revolving Credit Commitment
$18,000,000
Short Term Revolving Credit Commitment
Percentage
13.84615385%
Commitment Percentage (Total)
13.84615385%
Addresses for notice purposes:
If by United States Mail: If by other means:
Bank of America, N.A. Bank of America, N.A.
000 Xxxxx XxXxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx Attention: Xxxxxx X. Xxxxxx
Managing Director Managing Director
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Address for LIBOR Rate Loan Funding if different from above:
Bank of America, N.A.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Gardelyn Jayme
Telephone: (000) 000-0000
Telcopier: (000) 000-0000
Telex:
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Agreement by and among ALLEGHENY TECHNOLOGIES
INCORPORATED, THE LENDERS PARTY HERETO and PNC BANK, NATIONAL ASSOCIATION, as
the Agent to be executed by its duly authorized officers as of the date first
above written.
Maximum Dollar Amount of Long Term.. MELLON BANK, N.A.
Revolving Credit Commitment
$33,900,000
Long Term Revolving Credit Commitment By: /s/ Xxxx X. Xxxxxx
----------------------------------
Percentage Name: Xxxx X. Xxxxxx
17.38461539% Title: Vice President
Maximum Dollar Amount of Short Term
Revolving Credit Commitment
$22,600,000
Short Term Revolving Credit Commitment
Percentage
17.38461539%
Commitment Percentage (Total)
17.38461539%
Addresses for notice purposes:
If by United States Mail: If by other means:
Mellon Bank, X.X. Xxxxxx Bank, N.A
One Mellon Center, Room 370 One Mellon Center, Room 370
Pittsburgh, Pennsylvania 15258-0001 Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxx Attention: Xxxxx X. Xxx
Vice President Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Address for LIBOR Rate Loan Funding if different from above:
Mellon Bank, N.A.
Three Mellon Center, Room 1203
Pittsburgh, Pennsylvania 15259-0003
Attention: Xxxxxx Holiday
Loan Administrator
Telephone: 000-000-0000
Telecopier: 000-000-0000
Telex: 199103 MELBNKPGH
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Agreement by and among ALLEGHENY TECHNOLOGIES
INCORPORATED, THE LENDERS PARTY HERETO and PNC BANK, NATIONAL ASSOCIATION, as
the Agent to be executed by its duly authorized officers as of the date first
above written.
Maximum Dollar Amount of Long Term XX XXXXXX CHASE BANK
Revolving Credit Commitment
$27,000,000
Long Term Revolving Credit Commitment By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Percentage Name: Xxxxx X. Xxxxxx
13.84615385% Title: Managing Director
Maximum Dollar Amount of Short Term
Revolving Credit Commitment
$18,000,000
Short Term Revolving Credit Commitment
Percentage
13.84615385%
Commitment Percentage (Total)
13.84615385%
Addresses for notice purposes:
If by United States Mail: If by other means:
JPMorgan Chase Bank XX Xxxxxx Xxxxx Bank
000 Xxxx Xxxxxx, 00xx Xxxxx 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx Attention: Xxxxx X. Xxxxxx
Managing Director Managing Director
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
For operational issues:
JPMorgan Chase Bank
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Sek Chan, Assistant Treasurer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Address for LIBOR Rate Loan Funding if different from above:
N/A
---
Telephone:
Telecopier:
Telex:
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Agreement by and among ALLEGHENY TECHNOLOGIES
INCORPORATED, THE LENDERS PARTY HERETO and PNC BANK, NATIONAL ASSOCIATION, as
the Agent to be executed by its duly authorized officers as of the date first
above written.
Maximum Dollar Amount of Long Term.. CITIBANK, N.A.
Revolving Credit Commitment
$19,200,000
Long Term Revolving Credit Commitment By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Percentage Name: Xxxxxxx X. Xxxxxxx
9.84615385% Title: Managing Director
Maximum Dollar Amount of Short Term
Revolving Credit Commitment
$12,800,000
Short Term Revolving Credit Commitment
Percentage
9.84615385%
Commitment Percentage (Total)
9.84615385%
Addresses for notice purposes:
If by United States Mail: If by other means:
Citibank, N.A. Citibank, N.A.
000 Xxxxxxxxx Xxxxxx, 00xx Floor 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx Attention: Xxxxxxx Xxxxxxx
Managing Director Managing Director
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Address for LIBOR Rate Loan Funding if different from above:
Citibank, N.A.
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Telex:
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Agreement by and among ALLEGHENY TECHNOLOGIES
INCORPORATED, THE LENDERS PARTY HERETO and PNC BANK, NATIONAL ASSOCIATION, as
the Agent to be executed by its duly authorized officers as of the date first
above written.
Maximum Dollar Amount of Long Term THE BANK OF NEW YORK
Revolving Credit Commitment
$13,500,000
Long Term Revolving Credit Commitment By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Percentage Name: Xxxxxx X. Xxxxxxx
6.92307692% Title: Vice President
Maximum Dollar Amount of Short Term
Revolving Credit Commitment
$9,000,000
Short Term Revolving Credit Commitment
Percentage
6.92307692%
Commitment Percentage (Total)
6.92307692%
Addresses for notice purposes:
If by United States Mail: If by other means:
The Bank of New York The Bank of New York
One Xxxx Xxxxxx, 00xx Xxxxx One Wall Street, 21st Floor
New York, New York 10286 Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Address for LIBOR Rate Loan Funding if different from above:
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Telex:
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Agreement by and among ALLEGHENY TECHNOLOGIES
INCORPORATED, THE LENDERS PARTY HERETO and PNC BANK, NATIONAL ASSOCIATION, as
the Agent to be executed by its duly authorized officers as of the date first
above written.
Maximum Dollar Amount of Long Term NATIONAL CITY BANK OF
Revolving Credit Commitment PENNSYLVANIA
$13,500,000
Long Term Revolving Credit Commitment By: /s/ X. X. Xxxxxxx
---------------------------------
Percentage Name: X. X. Xxxxxxx
6.92307692% Title: Vice President
Maximum Dollar Amount of Short Term
Revolving Credit Commitment
$9,000,000
Short Term Revolving Credit Commitment
Percentage
6.92307692%
Commitment Percentage (Total)
6.92307692%
Addresses for notice purposes:
If by United States Mail: If by other means:
National City Bank of Pennsylvania National City Bank of Pennsylvania
National City Center National City Center
00 Xxxxxxx Xxxxxx 00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Address for LIBOR Rate Loan Funding if different from above:
National City Bank of Pennsylvania
National City Center
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Telex:
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Agreement by and among ALLEGHENY TECHNOLOGIES
INCORPORATED, THE LENDERS PARTY HERETO and PNC BANK, NATIONAL ASSOCIATION, as
the Agent to be executed by its duly authorized officers as of the date first
above written.
Maximum Dollar Amount of Long Term BANK OF TOKYO-MITSUBISHI TRUST
Revolving Credit Commitment COMPANY
$13,500,000
Long Term Revolving Credit Commitment By: /s/ Xxxxxxx Xxxxxxxxxx
------------------------------------
Percentage Name: X. Xxxxxxxxxx
6.92307692% Title: Vice President
Maximum Dollar Amount of Short Term
Revolving Credit Commitment
$9,000,000
Short Term Revolving Credit Commitment
Percentage
6.92307692%
Commitment Percentage (Total)
6.92307692%
Addresses for notice purposes:
If by United States Mail: If by other means:
Bank of Tokyo-Mitsubishi Trust Company Bank of Tokyo-Mitsubishi Trust Company
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx 1251 Avenue of the Americas, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000 Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxxx Attention: Xxxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Address for LIBOR Rate Loan Funding if different from above:
Loan Operations Department
BTM Information Services, Inc.
c/o Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Uv
Assistant Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Telex:
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Agreement by and among ALLEGHENY TECHNOLOGIES
INCORPORATED, THE LENDERS PARTY HERETO and PNC BANK, NATIONAL ASSOCIATION, as
the Agent to be executed by its duly authorized officers as of the date first
above written.
