UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 11, 2000
HOWMET INTERNATIONAL INC.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
1-13645 52-1946684
-------------------- ----------------------------
Commission File Number IRS Employer Identification No.
475 Steamboat Road, Greenwich, CT 06830
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(Address of principal executive offices) (Zip Code)
(203) 661-4600
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Registrant's Telephone Number
<PAGE>
Item 5 OTHER EVENTS
- --------------------------------------------------------------------------------
(a) The following news release was issued on February 11, 2000.
HOWMET REPORTS ANNUAL EARNINGS
SUBSTANTIAL GROWTH; RECORD SALES AND EARNINGS
GREENWICH, CONNECTICUT, FEBRUARY 11, 2000 - Howmet International Inc. reported
net income available to common shareholders of $135.9 million, or $1.36 per
share, for the year ended 1999 compared to $104.8 million, or $1.05 per share,
for 1998. Excluding a $.02 per share benefit related to a variable stock
compensation plan in 1999, 1999 earnings per share increased 28 percent over
1998.
Sales for 1999 increased eight percent over 1998. Reported income from
operations was 14 percent higher than in 1998 (12 percent after excluding the
variable stock compensation benefit, which is discussed on the attached full
year earnings table). Lower interest expense and the elimination of preferred
stock dividends contributed to the earnings improvement.
President and Chief Executive Officer David Squier commented, "Howmet had
another excellent year. Despite a greater than expected downturn in our aero
business and production problems at our aluminum casting facilities, the Company
achieved substantial growth resulting in record
(more)
<PAGE>
HOWMET REPORTS ANNUAL EARNINGS, PG. 2
setting levels for both sales and earnings. We have again exceeded our long-term
goal of 15 percent growth in earnings per share, and we are well positioned for
continued improvement in 2000 and beyond."
FOURTH QUARTER RESULTS
- ----------------------
Net income available to common shareholders was $32.8 million, or $.33 per
share, for the three months ended December 31, 1999, compared to $19 million, or
$.19 per share, for 1998. Excluding the items discussed on the attached fourth
quarter earnings table, 1999 earnings per share increased 38 percent over the
1998 fourth quarter.
Sales for the three months ended December 31, 1999, increased two percent over
1998. Reported income from operations was 44 percent higher for the three months
ended 1999 in comparison to 1998. However, income from operations increased 18
percent after excluding the items discussed below the fourth quarter earnings
table. Lower interest expense and the elimination of preferred stock dividends
were significant contributors to the earnings improvement.
(more)
<PAGE>
HOWMET REPORTS ANNUAL EARNINGS, PG. 3
Headquartered in Greenwich, CT, Howmet International Inc. is the world's largest
manufacturer of precision investment castings, primarily for jet aircraft and
industrial gas turbine engines. Howmet and its subsidiaries operate 29
production facilities in the United States, Canada, France, the United Kingdom
and Japan.
This press release includes forward-looking statements. Such statements include
those relating to future sales and earnings growth among others. Pursuant to the
safe harbor provisions of the Private Securities Litigation Reform Act of 1995,
the Company cautions readers that such forward-looking statements are subject to
certain risks and uncertainties, which could cause actual results to differ
materially from those projected in those statements. These risks and
uncertainties include, but are not limited to, worldwide economic and political
conditions, the effects of aerospace industry economic conditions and
cyclicality, the nature of the company's customer base, competition, pricing
pressures, availability and cost of raw materials and others detailed in the
Company's Annual Report on Form 10-K for the year 1998 and other reports filed
with the Securities and Exchange Commission. The Company undertakes no
obligation to publicly update or revise any forward-looking statements to
reflect future events or developments.
<PAGE>
HOWMET REPORTS ANNUAL EARNINGS, PG. 4
Summary unaudited financial information for the year ended December 31 follows:
<TABLE>
<CAPTION>
(in millions, except per share Better
amounts) 1999 1998 (Worse) Percent
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $1,459.7 $1,350.6 $ 109.1 8
================================================================================
Income from operations 215.4 189.7 25.7 14
Interest income 1.0 1.6 (.6) (38)
Interest expense (6.3) (12.7) 6.4 50
Other, net (3.0) (3.4) .4 12
- --------------------------------------------------------------------------------
Income before income taxes 207.1 175.2 31.9 18
Income taxes (70.4) (64.8) (5.6) (9)
- --------------------------------------------------------------------------------
Net income 136.7 110.4 26.3 24
Preferred stock dividend (.8) (5.6) 4.8 86
- --------------------------------------------------------------------------------
Net income available to
common stockholders $ 135.9 $ 104.8 $ 31.1 30
================================================================================
Net income per common share,
basic and diluted $ 1.36 $ 1.05 $ .31 30
================================================================================
</TABLE>
The 1999 earnings include a $.02 per share positive impact related to a variable
stock compensation plan. This benefit results from a decline in Cordant
Technologies Inc. (Howmet's 85 percent owner) common stock price. It will
reverse ratably in future periods if the Cordant common stock price rises above
its December 31, 1999 closing price. Excluding this benefit, 1999 earnings per
share increased 28 percent over 1998.
In the 1999 fourth quarter, the effective tax rate was reduced retroactively to
the beginning of the year from a 36 percent to 34 percent rate, primarily as a
result of higher foreign sales corporation benefits and legislation extending
the R&D tax credit to June 2004.
(more)
<PAGE>
HOWMET REPORTS ANNUAL EARNINGS, PG. 5
Summary unaudited financial information for the three months ended December 31
follows:
<TABLE>
<CAPTION>
(in millions, except per share Better
amounts) 1999 1998 (Worse) Percent
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $362.1 $354.9 $ 7.2 2
================================================================================
Income from operations 46.7 32.5 14.2 44
Interest income .5 .5 - -
Interest expense (1.1) (2.3) 1.2 52
Other, net (1.3) (.6) (.7) (117)
- --------------------------------------------------------------------------------
Income before income taxes 44.8 30.1 14.7 49
Income taxes (12.0) (9.7) (2.3) (24)
- --------------------------------------------------------------------------------
Net income 32.8 20.4 12.4 61
Preferred stock dividend - (1.4) 1.4 -
- --------------------------------------------------------------------------------
Net income available to
common stockholders $ 32.8 $ 19.0 $ 13.8 73
================================================================================
Net income per common share,
basic and diluted $ .33 $ .19 $ .14 74
================================================================================
</TABLE>
The 1999 fourth quarter earnings were reduced by a $.03 per share reversal of a
third quarter benefit related to the Company's Stock Appreciation Rights (SAR)
plan and another variable stock compensation plan. The Company warned of this
unusual charge in its third quarter earnings release, where it described the
third quarter benefit as one that would reverse when Howmet's common stock price
rose above $15 per share and when Cordant's common stock price rose above its
September 30, 1999 closing price. The 1998 fourth quarter earnings were reduced
by a $.07 per share reversal of a prior quarter SAR benefit, resulting from
fluctuations in Howmet's common stock price.
