THIRD AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
THIRD AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
This
Third Amendment to First Amended and Restated Credit Agreement is dated December 7,
2010, by and among RTI International Metals, Inc., an Ohio corporation (the “Borrower”), the
Lenders (as defined in the Credit Agreement), PNC Bank, National Association, successor to National
City Bank, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”),
PNC Bank, National Association, as documentation agent for the Lenders (in such capacity, the
“Documentation Agent”) and Citibank, N.A., as syndication agent for the Lenders (in such capacity,
the “Syndication Agent”) (“Third Amendment”).
WITNESSETH:
WHEREAS, the Borrower, the Lenders, the Administrative Agent, the Documentation Agent and the
Syndication Agent entered into that certain First Amended and Restated Credit Agreement, dated as
of September 8, 2008, as amended by that certain (i) First Amendment to First Amended and Restated
Credit Agreement, dated September 18, 2009, by and among the Borrower, the Lenders, the
Administrative Agent, the Documentation Agent and the Syndication Agent and (ii) Second Amendment
to First Amended and Restated Credit Agreement, dated January 19, 2010, by and among the Borrower,
the Lenders, the Administrative Agent, the Documentation Agent and the Syndication Agent (as
further amended, modified, supplemented or restated from time to time, the “Credit Agreement”); and
WHEREAS, the Borrower desires to amend certain provisions of the Credit Agreement and the
Lenders, the Administrative Agent, the Documentation Agent and the Syndication Agent shall permit
such amendments pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. All capitalized terms used herein which are defined in the Credit Agreement shall have the
same meaning herein as in the Credit Agreement unless the context clearly indicates otherwise.
2. Section 1.01 of the Credit Agreement is amended by deleting the following definitions in
their entirety and in their stead inserting the following:
“Consolidated EBITDA” means, for any period and effective as of
September 30, 2009, the sum (without duplication) of (a)
Consolidated Net Income for such period, plus, (b) without
duplication and to the extent deducted in determining such
Consolidated Net Income, the sum of (i) Consolidated Interest
Expense for such period, (ii) income tax expense for such period,
and (iii) depreciation and amortization expense for such
period, all determined on a consolidated basis for each such item in
accordance with GAAP; (iv) all other non-cash charges (including
impairment charges with respect to good will and other intangibles
but excluding any impact (whether positive or negative and whether
cash or non-cash) of LIFO valuation methodology) and expenses
(including stock based compensation) of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with
GAAP, (v) charges, expenses and fees incurred in connection with
this Agreement and the Loans, (vi) non-recurring charges, fees and
expenses incurred in connection with corporate restructurings and
acquisitions, in an aggregate amount not to exceed Twenty-Five
Million and 00/100 Dollars ($25,000,000.00) during the period
commencing on the Third Amendment Closing Date through the term of
this Agreement, and minus, to the extent included in determining
such consolidated net income, any non-cash income or non-cash gains,
all as determined on a consolidated basis in accordance with GAAP.
EBITDA will be calculated on a pro forma basis to give effect to
acquisitions and sales (other than in the ordinary course of
business) by the Borrower and its consolidated subsidiaries
consummated on or after the first (1st) day of a
measurement period and prior to the date of determination as if
effective on the first (1st) day of such period.
“Hedging Agreement” means any interest rate protection
agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate or
commodity price hedging arrangement or puts and calls on any of the
foregoing and with respect to equity securities other than equity
securities of the Borrower.
“Material Subsidiary” means, RMI Titanium Company, Extrusion
Technology Corporation of America, RTI Finance Corp., RTI
Martinsville, Inc., RTI-Claro, Inc., RTI International Metals
Limited and each other Subsidiary of the Borrower which at any time
has five percent (5%) or more of the consolidated assets of the
Borrower and its Subsidiaries.
“Pledge Agreement” means the First Amended and Restated
Negative Pledge and Pledge Agreement, dated as of the Closing Date,
by the Borrower in favor of the Administrative Agent, the Second
Amended and Restated Equity Pledge Agreement, dated as of the Third
Amendment Closing Date by the Borrower in favor of the
Administrative Agent, the Charge Over Securities, dated September
27, 2007, between the Borrower and Citibank, N.A. (in its capacity
as security agent) as amended and supplemented by a Supplemental
Deed, dated as of the Closing Date, between the Borrower, Citibank,
N.A. (the existing security
agent) and the Administrative Agent (the new security agent)
and any other pledge agreement executed from time to time by a
Pledgor in favor of the Administrative Agent in substantially the
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forms attached hereto as Exhibit H with such changes as
advisable based on the laws of the jurisdiction of organization of
the Foreign Subsidiary the ownership interests of which are
encumbered by such pledge agreement, each as amended, modified or
supplemented from time to time.