Maximum Dollar Amount of Long Term THE INDUSTRIAL BANK OF JAPAN,
Revolving Credit Commitment LIMITED
$13,500,000
Long Term Revolving Credit Commitment By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Percentage Name: Xxxxxxx Xxxxxxx
6.92307692% Title: Senior Vice President
Maximum Dollar Amount of Short Term
Revolving Credit Commitment
$9,000,000
Short Term Revolving Credit Commitment
Percentage
6.92307692%
Commitment Percentage (Total)
6.92307692%
Addresses for notice purposes:
If by United States Mail: If by other means:
The Industrial Bank of Japan, Limited The Industrial Bank of Japan, Limited
1251 Avenue of the Americas 1251 Avenue of the Americas
New York, New York 10020-1104 Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxx Attention: Xxxxxx Xxxxx
Assistant Vice President Assistant Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Address for LIBOR Rate Loan Funding if different from above:
The Industrial Bank of Japan, Limited
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Hema Dibatia
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Telex:
EXHIBIT A-1
FORM OF LONG TERM REVOLVING CREDIT NOTE
$___________ Pittsburgh, Pennsylvania
December 20, 2001
This Long Term Revolving Credit Note is executed and delivered under and
pursuant to the terms of that certain Credit Agreement dated as of December 20,
2001 (the Credit Agreement together with the exhibits and schedules thereto and
all amendments, modifications, extensions, renewals, replacements or
restatements thereof and thereto, the "Agreement") by and among ALLEGHENY
TECHNOLOGIES INCORPORATED, a Delaware corporation (the "Borrower"), the
financial institutions listed on the signature pages thereof and each other
financial institution which, from time to time, may become a party to the
Agreement (collectively, the "Lenders"), the syndication agents referred to
therein (collectively the "Syndication Agents") and PNC BANK, NATIONAL
ASSOCIATION, as documentation and administrative agent for the Lenders (in each
capacity the "Agent").
FOR VALUE RECEIVED, the Borrower promises to pay to the order of
________________ (the "Lender"), its successors and permitted assignees, at the
office of the Agent at One PNC Plaza, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000 on the Long Term Revolving Credit Termination Date the lesser of (i)
the principal sum of ______________ MILLION AND NO/100 DOLLARS ($___________) or
(ii) the aggregate unpaid principal amount of all outstanding Long Term
Revolving Credit Loans made by the Lender to the Borrower on or before the Long
Term Revolving Credit Termination Date pursuant to the Agreement together with
interest on the unpaid principal balance thereof from time to time outstanding.
All Long Term Revolving Credit Loans made by the Lender, the respective types
and maturities thereof, and all repayments of the principal thereof shall be
recorded by the Lender in the Loan Account maintained by the Lender in
accordance with the Agreement and, if the Lender so elects in connection with
any transfer or enforcement hereof, appropriate notations to evidence the
foregoing information with respect to each such Long Term Revolving Credit Loan
then outstanding may be endorsed by the Lender on one or more schedules attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; PROVIDED that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Agreement.
Interest on the unpaid principal balance hereof shall be due and payable at the
rates and at the times specified in the Agreement during the term hereof to and
including the Termination Date and at maturity, and shall be calculated and
adjusted in accordance with the terms of the Agreement.
This Long Term Revolving Credit Note is one of the Long Term Revolving Credit
Notes referred to in the Agreement. Reference is made to the Agreement for
provisions for the prepayment hereof, for the termination of the Long Term
Revolving Credit Commitment and the
- 2 -
reduction and cancellation thereof, and for the acceleration of the maturity
hereof. All of the terms, conditions, covenants, representations and warranties
of the Agreement are incorporated herein by reference as if same were fully set
forth herein.
Demand, presentation, protest, notice of dishonor and notice of default are
hereby waived.
THIS LONG TERM REVOLVING CREDIT NOTE SHALL BE GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA WITHOUT REFERENCE TO THE PRINCIPLES THEREOF
REGARDING CONFLICTS OF LAW.
WITNESS the due execution of this Long Term Revolving Credit Note with the
intent to be legally bound hereby.
ALLEGHENY TECHNOLOGIES INCORPORATED,
a Delaware corporation
By:
---------------------------------------
Name:
Title:
- 3 -
EXHIBIT A-2
FORM OF SHORT TERM REVOLVING CREDIT NOTE
$___________ Pittsburgh, Pennsylvania
December 20, 2001
This Short Term Revolving Credit Note is executed and delivered under and
pursuant to the terms of that certain Credit Agreement dated as of December 20,
2001 (the Credit Agreement together with the exhibits and schedules thereto and
all amendments, modifications, extensions, renewals, replacements or
restatements thereof and thereto, the "Agreement") by and among ALLEGHENY
TECHNOLOGIES INCORPORATED, a Delaware corporation (the "Borrower"), the
financial institutions listed on the signature pages thereof and each other
financial institution which, from time to time, may become a party to the
Agreement (collectively, the "Lenders"), the syndication agents referred to
therein (collectively the "Syndication Agents") and PNC BANK, NATIONAL
ASSOCIATION, as documentation and administrative agent for the Lenders (in each
capacity the "Agent").
FOR VALUE RECEIVED, the Borrower promises to pay to the order of
________________ (the "Lender"), its successors and permitted assignees, at the
office of the Agent at One PNC Plaza, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000 on the Short Term Revolving Credit Termination Date the lesser of (i)
the principal sum of ______________ MILLION AND NO/100 DOLLARS ($___________) or
(ii) the aggregate unpaid principal amount of all outstanding Short Term
Revolving Credit Loans made by the Lender to the Borrower on or before the Short
Term Revolving Credit Termination Date pursuant to the Agreement together with
interest on the unpaid principal balance thereof from time to time outstanding.
All Short Term Revolving Credit Loans made by the Lender, the respective types
and maturities thereof, and all repayments of the principal thereof shall be
recorded by the Lender in the Loan Account maintained by the Lender in
accordance with the Agreement and, if the Lender so elects in connection with
any transfer or enforcement hereof, appropriate notations to evidence the
foregoing information with respect to each such Short Term Revolving Credit Loan
then outstanding may be endorsed by the Lender on one or more schedules attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; PROVIDED that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Agreement.
Interest on the unpaid principal balance hereof shall be due and payable at the
rates and at the times specified in the Agreement during the term hereof to and
including the Short Term Revolving Credit Termination Date and at maturity, and
shall be calculated and adjusted in accordance with the terms of the Agreement.
This Short Term Revolving Credit Note is one of the Short Term Revolving Credit
Notes referred to in the Agreement. Reference is made to the Agreement for
provisions for the prepayment hereof, for the termination of the Short Term
Revolving Credit Commitment and the
- 4 -
reduction and cancellation thereof, and for the acceleration of the maturity
hereof. All of the terms, conditions, covenants, representations and warranties
of the Agreement are incorporated herein by reference as if same were fully set
forth herein.
Demand, presentation, protest, notice of dishonor and notice of default are
hereby waived.
THIS SHORT TERM REVOLVING CREDIT NOTE SHALL BE GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA WITHOUT REFERENCE TO THE PRINCIPLES THEREOF
REGARDING CONFLICTS OF LAW.
WITNESS the due execution of this Short Term Revolving Credit Note with the
intent to be legally bound hereby.
ALLEGHENY TECHNOLOGIES INCORPORATED,
a Delaware corporation
By:
---------------------------------------
Name:
Title:
- 5 -
EXHIBIT B-1
FORM OF BID RATE NOTE
(Long Term)
$ Pittsburgh, Pennsylvania
-------------------------- December 20, 2001
This Bid Rate Note is executed and delivered under and pursuant to the terms of
that certain Credit Agreement dated as of December 1, 2001 (the Credit Agreement
together with the exhibits and schedules thereto and all amendments,
modifications, extensions, renewals, replacements or restatements thereof and
thereto, the "Agreement") by and among ALLEGHENY TECHNOLOGIES INCORPORATED, a
Delaware corporation (the "Borrower"), the financial institutions listed on the
signature pages thereof and each other financial institution which, from time to
time, may become a party to the Agreement, the syndication agents referred to
therein (collectively the "Syndication Agents") and PNC BANK, NATIONAL
ASSOCIATION, as documentation and administrative agent for the Lenders (in such
capacity, the "Agent").