In the 1999 and 1998 fourth quarters, the effective tax rates were reduced
retroactively to the beginning of the years by 2 percent and 1 percent,
respectively. The retroactive effect of the change on the first nine-month
periods benefited the fourth quarters by $.03 per share in 1999 and $.02 per
share in 1998.
Excluding both the effects of all of the items discussed above, 1999 earnings
per share increased 38 percent over the 1998 fourth quarter.
####
<PAGE>
HOWMET REPORTS ANNUAL EARNINGS, PG. 6
Contact:
Doreen L. Deary Shannon P. Sebahar
Corporate Communications Investor Relations
(203) 625-8735 (801) 933-4030
[email protected] [email protected]
(End of Press Release)
<PAGE>
(b) The following additional information is provided for the benefit of
investors.
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
<TABLE>
<CAPTION>
Year ended December 31,
-----------------------------------------
(in millions, except per share data) 1999 1998 1997
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Net sales $1,459.7 $1,350.6 $1,258.2
Operating expenses:
Cost of sales 1,115.8 1,039.1 963.8
Selling, general and administrative
expense 108.6 101.6 122.3
Research and development expense 19.9 20.2 17.6
- --------------------------------------------------------------------------------
Total operating expenses 1,244.3 1,160.9 1,103.7
Income from operations 215.4 189.7 154.5
Interest income 1.0 1.6 1.2
Interest expense (6.3) (12.7) (31.0)
Other, net (3.0) (3.4) (6.4)
- --------------------------------------------------------------------------------
Income before income taxes and
extraordinary item 207.1 175.2 118.3
Income taxes (70.4) (64.8) (46.3)
- --------------------------------------------------------------------------------
Income before extraordinary item 136.7 110.4 72.0
Extraordinary item - loss on early
retirement of debt, net of income
taxes of $7.9 - - (12.3)
- --------------------------------------------------------------------------------
Net income 136.7 110.4 59.7
Dividends on redeemable preferred
stock (.8) (5.6) (5.1)
- --------------------------------------------------------------------------------
Net income applicable to common stock $ 135.9 $ 104.8 $ 54.6
================================================================================
Per common share amounts, basic and diluted:
Income before extraordinary item $ 1.36 $ 1.05 $ .67
Extraordinary item - - (.12)
- --------------------------------------------------------------------------------
Net income $ 1.36 $ 1.05 $ .55
================================================================================
</TABLE>
<PAGE>
CONDENSED CONSOLIDATED BALANCE SHEETS (UNAUDITED)
<TABLE>
<CAPTION>
December 31,
-----------------------
(in millions, except share data) 1999 1998
- ----------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
- ------
Current assets:
Cash and cash equivalents $ 39.4 $ 37.6
Accounts receivable (less allowance of $3.7 and $5.2) 80.7 84.1
Inventories 165.3 161.9
Retained receivables 35.6 32.0
Deferred income taxes 14.3 16.2
Other current assets 3.7 3.0
Restricted Trust (a) - 716.4
- ----------------------------------------------------------------------------------
Total current assets 339.0 1,051.2
Property, plant and equipment, net 396.5 334.9
Goodwill, net 209.5 221.1
Patents and technology and other intangible assets, net 94.9 115.1
Deferred income taxes 11.9 -
Other noncurrent assets 68.3 78.3
- ----------------------------------------------------------------------------------
Total assets $1,120.1 $ 1,800.6
==================================================================================
LIABILITIES, REDEEMABLE PREFERRED STOCK AND STOCKHOLDERS'
- ---------------------------------------------------------
EQUITY
- ------
Current liabilities:
Accounts payable $ 81.3 $ 101.5
Accrued compensation 59.8 45.0
Other accrued liabilities 98.0 108.7
Advance on accounts receivable 40.0 -
Income taxes payable 47.8 44.8
Short-term debt 45.7 28.0
Pechiney Notes (a) - 716.4
- ----------------------------------------------------------------------------------
Total current liabilities 372.6 1,044.4
Noncurrent liabilities:
Accrued retiree benefits other than pensions 101.2 96.8
Accrued pension liability 35.9 49.0
Other noncurrent liabilities 109.7 108.4
Deferred income taxes - 2.1
Long-term debt - 63.0
- ----------------------------------------------------------------------------------
Total noncurrent liabilities 246.8 319.3
Commitments and contingencies
Redeemable preferred stock - 65.6
Stockholders' equity:
Preferred stock, authorized - 9,993,470 shares,
issued and outstanding - 0 shares - -
Common stock, $.01 par value; authorized - 400,000,000
shares,issued and outstanding: 1999 - 100,028,833 shares;
1998 - 100,005,356 shares 1.0 1.0
Capital surplus 195.4 195.1
Retained earnings 316.0 180.1
Accumulated other comprehensive income (11.7) (4.9)
- ----------------------------------------------------------------------------------
Total stockholders' equity 500.7 371.3
- ----------------------------------------------------------------------------------
Total liabilities, redeemable preferred stock and
stockholders' equity $1,120.1 $ 1,800.6
==================================================================================
</TABLE>
(a) The Restricted Trust held a note receivable from Pechiney, S.A., the
Company's previous owner, and related letters of credit that secured
Pechiney, S.A.'s agreement to repay the Pechiney Notes. Pechiney, S.A. (the
Company's previous owner) paid the Notes in full on January 4, 1999 and the
Restricted Trust was terminated. No Company funds were used in the payment
of the Notes.