“Revolving Credit Commitment” means as to any Lender (a) the
amount set forth opposite such Lender’s name on Schedule
2.01 hereto as such Lender’s “Revolving Credit Commitment”, (b)
if such Lender has become a Lender hereunder pursuant to an
Assignment and Assumption, the amount set forth as such Lender’s
“Revolving Credit Commitment” in such Assignment and Assumption or
(c) if such Lender has entered into any Assignment and Assumption,
the amount set forth as such Lender’s “Revolving Credit Commitment”
in the Register maintained by the Administrative Agent pursuant to
Section 10.06(c), as such amount may be reduced pursuant to Section
2.08. The aggregate amount of the Revolving Credit Commitments on
the Third Amendment Closing Date is One Hundred Fifty Million and
00/100 Dollars ($150,000,000.00).
3. Section 1.01 of the Credit Agreement is further amended by inserting the following defined
term in its appropriate alphabetical order:
“Third
Amendment Closing Date” means December 7, 2010.
4. Section 6.09 of the Credit Agreement is hereby deleted in its entirety and in its stead is
inserted the following:
Section 6.09 New Material Subsidiaries.
Cause each Domestic Subsidiary that shall at any time after the
Closing Date become a Material Subsidiary to enter into a Guaranty
Supplement no later than thirty (30) days after such Domestic
Subsidiary shall become a Material Subsidiary, as determined at the
end of each fiscal quarter of the Borrower; provided, however, the
Administrative Agent may release any Domestic Subsidiary of its
obligations as a Guarantor in the event that Administrative Agent
makes the reasonable determination that any such Domestic Subsidiary
no longer constitutes a Material Subsidiary. No later than
forty-five (45) days after the Borrower or such Domestic Subsidiary
shall acquire or otherwise own, directly or indirectly, after the
Closing Date, any Foreign Subsidiary which is a Material Subsidiary
as determined at the end
of each fiscal quarter of the Borrower, enter into, or cause
such Domestic Subsidiary to enter into, a Pledge Agreement and
deliver an opinion of counsel reasonably satisfactory to the
Documentation
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Agent in the jurisdiction of such Foreign Subsidiary
whose ownership interests are subject to such Pledge Agreement with
respect to the due authorization, enforceability and perfection of
such pledge. Provide by the end of each fiscal quarter, an updated
Schedule 5.18 to the extent necessary to maintain the
accuracy of such Schedule.
5. Schedule 2.01 to the Credit Agreement is hereby deleted in its entirety and in its stead
is inserted the Schedule 2.01 set forth on Exhibit A attached hereto and made a part
hereof.
6. In order to induce the Lenders, the Administrative Agent, the Documentation Agent and the
Syndication Agent to enter into the Credit Agreement, Tradco, Inc., a Missouri corporation
(“Tradco”), New Century Metals Southeast, Inc., a Delaware corporation (“New Century”), RTI Energy
Systems, Inc., an Ohio corporation (“RTI Energy”), RTI Xxxxxxxx, Inc., an Ohio corporation (“RTI
Xxxxxxxx”), among others, executed and delivered the Subsidiary Guaranty or were subsequently
joined by Guaranty Supplement. The Lenders, the Administrative Agent, the Documentation Agent and
the Syndication Agent hereby release Tradco, New Century, RTI Energy and RTI Xxxxxxxx as a parties
to the Subsidiary Guaranty, and, therefore, Tradco, New Century, RTI Energy and RTI Xxxxxxxx have
no further obligations pursuant to the Subsidiary Guaranty. The releases contained herein shall
be limited to the specific releases made herein. Except as otherwise modified herein, all other
terms and conditions of the Subsidiary Guaranty shall continue in full force and effect and are
unmodified by this provision.
7. The provisions of Sections 2 through 6 of this Third Amendment shall not become effective
until the Administrative Agent has received the following items, each in form and substance
acceptable to the Administrative Agent and its counsel:
(a) this Third Amendment, duly executed by the Borrower and the Required
Lenders;
(b) the items listed in the Preliminary Closing Agenda set forth on
Exhibit B attached hereto and made a part hereof; and
(c) payment of all fees and expenses owed to the counsel of the
Administrative Agent in connection with this Third Amendment.
8. The Borrower hereby reconfirms and reaffirms all representations and warranties,
agreements and covenants made by it pursuant to the terms and conditions of the Credit Agreement,
except to the extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct as of such earlier date, and except as such
representations and warranties, agreements and covenants may have heretofore been amended,
modified or waived in writing in accordance with the Credit Agreement.
9. The Borrower acknowledges and agrees that each and every document, instrument or
agreement, which at any time has secured the Obligations including, without
limitation, the Subsidiary Guaranty and the Pledge Agreements hereby continues to secure the
Obligations.