FOR VALUE RECEIVED, the Borrower promises to pay to the order of
________________ (the "Lender"), its successors and permitted assignees, at the
office of the Agent at One PNC Plaza, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000 on the Long Term Revolving Credit Termination Date the lesser of (i)
the principal sum of ___________ MILLION AND NO/100 DOLLARS ($___________) or
(ii) the aggregate unpaid principal amount of all outstanding Bid Rate Loans
made by the Lender to the Borrower on or before the Long Term Revolving Credit
Termination Date pursuant to the Agreement together with interest on the unpaid
principal balance thereof from time to time outstanding.
All Bid Rate Loans made by the Lender, the respective types and maturities
thereof, and all repayments of the principal thereof shall be recorded by the in
the Loan Account maintained by the Lender in accordance with the Agreement
Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Bid Rate Loan then outstanding may be endorsed by the
Lender on one or more schedules attached hereto, or on a continuation of such
schedule attached to and made a part hereof; PROVIDED that the failure of the
Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Agreement.
Interest on the unpaid principal balance hereof shall be due and payable at the
rates and at the times determined in accordance with the Agreement during the
term hereof to and including the Long Term Revolving Credit Termination Date and
at maturity, and shall be calculated and adjusted in accordance with the terms
of the Agreement.
- 6 -
This Bid Rate Note is one of the Bid Rate Notes referred to in the Agreement.
Reference is made to the Agreement for provisions for the prepayment hereof and
for the acceleration of the maturity hereof. All of the terms, conditions,
covenants, representations and warranties of the Agreement are incorporated
herein by reference as if same were fully set forth herein. Demand,
presentation, protest, notice of dishonor and notice of default are hereby
waived.
THIS BID RATE NOTE SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA WITHOUT REFERENCE TO THE PRINCIPLES THEREOF REGARDING CONFLICTS OF
LAW.
WITNESS the due execution of this Bid Rate Note with the intent to be legally
bound hereby.
ALLEGHENY TECHNOLOGIES INCORPORATED,
a Delaware corporation
By:
-----------------------------------------
Name:
Title:
- 7 -
EXHIBIT B-2
FORM OF BID RATE NOTE
(Short Term)
$ Pittsburgh, Pennsylvania
-------------------------- December 20, 2001
This Bid Rate Note is executed and delivered under and pursuant to the terms of
that certain Credit Agreement dated as of December 20, 2001 (the Credit
Agreement together with the exhibits and schedules thereto and all amendments,
modifications, extensions, renewals, replacements or restatements thereof and
thereto, the "Agreement") by and among ALLEGHENY TECHNOLOGIES INCORPORATED, a
Delaware corporation (the "Borrower"), the financial institutions listed on the
signature pages thereof and each other financial institution which, from time to
time, may become a party to the Agreement, the syndication agents referred to
therein (collectively the "Syndication Agents") and PNC BANK, NATIONAL
ASSOCIATION, as documentation and administrative agent for the Lenders (in such
capacity, the "Agent").
FOR VALUE RECEIVED, the Borrower promises to pay to the order of
________________ (the "Lender"), its successors and permitted assignees, at the
office of the Agent at One PNC Plaza, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000 on the Short Term Revolving Credit Termination Date the lesser of (i)
the principal sum of ___________ MILLION AND NO/100 DOLLARS ($___________) or
(ii) the aggregate unpaid principal amount of all outstanding Bid Rate Loans
made by the Lender to the Borrower on or before the Short Term Revolving Credit
Termination Date pursuant to the Agreement together with interest on the unpaid
principal balance thereof from time to time outstanding.
All Bid Rate Loans made by the Lender, the respective types and maturities
thereof, and all repayments of the principal thereof shall be recorded by the
Lender in the Loan Account maintained by the Lender under the Agreement and, if
the Lender so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Bid Rate Loan then outstanding may be endorsed by the Lender on one or more
schedules attached hereto, or on a continuation of such schedule attached to and
made a part hereof; PROVIDED that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Agreement.
Interest on the unpaid principal balance hereof shall be due and payable at the
rates and at the times determined in accordance with the Agreement during the
term hereof to and including the Short Term Revolving Credit Termination Date
and at maturity, and shall be calculated and adjusted in accordance with the
terms of the Agreement.
This Bid Rate Note is one of the Bid Rate Notes referred to in the Agreement.
Reference is made to the Agreement for provisions for the prepayment hereof and
for the acceleration of the
- 8 -
maturity hereof. All of the terms, conditions, covenants, representations and
warranties of the Agreement are incorporated herein by reference as if same were
fully set forth herein. Demand, presentation, protest, notice of dishonor and
notice of default are hereby waived.
THIS BID RATE NOTE SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA WITHOUT REFERENCE TO THE PRINCIPLES THEREOF REGARDING CONFLICTS OF
LAW.
WITNESS the due execution of this Bid Rate Note with the intent to be legally
bound hereby.
ALLEGHENY TECHNOLOGIES INCORPORATED,
a Delaware corporation
By:
-------------------------------------------
Name:
Title:
- 9 -
EXHIBIT C
FORM OF BID RATE QUOTE REQUEST
[Date]
To: PNC Bank, National Association (the "Agent")
From: Allegheny Technologies Incorporated, a Delaware corporation (the
"Borrower")
Re: Credit Agreement (the "Agreement") dated as of December ____,
2001 among the Borrower, the Lenders party thereto, the Syndication Agents
referred to therein and the Agent.
We hereby give notice pursuant to Section 2.2c(i) of the Agreement
that we request Bid Rate Quotes for the following proposed Bid Rate
Borrowing(s):
Date of Disbursement: ________________________
Principal Amount* Interest Period**
---------------- ---------------
$
Such Bid Rate Quotes should offer a Bid Rate [Margin] [Absolute
Rate]. [The applicable base rate is the Euro-Rate.]
Terms used herein have the meanings assigned to them in the
Agreement.
ALLEGHENY TECHNOLOGIES INCORPORATED,
a Delaware corporation
By:
-----------------------------------------
Name:
Title:
------------------------------
* Amount must be $5,000,000 or a larger multiple of $1,000,000.
** Not less than 1 month (Euro-Rate Auction) or not less than 1 day
(Absolute Rate Auction), subject to the provisions of the definition of
Interest Period.
- 10 -
EXHIBIT D
FORM OF BID RATE QUOTE
PNC Bank, National Association, as Agent
One PNC Plaza, ___ Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Agency Services
Re: Bid Rate Quote to Allegheny Technologies Incorporated, a Delaware
corporation (the "Borrower")
In response to your invitation on behalf of the Borrower dated
__________, 200[__], we hereby make the following Bid Rate Quote on the
following terms:
1. Quoting Bank: _______________________________________________
2. Person to contact at Quoting Bank:
____________________________________________________________________
3. Date of Disbursement:_______________________________________________ *
4. We hereby offer to make Bid Rate Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
--------------------------
* As specified in the related Invitation.
- 11 -
Principal Interest Bid Rate
Amount** Period*** [Margin****] [Absolute Rate*****]
------- ------ --------------------------------------
$
$
[Provided, that the aggregate principal amount of Bid Rate Loans for
which the above offers may be accepted shall not exceed
$______________.]**
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the Credit
Agreement (the "Credit Agreement") dated as of December ___, 2001 among the
Borrower, the Lenders party thereto, the Syndication Agents referred to therein
and the Agent referred to therein, irrevocably obligates us to make the Bid Rate
Loan(s) for which any offer(s) are accepted, in whole or in part.
Terms used herein have the meanings assigned to them in the
Agreement.
Very truly yours,
[NAME OF BANK]
Dated: By:
--------------------- ---------------------------------------
Authorized Officer
------------------
** Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the
individual offers exceeds the amount the Bank is willing to lend. Bids
must be made for $5,000,000 or a larger multiple of $1,000,000.
*** Not less than one month or not less than 1 day, as specified in the
related Invitation. No more than five bids are permitted for each
Interest Period.
**** Margin over or under the Euro-Rate determined for the
applicable Interest Period. Specify percentage (to the nearest
1/10,000 of 1%) and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
- 12 -
EXHIBIT E
FORM OF SWINGLINE NOTE
$ Pittsburgh, Pennsylvania
-------------------------- December 20, 2001
This Swingline Note is executed and delivered under and pursuant to the terms of
that certain Credit Agreement dated as of December 20, 2001 (the Credit
Agreement together with the exhibits and schedules thereto and all amendments,
modifications, extensions, renewals, replacements or restatements thereof and
thereto, the "Agreement") by and among ALLEGHENY TECHNOLOGIES INCORPORATED, a
Delaware corporation (the "Borrower"), the financial institutions listed on the
signature pages thereof and each other financial institution which, from time to
time, may become a party to the Agreement (collectively the "Lenders"), the
syndication agents referred to therein (collectively the "Syndication Agents")
and PNC BANK, NATIONAL ASSOCIATION, as documentation and administrative agent
for the Lenders (in such capacity, the "Agent").