<PAGE>
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
<TABLE>
<CAPTION>
Year ended December 31,
-----------------------------------
(in millions) 1999 1998 1997
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
OPERATING ACTIVITIES
- --------------------
Net income $ 136.7 $ 110.4 $ 59.7
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 66.8 60.2 66.9
Equity in income of unconsolidated
affiliates - (.4) (1.5)
Extraordinary item - - 12.3
Changes in assets and liabilities:
Receivables (2.5) (3.5) 8.4
Inventories (4.6) 2.2 (17.9)
Accounts payable and accrued
liabilities (12.6) 10.3 12.1
Deferred income taxes (14.8) (2.1) (.3)
Income taxes payable 3.4 17.8 16.9
Long-term SARs accrual 6.3 5.5 31.4
Advance on accounts receivable 40.0 - -
Other, net 14.2 7.0 4.6
- -------------------------------------------------------------------------------
Net cash provided by operating 232.9 207.4 192.6
activities
INVESTING ACTIVITIES
- --------------------
Purchases of property, plant and equipment (112.9) (83.0) (56.9)
Payments made for investments and other
assets - (3.0) (1.8)
Proceeds from sale of refurbishment
business, net - - 44.9
- -------------------------------------------------------------------------------
Net cash used by investing activities (112.9) (86.0) (13.8)
FINANCING ACTIVITIES
- --------------------
Net change in short-term debt 14.6 15.1 -
Issuance of long-term debt 65.0 36.6 326.2
Repayment of long-term debt (128.0) (182.0) (467.6)
Redemption of preferred stock (66.4) - -
Premiums paid on early retirement of debt - - (13.7)
- -------------------------------------------------------------------------------
Net cash used by financing activities (114.8) (130.3) (155.1)
Foreign currency rate changes (3.4) 1.1 (1.7)
- -------------------------------------------------------------------------------
(Decrease) increase in cash and cash
equivalents 1.8 (7.8) 22.0
Cash and cash equivalents at beginning of
period 37.6 45.4 23.4
- -------------------------------------------------------------------------------
Cash and cash equivalents at end of period $ 39.4 $ 37.6 $ 45.4
================================================================================
</TABLE>
<PAGE>
CONSOLIDATED STATEMENTS OF COMMON STOCKHOLDERS' EQUITY AND REDEEMABLE PREFERRED
STOCK (UNAUDITED)
<TABLE>
<CAPTION>
Accumulated Total
Other Common Redeemable
Common Stock Capital Retained Comprehensive Stockholders' Preferred Stock
------------- ---------------
(in millions, except share data) Shares Amount Surplus Earnings Income Equity Shares Amount
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1996 100,000,000 $1.0 $195.0 $ 20.7 $ 2.1 $218.8 5,490 $ 54.9
- -------------------------------------------------------------------------------------------------------------
Comprehensive income:
Net income 59.7 59.7
Othercomprehensive income
Foreign exchange
translation adjustment (7.7) (7.7)
-----------
Total comprehensive income 52.0
-----------
Dividends - redeemable
preferred stock (5.1) (5.1) 511 5.1
- -------------------------------------------------------------------------------------------------------------
Balance, December 31, 1997 100,000,000 $1.0 $195.0 $ 75.3 $ (5.6) $265.7 6,001 $ 60.0
- -------------------------------------------------------------------------------------------------------------
Comprehensive income:
Net income 110.4 110.4
Other comprehensive income
Foreign exchange
translation adjustment 3.1 3.1
Minimum pension liability
adjustment (2.4) (2.4)
-----------
Total comprehensive income 111.1
-----------
Dividends - redeemable
preferred stock (5.6) (5.6) 559 5.6
Shares issued 5,356 .1 .1
- -------------------------------------------------------------------------------------------------------------
Balance, December 31, 1998 100,005,356 $1.0 $195.1 $180.1 $ (4.9) $371.3 6,560 $ 65.6
- -------------------------------------------------------------------------------------------------------------
Comprehensive income:
Net income 136.7 136.7
Other comprehensive income
Foreign exchange
translation adjustment (10.4) (10.4)
Minimum pension liability
adjustment 2.4 2.4
Unrealized gain on
securities 1.2 1.2
-----------
Total comprehensive income 129.9
-----------
Dividends - redeemable
preferred stock (.8) (.8) 78 .8
Redeemable preferred stock
redemption (6,638) (66.4)
Shares issued 23,527 .3 .3
- -------------------------------------------------------------------------------------------------------------
BALANCE, DECEMBER 31, 1999 100,028,883 $1.0 $195.4 $316.0 $(11.7) $500.7 - $ -
=============================================================================================================
</TABLE>
<PAGE>
(c) On February 9, 2000, Howmet Corporation terminated its $300 Million
revolving credit agreement with Bank One, NA and entered into a new Credit
Agreement, also with Bank One, NA for a $25 million line of credit.
Item 7 Financial Statements and Exhibits
- --------------------------------------------------------------------------------
(c) Exhibits
4.8 Credit Agreement between Howmet Corporation and Bank One, NA
dated February 9, 2000.
This Form 8-K includes forward-looking statements. Such statements include those
relating to future sales and earnings growth among others. Pursuant to the safe
harbor provisions of the Private Securities Litigation Reform Act of 1995, the
Company cautions readers that such forward-looking statements are subject to
certain risks and uncertainties, which could cause actual results to differ
materially from those projected in those statements. These risks and
uncertainties include, but are not limited to, worldwide economic and political
conditions, the effects of aerospace industry economic conditions and
cyclicality, the nature of the company's customer base, competition, pricing
pressures, availability and cost of raw materials and others detailed in the
Company's Annual Report on Form 10-K for the year 1998 and other reports filed
with the Securities and Exchange Commission. The Company undertakes no
obligation to publicly update or revise any forward-looking statements to
reflect future events or developments.
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HOWMET INTERNATIONAL INC.
(Registrant)
By: /s/ John C.Ritter
---------------
John C. Ritter
Senior Vice President and
Chief Financial Officer
Date: February 11, 2000
CREDIT AGREEMENT
This Credit Agreement (as it may be amended or modified and in effect from
time to time, the "Agreement"), dated as of February 9, 2000, is between Howmet
Corporation, a Delaware corporation (together with its successors and assigns,
the "Borrower"), and Bank One, NA, with its main office in Chicago, Illinois
(together with its successors and assigns, the "Lender"). The parties hereto
agree as follows:
ARTICLE I -- DEFINITIONS
As used in this Agreement:
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the prime rate of interest announced from time to
time by the Lender or by its parent (which is not necessarily the lowest rate
charged to any customer), changing when and as said prime rate changes and (ii)
the sum of the federal funds effective rate (as published by the Federal Reserve
Bank of New York) for such day plus 1/2% per annum.