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10. The Borrower hereby represents and warrants to the Lenders, the Administrative Agent, the
Documentation Agent and the Syndication Agent that (i) the Borrower has the legal power and
authority to execute and deliver this Third Amendment, (ii) the officers of the Borrower executing
this Third Amendment have been duly authorized to execute and deliver the same and bind the
Borrower with respect to the provisions hereof, (iii) the execution and delivery hereof by the
Borrower and the performance and observance by the Borrower of the provisions hereof and all
documents executed or to be executed herewith, do not violate or conflict with the organizational
agreements of the Borrower or any Law applicable to the Borrower or result in a breach of any
provision of or constitute a default under any other agreement, instrument or document binding
upon or enforceable against the Borrower, and (iv) this Third Amendment, the Credit Agreement and
the documents executed or to be executed by the Borrower in connection herewith constitute valid
and binding obligations of the Borrower in every respect, enforceable in accordance with their
respective terms.
11. The Borrower represents and warrants that (i) no Potential Default or Event of Default
exists under the Credit Agreement, nor will any occur as a result of the execution and delivery of
this Third Amendment or the performance or observance of any provision hereof, (ii) the schedules
attached to and made a part of the Credit Agreement, are true and correct in all material respects
as of the date hereof, except as such schedules may have heretofore been amended or modified in
writing in accordance with the Credit Agreement or are being amended or modified in accordance
with this Third Amendment, and (iii) it presently has no known causes of action of any kind at Law
or in equity against the Lenders, the Administrative Agent, the Documentation Agent or the
Syndication Agent arising out of or in any way relating to the Loan Documents.
12. Each reference to the Credit Agreement that is made in the Credit Agreement or any other
document executed or to be executed in connection therewith shall hereafter be construed as a
reference to the Credit Agreement as amended hereby.
13. The agreements contained in this Third Amendment are limited to the specific agreements
made herein. Except as amended hereby, all of the terms and conditions of the Credit Agreement
and the other Loan Documents shall remain in full force and effect. This Third Amendment amends
the Credit Agreement and is not a novation thereof.
14. This Third Amendment may be executed in any number of counterparts and by the different
parties hereto on separate counterparts each of which, when so executed, shall be deemed to be an
original, but all such counterparts shall constitute but one and the same instrument.
15. This Third Amendment shall be governed by, and shall be construed and enforced in
accordance with, the Laws of the State of New York without regard to the principles of the
conflicts of law thereof. The Borrower hereby consents to the jurisdiction and venue of the
Courts of the State of New York sitting in the County of New York and of the United States
District Court of the Southern District of New York, and any appellate Court from any thereof with
respect to any suit arising out of or mentioning this Third Amendment.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this
Third Amendment to be duly executed by their duly authorized officers on the day and year first
above written as a document under seal.
WITNESS: | THE BORROWER: RTI International Metals, Inc. |
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/s/ Xxxx Xxxxxx |
By: | /s/ Xxxxxxx X. Xxxxxx (SEAL) | ||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Senior Vice President | |||
THE ADMINISTRATIVE AGENT PNC Bank, National Association |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Title: | Senior Vice President | |||
THE DOCUMENTATION AGENT PNC Bank, National Association |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Title: | Senior Vice President | |||
THE LENDERS Citibank, N.A. |
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By: | /s/ Xxxxxxx Xxxxxx | |||
Title: | Vice President | |||
PNC Bank, National Association |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Title: | Senior Vice President | |||
Fifth Third Bank |
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By: | /s/ Xxxxxx X. Xxxxxx | |||
Title: | Vice President | |||
Comerica Bank |
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By: | /s/ Xxxxxxx Xxxxxxx | |||
Title: | Assistant Vice President | |||
KeyBank National Association |
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By: | /s/ Xxxxxxxx Xxxxxx | |||
Title: | Vice President | |||
Xxxxx Fargo Bank, National Association |
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By: | /s/ Xxxxxx X. Xxxxxxxx III | |||
Title: | Vice President | |||
EXHIBIT A
Schedule 2.01
To Credit Agreement
To Credit Agreement
Revolving Credit Commitments and Applicable Revolving Credit Percentages
Applicable Revolving | ||||||||
Revolving Credit | Credit | |||||||
Lender | Commitment | Percentage | ||||||
Citibank, N.A. |
$ | 26,829,268.29 | 17.886178862 | % | ||||
PNC Bank, National Association |
$ | 37,560,975.61 | 25.040650405 | % | ||||
Fifth Third Bank |
$ | 26,829,268.29 | 17.886178862 | % | ||||
Comerica Bank |
$ | 18,780,487.81 | 12.520325204 | % | ||||
KeyBank National Association |
$ | 23,333,333.33 | 15.555555556 | % | ||||
Xxxxx Fargo Bank, National
Association |
$ | 16,666,666.67 | 11.111111111 | % | ||||
TOTAL: |
150,000,000 | 100 | % |
EXHIBIT B
PRELIMINARY CLOSING AGENDA
(see attached)
PRELIMINARY CLOSING AGENDA
This Preliminary Closing Agenda contains the documents to be delivered in connection with a
third amendment to the credit facility provided to RTI International Metals, Inc., an Ohio
corporation (the “Borrower”), by PNC Bank, National Association (“PNC”) and various other financial
institutions from time to time (PNC and such other financial institutions are each a “Lender” and
collectively, the “Lenders”), PNC, as successor to National City Bank, a national banking
association, as administrative agent for the Lenders (in such capacity, the “Administrative
Agent”), PNC, as successor to National City Bank, a national banking association, as documentation
agent for the Lenders (in such capacity, the “Documentation Agent”), Citibank, N.A., as syndication
agent for the Lenders (in such capacity, the “Syndication Agent”), PNC Capital Markets LLC, a
Pennsylvania limited liability company (“PNCCM”) and Fifth Third Bank, as co-lead arrangers and
PNCCM as the sole bookrunner (the “Credit Facility”).