FOR VALUE RECEIVED, the Borrower promises to pay to the order of
________________ (the "Swingline Lender"), its successors and permitted
assignees, at the office of the Agent at One PNC Plaza, 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 on the Long Term Revolving Credit
Termination Date the lesser of (i) the principal sum of ___________ MILLION AND
NO/100 DOLLARS ($___________) or (ii) the aggregate unpaid principal amount of
all outstanding Swingline Loans made by the Swingline Lender to the Borrower on
or before the Long Term Revolving Credit Termination Date pursuant to the
Agreement together with interest on the unpaid principal balance thereof from
time to time outstanding.
All Swingline Loans made by the Swingline Lender, the respective types and
maturities thereof, and all repayments of the principal thereof shall be
recorded by the Swingline Lender in the Loan Account maintained by the Swingline
Lender in accordance with the Agreement and, if the Swingline Lender so elects
in connection with any transfer or enforcement hereof, appropriate notations to
evidence the foregoing information with respect to each such Swingline Loan then
outstanding may be endorsed by the Swingline Lender on one or more schedules
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; PROVIDED that the failure of the Swingline Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Agreement.
Interest on the unpaid principal balance hereof shall be due and payable at the
rates and at the times determined in accordance with the Agreement during the
term hereof to and including the Long Term Revolving Credit Termination Date and
at maturity, and shall be calculated and adjusted in accordance with the terms
of the Agreement.
This Swingline Note is one of the Swingline Notes referred to in the Agreement.
Reference is made to the Agreement for provisions for the prepayment hereof and
for the acceleration of the
- 13 -
maturity hereof. All of the terms, conditions, covenants, representations and
warranties of the Agreement are incorporated herein by reference as if same were
fully set forth herein.
Demand, presentation, protest, notice of dishonor and notice of default are
hereby waived.
THIS SWINGLINE NOTE SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA WITHOUT REFERENCE TO THE PRINCIPLES THEREOF REGARDING CONFLICTS OF
LAW.
WITNESS the due execution of this Swingline Note with the intent to be legally
bound hereby.
ALLEGHENY TECHNOLOGIES INCORPORATED,
a Delaware corporation
By:_________________________________
Name:
Title:
- 14 -
EXHIBIT F
FORM OF SWINGLINE QUOTE REQUEST
[Date]
To: PNC Bank, National Association (the "Agent")
From: Allegheny Technologies Incorporated, a Delaware corporation (the
"Borrower")
Re: Credit Agreement (the "Agreement") dated as of December ___, 2001
among the Borrower, the Lenders party thereto, the Syndication
Agents referred to therein and the Agent.
We hereby give notice pursuant to Section 2.3c(i) of the Agreement
that we request Swingline Quotes for the following proposed Swingline
Borrowing(s):
Date of Disbursement: ________________________
Principal Amount* Interest Period
----------------- ---------------
$ Next Business Day
Terms used herein have the meanings assigned to them in the
Agreement.
ALLEGHENY TECHNOLOGIES INCORPORATED,
a Delaware corporation
By:
-------------------------------------
Name:
Title:
----------------------
* Amount must be $10,000 or a larger multiple of $10,000.
- 15 -
EXHIBIT G
FORM OF SWINGLINE QUOTE
PNC Bank, National Association, as Agent
One PNC Plaza, ___ Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Agency Services
Re: Swingline Quote to
Allegheny Technologies Incorporated, a Delaware corporation
(the "Borrower")
In response to your invitation on behalf of the Borrower dated
__________, 200[__], we hereby make the following Swingline Quote on the
following terms:
1. Quoting Bank: _____________________________________________________
2. Person to contact at Quoting Bank:
__________________________________________________________________
3. Date of Disbursement: _________________________________________ *
4. We hereby offer to make Swingline Loan(s) in the following
principal amounts, for repayment the next Business Day and at the
following rate:
-------------------------
* As specified in the related Invitation.
- 16 -
Principal Interest Swingline
Amount** Period Interest Rate***
------- ------ -------------
$
$
[Provided, that the aggregate principal amount of Swingline Loans for
which the above offers may be accepted shall not exceed
$______________.]
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the Credit
Agreement (the "Credit Agreement") dated as of December __, 2001 among the
Borrower, the Lenders party thereto, the Syndication Agents referred to therein
and the Agent, referred to therein, irrevocably obligates us to make the
Swingline Loan(s) for which any offer(s) are accepted, in whole or in part.
Terms used herein have the meanings assigned to them in the
Agreement.
Very truly yours,
[NAME OF BANK]
Dated:_________________________ By:___________________________________
Authorized Officer
------------------------
** Principal amount bid may not exceed principal amount requested. Specify
aggregate limitation if the sum of the individual offers exceeds the
amount the Bank is willing to lend. Bids must be made for $10,000 or a
larger multiple of $10,000.
*** Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
- 17 -
EXHIBIT H
FORM OF COMPLIANCE CERTIFICATE
For the Fiscal Year Ended ___________, 200__
or
For the Fiscal Quarter Ended _________, 200__
Reference is made to that certain Credit Agreement dated as of
December ___, 2001(the Credit Agreement and all exhibits and schedules thereto,
together with all amendments, modifications, extensions, renewals, substitutions
and replacements thereto and thereof, the "Agreement") by and among ALLEGHENY
TECHNOLOGIES INCORPORATED, a Delaware corporation (the "Borrower"), the
financial institutions party thereto as Lenders (collectively, the "Lenders"),
the Syndication Agents referred to therein and PNC Bank, National Association,
as Agent. All capitalized terms used as defined terms in this Compliance
Certificate which are defined in the Agreement shall have the same meanings
herein as in the Credit Agreement. This certificate is being delivered pursuant
to the requirements of Subsection 4.2(i) of the Agreement.
The undersigned, an Authorized Officer of the Borrower, hereby
certifies that:
CHECK ONE:
____1. The annual audited financial statements being delivered to the
Bank with this Compliance Certificate are true, complete and correct.
OR
____1. The quarterly financial statements being delivered to the Bank
with this Compliance Certificate are true, complete and correct and present
fairly the financial position of the Borrower and the results of its operations
and its cash flows for the fiscal quarter set forth above in conformity with
GAAP consistently applied.
2. The undersigned has reviewed the terms of the Agreement and of the
Notes and has made, or caused to be made under his supervision, a review of the
transactions and condition of the Borrower during the accounting period covered
by the financial statements delivered herewith and that such review has not
disclosed the existence during such accounting period, and that the undersigned
does not have knowledge of the existence as at the date of such Compliance
Certificate, of any condition or event which constitutes a Potential Default or
an Event of Default on the date of this Compliance Certificate.
[NOTE: If any of the above events has occurred or is continuing, set
forth on a separate sheet the nature thereof and the action which
the Borrower has taken, is taking or proposes to take with respect
thereto.]
- 18 -
3. The Borrower's compliance with the financial covenants set forth
in Sections 5.3 and 5.4 of the Agreement is as follows:
Required Actual
-------- ------
Consolidated Total 60% of Consolidated __________%
Indebtedness (Section 5.3) Total Capitalization
Consolidated EBITDA to Consolidated 3.0 prior to January 1, 2003 ______:1.00
Interest Expense (Section 5.4) 3.5 on or after January 1, 2003
4. The calculations used in connection with the above financial
covenants are attached to this Compliance Certificate.
All capitalized terms used in this Compliance Certificate as
defined terms which are not defined herein but which are defined in the
Agreement shall have the meanings given them in the Agreement.
Dated the ____ day of __________, 200__.