"Alternate Base Rate Loan" means a Loan that bears interest at the
Alternate Base Rate.
"Borrowing Date" means a date on which a Loan is made hereunder.
"Borrowing Notice" is defined in Section 2.5.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Loans, a day (other than a Saturday or Sunday) on which
banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of substantially all of their
commercial lending activities.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means the obligation of the Lender to make Loans not
exceeding the amount set forth opposite its signature below or as set forth in
any notice of assignment relating to any assignment that has become effective
pursuant to Section 11.3, as such amount may be modified from time to time
pursuant to the terms hereof.
"Controlled Group" means all members of a controlled group of corporations
or other business entities and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any of
its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in Section 2.6.
"Cordant Credit Agreement" means that certain 5-Year Revolving Credit
Agreement dated as of February 9, 2000 among Cordant Technologies Inc., the
institutions from time to time parties thereto as lenders, Bank One, NA, as
Administrative Agent, ABN AMRO Bank N.V., as Syndication Agent and Bank of
America, N.A. and Wachovia Bank, N.A. as Co-Documentation Agents, as the same
may be amended, modified, supplemented and/or restated and as in effect from
time to time.
"Default" means an event described in Article VII.
<PAGE>
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Base Rate" means, with respect to a Eurodollar Loan for the
relevant Interest Period, the applicable British Bankers' Association Interest
Settlement Rate for deposits in U.S. dollars appearing on Reuters Screen FRBD as
of 11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest Period, provided
that, (i) if Reuters Screen FRBD is not available to the Lender for any reason,
the applicable Eurodollar Base Rate for the relevant Interest Period shall
instead be the applicable British Bankers' Association Interest Settlement Rate
for deposits in U.S. dollars as reported by any other generally recognized
financial information service as of 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, and having a maturity equal to
such Interest Period, and (ii) if no such British Bankers' Association Interest
Settlement Rate is available to the Lender, the applicable Eurodollar Base Rate
for the relevant Interest Period shall instead be the rate determined by the
Lender to be the rate at which the Lender or one of its affiliate banks offers
to place deposits in U.S. dollars with first-class banks in the London interbank
market at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, in the approximate amount of the Eurodollar
Loan and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan that bears interest at a Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Loan for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) 0.925% per annum.
"Indebtedness" of any Person means, without duplication, (a) the
obligations of such Person (i) for borrowed money, (ii) under or with respect to
notes payable and drafts accepted which represent extensions of credit (whether
or not representing obligations for borrowed money) to such Person, (iii)
reimbursement obligations with respect to letters of credit issued for the
account of such Person (other than letters of credit utilized for non-financial
obligations (i.e., performance on contracts, workers' compensation, to support
self-insurance programs and for the benefit of governmental entities in
connection with environmental clean-up activities)) or (iv) for the deferred
purchase price of property or services other than current accounts payable
arising in the ordinary course of business on terms customary in the trade, (b)
the obligations of others, whether or not assumed, secured by Liens on property
of such Person or payable out of the proceeds of or production from property now
or hereafter owned or acquired by such Person, (c) the Capitalized Lease
Obligations of such Person, (d) the obligations of such Person under Guaranties
by such Person of any Indebtedness (other than obligations for borrowed money
incurred to finance the purchase of property leased to such Person pursuant to a
Capitalized Lease of such Person) of any other Person, (e) all Receivables
Facility Attributed Indebtedness of such Person on the date of determination and
(f) Off Balance Sheet Liabilities of such Person (with all capitalized terms
used in this definitions and not defined in this Agreement having the same
meanings given to such terms in the Cordant Credit Agreement).
"Interest Period" means, with respect to a Eurodollar Loan, a period of
one, two or three months commencing on a Business Day selected by the Borrower
pursuant to this Agreement. Such Interest Period shall end on the day that
corresponds numerically to such date one, two or three months thereafter,
provided, however, that if there is no such numerically corresponding day in
such next, second or third succeeding month, such Interest Period shall end on
the last Business Day of such next, second or third succeeding month. If an
Interest Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day, provided,
however, that if said next succeeding Business Day falls in a new calendar
month, such Interest Period shall end on the immediately preceding Business Day.
<PAGE>
"Lending Installation" means any office, branch, subsidiary or
affiliate of the Lender.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, capitalized lease or other title retention
agreement).
"Loan" means a borrowing hereunder (or a conversion or continuation
thereof).
"Loan Documents" means this Agreement and, if requested, a Note and the
other documents and agreements contemplated hereby and executed by the Borrower
in favor of the Lender.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Lender thereunder.
"Note" is defined in Section 2.10.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lender
or any indemnified party arising under the Loan Documents.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, limited liability company, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Prior Howmet Agreement" means that certain Credit Agreement dated as of
December 16, 1997 among the Borrower, the financial institutions parties thereto
as lenders, ABN AMRO Bank N.V. and Bankers Trust Company, as Co-Documentation
Agents and Bank One, NA (formerly The First National Bank of Chicago), as Swing
Line Lender, LC Issuer and Agent, as the same has been amended from time to
time.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D of the Board of
Governors of the Federal Reserve System on Eurocurrency liabilities.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Termination Date" means May 9, 2000.
<PAGE>
"Type" means, with respect to any Loan, its nature as an Alternate Base
Rate Loan or a Eurodollar Loan.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II -- THE CREDITS
2.1. Commitment; Reduction of Commitment. From and including the date of
-------------------------------------
this Agreement and prior to the Termination Date, the Lender agrees, on the
terms and conditions set forth in this Agreement, to make Loans to the Borrower
from time to time in amounts not to exceed in the aggregate at any one time
outstanding the amount of the Commitment. The Borrower may permanently reduce
the Commitment, in integral multiples of $1,000,000, upon at least five Business
Days' written notice to the Lender; provided, however, that the amount of the
Commitment may not be reduced below the aggregate principal amount of the
outstanding Loans.