Responsible | ||||
No. | LOAN DOCUMENTS | Party | ||
1.
|
Third Amendment to First Amended and Restated Credit Agreement (the “Credit Agreement”), by and among the Borrower, the Lenders, the Administrative Agent, the Documentation Agent and the Syndication Agent (the “Third Amendment”). | Documentation Agent | ||
2.
|
Amended Schedules and Exhibits to the Credit Agreement, if applicable. | Borrower | ||
3.
|
Consent of Guarantors, made by RMI Titanium Company, an Ohio corporation (“RMI”), Extrusion Technology Corporation of America, an Ohio corporation (“ETCA”), RTI Finance Corp., an Ohio corporation (“RTI Finance”) and RTI Martinsville, Inc., an Ohio corporation (“RTI Martinsville”) (RMI, ETCA, RTI Finance and RTI Martinsville are each a “Guarantor” and collectively, the “Guarantors”) (the Borrower and the Guarantors are each a “Loan Party” and collectively, the “Loan Parties”), for the benefit of the Administrative Agent (the “Consent”). | Documentation Agent | ||
4.
|
Second Amended and Restated Equity Pledge Agreement, made by and between the Borrower and the Administrative Agent with respect to sixty five percent (65%) of the shares of capital stock of RTI-Claro. | Documentation Agent | ||
ORGANIZATIONAL DOCUMENTS | ||||
Borrower |
Responsible | ||||
No. | LOAN DOCUMENTS | Party | ||
5.
|
Certificate of Secretary of the Borrower as to (i) resolutions of its Board of Directors authorizing the Borrower to execute the Third Amendment and all related documents, (ii) incumbency and (iii) no amendments to its Articles of Incorporation or Code of Regulations. | Xxxxxxxx | ||
XXX | ||||
0.
|
Certificate of Secretary of RMI as to (i) resolutions of its Board of Directors authorizing RMI to execute the Consent and all related documents, (ii) incumbency and (iii) no amendments to its Articles of Incorporation or Code of Regulations. | Borrower | ||
ETCA | ||||
7.
|
Certificate of Secretary of ETCA as to (i) resolutions of its Board of Directors authorizing ETCA to execute the Consent and all related documents, (ii) incumbency and (iii) no amendments to its Articles of Incorporation or Code of Regulations. | Borrower | ||
RTI Finance | ||||
8.
|
Certificate of Secretary of RTI Finance as to (i) resolutions of its Board of Directors authorizing RTI Finance to execute the Consent and all related documents, (ii) incumbency and (iii) no amendments to its Articles of Incorporation or Code of Regulations. | Borrower | ||
RTI Martinsville | ||||
9.
|
Certificate of Secretary of RTI Martinsville as to (i) resolutions of its Board of Directors authorizing RTI Martinsville to execute the Consent and all related documents, (ii) incumbency and (iii) no amendments to its Articles of Incorporation or Code of Regulations. | Borrower | ||
RELATED DOCUMENTS |
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Responsible | ||||
No. | LOAN DOCUMENTS | Party | ||
10.
|
Evidence, in form and substance satisfactory to the Administrative Agent, that the Borrower has consummated a capital markets transaction in a form and structure to-be-determined but consisting of any one of: (i) a follow-on equity offering; (ii) an at-the-market equity offering; (iii) a convertible debt issuance; or (iv) a high yield debt issuing (the foregoing, as applicable, the “Capital Markets Transaction”). | Borrower | ||
11.
|
Officer’s Certificate of the Borrower regarding no material adverse change, the accuracy of representations and warranties, the absence of any Event of Default (as defined in the Credit Agreement) or Default (as defined in the Credit Agreement), etc. | Borrower |
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