ALLEGHENY TECHNOLOGIES INCORPORATED,
a Delaware corporation
By:_____________________________________
Name:
Title:
- 19 -
EXHIBIT I
Form of Opinion of Counsel
ALLEGHENY
TECHNOLOGIES
INCORPORATED
XXX X. XXXXXX
Corporate Counsel
Senior Vice President and Chief
Legal and Administrative Officer
000-000-0000
December __, 2001
PNC Bank, National Association,
Documentation and Administrative Agent
One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
and
The several Lenders party to the
Agreement (as defined below)
as of the date hereof and who
may become parties to the Agreement
Re: Credit Agreement
Ladies and Gentlemen:
I have served as counsel to Allegheny Technologies
Incorporated (the "Borrower") in connection with the Credit Agreement by and
among the Borrower, the Lenders party thereto,
________________________________________________________________, as Syndication
Agents, and PNC Bank, National Association, as Documentation and Administrative
Agent thereunder dated as of December __, 2001 (the "Agreement"). You have
requested that I furnish to you my written opinion pursuant to Section _____ of
the Agreement. Terms not otherwise defined herein shall have the meanings
assigned to them in the Agreement.
I have reviewed the Agreement and Notes and such corporate
records of the Borrower, certificates of public officials, certificates of
officers of the Borrower and other documents and have made such examinations of
law as I have deemed necessary or relevant in connection with the opinions set
forth below.
I have also assumed, with your permission, the following:
- 20 -
(i) the due completion and execution by duly authorized officers of
each Lender and the Agent and delivery of all documents and instruments to be
delivered by the Lenders and the Agent, if any; and
(ii) that each of the Lenders and the Agent is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization or formation, that the Agreement constitutes the legal and binding
obligation of such Lender or the Agent, that the Agreement has been duly
authorized by all necessary action by each Lender and the Agent, and that each
Lender and the Agent has full corporate power and authority to perform its
obligations under the Agreement.
I am a member of the Bar of the Commonwealth of Pennsylvania and
am opining herein only as to the effect on the subject transactions of the laws
of the Commonwealth of Pennsylvania (excluding conflict of laws rules), the
General Corporation Law of the State of Delaware and the federal laws of the
United States of America to the extent referred to specifically herein, all in
effect on the date hereof I express no opinion with respect to the laws of any
other jurisdiction.
Based upon and subject to the foregoing as well as to the
additional qualifications and other matters hereinafter set forth, I am of the
opinion that:
1. The Borrower is a corporation validly organized and existing
as a corporation under the laws of the State of Delaware.
2. The Borrower has all requisite corporate power and authority
to own and operate its properties and assets and carry on its business as
presently conducted.
3. The execution and delivery of the Agreement and the Notes by
the Borrower and the performance by the Borrower of its obligations under the
Agreement and the Notes have been duly authorized by all necessary corporate
action on the part of the Borrower The Borrower has the corporate power and
authority to enter into and perform its obligations under the Agreement and the
Notes.
4. The execution and delivery of the Agreement and the Notes and
the performance by the Borrower of its obligations thereunder (A) do not violate
any provision of W the Borrower's Restated Certificate of Incorporation or its
Amended and Restated By-Laws, (ii) any material law binding upon or affecting
the Borrower, or (iii) any material agreement to which the Borrower is a party
or by which it or its properties are bound, or (B) result in the creation or
imposition of any Encumbrance in, of or on the property of the Borrower pursuant
to the terms of any such material agreement The Agreement and the Notes
constitute legal, valid binding obligations of the Borrower, enforceable in
accordance with their terms.
5. Neither the execution and delivery nor the performance of the
Agreement and the Notes requires the giving of notice to, filing with, or
consent or approval of or other action by, any Governmental Authority except to
the extent that such notice or filing has been or will be accomplished or
obtained in the ordinary course without violating applicable law.
6. The Borrower is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, or "holding company", or an
"affiliate" of
- 21 -
a "holding company" or "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
The opinions set forth herein are subject to the
following qualifications:
A. Insofar as the enforceability and binding effect of the
Agreement and Notes are concerned, the opinions set forth herein are subject to
limitations arising pursuant to applicable bankruptcy, insolvency, moratorium,
fraudulent transfer, preference and other laws and equitable principles
affecting the scope and enforcement of creditors, rights generally, and are also
limited by the Lenders' and the Agent's implied covenants of good faith, fair
dealing and commercially reasonable conduct, and by the effect of judicial
discretion on the availability of remedies and realization of benefits under the
enforceability of the Agreement and the Notes in all respects as written,
including, but not limited to, the recovery of attorneys, fees.
B. I express no opinion as to the enforceability of any
provision in any of the Agreement or the Notes (i) purporting to preclude the
modification of the Agreement or the Notes through conduct, custom or course of
performance, action or dealing, (ii) purporting to waive defenses or equitable,
constitutional or statutory rights or remedies, (iii) purporting to require the
payment or reimbursement or prepayment premiums, penalties, fees, costs,
expenses or other amounts which are unreasonable in nature or amount, (iv)
purporting to limit the liability of any Lender or the Agent or to indemnify any
Lender or the Agent for its acts or omissions, (v) constituting waivers of or
indemnification against violations by any Lender or the Agent, (vi) purporting
to restrict or prohibit the ability of the Borrower to transfer rights in the
property, or (vii) purporting to waive or restrict the right to a jury trial,
specify a means for service of process, select venue or consent to personal
jurisdiction.
Further and in response to your request, be advised that, to
my knowledge, except as set forth or incorporated by reference in the Borrower's
Registration Statement on Form S-4 filed under the Securities Act of 1933, as
amended, Registration No. 333-8235, or in the Forms 10-K, 10-Q or 8-K most
recently filed by Allegheny Xxxxxx Corporation and Teledyne, Inc., respectively,
there are no actions, suits, investigations, litigation or governmental
proceedings pending or, to my knowledge, threatened against or affecting the
Borrower or any of its Consolidated Subsidiaries before any court or arbitrator
or by or before any administrative agency or other governmental authority which
would have a Material Adverse Effect on the Borrower and its Consolidated
Subsidiaries taken as a whole, or which purport to affect the legality, validity
or enforceability of the Agreement or the Notes.
This letter is furnished to you specifically in connection
with the Agreement and solely for your information and benefit. It may not be
relied upon in any manner or for any other purpose by any other person without
my prior written consent. This opinion is rendered as of the date hereof, and I
have not undertaken to supplement this opinion with respect to factual matters
or changes of law that may occur hereafter. It is limited to the matters set
forth herein, and no opinion may be inferred or implied beyond the matters
expressly stated herein.
Yours truly,
Xxx X. Xxxxxx
- 22 -
EXHIBIT J
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of
______________, 200__ by and among _______________________________ (the
"Transferor Lender"), ____________________________________________ (the
"Purchasing Lender"), and PNC BANK, NATIONAL ASSOCIATION, as the Documentation
and Administrative Agent for the Lenders under the Credit Agreement described
below (in such capacity the "Documentation and Administrative Agent").
WITNESSETH:
-----------
WHEREAS, this Assignment and Assumption Agreement is being
executed and delivered in accordance with that certain Credit Agreement dated as
of December ___, 2001 by and among the Borrower, the Lenders party thereto and
the Documentation and Administrative Agent (the Credit Agreement together with
the exhibits and schedules thereto and all amendments, modifications,
extensions, renewals, substitutions and replacements thereto and thereof is
hereinafter referred to as the "Agreement");
WHEREAS, the Purchasing Lender (if it is not already a party
to the Agreement) wishes to become a party to the Agreement and assume the
rights, obligations and commitments of a Lender thereunder; and
WHEREAS, the Transferor Lender wishes to sell and assign to
the Purchasing Lender [all] [a portion] of the Transferor Lender's rights,
obligations, commitments and Loans under the Agreement.
NOW, THEREFORE, in consideration of mutual promises contained
herein and other valuable consideration and with the intent to be legally bound
hereby, the parties hereto agree as follows:
1. All capitalized terms used herein as defined terms which
are not defined herein but which are defined in the Agreement shall have the
same meanings herein as given to them in the Agreement unless the context
clearly indicates otherwise.
2. Upon receipt by the Documentation and Administrative Agent
of counterparts of this Assignment and Assumption Agreement which have
been executed by the Transferor Lender, the Purchasing Lender and the
Documentation and Administrative Agent and to each of which is attached a fully
completed Schedule I, the Documentation and Administrative Agent will complete,
execute and deliver to the Borrower, the Transferor Lender, the Purchasing
Lender and the remaining Lenders, a Transfer Effective Notice substantially in
the form of Schedule II to this Assignment and Assumption Agreement (a "Transfer
Effective Notice"). Such Transfer Effective Notice shall set forth, INTER ALIA,
the date on which the transfer affected by this Assignment and Assumption
Agreement shall become effective (the "Transfer Effective
- 23 -
Date"), which date shall be the third Business Day following the date of such
Transfer Effective Notice.