2.2. Types of Loans; Minimum Amount; Lending Installations. Subject to the
------------------------------------------------------
terms of this Agreement, the Borrower may borrow, repay and reborrow at any time
prior to the Termination Date. The Loans may be Alternate Base Rate Loans or
Eurodollar Loans, or a combination thereof, selected by the Borrower in
accordance with Sections 2.5 and 2.6. Each Loan shall be in the minimum amount
of $1,000,000 and increments of $100,000 in excess thereof. The Lender may book
the Loans at any Lending Installation, as selected by the Lender. All terms of
the Loan Documents shall apply to and may be enforced by or on behalf of any
such Lending Installation.
2.3. Principal Payments. The Borrower may from time to time pay, without
--------------------
penalty or premium, in a minimum aggregate amount of $100,000, any portion of
the outstanding Alternate Base Rate Loans upon two Business Days' prior notice
to the Lender. The Borrower may from time to time pay, without penalty or
premium, all outstanding Eurodollar Loans, or, in a minimum aggregate amount of
$1,000,000 or any integral multiple of $100,000 in excess thereof, any portion
of the outstanding Eurodollar Loans upon three Business Days' prior notice to
the Lender; provided, however, that if any such payment occurs, whether because
of acceleration, prepayment or otherwise, or a Eurodollar Loan is not made on
the date specified by the Borrower for any reason other than default by the
Lender, the Borrower will indemnify the Lender for any loss or cost incurred by
it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the Eurodollar
Loan. Any outstanding Loans and all other unpaid Obligations shall be paid in
full by the Borrower, and the Commitment to lend hereunder shall expire, on the
Termination Date.
2.4. Fees. The Borrower agrees to pay to the Lender a facility fee of
-----
0.20% per annum on the amount of the Commitment from the date hereof to and
including the Termination Date, payable on the last day of each calendar quarter
hereafter and on the Termination Date. All accrued fees shall be payable on the
effective date of any termination of the obligations of the Lender to make Loans
hereunder.
2.5. Method of Selecting Types and Interest Periods for New Loans. The
---------------------------------------------------------------
Borrower shall select the Type of Loan and the Interest Period, if any,
applicable to each Loan from time to time. The Borrower shall give the Lender
irrevocable notice (a "Borrowing Notice") not later than 11:00 a.m. (Chicago
time) at least one Business Day before the Borrowing Date of each Alternate Base
Rate Loan and three Business Days before the Borrowing Date for each Eurodollar
Loan, specifying for each Loan: (i) the Borrowing Date, which shall be a
Business Day, (ii) the aggregate amount, (iii) the Type, and (iv) the Interest
Period, if any, applicable thereto. The Lender will make the funds available to
the Borrower at the Lender's address specified pursuant to Article XII.
<PAGE>
2.6. Conversion and Continuation of Outstanding Loans. Alternate Base Rate
-------------------------------------------------
Loans shall continue as such unless and until converted into Eurodollar Loans or
are repaid. Each Eurodollar Loan shall continue until, and may not be converted
prior to, the end of the then applicable Interest Period therefor, at which time
such Eurodollar Loan shall be automatically converted into an Alternate Base
Rate Loan unless such Eurodollar Loan was repaid or the Borrower shall have
given the Lender irrevocable notice (a "Conversion/Continuation Notice")
requesting that, at the end of such Interest Period, such Eurodollar Loan
continue as such for the same or another Interest Period. The Borrower shall
give the Lender a Conversion/Continuation Notice prior to the date of the
requested conversion or continuation, but not later than the times identified in
Section 2.5 for Borrowing Notices, specifying for each Loan being converted or
continued: (i) the requested date which shall be a Business Day; (ii) the
aggregate amount and Type; and (iii) the amount and Type(s) of Loan(s) into
which such Loan is to be converted or continued and the duration of the Interest
Period, if any, applicable thereto.
2.7. Changes in Interest Rate. Each Alternate Base Rate Loan shall bear
--------------------------
interest, at the Alternate Base Rate, on the outstanding principal amount
thereof, for each day from and including the date such Loan is made or is
automatically converted from a Eurodollar Loan pursuant to Section 2.6 to but
excluding the date it is paid or is converted into a Eurodollar Loan pursuant to
Section 2.6. Changes in the Alternate Base Rate will take effect simultaneously
with each change in the Alternate Base Rate. Each Eurodollar Loan shall bear
interest on the outstanding principal amount thereof for each day during the
Interest Period applicable thereto from and including the first day of such
Interest Period to (but not including) the last day of such Interest Period at
the Eurodollar Rate applicable thereto.
No Interest Period may end after the Termination Date.
2.8. Rates Applicable After Default. Notwithstanding anything to the
----------------------------------
contrary contained in Section 2.5 or 2.6, during the continuance of a Default or
Unmatured Default the Lender may, at its option, by notice to the Borrower,
declare that no Loan may be made as, converted into or continued as a Eurodollar
Loan. During the continuance of a Default, the Lender may, at its option, by
notice to the Borrower, declare that (i) each Eurodollar Loan shall bear
interest for the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus 2% per annum, and (ii) each
Alternate Base Rate Loan shall bear interest at a rate per annum equal to the
Alternate Base Rate in effect from time to time plus 2% per annum, provided
that, during the continuance of a Default under Section 7.2, 7.5 or 7.6, the
interest rates set forth in clauses (i) and (ii) above shall be applicable to
all Loans without any election or action on the part of the Lender.
2.9. Method of Payment. All payments of the Obligations hereunder shall be
------------------
made, without setoff, deduction, or counterclaim, in immediately available funds
to the Lender at the Lender's address, by noon (local time) on the date when
due. The Lender is hereby authorized to charge the account of the Borrower
maintained with the Lender for each payment of principal, interest and fees as
it becomes due hereunder.
2.10. Noteless Agreement; Evidence of Indebtedness. The Lender shall
------------------------------------------------
maintain in accordance with its usual practice an account or accounts in which
it will record (a) the amount of each Loan made hereunder, the Type thereof and
the Interest Period with respect thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to the
Lender hereunder and (c) the amount of any sum received by the Lender hereunder
from the Borrower. The entries maintained in such accounts shall be prima facie
evidence of the existence and amounts of the Obligations therein recorded;
provided, however, that the failure of the Lender to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Obligations in accordance with their terms. The Lender may request
that the Loans be evidenced by a promissory note (a "Note"). In such event, the
Borrower shall prepare, execute and deliver to the Lender a Note payable to the
order of the Lender in a form supplied by the Lender. Thereafter, the Loans
evidenced by such Note and interest thereon shall at all times (including after
any assignment pursuant to Section 11.3) be represented by one or more Notes
payable to the order of the payee named therein or any assignee pursuant to
Section 11.3, except to the extent that the Lender or any such assignee
subsequently returns any such Note for cancellation and requests that such Loans
once again be evidenced as described above.
<PAGE>
2.11. Telephonic Notices. The Borrower hereby authorizes the Lender to
--------------------
extend, convert or continue Loans, effect selections of Types of Loans and to
transfer funds based on telephonic notices made by any person or persons the
Lender in good faith believes to be acting on behalf of the Borrower. If the
Borrower's records differ in any material respect from the action taken by the
Lender, the records of the Lender shall govern absent manifest error.
2.12. Interest Payment Dates; Interest and Fee Basis. Interest accrued on
------------------------------------------------
each Alternate Base Rate Loan shall be payable on the last day of each calendar
quarter, commencing with the first such date to occur after the date hereof and
at maturity. Interest accrued on each Eurodollar Loan shall be payable on the
last day of its applicable Interest Period, on any date on which the Eurodollar
Loan is prepaid, whether by acceleration or otherwise, and at maturity. Interest
accrued on Eurodollar Loans, commitment fees and Alternate Base Rate Loans where
the basis of calculation is the federal funds effective rate shall be calculated
for actual days elapsed on the basis of a year of 360 days, and interest accrued
on Alternate Base Rate Loans where the basis of calculation is the prime rate
shall be calculated for actual days elapsed on the basis of a year or 365, or
when appropriate 366, days. Interest shall be payable for the day a Loan is made
but not for the day of any payment if payment is received prior to noon (local
time) at the place of payment. If any payment of principal of or interest on a
Loan shall become due on a day which is not a Business Day, such payment shall
be made on the next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in computing interest in
connection with such payment.
ARTICLE III -- CHANGE IN CIRCUMSTANCES
The Borrower agrees to pay to the Lender such amounts as will compensate
the Lender for any increase in the cost to the Lender of making or maintaining
any Loan hereunder or of maintaining the Commitment to make Loans hereunder, by
reason of a change in any reserve (except Reserve Requirements), tax, capital
guidelines, special deposit, or similar requirement with respect to assets of,
deposits with or for the account of, or credit extended by, or commitments
extended by, the Lender which are imposed on, or deemed applicable by, the
Lender, under any law, treaty, rule, regulation (including, without limitation,
Regulation D of the Board of Governors of the Federal Reserve System), any
interpretation thereof by any governmental, fiscal, monetary or other authority
charged with the administration thereof or having jurisdiction over such Loan or
the Lender, or any requirement imposed by any such authority, whether or not
having the force of law. Such additional amounts shall be payable on demand. The
Lender may suspend the availability of any Type of Eurodollar Loan if
maintenance of such Loan at a suitable Lending Installation becomes illegal or
if deposits matching such Loan are unavailable to the Lender or if the
Eurodollar Rate fails to reflect the cost to the Lender of making or maintaining
such Loan.
ARTICLE IV -- CONDITIONS PRECEDENT
4.1. Initial Loan. The Lender shall not be required to make the initial
--------------
Loan hereunder unless the Borrower has furnished to the Lender a Note payable to
the Lender, if so requested by the Lender, and such opinions of counsel,
certificates of incumbency, resolutions, by-laws and articles of incorporation
and such other closing documents as the Lender has requested.
4.2. Each Loan. The Lender shall not be required to make any Loan (other
----------
than a Loan that, after giving effect thereto and to the application of the
proceeds thereof, does not increase the aggregate amount of outstanding Loans),
unless on the applicable Borrowing Date: (i) there exists no Default or
Unmatured Default; (ii) the representations and warranties contained in Article
V are true and correct as of such Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall be true and correct on and as
of such earlier date; and (iii) all legal matters incident to the making of such
<PAGE>
Loan shall be satisfactory to the Lender and its counsel. Each Borrowing Notice
with respect to each such Loan shall constitute a representation and warranty by
the Borrower that the conditions contained in Sections 4.2(i) and (ii) have been
satisfied. The Lender may require a duly completed compliance certificate as a
condition to making a Loan.
ARTICLE V -- REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender that:
5.1. Incorporation of the Prior Howmet Agreement Provisions. Each of the
representations and warranties contained in Article VI of the Prior Howmet
Agreement is true and correct in all material respects with respect to the
Borrower and its Subsidiaries as though such representations and warranties (and
all relevant definitions) were included herein and whether or not the Prior
Howmet Agreement has terminated.
5.2. Authorization and Validity. The Borrower has the power and authority
---------------------------
and legal right to execute and deliver the Loan Documents and to perform its
obligations thereunder. The execution and delivery by the Borrower of the Loan
Documents and the performance of its obligations thereunder have been duly
authorized by proper corporate proceedings, and the Loan Documents constitute
legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
5.3. No Conflict; Government Consent. Neither the execution and delivery
---------------------------------
by the Borrower of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Borrower or any of its Subsidiaries or (ii) the Borrower's
or any Subsidiary's articles or certificate of incorporation, partnership
agreement, certificate of partnership, articles or certificate of organization,
by-laws, or operating or other management agreement, as the case may be, or
(iii) the provisions of any indenture, instrument or agreement to which the
Borrower or any of its Subsidiaries is a party or is subject, or by which it, or
its Property, is bound, or conflict with or constitute a default thereunder, or
result in, or require, the creation or imposition of any Lien in, of or on the
Property of the Borrower or a Subsidiary pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, which has not been obtained by
the Borrower or any of its Subsidiaries, is required to be obtained by the
Borrower or any of its Subsidiaries in connection with the execution and
delivery of the Loan Documents, the borrowings under this Agreement, the payment
and performance by the Borrower of the Obligations or the legality, validity,
binding effect or enforceability of any of the Loan Documents.
ARTICLE VI -- COVENANTS
During the term of this Agreement, unless the Lender shall otherwise
consent in writing:
6.1. Incorporation of Certain Prior Howmet Agreement Covenants. The
---------------------------------------------------------------
Borrower and its Subsidiaries shall comply with each of the covenants contained
in Article VII of the Prior Howmet Agreement as though such covenants (and all
relevant definitions) were included herein and whether or not the Prior Howmet
Agreement has terminated.