3. Effective upon the opening of business of the Documentation
and Administrative Agent on the Transfer Effective Date, the Transferor Lender
hereby sells, assigns, delegates and transfers to the Purchasing Lender, without
recourse and without any representations or warranties except as set forth in
paragraph 9 hereof, and the Purchasing Lender hereby buys, assumes and accepts,
[all] [a portion] of the Transferor Lender' s rights, as set forth in item 2 of
Schedule I hereto in (i) the Transferor Lender's Revolving Credit Commitment,
(ii) the principal of, and all accrued and unpaid interest on, all outstanding
Loans of the Transferor Lender, (iii) all accrued but unpaid Fees owing to the
Transferor Lender under the Agreement and the other Loan Documents and (iv) all
of the Transferor Lender's other rights (including voting rights), interests,
duties, liabilities and obligations under the Agreement and the other Loan
Documents.
4. On the Transfer Effective Date, the Purchasing Lender shall
pay to the Documentation and Administrative Agent at or before 12:00 Noon
(Eastern time), in immediately available funds, an amount equal to the principal
of all outstanding Loans being sold by the Transferor Lender to the Purchasing
Lender. The Documentation and Administrative Agent shall pay such amount to the
Transferor Lender, in immediately available funds, on the Transfer Effective
Date. The principal amount paid by the Purchasing Lender to the Documentation
and Administrative Agent is referred to hereinafter as the "Purchase Price". On
and after the Transfer Effective Date, the Documentation and Administrative
Agent shall begin to calculate interest on the outstanding Loans and all Fees
under the Agreement and the other Loan Documents which are owed to the
Transferor Lender and the Purchasing Lender, based on the Transferor Lender's
and the Purchasing Lender's Commitment Percentages set forth in items 3 and 4 of
Schedule I hereto.
5. From and after the Transfer Effective Date, (i) the
Purchasing Lender (A) shall be a Lender party to the Agreement, (B) subject to
the terms thereof, and to the extent provided in this Assignment and Assumption
Agreement, shall have the rights, interests, liabilities, duties and obligations
of the Transferor Lender thereunder and under the Loan Documents and (C) shall
have a Revolving Credit Commitment and Commitment Percentage as set forth
opposite the Purchasing Lender's name in item 3 of Schedule I hereto and (ii)
the Transferor Lender (A) shall, to the extent provided in this Assignment and
Assumption Agreement, relinquish such rights and interests and be released from
such liabilities, duties and obligations under the Agreement and the other Loan
Documents as shall have been assigned to the Purchasing Lender hereunder and (B)
shall have the reduced Revolving Credit Commitment and Commitment Percentage as
set forth opposite the Transferor Lender's name in item 4 of Schedule I hereto.
6. The Transferor Lender has made arrangements with the
Purchasing Lender with respect to (i) the amount, if any, to be paid, and the
date or dates for payment, by the Transferor Lender to such Purchasing Lender of
any Fees heretofore received by the Transferor Lender pursuant to the Agreement
or any other Loan Document prior to the Transfer Effective Date and (ii) the
amount, if any, to be paid, and the date or dates for payment, by such
- 24 -
Purchasing Lender to the Transferor Lender of Fees or interest received by such
Purchasing Lender pursuant to the Agreement or any other Loan Document from and
after the Transfer Effective Date. Any such amount is in addition to the
Purchase Price.
7. (i) All principal payments that would otherwise be payable
from and after the Transfer Effective Date to or for the account of the
Transferor Lender pursuant to the Agreement and the Notes payable to the
Transferor Lender shall instead be payable to or for the account of the
Transferor Lender and the Purchasing Lender in accordance with their respective
interests as reflected in this Assignment and Assumption Agreement and on
Schedule I hereto.
(ii) All interest, Fees and other amounts that would
otherwise accrue for the account of the Transferor Lender from and after the
Transfer Effective Date pursuant to the Agreement, the Notes payable to the
Transferor Lender or the other Loan Documents shall instead accrue for the
account of, and be payable to, the Transferor Lender and the Purchasing Lender
in accordance with their respective interests as reflected in this Assignment
and Assumption Agreement and on Schedule I hereto.
8. As soon as possible after the Documentation and
Administrative Agent has received from the Transferor Lender the existing Notes
payable to the Transferor Lender and after the Borrower has executed and
delivered to the Documentation and Administrative Agent new Notes, the
Documentation and Administrative Agent shall deliver to the Transferor Lender a
new Revolving Credit Note payable to the order of the Transferor Lender in a
principal amount equal to the revised Revolving Credit Commitment of the
Transferor Lender set forth in item 4 of Schedule I hereto and shall deliver to
the Purchasing Lender a Revolving Credit Note payable to the order of the
Purchasing Lender in a principal amount equal to the Revolving Credit Commitment
of the Purchasing Lender set forth in item 3 of Schedule I hereto.
9. Each of the Transferor Lender and the Purchasing Lender
represents and warrants to the other that (i) it has full power and legal right
to execute and deliver this Assignment and Assumption Agreement and to perform
the provisions of this Assignment and Assumption Agreement, (ii) the execution,
delivery and performance of this Assignment and Assumption Agreement have been
authorized by all necessary corporate action and (iii) this Assignment and
Assumption Agreement constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
10. By executing and delivering this Assignment and Assumption
Agreement, the Transferor Lender and the Purchasing Lender confirm to and agree
with each other, the Documentation and Administrative Agent and the other
Lenders as follows: (i) except as set forth in paragraph 9 immediately above,
the Transferor Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Agreement or any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto; (ii) the Transferor Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or any of the Lenders or the performance or observance
by the Borrower or any of the Lenders of any of their respective obligations
under
- 25 -
the Agreement, the other Loan Documents or any other instrument or document
furnished pursuant thereto; (iii) the Purchasing Lender confirms that it has
received a copy of the Agreement, together with copies of the financial
statements delivered to the Documentation and Administrative Agent pursuant to
the Agreement, if any, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption Agreement; (iv) the Purchasing Lender has not relied
upon and will continue independently and without reliance upon the Documentation
and Administrative Agent, the Transferor Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time, make
its own credit decision in taking or not taking action under the Agreement and
the other Loan Documents; (v) the Purchasing Lender appoints and authorizes the
Documentation and Administrative Agent to take such action on its behalf and to
exercise such powers under the Agreement and the other Loan Documents as are
delegated to the Documentation and Administrative Agent by the terms of the
Agreement and the other Loan Documents, together with such powers as are
reasonably incidental thereto, all in accordance with Article VIII of the
Agreement and in certain other Loan Documents; and (vi) the Purchasing Lender
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Agreement and the other Loan Documents are
required to be performed by it as a Lender.
11. Each of the parties to this Assignment and Assumption
Agreement agrees that, at any time and from time to time upon the written
request of any other party, it will execute and deliver such further documents
and do such further acts and things as such other party may reasonably request
in order to effect the purposes of this Assignment and Assumption Agreement.
12. As of the Transfer Effective Date, the Agreement shall be
deemed to be amended (i) to make the Purchasing Lender a Lender for all purposes
of the Agreement and the other Loan Documents and (ii) to adjust the Revolving
Credit Commitment and Commitment Percentage of the Transferor Lender, and to
provide for a Revolving Credit Commitment and Commitment Percentage for the
Purchasing Lender, all as set forth on Schedule I hereto.
13. Schedule I hereto sets forth in items 3 and 4 thereof the
Revolving Credit Commitment and Commitment Percentage of the Purchasing Lender
and the revised Revolving Credit Commitment and Commitment Percentage of the
Transferor Lender, and sets forth in item 2 certain administrative information
with respect to the Purchasing Lender.
14. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
WITHOUT REFERENCE TO THE PROVISIONS THEREOF REGARDING CONFLICTS OF LAW.
15. This Assignment and Assumption Agreement may be executed
in as many counterparts as shall be convenient, each of which, when executed by
the Transferor Lender, the Purchasing Lender or the Documentation and
Administrative Agent shall be regarded as an original.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 26 -
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be executed as of the date first above written.