ARTICLE VII -- DEFAULTS
<PAGE>
The occurrence of any one or more of the following events shall constitute
a Default:
7.1. Any representation or warranty made or deemed made by or on behalf
of the Borrower or any of its Subsidiaries to the Lender under or in connection
with this Agreement, any Loan, or any certificate or information delivered in
connection with this Agreement or any other Loan Document shall be materially
false on the date as of which made.
7.2. Nonpayment of principal of any Loan when due, or nonpayment of
interest upon any Loan or of any commitment fee or other obligations under any
of the Loan Documents within five days after the same becomes due.
7.3. The breach by the Borrower (other than a breach which constitutes a
Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within thirty days after
written notice from the Lender.
7.4. Failure of the Borrower or any of its Subsidiaries to pay when due
any Indebtedness aggregating in excess of $20,000,000 ("Material Indebtedness");
or the default by the Borrower or any of its consolidated subsidiaries in the
performance (beyond the applicable grace period with respect thereto, if any) of
any term, provision or condition contained in any agreement under which any
Material Indebtedness was created or is governed, or any other event shall occur
or condition exist, the effect of which default or event is to cause, or to
permit the holder or holders of such Material Indebtedness to cause, such
Material Indebtedness to become due prior to its stated maturity; or any
Material Indebtedness of the Borrower or any of its Subsidiaries shall be
declared to be due and payable or required to be prepaid or repurchased (other
than by a regularly scheduled payment) prior to the stated maturity thereof; or
the Borrower or any of its Consolidated Subsidiaries shall not pay, or admit in
writing its inability to pay, its debts generally as they become due.
7.5. The Borrower or any of its Subsidiaries shall (i) have an order for
relief entered with respect to it under the Federal bankruptcy laws as now or
hereafter in effect, (ii) make an assignment for the benefit of creditors, (iii)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
substantial portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate or partnership action to authorize or effect any of the
foregoing actions set forth in this Section 7.5 or (vi) fail to contest in good
faith any appointment or proceeding described in Section 7.6.
7.6. Without the application, approval or consent of the Borrower or any
of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or any
substantial portion of its Property, or a proceeding described in Section
7.5(iv) shall be instituted against the Borrower or any of its Subsidiaries and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of 30 consecutive days.
7.7. The Borrower or any of its Subsidiaries shall fail within 30 days to
pay, bond or otherwise discharge one or more (i) judgments or orders for the
payment of money in excess of $20,000,000 in the aggregate, or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good
faith.
7.8. The acquisition by any Person other than Cordant Technologies Inc.,
or two or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
<PAGE>
Securities Exchange Act of 1934) of 20% or more of the outstanding shares of
voting stock of the Borrower.
ARTICLE VIII -- ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.5 or 7.6 occurs
-------------
with respect to the Borrower, the obligation of the Lender to make Loans
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the part of the Lender.
If any other Default occurs, the Lender may terminate or suspend the obligations
to make Loans hereunder, or declare the Obligations to be due and payable, or
both, whereupon the Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which the
Borrower hereby expressly waives.
8.2. Amendments. Subject to the provisions of this Article VIII, the
-----------
Lender and the Borrower may enter into agreements supplemental hereto for the
purpose of amending the Loan Documents in any manner or waiving any Default
hereunder.
8.3. Preservation of Rights. No delay or omission of the Lender to
-------------------------
exercise any right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lender, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Lender until the
Obligations have been paid in full.
ARTICLE IX -- GENERAL PROVISIONS
9.1. Entire Agreement; Severability of Provisions. The Loan Documents
------------------------------------------------
embody the entire agreement and understanding between the Borrower and the
Lender and supersede all prior agreements and understandings between the
Borrower and the Lender relating to the subject matter thereof. Any provision in
any Loan Document that is held to be inoperative, unenforceable, or invalid in
any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable,
or invalid without affecting the remaining provisions in that jurisdiction or
the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.2. Benefits of this Agreement. This Agreement shall not be construed so
---------------------------
as to confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns, provided, however, that
the parties hereto expressly agree that Banc One Capital Markets, Inc. (the
"Arranger") shall enjoy the benefits of the provisions of Section 9.3 to the
extent specifically set forth therein and shall have the right to enforce such
provisions on its own behalf and in its own name to the same extent as if it
were a party to this Agreement
9.3. Expenses; Indemnification. The Borrower shall reimburse the Lender
---------------------------
and the Arranger for any costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' fees and time charges of attorneys for the
Lender, which attorneys may be employees of the Lender) paid or incurred by the
Lender or the Arranger in connection with the preparation, negotiation,
execution, delivery, syndication, review, amendment, modification, and
administration of the Loan Documents. The Borrower also agrees to reimburse the
<PAGE>
Arranger and the Lender for any costs, internal charges and out-of-pocket
expenses (including attorneys' fees and time charges of attorneys for the
Arranger and the Lender, which attorneys may be employees of the Arranger or the
Lender) paid or incurred by the Arranger or the Lender in connection with the
collection and enforcement of the Loan Documents. The Borrower further agrees to
indemnify the Arranger and the Lender, its directors, officers and employees
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all expenses of litigation or
preparation therefor whether or not the Arranger or the Lender is a party
thereto) which any of them may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the transactions contemplated hereby or the
direct or indirect application or proposed application of the proceeds of any
Loan hereunder except to the extent that they are determined in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section shall
survive the termination of this Agreement.
9.4. Survival of Representations; Taxes. All representations and
----------------------------------------
warranties of the Borrower contained in this Agreement shall survive delivery of
the Note and the making of the Loans herein contemplated. Any taxes (excluding
federal income taxes on the overall net income of the Lender) or other similar
assessments or charges made by any governmental or revenue authority in respect
of the Loan Documents shall be paid by the Borrower, together with interest and
penalties, if any.
9.5. Confidentiality. The Lender agrees to hold any confidential
----------------
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its affiliates, (ii) to legal counsel,
accountants, and other professional advisors to the Lender or to a Transferee,
(iii) to regulatory officials, (iv) to any Person as requested pursuant to or as
required by law, regulation, or legal process, (v) to any Person in connection
with any legal proceeding to which the Lender is a party, (vi) to the Lender's
direct or indirect contractual counterparties in swap agreements or to legal
counsel, accountants and other professional advisors to such counterparties, and
(vii) as permitted by Section 11.4.
ARTICLE X -- SETOFF
In addition to, and without limitation of, any rights of the Lender under
applicable law, if the Borrower becomes insolvent, however evidenced, or any
Default occurs, any and all deposits (including all account balances, whether
provisional or final and whether or not collected or available) and any other
Indebtedness at any time held or owing by the Lender or any affiliate of the
Lender to or for the credit or account of the Borrower may be offset and applied
toward the payment of the Obligations owing to the Lender, whether or not the
Obligations, or any part hereof, shall then be due.
ARTICLE XI -- ASSIGNMENTS; PARTICIPATIONS
11.1. Successors and Assigns. The terms and provisions of the Loan
-------------------------
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lender and their respective successors and assigns, except that (i) the Borrower
shall not have the right to assign its rights or obligations under the Loan
Documents and (ii) any assignment by the Lender must be made in compliance with
Section 11.3. Notwithstanding clause (ii) of this Section, the Lender may at any
time, without the consent of the Borrower, assign all or any portion of its
rights under this Agreement and any Note to a Federal Reserve Bank; provided,
however, that no such assignment to a Federal Reserve Bank shall release the
transferor Lender from its obligations hereunder. Any assignee or transferee of
the rights to any Loan or any Note agrees by acceptance thereof to be bound by
all the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the owner of the rights to any Loan (whether or not a
<PAGE>
Note has been issued in evidence thereof), shall be conclusive and binding on
any subsequent holder, transferee or assignee of the rights to such Loan.
11.2. Participations. The Lender may, in the ordinary course of its
---------------
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to it, any Note held by it, the Commitment or any other interest of the
Lender under the Loan Documents. In the event of any such sale by the Lender of
participating interests to a Participant, the Lender's obligations under the
Loan Documents shall remain unchanged, the Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
the Lender shall remain the owner of its Loans and the holder of any Note issued
to it in evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if the
Lender had not sold such participating interests, and the Borrower and the
Lender shall continue to deal solely and directly with each other in connection
with the Lender's rights and obligations under the Loan Documents. The Borrower
agrees that each Participant shall be deemed to have the right of setoff
provided in Article X in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the Loan
Documents, provided that the Lender shall retain the right of setoff provided in
Article X with respect to the amount of participating interests sold to each
Participant. The Lender agrees to share with each Participant, and each
Participant, by exercising the right of setoff provided in Article X, agrees to
share with the Lender, any amount received pursuant to the exercise of its right
of setoff, such amounts to be shared in accordance with Article X as if each
Participant were a Lender.
11.3. Assignments. The Lender may, in the ordinary course of its business
------------
and in accordance with applicable law, at any time assign to one or more banks
or other entities ("Purchasers") all or any part of its rights and obligations
under the Loan Documents. The Borrower hereby agrees to execute any amendment
and/or any other document that may be necessary to effectuate such an
assignment. Such assignment shall be evidenced by the Lender's standard form (to
be supplied upon request). The consent of the Borrower shall be required prior
to an assignment becoming effective with respect to a Purchaser that is not a
Lender or an affiliate thereof; provided, however, that if a Default has
occurred and is continuing, the consent of the Borrower shall not be required.
Such consent shall not be unreasonably withheld. Upon delivering to the Borrower
a notice of assignment, together with any required consent, such assignment
shall become effective on the effective date specified in such notice of
assignment. On and after the effective date of such assignment, such Purchaser
shall for all purposes be a Lender party to the other Loan Documents and shall
have all the rights and obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party hereto, and no further consent or
action by the Borrower shall be required to release the Lender with respect to
the percentage of the Commitment and Loans assigned to such Purchaser. Upon the
consummation of any such assignment to a Purchaser, the transferor Lender, the
Lender and the Borrower shall, if the Lender or the Purchaser desires, make
appropriate arrangements so that new Notes or, as appropriate, replacement
Notes, are issued to the Lender and Purchaser, in each case in principal amounts
reflecting their respective Commitments, as adjusted pursuant to such
assignment.
11.4. Dissemination of Information; Tax Treatment. The Borrower authorizes
--------------------------------------------
the Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in the
Lender's possession concerning the creditworthiness of the Borrower and its
Subsidiaries. If any interest in any Loan Document is transferred to any
Transferee which is organized under the laws of any jurisdiction other than the
United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to deliver to
the Lender such completed forms with respect to withholding taxes as the
Borrower may reasonably require.
ARTICLE XII -- NOTICES
<PAGE>
All notices, requests and other communications to any party hereunder
shall be in writing (including bank wire, telex, facsimile transmission or
similar writing) and shall be given to such party: (x) in the case of the
Borrower or the Lender, at its address, facsimile number or telex number set
forth on the signature pages hereof, or (y) in the case of any party, such other
address, facsimile number or telex number as such party may hereafter specify
for the purpose by notice to the other. Each such notice, request or other
communication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the Lender under
Article II shall not be effective until received.
ARTICLE XIII -- COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower and the Lender.
ARTICLE XIV -- GOVERNING LAW; JURISDICTION; JURY TRIAL WAIVER
14.1. CHOICE OF LAW; CONSENT TO JURISDICTION. THE LOAN DOCUMENTS (OTHER
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THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF
THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION
OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE
BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE LENDER TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE LENDER OR ANY AFFILIATE THEREOF
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
CHICAGO, ILLINOIS.
14.2. WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY WAIVE TRIAL
---------------------
BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
<PAGE>
IN WITNESS WHEREOF, the Borrower and the Lender have executed this
Agreement as of the date first above written.
HOWMET CORPORATION
By:-----------------------------------
Print Name:---------------------------
Title:--------------------------------
15 West South Temple
Suite 1600
Salt Lake City, UT 84101-1532
Phone: (801) 933-4025
Fax: (801) 933-4014
Attention: Nicholas J. Iuanow
Commitment
$25,000,000 BANK ONE, NA
By:-----------------------------------
Print Name:---------------------------
Title:--------------------------------
1 Bank One Plaza
Mail Code IL1-0374
Chicago, Illinois 60670
Phone: (312) 732- 8872
Fax: (312) 732- 3885
Attention: Gregory J. Sjullie