TRANSFEROR LENDER:
By:
-------------------------------------------
Name:
Title:
PURCHASING LENDER:
By:
-------------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as the Documentation and Administrative Agent
for the Lenders
By:
-------------------------------------------
Name:
Title:
Consented to this _____ day
of ______________, 200__
ALLEGHENY TECHNOLOGIES INCORPORATED,
a Delaware corporation
By:___________________________
Name:
Title:
SCHEDULE I TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
1. ___________________ Existing Long Term Revolving
[Transferor Lender] Credit Commitment: $_________
Existing Long Term Revolving
Credit Commitment Percentage: ________%
Existing Short Term Revolving
Credit Commitment: $_________
Existing Short Term Revolving
Credit Commitment Percentage: ________%
2. ___________________ Purchased Amount of Long Term
[Purchasing Lender] Revolving Credit Commitment: $_________
Purchased Amount of Short Term
Revolving Credit Commitment: $_________
Address of Purchasing Lender for notice purposes:
If by United States Mail: If by other means:
________________________ ________________________
________________________ ________________________
Attention: _________________ ________________________
Attention: _____________________
Telephone: _____________________
Telecopier: _____________________
Telex: _____________________
Address of Purchasing Lender for LIBOR-Rate Loan funding, if different from
above:
Same as Above
______________________________________
______________________________________
Attention: _______________________
Telephone: _______________________
Telecopier: _______________________
Telex: _______________________
3. ___________________ Long Term Revolving Credit
[Purchasing Lender] Commitment: $_________
Long Term Revolving Credit
Commitment Percentage: ________%
Short Term Revolving Credit
Commitment: $_________
Short Term Revolving Credit
Commitment Percentage: ________%
4. ___________________ Revised Long Term Revolving
[Transferor Lender] Credit Commitment: $_________
Revised Long Term Revolving
Credit Commitment Percentage: ________%
Revised Short Term Revolving
Credit Commitment: $_________
Revised Short Term Revolving
Credit Commitment Percentage: ________%
SCHEDULE II TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
TRANSFER EFFECTIVE NOTICE
-------------------------
TO: The Borrower, the Transferor Lender,
the Purchasing Lender and each other Lender
The undersigned, the Agent pursuant to the Amended and Restated
Credit Agreement dated as of December 19, 2001 by and among Allegheny
Technologies Incorporated, as the Borrower, the financial institutions which are
or which become parties thereto as the Lenders, Mellon Bank, N.A., JPMorgan
Chase Bank and Bank of America, National Association, as Syndication Agents and
PNC Bank, National Association, as the Documentation and Administrative Agent
for the Lenders, acknowledges receipt of fully executed counterparts of an
Assignment and Assumption Agreement, as described in Schedule I attached hereto.
Pursuant to such Assignment and Assumption Agreement, you are advised that the
Transfer Effective Date will be _______________ [INSERT DATE WHICH IS THREE (3)
BUSINESS DAYS FOLLOWING THE DATE OF THE TRANSFER EFFECTIVE NOTICE].
Capitalized terms used in this Transfer Effective Notice as
defined terms shall have the meanings given them in the above-referenced
Assignment and Assumption Agreement.
Dated as of _________________.
PNC BANK, NATIONAL ASSOCIATION, as
Agent for the Lenders
By:
----------------------------------------------
Name:
Title:
EXHIBIT K
FORM OF TERM NOTE
$ Pittsburgh, Pennsylvania
-------------------------- December 20, 2001
This Term Note is executed and delivered under and pursuant to the terms of that
certain Credit Agreement dated as of December 20, 2001 (the Credit Agreement
together with the exhibits and schedules thereto and all amendments,
modifications, extensions, renewals, replacements or restatements thereof and
thereto, the "Agreement") by and among ALLEGHENY TECHNOLOGIES INCORPORATED, a
Delaware corporation (the "Borrower"), the financial institutions listed on the
signature pages thereof and each other financial institution which, from time to
time, may become a party to the Agreement, the syndication agents referred to
therein (collectively the "Syndication Agents") and PNC BANK, NATIONAL
ASSOCIATION, as documentation and administrative agent for the Lenders (in such
capacity, the "Agent").
FOR VALUE RECEIVED, the Borrower promises to pay to the order of
________________ (the "Lender"), its successors and permitted assignees, at the
office of the Agent at One PNC Plaza, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000 on the Term Loan Maturity Date the principal sum of
_______________________________ Dollars ($___________) on or before the Term
Loan Maturity Date pursuant to the Agreement together with interest on the
unpaid principal balance thereof from time to time outstanding.
Such Term Loan made by the Lender, and all repayments of the principal thereof
shall be recorded by the Lender in the Loan Account maintained by the Lender
under the Agreement and, if the Lender so elects in connection with any transfer
or enforcement hereof, appropriate notations to evidence the foregoing
information with respect to such Term Loan then outstanding may be endorsed by
the Lender on one or more of schedules attached hereto, or on a continuation of
such schedule attached to and made a part hereof; PROVIDED that the failure of
the Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Agreement.
Interest on the unpaid principal balance hereof shall be due and payable at the
rates and at the times determined in accordance with the Agreement during the
term hereof to and including the Term Loan Maturity Date, and shall be
calculated and adjusted in accordance with the terms of the Agreement.
This Term Note is one of the Term Notes referred to in the Agreement. Reference
is made to the Agreement for provisions for the prepayment hereof and for the
acceleration of the maturity hereof. All of the terms, conditions, covenants,
representations and warranties of the Agreement are incorporated herein by
reference as if same were fully set forth herein. Demand, presentation, protest,
notice of dishonor and notice of default are hereby waived.
THIS TERM NOTE SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
WITHOUT REFERENCE TO THE PRINCIPLES THEREOF REGARDING CONFLICTS OF LAW.
WITNESS the due execution of this Term Note with the intent to be legally bound
hereby.
ALLEGHENY TECHNOLOGIES INCORPORATED,
a Delaware corporation
By:
---------------------------------------
Name:
Title:
SCHEDULE 3.8
Plans
1. REPORTABLE EVENTS AS DEFINED FOR PURPOSES OF THIS AGREEMENT.
Reportable Events, as defined for purposes of this Agreement,
(a) occurred in 1996 under PBGC Reg. 4043.19 (plan mergers)
and 4043.29 (new contributing sponsor in controlled group which
sponsors a plan underfunded by $1,000,000 or more) in connection with
the business combination of Allegheny Xxxxxx Corporation and Teledyne,
Inc. and essentially contemporaneous merger of the following overfunded
defined benefit plans sponsored by Teledyne, Inc. with and into the
respective underfunded defined benefit pension plan sponsored by
Allegheny Xxxxxx Corporation indicated below with the resulting plan in
each case being an overfunded plan sponsored by Allegheny Xxxxxx
Corporation:
(i) the Continental Motors Corporation Salaried
Employees' Pension Plan with and into the Allegheny Xxxxxx
Corporation Salaried Employees' Retirement Plan;
(ii) the Teledyne Salaried Employees' Pension Plan
with and into the Allegheny Xxxxxx Corporation Hourly
Employees' Pension Plan;
(iii) the Ohio Steel Corporation Salaried Employees'
Pension Plan with and into the Xxxxxx Steel Corporation
Salaried Employees' Pension Plan;
(iv) the Teledyne Xxxx Aeronautical Hourly Pension
Plan with and into the Xxxxxx Steel Corporation Hourly
Employees' Pension Plan;
(v) the Teledyne Monarch Rubber Salaried Pension Plan
with and into the Green River Steel Corporation Salaried
Employees' Pension Plan;
(vi) the Teledyne Retirement Plan for Production and
Maintenance Employees with and into the Green River Steel
Corporation Hourly Employees' Pension Plan; and
(vii) the merger of the foregoing to form the
Allegheny Technologies Incorporated Pension Plan (the "ATI
Pension Plan"); and
(b) occurred under PBGC Reg. 4043.32 on November 29, 1999 upon
the spin off of stock of Teledyne Technologies Incorporated ("TTI"),
and spin off of assets and liabilities to a defined benefit plan
sponsored by TTI from the ATI Pension Plan.
SCHEDULE 5.1
Existing Indebtedness
$ in millions
1. ATI 10yr 8.375% notes due 12-15-11 $ 300
2. Commercial Paper 70
3. Bonds 33 see attached schedule 5.1A
4. Allegheny Xxxxxx 6.95% Debentures 150 due 12/15/25
5. Xxxxx Debt 10 *
6. Stellram S.A./Stellram GmbH 19 **
7. Letters of Credit 39 see attached schedule 5.1B
8. Guarantee's 11 see schedule 5.1C
9. All other 2 see attached schedule 5.1D
--------
Total $ 634
*XXXXX DEBT - This relates to a joint venture in which Allegheny Xxxxxx has a
60% interest.
** STELLRAM - Reflects USD equivalent for current drawings on two revolving
credit facilities. The total availability for each facility is 36 million swiss
francs and 3 million euro's. Both facilities are placed with Bank of Tokyo
Mitsubishi with an expiration date of May 31, 2004.
SCHEDULE 5.1A
Bonds
($000's)
Allegheny Xxxxxx
Industrial Revenue Bonds
Issue Maturity Original Amount
Issue Date Date Amount Outstanding Rate
-----------------------------------------------------------------------------------------------------------------------------------
Allegheny County 2/1/1977 2/1/2007 $ 13,000 $ 9,400 Floating
Allegheny County 12/15/78 12/1/03 1,700 600 7.20%
Niagara Country 11/1/84 10/1/02 10,000 10,000 Floating
Vandergrift (PIDA) 12/28/88 1/1/2004 2,000 373 3.00%
Vandergrift (SunDay) 4/27/89 5/1/2004 3,750 772 3.00%
-------- ---------
$ 30,450 $ 21,145
TDY INDUSTRIES, INC.
State of Oregon 11/13/01 9/1/2016 11,500 11,500 6.50%
OREGON METALLURIGICAL
CORPORATION
Ti Wire 5/5/1980 5/04 201 61 85% of Prime
Grand Total $ 42,151 $ 32,706
=========== ============
SCHEDULE 5.1B
( $ 000's)
Details of Letters of Credit
Allegheny Xxxxxx Corporation
Workers Comp PNC $ 750
Workers Comp Mellon 10,900
Comp
Landfill PNC 1,970
Landfill PNC 250
* IRB - Support (Net) PNC 801
---------
Sub-Total $ 14,671
TDY Industries, Inc.
Workers Comp BofA $ 2,481
Environmental Chase 2,000
Environmental BofA 610
Environmental Mellon 1,194
Performance Chase 3,215
All Other BofA/Mellon 1,250
---------
$ 10,750
Allegheny Technology Incorporated
Workers Comp BofA $ 1,940
Workers Comp BofA 1,000
Workers Comp BTM 10,443
---------
Sub-Total $ 13,383
Grand Total $ 38,804
==========
* A $10.8 million letter of credit supports the $10 million industrial revenue
bond shown on schedule 5.1A. The balance relates to covered interest expense.
SCHEDULE 5.1C
($ 000's)
Details of Guarantee's
1. ATI Green River - Environmental $ 8,000
2. TDY Holdlings for Xxx Xxxxx - Environmental 81
3. ATI for Xxx Xxxxx - Environmental 1,000
4. ATI for Packaging - Environmental 12
5. ATI for Xxxxx, Union NJ - Environmental 100
6. TDY Holdings - Xxxxxxxxxxxx NJ Facility - Environmental 699
7. ALC - Buckeye Landfill 643
-----------
$ 10,535
SCHEDULE 5.1D
($ 000's)
All Other
Oregon Metallurigical Corporation - 2 capitalized leases $ 359
Rome Metals - Promissory Note 1,529
-----------
$ 1,888
SCHEDULE 5.2
Existing Encumbrances Securing Indebtedness
Security interests granted pursuant to the bonds listed in Schedule 5.1A.
SCHEDULE 5.5
Assets Held For Sale
- North American operations of the titanium distribution company, Titanium
Industries, Inc., excluding the Frackville, PA facility.
- The capital stock of Coordinators, Inc.
$000's
REAL PROPERTY LOCATION DESCRIPTION NBV
---------------------- ----------- -------
Ann Arbor, MI Land 2.3
Xxx Xxxxxx, XX Xxxx 0
Xxxxxxxxx, XX Land 139.5
South El Monte, CA Land 220.8
Galveston, TX Land 98.3
Mohnton, PA Land -
Buildings 86.7
Muskegon, MI Land 221.5
Xxxxxxxxx, XX Xxxx -
Xxxxxxxxx 0
Xxxxxxxxx, XX Xxxx 0
Ansonia, CT Land -
Buildings 99.5
Latrobe, PA Land 37.1
San Diego, CA Land 993.6
Chester, PA Land -
Buildings 0
Howell, MI Land -
Buildings 260.9
San Diego, XX0 Xxxx -
Xxxxxxxxx 0
Xxxxxxxxx, XX Buildings 1,300.0
Sheffield, UK Land 2,900.0
Nyon, SUI Buildings 3,125.0
Albany, OR Land 4,038.0
Monroe, NC Land 7.1
Monroe, NC Land 8.3
Monroe, NC Land 1.2
Monroe, NC Land 21.9
Monroe, NC Land 10.8
Xxxxxxxx, SC Land 146.0
Xxxxxxxx, SC Land 1,025.0
Woodstock, Ontario Land -
Buildings 50.5
Skokie, IL Land 812.0
Buildings 891.6
Pittsburgh, XX(0) Xxxxxxxxx 0
Xxx Xxxxx, XX Land 221.0
Houston, TX Land 120.5
Building 788.2
-------
17,627.3
---------------------------------------
(2) Leased space held for sublease.
SCHEDULE 9.3
Notices
Allegheny Technologies Incorporated For operational issues:
1000 Six PPG Place XX Xxxxxx Chase Bank
Xxxxxxxxxx, Xxxxxxxxxxxx 00000 0 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxx: Xxxxxx X. Xxxx Xxx Xxxx, Xxx Xxxx 00000
Vice President/Treasurer Attention: Sek Chan, Assistant
Fax: 000-000-0000 Treasurer
Telephone: 000-000-0000
WITH A COPY TO: Telecopier: 000-000-0000
Allegheny Technologies Incorporated Mellon Bank, N.A.
1000 Six PPG Place One Mellon Center, Room 370
Xxxxxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxx X. Xxxxxx Attention: Xxxxx X. Xxx
Senior Vice President, Chief Fax: 000-000-0000
Legal and Administrative Email: xxx.x@xxxxxx.xxx
Officer and Secretary
Fax: 000-000-0000
Bank of America, N.A.
000 Xxxxx XxXxxxx, IL1-231-10-50
PNC Bank, National Association Xxxxxxx, Xxxxxxxx 00000
c/o PNC Agency Services Attention: Xxxxxx X. Xxxxxx
Xxx XXX Xxxxx, 00xx Xxxxx Fax: 000-000-0000
000 Xxxxx Xxxxxx Email:
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Fax: 000-000-0000 PNC Bank, National Association, as Lender
One PNC Plaza, 3rd Floor
249 Fifth Avenue
Citibank, N.A. Xxxxxxxxxx, Xxxxxxxxxxxx 00000
000 Xxxxxxxxx Xxxxxx, 00xx Floor Attention: Xxxxx X. Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Fax: 000-000-0000
Attention: Xxxxxxx Xxxxxxx
Fax: 000-000-0000
Email: Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
JPMorgan Chase Bank Attention: Xxxxxxx Xxxxxxxxxx
000 Xxxx Xxxxxx, 00xx Xxxxx Fax: 000-000-0000
Xxx Xxxx, Xxx Xxxx 00000 Email: xxxxxxxxxxx@xxxxx.xxx
Attention: Xxxxx X. Xxxxxx
Fax: 000-000-0000
Email: xxxxx.xxxxxx@xxxxxxxx.xxx
-------------------------
The Industrial Bank of Japan, Limited National City Bank of Pennsylvania
1251 Avenue of the Americas Xxxxxxxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Attention: Xxxxxx Xxxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax: 000-000-0000 Attention: Xxxxx X. Xxxxxxx
Email: xxxxxx@xxxxx.xxx Fax: 000-000-0000
Email:
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Fax: 000-000-0000
Email:
