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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from ____________to ____________
Commission file number 001-14437
RTI INTERNATIONAL METALS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
OHIO 52-2115953
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
1000 WARREN AVENUE, NILES, OHIO 44446
(Address of principal executive offices)
(330) 544-7700
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
YES X NO
----- -----
At November 1, 1998, 20,718,258 shares of common stock of the registrant
were outstanding.
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RTI INTERNATIONAL METALS, INC.
FORM 10-Q
QUARTER ENDED SEPTEMBER 30, 1998
INDEX
<TABLE>
<CAPTION>
PAGE
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<S> <C>
PART I--FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements:
Introduction to Consolidated Financial Statements...... 2
Consolidated Statement of Income....................... 3
Consolidated Balance Sheet............................. 4
Consolidated Statement of Cash Flows................... 5
Consolidated Statement of Shareholders' Equity......... 6
Selected Notes to Consolidated Financial Statements.... 7
Item 2. Management's Discussion and Analysis of Results of
Operations and Financial Condition........................ 9
PART II--OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K.................... 17
Signatures.................................................. 19
</TABLE>
<PAGE> 3
PART I--FINANCIAL INFORMATION
ITEM 1. CONSOLIDATED FINANCIAL STATEMENTS
INTRODUCTION TO CONSOLIDATED FINANCIAL STATEMENTS
The consolidated financial statements included herein have been prepared by
RTI International Metals, Inc. ("RTI"), without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission. RTI, together with RMI
Titanium Company prior to October 1, 1998, is hereinafter called the Company.
The financial information presented reflects all adjustments, consisting only of
normal recurring adjustments, which are, in the opinion of management, necessary
for a fair statement of the results for the interim periods presented. The
results for the interim periods are not necessarily indicative of the results to
be expected for the year.
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RTI INTERNATIONAL METALS, INC.
CONSOLIDATED STATEMENT OF INCOME
(UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
QUARTER ENDED NINE MONTHS ENDED
SEPTEMBER 30 SEPTEMBER 30
------------------------- -------------------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Sales................................... $ 81,027 $ 86,438 $ 266,608 $ 235,180
Operating costs:
Cost of sales........................... 55,779 66,624 191,664 182,869
Selling, general and administrative
expenses.............................. 4,130 3,718 11,946 9,249
Research, technical and product
development expenses.................. 1,099 883 2,920 2,285
----------- ----------- ----------- -----------
Total operating costs.............. 61,008 71,225 206,530 194,403
Operating income........................ 20,019 15,213 60,078 40,777
Other income-net........................ 808 275 2,231 701
Interest expense........................ -- (74) (57) (133)
----------- ----------- ----------- -----------
Income before income taxes.............. 20,827 15,414 62,252 41,345
Provision (credit) for income taxes
(Note 3).............................. 5,124 (7,128) 1,086 (4,205)
----------- ----------- ----------- -----------
Net income.............................. $ 15,703 $ 22,542 $ 61,166 $ 45,550
=========== =========== =========== ===========
Net income per common share:
Basic................................. $ 0.76 $ 1.10 $ 2.98 $ 2.23
=========== =========== =========== ===========
Diluted............................... $ 0.76 $ 1.08 $ 2.97 $ 2.21
=========== =========== =========== ===========
Weighted average shares outstanding:
Basic................................. 20,527,397 20,472,439 20,507,660 20,387,072
=========== =========== =========== ===========
Diluted............................... 20,647,677 20,772,674 20,627,924 20,652,301
=========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
3
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RTI INTERNATIONAL METALS, INC.
CONSOLIDATED BALANCE SHEET
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SEPTEMBER 30 DECEMBER 31
1998 1997
------------ -----------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................... $ 24,047 $ 30,211
Receivables--less allowance for doubtful accounts of
$1,327 and $1,064...................................... 71,079 70,898
Inventories............................................... 155,376 120,732
Deferred tax asset........................................ 1,211 4,811
Other current assets...................................... 9,581 5,903
-------- --------
Total current assets................................... 261,294 232,555
Property, plant and equipment, net of accumulated
depreciation........................................... 62,113 43,034
Noncurrent deferred tax asset............................. 21,209 5,157
Other noncurrent assets................................... 12,600 10,563
-------- --------
Total assets........................................... $357,216 $291,309
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable.......................................... $ 19,669 $ 25,346
Accrued wages and other employee costs.................... 10,038 8,024
Other accrued liabilities................................. 21,565 14,361
-------- --------
Total current liabilities.............................. 51,272 47,731
Long-term debt (Note 6)..................................... -- --
Accrued postretirement benefit cost......................... 19,376 19,376
Other noncurrent liabilities................................ 3,681 3,029
-------- --------
Total liabilities...................................... 74,329 70,136
-------- --------
Contingencies (Note 4)
Shareholders' equity:
Preferred Stock, no par value; 5,000,000 shares
authorized; no shares outstanding...................... -- --
Common Stock, $0.01 par value, 30,000,000 shares
authorized; 20,537,668 and 21,022,253 shares issued.... 205 210
Additional paid-in capital................................ 234,868 236,970
Accumulated earnings (deficit)............................ 49,484 (11,682)
Deferred compensation..................................... (1,670) (1,100)
Treasury Common Stock at cost -0- and 575,485 shares...... -- (3,225)
-------- --------
Total shareholders' equity.................................. 282,887 221,173
-------- --------
Total liabilities and shareholders' equity............. $357,216 $291,309
======== ========
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
4
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RTI INTERNATIONAL METALS, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30
-----------------
1998 1997
---- ----
<S> <C> <C>
CASH PROVIDED FROM OPERATING ACTIVITIES:
Net income.................................................. $61,166 $45,550
Adjustment for items not affecting funds from operations:
Depreciation.............................................. 3,809 3,791
Deferred taxes............................................ (12,452) (4,205)
Other-net................................................. 349 393
------- -------
52,872 45,529
------- -------
CHANGES IN ASSETS AND LIABILITIES (EXCLUDING CASH):
Receivables................................................. (181) (10,433)
Inventories................................................. (34,644) (12,538)
Accounts payable............................................ (5,677) 639
Other accrued liabilities................................... 9,870 3,046
Other assets................................................ (5,715) (2,509)
------- -------
(36,347) (21,795)
------- -------
Cash provided by operating activities.................. 16,525 23,734
------- -------
CASH FLOWS FROM INVESTING ACTIVITIES:
Investment in subsidiary, net of cash acquired............ -- (2,605)
Capital expenditures...................................... (22,888) (4,444)
------- -------
Cash used in investing activities...................... (22,888) (7,049)
------- -------
CASH FLOWS (USED IN) FROM FINANCING ACTIVITIES:
Proceeds from issuance of Common Stock.................... 236 1,041
Debt repayments........................................... -- (3,879)
Treasury Common Stock purchased........................... (37) (147)
------- -------
Cash provided by (used in) financing activities........... 199 (2,985)
------- -------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS............ (6,164) 13,700
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD............ $30,211 $ 5,944
------- -------
CASH AND CASH EQUIVALENTS AT END OF PERIOD.................. $24,047 $19,644
======= =======
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid for
Interest (net of amounts capitalized).................. $ 20 $ 65
Income taxes........................................... $ 7,500 $ 879
Noncash financing activities
Issuance of restricted stock........................... $ 919 $ 832
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
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RTI INTERNATIONAL METALS, INC.
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
ADDT'L. RETAINED TREASURY
SHARES COMMON DEFERRED PAID-IN EARNINGS COMMON COMPREHENSIVE
OUTSTANDING STOCK COMPENSATION CAPITAL (DEFICIT) STOCK INCOME
----------- ----- ------------ ------- --------- ----- ------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1997........ 20,446,768 $210 $(1,100) $236,970 $(11,682) $(3,225) $ --
Shares issued for Directors'
Compensation...................... -- -- -- -- -- -- --
Shares issued for Restricted Stock
Award Plans....................... 45,125 -- (919) 919 -- -- --
Compensation expense recognized..... -- -- 349 -- -- -- --
Treasury Common Stock purchased at
cost.............................. (1,816) -- -- -- -- (37) --
Shares issued from exercise of
employee stock options............ 47,591 1 -- 235 -- -- --
Net income.......................... -- -- -- -- 61,166 -- 61,166
Other comprehensive income........ -- -- -- -- -- -- --
-------
Comprehensive income................ -- -- -- -- -- -- $61,166
=======
Reorganization of RMI Titanium
Company and RTI International
Metals............................ -- (6) -- (3,256) -- 3,262
---------- ---- ------- -------- -------- -------
Balance at September 30, 1998....... 20,537,668 $205 $(1,670) $234,868 $ 49,484 $ --
========== ==== ======= ======== ======== =======
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
6
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RTI INTERNATIONAL METALS, INC.
SELECTED NOTES TO CONSOLIDATED FINANCIAL STATEMENT
(UNAUDITED)
NOTE 1--GENERAL
The consolidated financial statements include the accounts of RTI
International Metals, Inc. and its majority owned subsidiaries. All significant
intercompany transactions have been eliminated.
NOTE 2--ORGANIZATION
On September 30, 1998, the shareholders of the Company's now wholly-owned
subsidiary RMI Titanium Company ("RMI") approved, a proposal to reorganize into
a holding company structure. Pursuant to the reorganization, the Company became
the parent company of RMI Titanium, and shares of RMI Common Stock were
automatically exchanged on a one-for-one (1:1) basis for shares of the Company.
Shares of RTI began trading on the New York Stock Exchange on October 1, 1998.
Inasmuch as RTI was formed on September 30, the financial statements included
herein for the nine months ended September 30, 1998 and 1997 reflect the
financial statements of RTI's wholly owned subsidiary RMI Titanium Company and
its majority owned subsidiaries.
The Company is a successor to entities that have been operating in the
titanium industry since 1958. In 1990, USX Corporation ("USX") and Quantum
Chemical Corporation ("Quantum") transferred their entire ownership interest in
RMI's immediate predecessor, RMI Company, an Ohio general partnership, to RMI in
exchange for shares of the RMI's Common Stock. Quantum then sold its shares to
the public. USX retained ownership of its shares. At September 30, 1998
approximately 27% of the Company's outstanding common stock was owned by USX.
In November, 1996, USX Corporation completed a public offering of its notes
which are exchangeable in February, 2000, for 5,483,600 shares of RTI Common
Stock, owned by USX (or for an equivalent amount of cash at USX's option). Such
shares represent all of the RTI Common Stock owned by USX.
NOTE 3--INCOME TAXES
In the nine months ended September 30, 1998 the Company recorded an income
tax benefit of $16.1 million, resulting from an adjustment to reduce the
deferred tax asset valuation allowance due to changes in the Company's
expectations about the ultimate realization of its deferred tax assets.
Excluding the $16.1 million valuation allowance adjustment, the effective tax
rate for the three and nine months ended September 30, 1998 were approximately
25.0 and 28.0 percent, respectively. Because of available net operating loss
carryforwards, the amount of current taxes expected to be paid in 1998 will be
well below the level which could be expected by applying the statutory federal
tax rate of 35% to pretax income.
Statement of Financial Accounting Standards No. 109 (SFAS No. 109),
"Accounting for Income Taxes," requires a valuation allowance when it is "more
likely than not" that some portion or all of the deferred tax assets will not be
realized. It further states that "forming a conclusion that a valuation
allowance is not needed is difficult when there is negative evidence such as
cumulative losses in recent years." The Company evaluates the available evidence
supporting the realization of future taxable income and, based upon that
evaluation during the second quarter of 1998, concluded that it is likely that
its deferred tax assets will be realized. Based on that evaluation, the
valuation allowance was eliminated.
NOTE 4--CONTINGENCIES
In the ordinary course of business, the Company is subject to environmental
laws and regulations concerning the production, handling, storage,
transportation, emission, and disposal of waste materials and is also subject to
other federal and state laws and regulations regarding health and safety
matters. These laws and
7
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regulations are constantly evolving, and it is not currently possible to predict
accurately the ultimate effect these laws and regulations will have on the
Company in the future.
RMI is involved in investigative or cleanup projects under federal or state
environmental laws at a number of waste disposal sites, including the Fields
Brooks Superfund Site. Given the status of the proceedings with respect to these
sites, ultimate investigative and remediation costs cannot presently be
accurately predicted, but could, in the aggregate, be material. Based on the
information available regarding the current ranges of estimated remediation
costs at currently active sites, and what RMI believes will be its ultimate
share of such costs, provisions for environmental-related costs have been
recorded. These provisions are in addition to amounts which have previously been
accrued for the Company's share of environmental study costs.
With regard to the Fields Brook Superfund Site, RMI, together with 31 other
companies, has been identified by the EPA as a potentially responsible party
("PRP") under Comprehensive Environmental Response, Compensation Liability Act
("CERCLA") with respect to a superfund site defined as the Fields Brook
Watershed in Ashtabula, Ohio, which includes the Company's now closed Ashtabula
facilities. The EPA's 1986 estimate of the cost of remediation of the Fields
Brook operable sediment unit was $48 million. Recent studies, together with
improved remediation technology and redefined cleanup standards have resulted in
a more recent estimate of the remediation cost of approximately $25 million. The
actual cost of remediation may vary from the estimate depending upon any number
of factors.
The EPA, beginning in March 1989, ordered 22 of the PRPs to conduct a
design phase study for the sediment operable unit and a source control study.
These studies are nearly complete. RMI, working cooperatively with fourteen
others in accordance with two separate agreements, is complying with the order.
RMI has accrued and has been paying its portion of the cost of such compliance.
Actual cleanup will not commence prior to 1999. RMI's share of the study costs
has been established at 9.95%. In June, 1995, RMI and twelve others entered into
a Phase 2 (actual cleanup) allocation agreement which assigns 9.44% of the cost
to RMI. However, the actual percentage may be more or less based on
contributions from other parties which are not currently participating in the
Phase 2 allocation agreement.
At September 30, 1998, the amount accrued for future environmental-related
costs was $3.5 million. Based on available information, RMI believes its share
of potential environmental-related costs, before expected contributions from
third parties, is in a range from $4.2 million to $7.0 million, in the
aggregate. The amount accrued is net of expected contributions from third
parties (which does not include any amounts from insurers) of approximately $2.1
million, which RMI believes are probable. RMI has been receiving contributions
from such third parties for a number of years as partial reimbursement for costs
incurred by RMI. As these proceedings continue toward final resolution, amounts
in excess of those already provided may be necessary to discharge the Company
from its obligations for these projects.
The ultimate resolution of these foregoing contingencies could,
individually or in the aggregate, be material to the consolidated financial
statements. However, management believes that the Company will remain a viable
and competitive enterprise even though it is possible that these matters could
be resolved unfavorably.
NOTE 5--INVENTORIES:
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
SEPTEMBER 30, 1998
(UNAUDITED) DECEMBER 31, 1997
----------- -----------------
<S> <C> <C>
Raw material and supplies................... $ 70,370 $ 55,542
Work-in-process and finished goods.......... 115,278 95,462
Adjustments to LIFO values.................. (30,272) (30,272)
-------- --------
$155,376 $120,732
======== ========
</TABLE>
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NOTE 6--CREDIT AGREEMENT:
Concurrent with the restructuring referred to above, RTI entered into a
credit agreement dated September 30, 1998 (the "Credit Facility"), replacing
RMI's existing credit facilities. The unsecured Credit Facility provides for
$125 million in five-year borrowings and $25 million in one-year borrowings, on
a revolving basis, of up to the lesser of $150 million or a borrowing base equal
to the sum of 85% of qualified accounts receivable and 60% of qualified
inventory. At September 30, 1998 no amounts were outstanding under the facility.
Under the terms of the Credit Facility, the Company, at its option, will be
able to borrow at (a) a base rate (which is the higher of PNC Bank's prime rate
or the Federal Funds Effective Rate plus 0.5% per annum), or (b) LIBOR, plus a
spread (ranging from 0.5% to 1.5%) determined by the ratio of the Company's
consolidated total indebtedness to consolidated earnings before interest, taxes,
depreciation and amortization.
The Credit Facility contains additional terms and financial covenants which
are typical for other similar facilities.
NOTE 7--SUBSEQUENT EVENTS:
On October 1, 1998, RTI acquired all of the capital stock of New Century
Metals, Inc. ("NCM") for $35 million, subject to adjustment in certain
circumstances, and the assumption by RTI of certain bank debt. The $35 million
purchase price consisted of $16 million in cash, a $16 million note. The note is
payable on demand or on January 4, 1999, bearing interest at 5.81% per annum,
and $3 million of the Company's common stock valued at $19.2875 per share in
accordance with the purchase agreement. NCM is a manufacturer and distributor of
high temperature and corrosion resistant alloys such as titanium, stainless
steel and nickel, in long bar form, to the aerospace, chemical processing, oil
exploration and production, and power generation industries. In addition to the
manufacturing facilities, NCM operates four distribution centers in the United
States and one in England.
Also on October 1, 1998, RTI acquired all of the assets of Weld-Tech
Engineering, L.P. ("Weld-Tech") for $11.3 million in cash, subject to adjustment
in certain circumstances, and the payment of a $1.4 million note owed by
Weld-Tech to a corporation, the shareholders of which were also partners of
Weld-Tech. Weld-Tech, based in Houston, Texas, will operate under the name
Weld-Tech Engineering Services, L.P. Weld-Tech provides engineering and
fabrication services for the oil and gas industry, including weld design,
fabrication and repair, as well as materials engineering and testing services.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION
The following discussion should be read in connection with the information
contained in the Consolidated Financial Statements and Selected Notes to
Consolidated Financial Statements. The following information contains
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995, and are subject to the safe harbor created by
that Act. Such forward-looking statements include, without limitation,
statements regarding the future availability and prices of raw materials, the
competitiveness of the titanium industry, demand for the Company's products, the
historic cyclicality of the titanium and aerospace industries, uncertain defense
spending, long-term supply agreements, the ultimate determination of pending
trade petitions, global economic conditions, the Company's order backlog and the
conversion of that backlog into revenue, labor relations, the effects of an
ongoing work stoppage, and other statements contained herein that are not
historical facts. Because such forward-looking statements involve risks and
uncertainties, there are important factors that could cause actual results to
differ materially from those expressed or implied by such forward-looking
statements. These and other risk factors are set forth below in the "Outlook"
section, as well as being described in the Company's other filings with the
Securities and Exchange Commission ("SEC") over the last 12 months, copies of
which are available from the SEC or may be obtained upon request from the
Company.
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THREE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED TO THREE MONTHS ENDED SEPTEMBER
30, 1997
NET SALES
Net sales decreased to $81.0 million for the three months ended September
30, 1998 compared to net sales of $86.4 million in the corresponding 1997
period. This sales decrease is due primarily to reduced shipments of titanium
mill products partially offset by increased average selling prices. Shipments of
titanium mill products were 4.5 million pounds in the third quarter of 1998
compared to 4.7 million pounds for the same period in 1997. Average selling
prices on mill products in the third quarter of 1998 increased by approximately
1% to $14.76 per pound from $14.59 per pound in the third quarter of 1997.
GROSS PROFIT
Gross profit amounted to $25.2 million, or 31.2% of sales for the quarter
ended September 30, 1998 compared to a gross profit of $19.8 million or 22.9%
for the comparable 1997 period. This improvement results primarily from
increased profit margins on titanium mill products resulting from reduced
operating costs, a more favorable product mix, and higher average selling
prices, partially offset by reduced shipments.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative expenses amounted to $4.1 million for
the quarter ended September 30, 1998 compared to $3.7 million for the same
quarter in 1997. This increase results primarily from increased levels of
business activity. Research, technical and product development expenses amounted
to $1.1 million in the third quarter of 1998 compared to $0.9 million in the
third quarter of 1997. Selling, general and administrative expenses together
with research, technical and product development expenses amounted to
approximately 6.5% of sales in the third quarter of 1998 compared to 5.3% of
sales in the comparable 1997 period.
OPERATING INCOME
Operating income for the three months ended September 30, 1998 amounted to
$20.0 million, or 24.7% of sales compared to $15.2 million or 17.6% of sales in
the same period of 1997. This improvement results primarily from increased
profit margins on mill products. The increase in profit margins results
primarily from increased average selling prices on mill products, a shift in
product mix to higher margin value-added flat roll products, and lower operating
costs.
INCOME TAXES
In the third quarter of 1998, the Company recorded an income tax provision
of $5.1 million compared to a $7.1 million tax benefit recorded in the third
quarter of 1997. Included in the three month period ended September 30, 1997 is
a $8.7 million benefit resulting from an adjustment to the deferred tax asset
valuation allowance due to changes in the Company's expectations about the
ultimate realization of its deferred tax assets. Exclusive of this adjustment,
the effective federal tax rate for the third quarter of 1997 was approximately
10.1%. The effective federal tax rate for the third quarter of 1998 was
approximately 25.0%. The difference between the statutory tax rate of 35% and
the effective tax rate for both the third quarter of 1998 and 1997 is primarily
due to adjustments to the deferred tax asset valuation allowance as it related
to expected current year results. Because of available net operating loss
carryforwards, the amount of current taxes expected to be paid in 1998 will be
well below the level which could be expected by applying the statutory federal
tax rate of 35% to pretax income. See "Income Tax Considerations" and "SFAS No.
109 Effects" below.
OTHER INCOME
Other income for the third quarter of 1998 amounted to $0.8 million
compared to $0.3 million for the same period in 1997. This increase results
primarily from increased investment income on short-term securities.
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NET INCOME
Net income for the quarter ended September 30, 1998 amounted to $15.7
million or 19.4% of sales, compared to $22.5 million or 19.4% of sales in the
comparable 1997 period. The decrease in net income is due primarily to the
deferred tax credit recognized in 1997 as referred to above. Pretax income
increased to $20.8 million in the third quarter of 1998 from $15.4 million in
1997.
NINE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED TO NINE MONTHS ENDED SEPTEMBER
1997
NET SALES
Net sales for the nine months ended September 30, 1998 increased to $266.6
from $235.2 million in the first nine months of 1997, an increase of $31.4
million, or 13.4%. This increase results primarily from higher average selling
prices and a shift in product mix toward more value-added higher margin flat
rolled products such as sheet and plate and away from lower margin commodity
products such as bloom and billet. Mill products shipments for the first nine
months of 1998 and 1997 amounted to 14.3 million and 14.2 million pounds,
respectively. Average realized selling prices increased to $14.80 per pound in
the first nine months of 1998 compared to $14.12 per pound in 1997.
GROSS PROFIT
Gross profit for the nine months ended September 30, 1998 amounted to $74.9
million, or 28.1% of sales compared to $52.3 million, or 22.2% of sales in the
first nine months of 1997. This increase results primarily from increased
selling prices for titanium mill products, a favorable shift in product mix to
higher value-added flat rolled products, and lower overall operating costs.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative expenses amounted to $11.9 million for
the first nine months of 1998 compared to $9.2 million for the comparable period
in 1997. This increase results primarily from increased levels of business
activity. Research, technical and product development expenses amounted to $2.9
million, and $2.3 million in the nine month periods ended September 30, 1998 and
1997, respectively. Selling, general and administrative expenses together with
research, technical and product development expenses for the first nine months
of 1998 amounted to 5.5% of sales compared to 4.9% of sales in the first nine
months of 1997.
OPERATING INCOME
Operating income for the nine months ended September 30, 1998 amounted to
$60.1 million, or 22.5% of sales compared to $40.8 million, or 17.3% of sales in
the same period of 1997. This improvement results primarily from increases in
average realized selling prices, a shift in mill product shipments from low
margin commodity products to higher-value flat rolled products, and lower
overall operating costs.
INCOME TAXES
In the first nine months of 1998, the Company recorded a provision for
income taxes of $1.l million compared to a $4.2 million income tax benefit
recorded in the first nine months of 1997. The income tax provision of $1.1
million recorded in the first nine months of 1998 is comprised of a current
income tax provision of $17.2 million and a deferred tax benefit of $16.1
million resulting from an adjustment to the Company's deferred tax asset
valuation allowance resulting from changes in the Company's expectations about
the ultimate realization of its deferred tax assets. Exclusive of these
adjustments, the effective federal tax rate for the nine months ended September
30, 1998 was approximately 28.0% compared to 10.8% for the same period in 1997.
The difference between the statutory tax of 35% and the effective tax rate for
the nine month periods ending September 30, 1998 and 1997 is primarily due to
adjustments to the deferred tax asset valuation allowance related to expected
current year results. Because of available net operating loss carryforwards, the
amount of current taxes expected to be paid in 1998 will be well below the level
which could be expected by applying the statutory federal tax rate of 35% to
pretax income. See "Income Taxes" and "SFAS No. 109 Effects" below.
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OTHER INCOME
Other income in the first nine months of 1998 amounted to $2.2 million
compared to $0.7 million in 1997. This increase results primarily from increased
investment income on short-term securities.
NET INCOME
Net income for the nine months ended September 30, 1998 amounted to $61.2
million, or 22.9% of sales compared to $45.5 million, or 19.4% of sales in the
first nine months of 1997. This increase is due primarily to increased profit
margins on titanium mill products partially offset by increased income tax
expense.
OUTLOOK
During the last three years, and continuing into early 1998, the U.S.
titanium industry experienced a significant increase in demand and pricing for
titanium mill products. This increase in demand resulted primarily from an
unprecedented increase in demand from the commercial aerospace markets. During
the 1995-1997 period, most commercial airlines reported stronger operating
profits. In order to meet increasing passenger load demands and the need to
replace older, less efficient aircraft, commercial airlines placed orders for
new and replacement aircraft at near record levels, and the leading
manufacturers of commercial aircraft announced increased build and delivery
rates for certain aircraft. Because of the Asian financial crisis, production
difficulties at its manufacturing facilities and uncertain global economic
conditions which may affect the demand for commercial aircraft, Boeing
Commercial Airplane Group has recently made a number of announcements reducing
its forecasted production rates on a number of aircraft models in the 1999-2000
time frame. Other aerospace contractors have announced delivery delays and
rescheduling resulting from the Boeing announcements and, therefore, a need to
adjust inventory requirements downward from peak levels. The extent or duration
of this inventory adjustment period, or the amount of excess inventory in the
procurement pipeline is unknown. While the company has not experienced
significant order cancellations or rescheduling of orders, volume and pricing of
incoming orders has shown some softening particularly in the forging products
such as ingot and bloom. Demand and pricing for the Company's core value-added
products, alloy sheet and plate, while softening somewhat, remain relatively
strong. The slowing in the growth of commercial aircraft build rates will impact
the overall demand for titanium mill products for at least the next two to three
quarters. Based on currently available information, the Company anticipates that
U.S. titanium industry's total shipments will decrease in 1999 from 1998 levels;
although, the amount of decrease cannot be accurately predicted. If worldwide
economic conditions cause commercial airlines to cancel or delay aircraft,
titanium demand and pricing could come under further pressure.
On February 2, 1998, RMI entered into an agreement with Boeing Commercial
Airplane Group whereby RMI will supply Boeing and its family of commercial
suppliers with up to 4.5 million pounds of titanium products annually. The
agreement, beginning in 1999, will have an initial term of five years and,
subject to review by the parties in the fourth year, could be extended for an
additional five years. Under the accord, Boeing will receive firm prices in
exchange for RMI receiving a minimum volume commitment of 3.25 million pounds
per year.
In another accord, RMI, through its French affiliate, Reamet, has been
chosen by Aerospatiale as the major supplier of the titanium flat rolled
products required for its Airbus programs beginning in 1999 and extending
through 2001. Requirements are principally for flat rolled products, including
value added cut-to-size shapes.
Also, during the second quarter of 1998, RMI was designated the sole
supplier of titanium mill products for the Air Force F-22 fighter being built by
Lockheed Martin and Boeing. The new contract, which begins this year, will
continue through the life of the program with approximately 339 aircraft
forecast to be produced by the year 2012. The value of this contract could
potentially total $340 million.
RMI has also been selected by military aircraft producers Boeing and
Northrop as the principal supplier of titanium alloy plate and alloy sheet
including just-in-time, cut-to-size products, for the C-17 Transport, F-15 Eagle
and the F/A-18 Hornet programs. The Hornet program includes the new E/F version
which
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utilizes considerably more titanium than earlier C/D models. The agreement will
begin with May 1999 requirements and runs through April 2001.
During the second quarter of 1998, RMI was named by B.F. Goodrich Aerospace
Aerostructures Group, which designs and manufactures engine nacelle systems for
large commercial and military aerospace applications, as its principal supplier
of alloy sheet. During the same period, RMI secured contracts with Contrucciones
Aeronauticas S.A. (CASA) of Spain and Daimler-Benz Aerospace AG of Germany for
their alloy plate and sheet requirements in connection with the Airbus and
Eurofighter programs. All three contracts, totaling more than $60 million, begin
in 1999 and extend for a minimum of three years.
Negotiations covering RMI's 1999 titanium sponge requirements and pricing
levels are currently underway. Because of reduced demand and an abundant
worldwide supply of titanium sponge, RMI expects lower sponge prices for 1999.
Due to the softening of demand for titanium mill products resulting from reduced
commercial aircraft build rates, overall demand for titanium scrap, which
accounts for approximately 40% of the Company's raw material requirements has
decreased. Because of increased supplies of titanium scrap, prices for scrap
have eased. Prices for the Company's alloying agents are closely tied to overall
demand. RMI believes that it has an adequate supply of raw materials available
from a number of different suppliers.
The Company's total order backlog as of October 1, 1998 was approximately
$365 million, compared to $383 million at December 31, 1997. The backlog amounts
for the Company's newly acquired subsidiaries, New Century Metals and Weld-Tech
Engineering Services L.P., are included in the October 1, 1998 totals.
After the United Steelworkers of America and RMI failed to reach agreement
on a new contract covering the hourly workforce at its Niles, Ohio plant, a work
stoppage, which commenced October 1, 1998 is continuing. The Niles plant is the
Company's largest production facility. Operations at the plant are being
conducted by management and salaried personnel at a rate of approximately 40-50%
of normal production levels while negotiations continue. The cost of the strike,
including lost production, is currently estimated at $3.0 to $4.0 million per
month. In the near term, fourth quarter 1998 results will be adversely impacted
by the effects of the work stoppage. An extended work stoppage would be likely
to have an adverse impact on 1999 earnings. The Company is currently unable to
quantify the impact of an extended work stoppage on 1999 results. However,
depending on a number of factors including the length of the work stoppage, the
amount of lost production, and the potential impact on customers the work
stoppage could have a material adverse effect on the Company's operating
results.
LIQUIDITY AND CAPITAL RESOURCES
Net cash flows from operating activities totaled $16.5 million in the first
nine months of 1998 compared to $23.7 million in the first nine months of 1997.
The change in net cash flows from operating activities in the first nine months
of 1998, compared to the comparable 1997 period was due primarily to improved
results of operations offset by significant increases in working capital
requirements. Working capital amounted to $210.0 million at September 30, 1998,
compared to $184.8 million at December 31, 1997. The increase in working capital
results primarily from increases in inventory partially offset by an increase in
current liabilities. The Company's working capital ratio was 5.1 to 1 at
September 30, 1998.
During the first nine months of 1998 and the comparable 1997 period, the
Company's cash flow requirements for capital expenditures were funded by cash
provided from operating activities.
On October 1, 1998 RTI acquired the capital stock of New Century Metals
("NCM") for $35 million. The purchase price consisted of $16 million in cash, a
$16 million note, payable on demand on January 4, 1999, and $3 million of the
Company's common stock. Concurrent with the acquisition RTI repaid $8.8 million
in NCM bank debt. Additionally, on October 1, 1998 RTI acquired the assets of
Weld-Tech Engineering, L.P. ("Weld-Tech") for $11.3 million on cash and the
payment of a $1.4 million note owed by Weld Tech. To complete the acquisition,
RTI utilized approximately $23 million of its available cash reserves, plus $14
million from borrowings under the Company's credit facility. For additional
information see "Acquisitions" below.
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The Company anticipates that it will be able to fund the balance of its 1998
working capital requirements and its capital expenditures from funds generated
by operations. The Company's long-term liquidity requirements, including capital
expenditures, are expected to be financed by a combination of internally
generated funds, borrowings and other sources of external financing if needed.
The Company's cash flow will be impacted by an ongoing work stoppage which
commenced October 1, 1998. For further information on the work stoppage, see
"Outlook" above and "Work Stoppage" below.
CREDIT AGREEMENT
Concurrent with the reorganization referred to above, RTI entered into a
credit agreement, dated September 30, 1998 (the "Credit Facility"), to replace
RMI's existing credit facilities. The unsecured Credit Facility provides for
$125 million five-year and $25 million in one-year borrowings, on a revolving
basis, of up to the lesser of $150 million or a borrowing base equal to the sum
of 85% of qualifying accounts receivable and 60% of qualifying inventory. At
June 30, 1998 no amounts were outstanding under the facility. Under the terms of
the Credit Facility, the Company, at its option will be able to borrow at (a) a
base rate (which is the higher of PNC Bank's prime rate or the Federal Funds
Effective Rate plus 0.5% per annum), or (b) LIBOR plus a spread (ranging from
0.5% to 1.5%) determined by the ratio of the Company's consolidated total
indebtedness to consolidated earnings before interest, taxes, depreciation and
amortization.
INCOME TAXES
SFAS No. 109. Effects. SFAS 109 requires a valuation allowance when it is
more likely than not that some portion or all of the deferred tax assets will
not be realized. It further states that forming a conclusion that a valuation
allowance is not needed is difficult when there is negative evidence such as
cumulative losses in recent years. The ultimate realization of all or part of
the Company's deferred income tax assets depends on the Company's ability to
generate sufficient taxable income in the future.
When preparing interim and annual financial statements, the Company
periodically evaluates its strategic and business plans, in light of evolving
business conditions, and the valuation allowance is adjusted for future income
expectations resulting from that process, to the extent different from those
inherent in the current valuation allowance. In making an assessment of
realizability at June 30, 1998, the Company considered a number of factors
including the improved profitability in 1998 as a result of increased sales,
product pricing and gross margins, when compared to expectations inherent in the
December 31, 1997 valuation allowance. Accordingly, the valuation allowance was
reduced during the second quarter of 1998 by approximately $16 million to
reflect the revised income expectations. The valuation allowance remaining from
December 31, 1997 of approximately $6 million relates to deferred tax assets
associated with approximately $16 million of available net operating loss
carryforwards that had not yet been recognized for FAS 109 purposes. These
assets are expected to be realized during 1998. Therefore, pursuant to the
provisions of Accounting Principles Board Opinion No. 28, "Interim Financial
Reporting" and SFAS 109, this allowance will be released through the effective
tax rate during 1998. As a result of this, the entire amount of the Company's
net operating loss carryforwards will be utilized for SFAS 109 purposes.
For federal income tax return purpose, the amount of remaining net
operating loss carryforwards at December 31, 1997 amounted to approximately $43
million, which are available to offset future taxable income. Because the
Company will be able to generate sufficient taxable income, the currently
available net operating loss carryforwards will be fully utilized in 1998.
Because of the availability of these net operating loss carryforwards to offset
taxable income, actual cash payments for federal income taxes in 1998 will be
well below the level which could be expected by applying the statutory federal
tax rate of 35% to pretax income.
ENVIRONMENTAL MATTERS
The Company is subject to environmental laws and regulations as well as
various health and safety laws and regulations that are subject to frequent
modifications and revisions. While the costs of compliance for these matters
have not had a material adverse impact on the Company in the past, it is
impossible to predict accurately the ultimate effect these changing laws and
regulations may have on the Company in the future.
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At September 30, 1998, the amount accrued for future environment-related
costs was $3.5 million. Based on available information, RMI believes its share
of potential environmental-related costs, before expected contributions from
third parties, is in a range from $4.2 million to $7.0 million, in the
aggregate. The amount accrued is net of expected contributions from third
parties (which does not include any amounts from insurers) of approximately $2.1
million, which the Company believes are probable. RMI has received contributions
from such third parties for a number of years as partial reimbursement for costs
incurred by RMI. As these proceedings continue toward final resolution, amounts
in excess of those already provided may be necessary to discharge RMI from its
obligations for these projects.
The ultimate resolution of these environmental matters could individually,
or in the aggregate, be material to the consolidated financial statements.
However, management believes that the Company will remain a viable and
competitive enterprise even though it is possible that these matters could be
resolved unfavorably.
CAPITAL EXPENDITURES
Gross capital expenditures the first nine months of 1998 and 1997 amounted
to $22.9 and $4.4 million, respectively. Included in the 1998 spending is $16.8
million expended on the Galt Alloys' expansion. The Company has anticipated
capital spending of approximate $30 million in 1998. Capital spending for 1999,
including expenditures at NCM and Weld-Tech, is anticipated to exceed 1998
levels.
After completing an evaluation of future information technology needs and
growth, together with expanding requirements for additional decision making
tools, the Company has decided to install an Enterprise Resource Planning (ERP)
software system. The ERP will replace many of the Company's automated
accounting, financial and manufacturing systems. Included in the capital
spending estimates above is approximately $6 million in 1998 and $9 million in
1999 for the ERP. Initially, the ERP will be installed at the Company's largest
domestic operations, and then eventually to all domestic and foreign operations.
The Company has recently purchased and begun installing the ERP system. A pilot
program is up and successfully running at one of the Company's distribution
facilities. Financial applications such as payroll and general ledger should be
installed and running by July 1, 1999 at all major domestic locations. Other
applications covering operations and manufacturing functions are currently being
studied and should be implemented periodically throughout 1999.
NEW ACCOUNTING STANDARDS
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income". The Company adopted SFAS No. 109 in the first quarter of 1998. Although
this standard requires new reporting for comprehensive income, it does not
impact the measurement of comprehensive income, and, as such, has not had a
material impact on the reported results of operations or financial position.
Also in June 1997, the FASB issued SFAS No. 131, "Disclosures about
Segments of an Enterprise and Related information." The Company will adopt this
standard in its annual financial statements for 1998, but has not yet completed
its evaluation of the impact of this standard. However, since this standard
requires disclosure of additional information but does not prescribe any new
measurement standards, the Company does not expect the adoption of this standard
to have a material impact on the reported results of operations or financial
position.
In February 1998, the FASB issued SAFAS No. 132, "Employers' Disclosures
about Pensions and Other Postretirement Benefits--an amendment of FASB
Statements No. 87, 88, and 106." This Statement revises employers' disclosures
about pension and other postretirement benefit plans. It does not change the
measurement or recognition of those plans. The Company is required to adopt the
provisions of this standard in its annual financial statements for 1998, and
does not expect this disclosure-only standard to have a significant impact on
reported results of operations or financial position.
In March 1998, the Accounting Standards Executive Committee of the AICPA
issued Statement of Position 98-1, "Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use."
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The principles established in this statement are required to be applied to the
Company's financial statements in 1999. Management has not yet completed its
evaluation of the impact of this standard on the Company's reported results of
operations or financial position.
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities." This statement established standards of
accounting and reporting of derivative financial instruments. The standard is
required to be adopted in 2000. Management has not yet evaluated the impact this
standard will have on reported results of operations or financial position.
YEAR 2000 COMPLIANCE
Beginning in January of 1996, RTI began to aggressively manage its computer
software and hardware to insure that the Year 2000 date change will not
adversely impact its business. The Company has and will continue to make certain
investments in its application software to ensure the Company is Year 2000
compliant. In addition, the Company is monitoring the compliance efforts of
entities with which it interacts. The Company began modification of its
internally developed proprietary software in 1996 and currently estimates that
approximately 90% of this software has been modified and tested to make it Year
2000 compliant. The balance is currently being modified, or will be replaced by
the new ERP installation referred to above. The ERP system is warranted by the
vendor to be Year 2000 compliant. In any event, many of the Company's internally
generated software programs are considered noncritical applications which can,
if necessary, be performed manually. Noninformation technology systems such as
process control devices and other automated equipment which may contain imbedded
chips that could be affected by the year 2000 problem have been identified.
Modifications to these devices are underway, and the Company estimates that
necessary modifications will be completed in the first quarter of 1999. The
Company has also contacted its key vendors, suppliers and service providers to
monitor their compliance efforts. A follow-up has started with those third
parties not responding to the Company's original request. To the extent
necessary, the Company will identify alternative suppliers. A survey of the
Company's customers to assess their Year 2000 readiness is currently underway.
While it is not possible at present to accurately estimate the incremental cost
of this effort, the Company does not anticipate it will have a material impact
on the long-term results of operations, liquidity or consolidated financial
position of the Company.
The most likely worst case Year 2000 scenario would be the inability of
third party suppliers such as utilities, telecommunication suppliers, critical
material suppliers, and financial institutions to continue providing their goods
and services to the Company. The inability of these vendors to continue
supplying the Company could, in the absence of alternative sources, have a
possibly material adverse impact on the Company's operations and/or financial
condition.
The Company believes it has allocated appropriate resources to identify and
fix Year 2000 problems; however, there can be no assurances that all Year 2000
problems will be identified and fixed in advance, and it is possible that some
Year 2000 problems could go undetected until after January 1, 2000.
This discussion of the Company's efforts and management's expectations
relating to the effect of Year 2000 compliance on operating results are forward
looking statements. The Company's ability to achieve Year 2000 compliance and
the level of incremental costs associated therewith could be adversely impacted
by, among other things, the availability and cost of programming and testing
resources, vendors' ability to modify proprietary software and unanticipated
problems identified in the ongoing compliance review. In addition, RMI has
limited or no control over the actions of proprietary software vendors and other
entities with which it interacts. Therefore, Year 2000 compliance problems
experienced by these entities could adversely affect the results of the Company.
WORK STOPPAGE
After the United Steelworkers of America and RMI failed to reach agreement
on a new contract covering the hourly workforce at its Niles, Ohio plant, a work
stoppage, which commenced October 1, 1998 is continuing. The Niles plant is the
Company's largest production facility. Operations at the plant are being
conducted by management and salaried personnel at a rate of approximately 40-50%
of normal production
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levels while negotiations continue. The cost of the strike, including lost
production, is currently estimated at $3.0 to $4.0 million per month. In the
near term, fourth quarter 1998 results will be adversely impacted by the effects
of the work stoppage. An extended work stoppage would be likely to have an
adverse impact on 1999 earnings. The Company is currently unable to quantify the
impact of an extended work stoppage on 1999 results. However, depending on a
number of factors including the length of the work stoppage, the amount of lost
production, and the potential impact on customers, the work stoppage could have
a material adverse effect on the Company's operating results. To the extent the
work stoppage impairs RMI's ability to generate sufficient cash flows to support
its operating needs, RTI may borrow funds under its revolving credit facility to
supplement available cash resources.
ACQUISITIONS
On October 1, 1998, RTI acquired all of the capital stock of New Century
Metals, Inc. for $35 million, subject to adjustment in certain circumstances,
and the assumption by RTI of certain bank debt. The $35 million purchase price
consisted of $16 million in cash, a $16 million note, payable on demand or
January 4, 1999, bearing interest at 5.81% per annum, and $3 million of the
Company's common stock valued at $19.2875 per share. NCM is a manufacturer and
distributor of high temperature and corrosion resistant alloys such as titanium,
stainless steel and nickel, in long bar form, to the aerospace, chemical
processing, oil exploration and production, and power generation industries. In
addition to the manufacturing facilities, NCM operates four distribution centers
in the United States and one in England.
Also on October 1, 1998, RTI also acquired all of the assets of Weld-Tech
Engineering, L.P. for $11.3 million in cash, subject to adjustment in certain
circumstances, and the payment of a $1.4 million note owed by Weld-Tech to a
corporation, the shareholders of which were also partners of Weld-Tech.
Weld-Tech, based in Houston, Texas, will operate under the name Weld-Tech
Engineering Services, L.P. Weld-Tech provides engineering and fabrication
services for the oil and gas industry, including weld design, fabrication and
repair, as well as materials engineering and testing services.
On November 12, 1998 the Company announced that RTI and Sierra Alloys,
Inc., of Irwindale, California, were unable to reach a mutually satisfactory
agreement for the purchase of Sierra by RTI, and have ended discussions. The two
companies had signed a letter of intent on July 6, 1998.
The Company is also in the process of evaluating other potential
acquisition candidates. RTI evaluates such potential acquisitions on the basis
of their ability to enhance or improve the Company's existing operations or
capabilities, as well as the ability to provide access to new markets and/or
customers for its products. RTI may make acquisitions using its available cash
resources, borrowings under its existing credit facility, new debt financing,
RTI Common Stock, joint venture/partnership arrangements or any combination of
the above.
PART II -- OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits
2.1 Stock Purchase Agreement, dated as of October 1, 1998, by and among RTI
International Metals, Inc., New Century Metals, Inc., Richard R.
Burkhart and Joseph H. Rice, incorporated by reference to exhibit 2.1
and 2.2 to the Company's Current Report of Form 8-K dated October 15,
1998.
2.2 Asset Purchase Agreement, dated October 1, 1998, by and among Weld-Tech
Engineering Services, L.P. and Weld-Tech Engineering, L.P.,
incorporated by reference to exhibit 2.1 and 2.2 to the Company's
Current Report of Form 8-K dated October 15, 1998.
3.1 Articles of Incorporation of the Company, incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement on Form S-4 No.
333-61935.
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3.2 Amended Code of Regulations of the Company, incorporated by reference
to Exhibit 3.2 to the Company's Annual Report on Form 10-K for the year
ended December 31, 1993.
4.1 Credit Agreement between RTI International Metals, Inc. and PNC Bank,
National Association, as agent; Mellon Bank, National Association of
Pennsylvania and Bank One, National Association as co-agents, dated as
of September 30, 1998, filed herewith.
27 Financial Data Schedule
(b) On October 15, 1998, The Company filed a report on Form 8-K reporting Item
2., Acquisition of Assets, and Item 5., Other Events, Work Stoppage, and
Reorganization into Holding Company Structure.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RTI INTERNATIONAL METALS, INC.
--------------------------------------
(Registrant)
Date: November 16, 1998
By: /s/ T. G. RUPERT
------------------------------------
T. G. Rupert
Executive Vice President & Chief
Financial Officer
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Exhibit 4.1
DRAFT DATED 9/28/98
REVOLVING CREDIT AND
LETTER OF CREDIT ISSUANCE AGREEMENT
By and Among
RTI INTERNATIONAL METALS, INC.,
as Borrower
and
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders
and
MELLON BANK, N.A.
and
BANK ONE, NATIONAL ASSOCIATION,
as Co-Agents
and
PNC BANK, NATIONAL ASSOCIATION,
as Agent and as L/C Issuer
Dated as of September 30, 1998
<PAGE> 2
TABLE OF CONTENTS
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SCHEDULES ...........................................................................................iv
EXHIBITS ............................................................................................v
ARTICLE I CERTAIN DEFINITIONS; CONSTRUCTION...........................................................1
1.01. Certain Definitions.........................................................................1
1.02. Construction...............................................................................21
1.03. Accounting Principles......................................................................22
ARTICLE II REVOLVING CREDIT FACILITY..................................................................23
2.01. Revolving Credit Commitments...............................................................23
2.02. Nature of Lenders' Obligations with Respect to Revolving Credit Loans......................23
2.03. Commitment Fees............................................................................23
2.04. Reduction, Extension of Revolving Credit Commitment........................................24
2.05. Revolving Credit Loan Requests.............................................................25
2.06. Making Revolving Credit Loans..............................................................26
2.07. Notes......................................................................................26
2.08. Interest Payments, Interest Rates and Certain Related Payments Pertaining to the
Revolving Credit Loans.....................................................................26
2.09. Prepayments: Allocation of Repayments......................................................29
2.10. Yield Protection...........................................................................30
2.11. Special Provisions Relating to the Euro-Rate Option........................................32
2.12. Capital Adequacy...........................................................................33
2.13. Swingline Loans............................................................................34
2.14 Loan Account...............................................................................35
2.15. All Advances to Constitute One Loan........................................................35
2.16. Use of Proceeds............................................................................35
2.17. Letter of Credit Subfacility...............................................................35
2.18. Taxes......................................................................................43
2.19. Payments...................................................................................43
2.20. Substitution of Lender.....................................................................44
ARTICLE III LOAN DISBURSEMENT ACCOUNT, GUARANTEES, ETC.................................................44
3.01. Loan Disbursement Account..................................................................44
3.02. Designation of Subsidiary Guarantors.......................................................45
3.03. Further Cooperation........................................................................45
ARTICLE IV REPRESENTATIONS AND WARRANTIES.............................................................45
4.01. Organization and Qualification.............................................................45
4.02. Capitalization and Ownership...............................................................45
4.03. Subsidiaries...............................................................................46
4.04. Power and Authority........................................................................46
4.05. Validity and Binding Effect................................................................46
4.06. No Conflict................................................................................46
4.07. Litigation.................................................................................46
4.08. Financial Statements.......................................................................47
4.09. Margin Stock; Section 20 Subsidiaries......................................................47
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4.10. Full Disclosure............................................................................47
4.11. Tax Returns and Payments...................................................................48
4.12. Consents and Approvals.....................................................................48
4.13. No Event of Default; Compliance with Instruments...........................................48
4.14. Compliance with Laws.......................................................................48
4.15. Investment Company; Public Utility Holding Company.........................................48
4.16. Plans and Benefit Arrangements.............................................................49
4.17. Title to Properties........................................................................50
4.18. Insurance..................................................................................50
4.19. Employment Matters.........................................................................50
4.20. Environmental Matters......................................................................50
4.21. Senior Debt Status.........................................................................52
4.22. Solvency...................................................................................52
4.23. Material Contracts; Burdensome Restrictions................................................52
4.24 Patents, Trademarks, Copyrights, Licenses, etc.............................................52
4.25. Brokers....................................................................................52
4.26. No Material Adverse Change.................................................................52
ARTICLE V CONDITIONS OF LENDING OR ISSUANCE OF LETTER OF CREDIT......................................53
5.01. Conditions to Initial Borrowings...........................................................53
5.02. Each Additional Revolving Credit Loan, Swingline Loan or Issuance of a Letter of Credit....55
5.03. Location of Closing........................................................................57
ARTICLE VI AFFIRMATIVE COVENANTS......................................................................57
6.01. Preservation of Existence, Etc.............................................................57
6.02. Accounting System; Reporting Requirements..................................................57
6.03. Notices Regarding Plans and Benefit Arrangements...........................................59
6.04. Payment of Liabilities, Including Taxes, etc...............................................60
6.05. Maintenance of Insurance...................................................................60
6.06. Maintenance of Properties and Leases.......................................................61
6.07. Maintenance of Permits and Franchises......................................................61
6.08. Visitation Rights..........................................................................61
6.09. Keeping of Records and Books of Account....................................................61
6.10. Plans and Benefit Arrangements.............................................................61
6.11. Compliance with Laws.......................................................................61
6.12. Use of Proceeds............................................................................61
6.13. Environmental Laws.........................................................................62
6.14. Senior Debt Status.........................................................................62
ARTICLE VII NEGATIVE COVENANTS.........................................................................62
7.01. Indebtedness...............................................................................63
7.02. Liens......................................................................................63
7.03. Loans, Acquisitions and Investments........................................................63
7.04. Liquidations, Mergers and Consolidations...................................................64
7.05. Dispositions of Assets or Subsidiaries.....................................................65
7.06. Affiliate Transactions.....................................................................65
7.07. Subsidiaries, Partnerships and Joint Ventures..............................................65
7.08. Continuation of or Change in Business......................................................66
7.09. Plans and Benefit Arrangements.............................................................66
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7.10. Fiscal Year................................................................................66
7.11. Changes in Organizational Documents........................................................66
7.12. Financial Covenants........................................................................67
7.13 Operating Leases...........................................................................67
7.14. Limitation on Negative Pledge Clauses......................................................67
ARTICLE VIII DEFAULT....................................................................................67
8.01. Events of Default..........................................................................67
8.02. Consequences of Event of Default...........................................................70
ARTICLE IX THE AGENTS.................................................................................72
9.01. Appointment and Grant of Authority.........................................................72
9.02. Delegation of Duties.......................................................................72
9.03. Reliance by Agent on Lenders for Funding...................................................72
9.04. Non-Reliance on Agents.....................................................................73
9.05. Responsibility of Agents and Other Matters.................................................73
9.06. Actions in Discretion of Agent; Instructions from the Lenders..............................74
9.07. Indemnification............................................................................74
9.08. Agents' Rights as Lenders..................................................................74
9.09. Notice of Default..........................................................................75
9.10. Payment to Lenders.........................................................................75
9.11. Holders of Notes...........................................................................75
9.12. Equalization of Lenders....................................................................75
9.13. Successor Agent............................................................................76
9.14. Calculations...............................................................................76
9.15. Beneficiaries..............................................................................76
ARTICLE X GENERAL PROVISIONS.........................................................................77
10.01. Amendments and Waivers.....................................................................77
10.02. Taxes......................................................................................77
10.03. Costs and Expenses, etc....................................................................78
10.04. Notices....................................................................................78
10.05. Participation and Assignment...............................................................80
10.06. Successors and Assigns.....................................................................82
10.07. No Implied Waivers; Cumulative Remedies; Writing Required..................................82
10.08. Severability...............................................................................82
10.09. Indemnity..................................................................................83
10.10 Confidentiality............................................................................83
10.11. Survival...................................................................................84
10.12. GOVERNING LAW..............................................................................84
10.13. FORUM......................................................................................84
10.14. Non-Business Days..........................................................................85
10.15. Integration................................................................................85
10.16. Counterparts...............................................................................85
10.17. Funding by Branch, Subsidiary or Affiliate.................................................85
10.18 WAIVER OF JURY TRIAL.......................................................................86
</TABLE>
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<PAGE> 5
SCHEDULES
Schedule 1.01(a) Lenders; Commitments
Schedule 1.01(b) Locations of Inventory
Schedule 2.17(j) Assumed Letters of Credit
Schedule 4.01 Jurisdictions of Incorporation and
Qualification of Borrower and Subsidiaries
Schedule 4.02 Capital Stock Options
Schedule 4.03 Interests in Subsidiaries and Other Entities
Schedule 4.07 Litigation
Schedule 4.11 Agreements Concerning Tax Returns
Schedule 4.12 Consents and Approvals
Schedule 4.16 Plans and Benefit Arrangements
Schedule 4.20 Environmental Matters
Schedule 7.01 Permitted Indebtedness
Schedule 7.03 Other Investments
Schedule 7.06 Affiliate Transactions
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<PAGE> 6
EXHIBITS
Exhibit "A-1" Form of Long-Term Revolving Credit Note
Exhibit "A-2" Form of Short-Term Revolving Credit Note
Exhibit "A-3" Form of Swingline Note
Exhibit "B" Form of Borrowing Base Certificate
Exhibit "C" Form of Application and Agreement for Letter of Credit
Exhibit "D" Form of Loan Request
Exhibit "E" Form of Assignment and Assumption Agreement
Exhibit "F" Form of Compliance Certificate
Exhibit "G" Form of Opinion of Counsel
Exhibit "H" Form of Subsidiary Guaranty
Exhibit "I" Form of Landlord's Waiver
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<PAGE> 7
REVOLVING CREDIT AND
LETTER OF CREDIT ISSUANCE AGREEMENT
THIS REVOLVING CREDIT AND LETTER OF CREDIT ISSUANCE AGREEMENT,
dated as of September 30, 1998, is made by and among RTI INTERNATIONAL METALS,
INC., an Ohio corporation (as more fully defined below, the "BORROWER"), the
Lenders (as hereinafter defined), MELLON BANK, N.A. and BANK ONE, NATIONAL
ASSOCIATION as co-agents (the "CO-AGENTS"), and PNC BANK, NATIONAL ASSOCIATION,
in its capacity as L/C Issuer (as hereinafter defined) and as agent for the L/C
Issuer and the Lenders under this Agreement (in such capacity, as more fully
defined below, the "AGENT").
WITNESSETH:
WHEREAS, the Borrower has requested the Lenders to make
available to the Borrower Revolving Credit Loans in an aggregate principal
amount not exceeding One Hundred and Fifty Million Dollars ($150,000,000) at any
one time outstanding; and the Borrower has requested the Lenders to provide for
the issuance for the account of the Borrower Letters of Credit with an aggregate
Stated Amount not exceeding Twenty-Five Million Dollars ($25,000,000) at any one
time outstanding; provided that at no time will Total Utilization exceed One
Hundred Fifty Million Dollars ($150,000,000); and
WHEREAS, the Lenders are willing to make the Revolving Credit
Loans available to the Borrower upon the terms and conditions hereinafter set
forth; and the L/C Issuer is willing to issue Letters of Credit for the account
of the Borrower upon the terms and conditions hereinafter set forth; and the
Lenders are willing to purchase risk participations with respect to each Letter
of Credit issued by the L/C Issuer hereunder upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises (each of
which is incorporated herein by reference) and the mutual covenants and
agreements hereinafter set forth, and other valuable consideration, and
intending to be legally bound hereby, the parties hereto hereby covenant and
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS; CONSTRUCTION
1.01. Certain Definitions. In addition to words and terms
defined elsewhere in this Agreement, the following words and terms shall have
the following meanings, respectively, unless the context hereof clearly requires
otherwise:
Acquisition shall mean each of (i) the acquisition of all of
the issued and outstanding capital stock of Sierra, (ii) the acquisition of all
of the issued and outstanding capital stock of New Century, and (iii) the
acquisition of all of the issued and outstanding capital stock of Weld-Tech by
the Borrower.
Affiliate as to any Person shall mean any other Person (i)
which directly or indirectly Controls, is Controlled by, or is under common
Control with such Person, (ii) which beneficially owns or holds 5% or more of
any class of the voting or other equity interests of
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<PAGE> 8
such Person, or (iii) 5% or more of any class of voting interests or other
equity interests of which is beneficially owned or held, directly or indirectly,
by such Person.
Agent shall mean PNC Bank, National Association, a national
banking association organized under the laws of the United States of America, in
its capacity as agent for the L/C Issuer and the Lenders pursuant to this
Agreement, and its successors and assigns in such capacity.
Agreement shall mean this Revolving Credit and Letter of
Credit Issuance Agreement, as the same may be supplemented or amended from time
to time, including all schedules and exhibits hereto.
Applicable Commitment Fee shall mean either or both of the
Long-Term Applicable Commitment Fee and the Short-Term Applicable Commitment
Fee.
Applicable Euro-Rate Margin shall have the meaning ascribed to
it in Section 2.08(b)(ii) of this Agreement.
Applicable Letter of Credit Fee shall have the meaning
ascribed to it in Section 2.17(b) of this Agreement.
Application and Agreement for Letter of Credit shall mean an
application and agreement for either a standby letter of credit or for an
amendment thereto substantially in the form of Exhibit "C" hereto.
Assignment and Assumption Agreement shall mean an Assignment
and Assumption Agreement by and among a Purchasing Lender, a Transferor Lender
and the Agent, as the Agent and on behalf of the remaining Lenders,
substantially in the form of Exhibit "E" hereto.
Assignment Fee shall mean the fee described in Section
10.05(b).
Authorized Officer shall mean those persons designated
initially in the several incumbency certificates delivered pursuant to Section
5.01 hereof by the Borrower or a Subsidiary Guarantor, as the case may be. The
Borrower, or a Subsidiary Guarantor, as the case may be, may amend such list of
persons from time to time by giving written notice of such amendment to the
Agent.
Availability shall mean, as of any time of determination
either (i) the positive difference between the Borrowing Base and Total
Utilization, if the Borrowing Base is greater than Total Utilization at such
time, or (ii) zero, if the Borrowing Base is less than or equal to Total
Utilization at such time.
Base Rate shall mean the greater of (i) the Prime Rate, or
(ii) the Federal Funds Effective Rate plus fifty basis points (1/2 of 1%) per
annum.
Base Rate Option shall mean the interest rate option described
in Section 2.08(b)(i) hereof.
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<PAGE> 9
Base Rate Portion shall mean the portion of the Revolving
Credit Loans or the Swingline Loan; which bears, or is to bear, interest under
the Base Rate Option.
Benefit Arrangement shall mean at any time an "employee
benefit plan", within the meaning of Section 3(3) of ERISA, which is neither a
Plan nor a Multiemployer Plan and which is maintained, sponsored or otherwise
contributed to, by any member of the ERISA Group.
Borrower shall mean RTI INTERNATIONAL METALS, INC., a
corporation organized and existing under the laws of the State of Ohio, and its
successors and permitted assigns.
Borrowing Base shall mean the sum of (i) 85% of the book
value of the Borrower's and the Guarantor Subsidiaries' Eligible Receivables
plus (ii) 60% of the book value of the Borrower's and the Guarantor
Subsidiaries' Eligible Inventory; provided, however, that the aggregate
outstanding principal amount of Revolving Credit Loans advanced against Eligible
Inventory shall not at any time exceed a Dollar amount equal to 60% of the
Borrowing Base.
Borrowing Base Certificate shall mean a borrowing base
certificate substantially in the form of Exhibit "B" which has been executed by
an Authorized Officer and delivered to the Agent.
Borrowing Date shall mean, with respect to any Revolving
Credit Loan or any Swingline Loan, the date for the making thereof, or as to
Revolving Credit Loans, the renewal or conversion thereof at or to the same or a
different Interest Rate Option, which shall be a Business Day.
Business Day shall mean (i) any day other than a Saturday or
Sunday or a legal holiday on which commercial banks in Pittsburgh, Pennsylvania
are authorized or required to be closed under the laws of the Commonwealth of
Pennsylvania, federal law or other applicable Law of an Official Body, and (ii)
if the applicable Business Day relates to any day for the determination of any
Euro-Rate, any day that satisfies the conditions of clause (i) above provided
that such day is a day on which dealings in Dollar deposits are carried on in
the London interbank market.
Capital Adequacy Event shall have the meaning ascribed to it
in Section 2.12 hereof.
Capital Compensation Amount shall have the meaning ascribed to
it in Section 2.12 hereof.
Cash Collateral Account shall have the meaning ascribed to it
in Section 8.02(e) hereof.
Cash Equivalents shall mean (i) securities issued or directly
and fully guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than six months from the
date of acquisition, (ii) time deposits, certificates of deposit and eurodollar
time deposits with maturities of not more than six months from the date of
acquisition, bankers' acceptances with maturities not exceeding six months from
the date of acquisition and overnight bank deposits, in each case with any
Lender or with
3
<PAGE> 10
any domestic commercial bank having capital and surplus in excess of
$500,000,000, (iii) repurchase obligations with a term of not more than thirty
days for underlying securities of any of the types described in clause (i) or
(ii) and entered into with any bank meeting the qualifications specified in
clause (ii) above, (iv) commercial paper maturing in 180 days or less rated not
lower than A-1 by S&P or P-1 by Moody's on the date of acquisition, and (v)
interests in pooled investment funds the assets of which are invested in
investments referred to in clauses (i) through (iv) above.
Closing shall mean the execution and delivery of this
Agreement and the other Loan Documents by the parties hereto and thereto on the
Closing Date.
Closing Date shall mean September 30, 1998.
Co-Agent shall mean each of Mellon Bank, N.A. and Bank One,
National Association in its capacity as co-agent hereunder.
Commitment Fee shall mean either or both of the Long-Term
Commitment Fee and the Short-Term Commitment Fee.
Compliance Certificate shall mean a certificate executed by
the chief financial officer or the treasurer of the Borrower, substantially in
the form of Exhibit "F" hereto.
Consolidated EBIT shall mean, for any period, the consolidated
net income (or net loss) of the Borrower and its Subsidiaries for such period as
determined in accordance with GAAP, plus (a) the sum of (i) Interest Expense,
(ii) total income tax expense, (iii) extraordinary or unusual losses (including
after tax losses on sales of assets outside of the ordinary course of business
and not otherwise included in GAAP extraordinary or unusual losses), (iv) other
non-cash charges, and (v) the net loss of any Person that is accounted for by
the equity method of accounting, except to the extent of the amount of dividends
or distributions paid to the Borrower, less (b) the sum of (i) extraordinary or
unusual gains (including after tax gains on sales of assets outside of the
ordinary course of business and not otherwise included in GAAP extraordinary or
nonrecurring gains), (ii) other noncash credits, and (iii) the net income of any
Person that is accounted for by the equity method of accounting, except to the
extent of the amount of dividends or distributions paid to the Borrower;
provided, that for purposes of calculating Consolidated EBIT of the Borrower and
its Subsidiaries for any period, the Consolidated EBIT of any Person acquired by
the Borrower or its Subsidiaries during such period shall be included on a pro
forma basis for such period (assuming the consummation of each such acquisition
and the incurrence or assumption of any Indebtedness in connection therewith
occurred on the first day of such period) if the consolidated balance sheet of
such acquired Person and its consolidated Subsidiaries as at the end of the
period preceding the acquisition of such Person and related consolidated
statements of income and stockholders' equity and of cash flows for such period
(1) have been previously provided to the Agent and the Lender and (ii) either
(A) have been reported on without qualification arising out of the scope of the
audit by independent certified accountants of nationally recognized standing or
(B) have been found acceptable by the Agent.
Consolidated EBITDA shall mean, for any period, the
consolidated net income (or net loss) of the Borrower and its Subsidiaries for
such period as determined in accordance with GAAP, plus (a) the sum of (i)
depreciation expense, (ii) amortization expense, (iii) Interest Expense, (iv)
total income tax expense, (v) extraordinary or unusual losses (including after
tax
4
<PAGE> 11
losses on sales of assets outside of the ordinary course of business and not
otherwise included in GAAP extraordinary or unusual losses), (vi) other non-cash
charges, and (vii) the net loss of any Person that is accounted for by the
equity method of accounting, except to the extent of the amount of dividends or
distributions paid to the Borrower, less (b) the sum of (i) extraordinary or
unusual gains (including after tax gains on sales of assets outside of the
ordinary course of business and not otherwise included in GAAP extraordinary or
nonrecurring gains), (ii) other noncash credits, and (iii) the net income of any
Person that is accounted for by the equity method of accounting, except to the
extent of the amount of dividends or distributions paid to the Borrower;
provided, that for purposes of calculating Consolidated EBITDA of the Borrower
and its Subsidiaries for any period, the Consolidated EBITDA of any Person
acquired by the Borrower or its Subsidiaries during such period shall be
included on a pro forma basis for such period (assuming the consummation of each
such acquisition and the incurrence or assumption of any Indebtedness in
connection therewith occurred on the first day of such period) if the
consolidated balance sheet of such acquired Person and its consolidated
Subsidiaries as at the end of the period preceding the acquisition of such
Person and related consolidated statements of income and stockholders' equity
and of cash flows for such period (1) have been previously provided to the Agent
and the Lender and (ii) either (A) have been reported on without qualification
arising out of the scope of the audit by independent certified accountants of
nationally recognized standing or (B) have been found acceptable by the Agent.
Consolidated Intangible Assets shall mean, with respect to any
Person, all assets properly classified as intangible assets under GAAP,
including without limitation goodwill, patents, copyrights, trademarks, trade
names, franchises, licenses, organization costs and deferred charges.
Consolidated Interest Expense shall mean any Person's interest
expense, as determined in accordance with GAAP, as appearing on the Borrower's
financial statements.
Consolidated Net Worth shall mean stockholders' equity of any
Person determined on a consolidated basis, as determined in accordance with GAAP
consistently applied.
Consolidated Tangible Net Worth shall mean the remainder
determined by subtracting from Consolidated Net Worth the aggregate amount of
Consolidated Intangible Assets.
Consolidated Total Indebtedness shall mean the Indebtedness of
any Person determined on a consolidated basis in accordance with GAAP,
consistently applied.
Consolidated Total Indebtedness to Consolidated EBITDA Ratio
shall mean, as of any date of determination, the ratio of the Borrower's
Consolidated Total Indebtedness as of the end of the Borrower's most recently
completed Fiscal Quarter to the Borrower's Consolidated EBITDA for the
Borrower's four most recently completed Fiscal Quarters treated as a single
accounting period.
Control shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, including the power to elect a majority of the directors or trustees
of a corporation or trust, as the case may be, and the terms "Controlled" and
"Controlling" shall have correlative meanings.
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<PAGE> 12
Default shall mean any event or condition which with notice or
passage of time or both, would constitute an Event of Default.
Dollar, Dollars, U.S. Dollars and the symbol $ shall mean
lawful money of the United States of America.
Eligible Inventory: Any Inventory of the Borrower or any
Subsidiary Guarantor which the Agent, in its sole discretion exercised in good
faith, determines to have met all of the following minimum requirements:
(i) The Inventory is either (a) finished goods, (b) raw
materials other than supplies, or (c) work-in-process, but excluding in all
cases any goods which have been shipped, delivered, sold, purchased or provided
by or to the Borrower or a Subsidiary Guarantor on a bill-and-hold, consignment
sale, guaranteed sale or sale-or-return basis, or any other similar basis or
understanding other than an absolute sale;
(ii) The Inventory is new and of good and merchantable
quality, is not obsolete and represents no more than a 12-month supply of such
finished goods or raw materials;
(iii) The Inventory is located on premises listed on Schedule
1.01(b) hereto, and with respect to Inventory locations at facilities leased to
the Borrower or a Subsidiary Guarantor, the Agent has received a Landlord's
Waiver in favor of the Agent substantially in the form of Exhibit "I" hereto, or
is Inventory which is in transit and is so identified on the relevant Schedule
of Inventory;
(iv) The Inventory is not stored with a bailee,
warehouseman, consignee or similar party unless the Agent has given its prior
written consent and the Borrower or such Subsidiary Guarantor has caused such
bailee, warehouseman, consignee or similar party to issue and deliver to the
Agent, in form and substance acceptable to the Agent, warehouse receipts or
similar type documentation therefor in the Agent's name;
(v) The Inventory is not subject to any Lien except for
Permitted Liens;
(vi) The Inventory has not been manufactured in violation of
any Federal minimum wage or overtime laws, including without limitation the Fair
Labor Standards Act, 29 U.S.C. Section 215(a)(1) or any similar or successor
legislation; and
(vii) The Inventory is not, and should not be, disqualified
for any other reason generally accepted in the commercial finance business.
Notwithstanding the qualification standards specified above, upon prior notice
to and with the consent of the Borrower, not to be unreasonably withheld, the
Agent may at any time or from time to time revise such qualification standards
or, in its sole and reasonable discretion, determine that certain Inventory is
not eligible to be Eligible Inventory.
Eligible Receivable: Any Receivable of the Borrower or any
Subsidiary Guarantor which the Agent, in its sole discretion exercised in good
faith, determines to have met all of the following minimum requirements:
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<PAGE> 13
(i) The Receivable represents a complete bona fide
transaction for goods sold and delivered or services rendered (excluding any
amounts in the nature of a service charge added to the amount due on an invoice
because the invoice has not been paid when due) which requires no further act
under any circumstances on the part of the Borrower or such Subsidiary Guarantor
to make such Receivable payable by the Receivables Debtor;
(ii) The Receivable arises from an arm's-length transaction
in the ordinary course of the Borrower's or a Subsidiary Guarantor's business
between the Borrower or a Subsidiary Guarantor and a Receivables Debtor which is
not (A) an Affiliate or Subsidiary of the Borrower, (B) a Person Controlled by a
Subsidiary or Affiliate of the Borrower, (C) an officer, director, stockholder
or employee of the Borrower or any Subsidiary Guarantor or Affiliate of the
Borrower, or (D) a member of the family of an officer, director, stockholder or
employee of the Borrower or a Subsidiary or Affiliate of the Borrower;
(iii) The Receivable shall not (A) be or have been unpaid
more than (1) 90 days from the original due date of the invoice or (2) 270 days
from the date of the invoice, whichever first occurs, or (B) be payable by a
Receivables Debtor (1) more than 50% of whose Receivables are not deemed
Eligible Receivables or (2) whose Receivables constitute 50% or more of the
aggregate amount of all outstanding Receivables;
(iv) The goods the sale of which gave rise to the Receivable
were shipped, delivered or provided to the Receivables Debtor on an absolute
sale basis and not on a bill-and hold, consignment sale, guaranteed sale or
sale-or-return basis or on the basis of any other similar understanding, and no
part of such goods has been returned or rejected;
(v) The Receivable is not evidenced by chattel paper or an
instrument of any kind and has not been reduced to judgment;
(vi) The Receivables Debtor with respect to the Receivable
(A) is Solvent, (B) is not the subject of any bankruptcy or insolvency
proceedings of any kind or of any other proceeding or action, threatened or
pending, which might have a materially adverse effect on his or its business,
operations or properties, (C) has not made an assignment for the benefit of his
or its creditors, (D) has not failed, suspended business, dissolved or consented
to or suffered the appointment of a receiver, trustee, liquidator or custodian
for him or it or for all or a significant portion of his or its assets or
affairs and (E) is not, in the sole discretion of the Agent exercised in good
faith, deemed ineligible for credit for other reasons (including, without
limitation, unsatisfactory past experience of the Borrower or the Agent with
such Receivables Debtor or the unsatisfactory reputation of such Receivables
Debtor);
(vii) The Receivables Debtor is not located outside of the
continental United States of America, unless the Borrower has delivered to the
Bank any or all letters of credit and/or cash against documents relating to such
Receivable or evidence of credit insurance, as requested by the Agent and deemed
adequate and acceptable by the Agent;
(viii) The Receivable is a valid, legally enforceable
obligation of the Receivables Debtor with respect thereto and is not subject to
any dispute, condition, contingency, offset, recoupment, reduction, claim for
credit, allowance, adjustment, counterclaim or defense on the part of such
Receivables Debtor, and the Receivable is not
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<PAGE> 14
otherwise subject to any right of setoff to the extent of any of the foregoing,
and no facts or circumstances exist which may provide a basis for any of the
foregoing in the present or future;
(ix) The Receivable is evidenced by an invoice or other
documentation in form acceptable to the Agent and arises from a contract which
is in form and substance satisfactory to the Agent;
(x) The Borrower has observed and complied with all Laws
of the state in which the Receivables Debtor is located or the Receivable is
payable, which Laws, if not observed and complied with, would deny to the
Borrower access to the courts of such state,
(xi) The Receivable is not subject to any provision
prohibiting its assignment or requiring notice of or consent to such assignment;
(xii) The goods giving rise to the Receivable were not, at
the time of sale thereof, subject to any Lien;
(xiii) The Receivable is payable in freely transferable
Dollars;
(xiv) The Borrower has not made any agreement with the
Receivables Debtor for any deduction therefrom, except for discounts or
allowances which are made in the ordinary course of business for prompt payment
and which discounts or allowances are reflected in the calculation of the face
value of each invoice related to such Receivable;
(xv) The Borrower has not made any agreement with the
Receivables Debtor to extend the time of payment of such Receivable;
(xvi) The Receivable does not arise from a retail sale of
goods to a Person who is purchasing the same primarily for personal, family or
household purposes;
(xvii) No covenant, representation or warranty contained in
this Agreement or any of the other Loan Documents with respect to such
Receivable has been breached; and
(xviii) The Receivable is not, or should not be, disqualified
for any other reason generally accepted in the commercial finance business.
In addition to the foregoing requirements, Receivables of any Receivables Debtor
which are otherwise Eligible Receivables shall be reduced to the extent of any
Receivables payable (including, without limitation, the Agent's good faith
estimate of any contingent liabilities) owing by the Borrower to such
Receivables Debtor, which Receivables payable are known as "contras"; provided,
however, that the Agent, in its sole discretion exercised in good faith, may
determine that none of the Receivables owned by such Receivables Debtor shall be
Eligible Receivables in the event that contras represent an unreasonably large
amount owing to such Receivables Debtor.
Notwithstanding the qualification standards specified above, upon prior notice
to the Borrower, the Agent may at any time or from time to time revise such
qualification standards.
Environmental Complaint shall mean any written complaint
setting forth a cause of action for personal or property damage or equitable
relief, or any order, notice of violation or
8
<PAGE> 15
citation issued pursuant to any Environmental Laws by an Official Body, subpoena
or other written notice of any type relating to, arising out of, or issued
pursuant to, any Environmental Laws or any Environmental Conditions.
Environmental Conditions shall mean any conditions of the
environment, including, without limitation, the work place, the ocean, natural
resources (including flora or fauna), soil, surface water, ground water, any
actual or potential drinking water supply sources, substrata or the ambient air,
relating to or arising out of, or caused by the use, handling, storage,
treatment, recycling, generation, transportation, release, spilling, leaking,
pumping, emptying, discharging, injecting, escaping, leaching, disposal,
dumping, threatened release or other management or mismanagement of Regulated
Substances resulting from the use of, or operations on, any of the Property.
Environmental Laws shall mean all federal, state; local and
foreign Laws and regulations, including permits, licenses, authorizations,
bonds, orders, judgments and consent decrees issued or entered into pursuant
thereto, relating to pollution or protection of human health or the environment
or employee safety in the work place.
ERISA shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
in each case as from time to time in effect.
ERISA Group shall mean, at any time, the Borrower and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control and all other entities which,
together with the Borrower, are treated as a single employer under Section 414
of the Internal Revenue Code.
Euro-Rate shall mean for any day, as used herein, for each
segment of the EuroRate Portion corresponding to a proposed or existing
Euro-Rate Interest Period, the interest rate per annum determined by the Agent
by dividing (the resulting quotient rounded upward to the nearest 1/l00th of 1%
per annum) (i) the rate of interest determined by the Agent in accordance with
its usual procedures (which determination shall be conclusive absent manifest
error) to be the average of the London interbank offered rates of interest for
U.S. Dollars quoted by the British Bankers' Association as set forth on Dow
Jones Markets Service (formerly known as Telerate) display page 3750 (or
appropriate successor or, if British Banker's Association or its successor
ceases to provide such quotes, a comparable replacement determined by the Agent
two (2) Business Days prior to the first day of such Euro-Rate Interest Period
for an amount comparable to such Euro-Rate Portion for such Euro-Rate Interest
Period and having a borrowing date and a maturity comparable to such Interest
Period by (ii) a number equal to 1.00 minus the Euro-Rate Reserve Percentage.
The Euro-Rate may also be expressed by the following formula:
Average of London interbank offered rates
quoted by British Banker's Association, as
shown on Dow Jones Market Service display
Euro-Rate = page 3750, or appropriate successor
1.00 - Euro-Rate Reserve Percentage
The Euro-Rate shall be adjusted with respect to any Euro-Rate Option outstanding
on the effective date of any change in the Euro-Rate Reserve Percentage as of
such effective date.
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<PAGE> 16
The Agent shall give prompt notice to the Borrower of the Euro-Rate as
determined or adjusted in accordance herewith, which determination shall be
conclusive absent manifest error.
Euro-Rate Interest Period shall mean any individual period
equal to one (1), two (2), three (3) or six (6) months selected by the Borrower
commencing on the Borrowing Date, a conversion date or a renewal date of a
Euro-Rate Portion to which such period shall apply; provided, however, that
prior to the date which is the Business Day following the Syndication Date, only
such periods as the Agent and the Borrower mutually agree upon, not to exceed a
period of one month, shall be available.
Euro-Rate Option shall mean the interest rate option described
in Section 2.08b(ii) hereof.
Euro-Rate Portion shall mean each portion of the Revolving
Credit Loans which bears, or is to bear, interest under the Euro-Rate Option;
and the term Euro-Rate Portions shall mean collectively all such portions of the
Revolving Credit Loans which bear, or are to bear, interest under the Euro-Rate
Option.
Euro-Rate Reserve Percentage shall mean for any day the
maximum effective percentage as determined by the Agent in accordance with its
usual procedures (which determination shall be conclusive absent manifest error)
as prescribed by the Federal Reserve Board (or any successor) for determining
the reserve requirements (including, without limitation, supplemental, marginal
and emergency reserve requirements) with respect to eurocurrency funding
(currently referred to as "Eurocurrency Liabilities") of a member bank in such
System.
Event of Default shall have the meaning ascribed to it in
Section 8.01 hereof.
Existing Letter of Credit shall mean a letter outstanding on
the Closing Date issued by PNC under and pursuant to the terms of the RMI Credit
Agreement.
Expiration Date shall mean either or both of the Long-Term
Expiration Date or the Short-Term Expiration Date.
Federal Bankruptcy Code shall mean the bankruptcy code of the
United States of America codified in Title 11 of the United States Code, as from
time to time amended or supplemented.
Federal Funds Effective Rate shall mean for any day the rate
per annum (based on a year of 360 days and actual days elapsed and rounded
upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New
York (or any successor) on such day (or if such day is not a Business Day, the
previous Business Day) as being the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers on the previous trading day, as computed and announced
by such Federal Reserve Bank (or any successor) in substantially the same manner
as such Federal Reserve Bank computes and announces the weighted average it
refers to as the "Federal Funds Effective Rate" as of the date of this
Agreement.
Federal Reserve Board shall mean the Board of Governors of the
United States Federal Reserve System as constituted from time to time.
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<PAGE> 17
Fee shall mean any of the Commitment Fee, the Letter of Credit
Fee, the L/C Fronting Fee, any underwriting or administration fee payable to the
Agent, and any other fee payable under any of the other Loan Documents.
Fiscal Quarter shall mean each three month fiscal period of
the Borrower beginning respectively on each January 1, April 1, July 1 and
October 1 during the term hereof and ending on the immediately succeeding March
31, June 30, September 30 and December 31.
Fiscal Year shall mean each 12-month fiscal period of the
Borrower beginning January 1 and ending on the immediately succeeding December
31.
GAAP shall mean, subject to the provisions of Section 1.03
hereof, generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be recognized by a significant segment of the accounting profession, which
are applicable to the circumstances as of the date of determination.
Guaranty or Guarantee shall mean any obligation, direct or
indirect, by which a Person undertakes to guaranty, assume or remain liable for
the payment of another Person's obligations, including but not limited to (i)
endorsements of negotiable instruments, (ii) discounts with recourse, (iii)
agreements to pay upon a second Person's failure to pay, (iv) agreements to
maintain the capital, working capital solvency or general financial condition of
a second Person and (v) agreements for the purchase or other acquisition of
products, materials, supplies or services, if in any case payment therefor is to
be made regardless of the nondelivery of such products, materials or supplies or
the non-furnishing of such services.
Indebtedness shall mean as to any Person at any time, any and
all indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent or joint
and several) of such Person for or in respect of: (i) borrowed money, (ii)
amounts raised under or liabilities in respect of any note purchase or
acceptance credit facility, (iii) reimbursement obligations (contingent or
otherwise) under any letter of credit, currency swap agreement, hedging
contracts, Interest Hedge Agreement or other interest rate management device,
raw materials management device or commodities management device (except raw
materials or commodity management devices entered into in the ordinary course of
business), (iv) any other transaction (including forward sale or purchase
agreements, capitalized leases and conditional sales agreements) having the
commercial effect of a borrowing of money entered into by such person to finance
its operations or capital ; requirements (but not including trade payables and
accrued expenses incurred in the ordinary course of business which are not
represented by a promissory note or other evidence of indebtedness), or (v) any
Guaranty of any of the foregoing.
Ineligible Security shall mean any security which may not be
underwritten or dealt in by member banks of the Federal Reserve System under
Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as
amended.
Interest Hedge Agreement shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate insurance or any other agreement or arrangement designed to provide
protection against fluctuations in interest rates.
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<PAGE> 18
Interest Rate Option shall mean the Euro-Rate Option or the
Base Rate Option.
Internal Revenue Code shall mean the Internal Revenue Code of
1986, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.
Inventory shall mean, with respect to the Borrower or any
Subsidiary Guarantor, any and all now owned or hereafter acquired goods,
merchandise, raw material, work-in-process and finished goods inventory and
other tangible personal property intended for sale or lease and all materials
and supplies which are used or consumed in selling or furnishing such goods,
merchandise or other personal property, in the custody or possession, actual or
constructive, of the Borrower or any Subsidiary Guarantor, as the case maybe,
including such inventory as is on consignment to third parties, leased to
customers of the Borrower or any Subsidiary Guarantor, as the case maybe, or
otherwise temporarily out of the custody or possession of the Borrower or any
Subsidiary Guarantor, as the case may be.
L/C Fronting Fee shall have the meaning ascribed to it in
Section 2.17(b) of this Agreement.
L/C Issuer shall mean PNC Bank, National Association, as the
issuer of Letters of Credit pursuant to Section 2.17, and any successor to PNC
Bank, National Association as the issuer of Letters of Credit hereunder.
Labor Contracts shall have the meaning ascribed to it in
Section 4.19 hereof.
Law shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree or award of any Official Body.
Lender Obligations shall mean collectively, (i) all unpaid
principal and accrued and unpaid interest under the Revolving Credit Loans and
the Swingline Loan, (ii) all accrued and unpaid Fees hereunder or under any of
the other Loan Documents, (iii) the face amount of all Letters of Credit then
outstanding, together with all Unreimbursed L/C Draws and all accrued and unpaid
interest on such Unreimbursed L/C Draws, (iv) the actual (as opposed to nominal)
credit exposure determined in accordance with standard industry practices to any
Lender or Affiliate of a Lender under an Interest Hedge Agreement between such
Person and the Borrower, (v) any other amounts payable hereunder or under any of
the other Loan Documents, including all reimbursements, indemnities, fees,
costs, expenses, prepayment premiums and other obligations of the Borrower to a
Lender (in any capacity hereunder) or any indemnified party hereunder, (vi) all
out-of-pocket costs and expenses incurred by the Agent in connection with this
Agreement or any other Loan Documents, including but not limited to the
reasonable fees and expenses of the Agent's counsel, (vii) all out-of-pocket
costs and expenses incurred by a Lender after an Event of Default in connection
with any administration or enforcement of the Loan Documents, including but not
limited to the reasonable fees and expenses of such Lender's counsel, and (viii)
all other liabilities, obligations, covenants, duties and Indebtedness of the
Borrower to the Agent, the Co-Agents, the L/C Issuer and the Lenders of any and
every kind and nature, arising under this Agreement or the other Loan Documents,
whether heretofore, now or hereafter owing, arising, due or payable from the
Borrower to the Agent, the L/C Issuer or the Lenders.
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<PAGE> 19
Lenders shall mean the financial institutions named on
Schedule 1.01(a) hereto and their respective successors and assigns as permitted
hereunder, each of which is referred to herein as a Lender.
Letter of Credit shall mean any standby letter of credit
issued by the L/C Issuer for the account of the Borrower upon the application of
the Borrower pursuant to this Agreement and any Existing Letter of Credit, and
all extensions, renewals, amendments, substitutions and replacements thereto and
thereof.
Letter of Credit Fee shall have the meaning ascribed to it in
Section 2.17.
Lien shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement of any
nature whatsoever, whether voluntarily or involuntarily given, including but not
limited to any conditional sale or title retention arrangement, and any
assignment, deposit arrangement or lease intended as, or having the effect of,
security and any filed financing statement or other notice of any of the
foregoing (whether or not a lien or other encumbrance is created or exists at
the time of the filing).
Loans shall mean Revolving Credit Loans and Swingline Loans
and Loan shall mean separately any Revolving Credit Loan or Swingline Loan.
Loan Account shall mean the loan account maintained by a
Lender as more fully described in Section 2.14 hereof.
Loan Disbursement Account shall have the meaning ascribed to
it in Section 3.01 hereof.
Loan Documents shall mean this Agreement, the Notes, any
Application and Agreement for Letter of Credit, the Subsidiary Guarantees, any
Interest Rate Hedge Agreement executed by a Lender or an affiliate of a Lender,
and any other agreements, instruments, certificates or documents contemplated
thereby, as any of the same may be supplemented or amended from time to time in
accordance herewith or therewith; and Loan Document shall mean any of the Loan
Documents.
Loan Parties shall mean the Borrower and the Subsidiary
Guarantors and Loan Party shall mean any of the Loan Parties.
Loan Request shall mean a request for Revolving Credit Loans
made in accordance with Section 2.05 hereof which request shall be substantially
in the form of Exhibit "D" hereto.
Long-Term Applicable Commitment Fee shall have the meaning
ascribed to it in Section 2.03 of this Agreement.
Long-Term Commitment Fee shall have the meaning ascribed to it
in Section 2.03 of this Agreement.
Long-Term Expiration Date shall mean May 31, 2003.
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<PAGE> 20
Long-Term Revolving Credit Commitment shall mean, as to any
Lender at any time, the amount initially set forth opposite its name on Schedule
l.0l(a) in the column labeled "Amount of Commitment for Revolving Credit
Loans--Long-Term Commitment", and thereafter on Schedule I to the most recent
Assignment and Assumption Agreement, as the same may be reduced pursuant to
Sections 2.04 or 2.l0(a) hereof, and Long-Term Revolving Credit Commitments
shall mean the aggregate Long-Term Revolving Credit Commitments of all of the
Lenders.
Long-Term Revolving Credit Loans shall mean collectively, all
Long-Term Revolving Credit Loans and Long-Term Revolving Credit Loan shall mean
any Long-Term Revolving Credit Loan made by the Lenders or one of the Lenders to
the Borrower pursuant to Section 2.01 hereof.
Long-Term Revolving Credit Notes shall mean collectively all
the promissory notes of the Borrower in the form of Exhibit "A-1" hereto and
Long-Term Revolving Credit Note shall mean separately each promissory note of
the Borrower substantially in the form of Exhibit "A-1" hereto in each case
evidencing the Long-Term Revolving Credit Loans together with all amendments,
extensions, renewals, replacements, refinancings or refundings thereof or
thereto in whole or in part.
Margin Regulations shall mean Regulation T, U or X as
promulgated by the Board of Governors of the Federal Reserve System, as amended
from time to time.
Material Adverse Change shall mean any set of circumstances or
events which (a) has or could reasonably be expected to have any material
adverse effect upon the validity or enforceability of this Agreement or any of
the other Loan Documents, (b) is or could reasonably be expected to be material
and adverse to the business, properties, assets, financial condition or results
of operations of the Borrower and its Subsidiaries, taken as a whole, (c)
impairs materially or could reasonably be expected to impair materially the
ability of the Borrower and its Subsidiaries taken as a whole to duly and
punctually pay their Indebtedness, or (d) impairs materially or could reasonably
be expected to impair materially the ability of the Agent or any of the Lenders
to enforce their legal remedies pursuant to this Agreement or any other Loan
Document.
Moody's shall mean Moody's Investors Service, Inc., a
corporation organized and existing under the laws of the State of Delaware, its
successors and assigns, and, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Agent, with the approval of the
Borrower, by notice to the Lenders.
Multiemployer Plan shall mean any employee benefit plan which
is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and
to which the Borrower or any member of the ERISA Group is then making or
accruing an obligation to make contributions or, within the preceding five Plan
years, has made or had an obligation to make such contributions.
Multiple Employer Plan shall mean a Plan which has two or more
contributing sponsors (including the Borrower or any member of the ERISA Group)
at least two of whom are not under common control, as such a plan is described
in Sections 4063 and 4064 of ERISA.
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<PAGE> 21
New Century shall mean New Century Metals, Inc., an Ohio
corporation.
Notes shall mean collectively all of the Revolving Credit
Notes and the Swingline Note and Note separately shall mean any Revolving Credit
Note and the Swingline Note.
Official Body shall mean any national, federal, state, local
or other government or political subdivision or any agency, authority, bureau,
central bank, commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
Participant shall mean any bank or financial institution which
acquires from any Lender an undivided interest in the Lender's Ratable Share of
the Revolving Credit Commitments, Revolving Credit Loans, Letters of Credit and
Unreimbursed L/C Draws, pursuant to Section 10.05.
Participation shall mean the sale, made in accordance with the
provisions of Section 10.05, by any Lender to any Participant of an undivided
interest in such Lender's Ratable Share of the Revolving Credit Commitments,
Revolving Credit Loans, Letters of Credit and Unreimbursed L/C Draws.
PBGC shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any successor.
Permitted Liens shall mean:
(i) Liens for taxes, assessments, governmental levies or
similar charges incurred in the ordinary course of business and which are not
yet due and payable, or if due and payable, (aa) are being contested in good
faith and by appropriate and lawful proceedings diligently conducted, but only
so long as such proceedings could not subject the Agent, the Lenders or the L/C
Issuer to any civil or criminal penalties or liabilities and (bb) for which such
reserves or other appropriate provisions, if any, as shall be required by GAAP
shall have been made and (cc) which shall be paid in accordance with the terms
of any final judgments or orders relating thereto within thirty (30) days after
the entry of such judgments or orders;
(ii) Pledges or deposits made in the ordinary course of
business to secure payment of workmen's compensation, or to participate in any
fund in connection with workmen's compensation, unemployment insurance, old-age
pensions, other social security programs or similar program or to secure
liability to insurance carriers under insurance or self insurance agreements or
arrangement;
(iii) Liens of mechanics, materialmen, warehousemen,
carriers, or other like Liens, securing obligations incurred in the ordinary
course of business that are not yet due and payable and Liens of landlords
securing obligations to pay lease payments that are not yet due and payable or
in default, or if such Liens are due and payable, (aa) are being contested in
good faith and by appropriate and lawful proceedings diligently conducted and
(bb) for which such reserves or other appropriate provisions, if any, as
required by GAAP shall have been made and (cc) which shall be paid in accordance
with the terms of any final judgments or orders relating thereto within thirty
(30) days after the entry of such judgments or orders;
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<PAGE> 22
(iv) Pledges or deposits made in the ordinary course of
business to secure performance of bids, tenders, contracts (other than for the
repayment of borrowed money) or leases, not in excess of the aggregate amounts
due thereunder, or to secure statutory obligations, or surety, appeal,
indemnity, performance or other similar bonds required in the ordinary course of
business;
(v) (aa) Encumbrances consisting of zoning restrictions,
easements, rights-of-way, or other restrictions on the use of real property,
(bb) defects in title to real property, and (cc) Liens, encumbrances and title
defects affecting real property not known by the Borrower or a Subsidiary, as
applicable, and not discoverable by a search of the public records, none of
which materially impairs the use of such property;
(vi) (aa) Liens on assets of a Person which is merged into
or acquired by the Borrower or a Subsidiary of the Borrower on or after the date
of this Agreement, and (bb) Liens on assets acquired after the date of this
Agreement, provided that (A) such Liens existed at the time of such merger or
acquisition and were not created in anticipation thereof, (B) no such Lien is
spread to cover any property or assets of the Borrower or any Subsidiary of the
Borrower; and (C) the principal amount of Indebtedness secured thereby is not
increased from the amount outstanding immediately prior to such merger or
acquisition;
(vii) Liens created by or resulting from any litigation or
legal proceedings which are currently being contested in good faith by
appropriate and lawful proceedings diligently conducted and for which such
reserves or other appropriate provisions, if any, as shall be required by GAAP
shall have been made and Liens arising out of judgments or orders for the
payment of money which do not constitute an Event of Default hereunder;
(viii) Liens placed upon fixed assets or equipment hereafter
acquired to secure all or a portion of the purchase price thereof, provided that
any such Lien shall not encumber any other property of the Borrower or any
Subsidiary;
(ix) Other Liens incidental to the conduct of the Borrower's
or any Subsidiary's business or the ownership of its property and assets which
were not incurred in connection with the borrowing of money or the obtaining of
advances or credit, and which do not in the aggregate materially detract from
the value of the Borrower's or any Subsidiary's property or assets or which do
not materially impair the use thereof in the operation of the Borrower's
business; and
(x) Leases or subleases not otherwise prohibited by this
Agreement or other Loan Documents; provided, however, except as set forth in
items (i) through (x) of this definition the Borrower shall not permit or
authorize Liens on any of the Borrower's or any of its Subsidiaries' properties,
except in favor of the Agent for the benefit of the Agent, the Lenders and the
L/C Issuer.
Person or person shall mean any individual, corporation,
partnership, limited liability company, association, joint-stock company, trust,
unincorporated organization, joint venture, government or political subdivision
or agency thereof, or any other entity.
Plan shall mean at any time an employee pension benefit plan
(including a Multiple Employer Plan but not a Multiemployer Plan) which is
covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Internal Revenue Code
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<PAGE> 23
and either (i) is maintained by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained by any entity which was at such time a member of the ERISA
Group for employees of any entity which was at such time a member of the ERISA
Group.
PNC Bank shall mean PNC Bank, National Association, and its
successors and assigns.
Portions shall mean collectively the Base Rate Portions and
the Euro-Rate Portions; and the term Portion shall mean individually any of the
Portions.
Prime Rate shall mean for any day, a fluctuating interest rate
per annum equal to the rate of interest which the Agent announces from time to
time as its prime lending rate, which rate may not be the lowest rate then being
charged by the Agent to commercial borrowers.
Principal Office shall mean the principal commercial banking
office of the Agent in Pittsburgh, Pennsylvania.
Prohibited Transaction shall mean any prohibited transaction
as defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA
for which neither an individual nor a class exemption has been issued by the
United States Department of Labor.
Property shall mean, and refer to, each parcel of real
property, whether owned in fee or leased, of any Loan Party.
Purchasing Lender shall mean a Lender which becomes a party to
this Agreement by executing an Assignment and Assumption Agreement.
Ratable Share shall mean the proportion that a Lender's
Revolving Credit Commitment bears to the Revolving Credit Commitments of all of
the Lenders.
Receivable shall mean, with respect to the Borrower or any
Subsidiary Guarantor, all accounts receivable, contract rights related to such
account receivable, instruments, chattel paper, general intangibles related to
such Receivables and all other rights to payments of moneys for any reason
(whether or not evidenced by a contract, instrument, chattel paper or document),
and all other rights, powers and privileges of the Borrower or any Subsidiary
Guarantor, as the case may be, arising thereunder or related thereto (including
but not limited to all guarantees, collateral security, surety bonds, rights
under letters of credit, insurance or other direct or indirect security),
assertible against any Person whatever and all rebates, refunds, adjustments and
returned, rejected, or repossessed goods relating thereto and all proceeds of
any of the foregoing.
Receivables Debtor shall mean any Person who is obligated to
pay a Receivable to the Borrower or any Subsidiary Guarantor.
Register shall have the meaning ascribed to it in
Section 10.05(c).
Regulated Substances shall mean any substance, including
without limitation Solid Waste, the generation, manufacture, processing,
distribution, treatment, storage,
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<PAGE> 24
disposal, transport, recycling, reclamation, use, reuse or other management or
mismanagement of which is regulated by the Environmental Laws.
Reorganization shall mean the merger of RMI Acquisition
Company, an Ohio corporation and a wholly owned Subsidiary of the Borrower with
and into RMI with RMI being the surviving corporation and with each outstanding
share of RMI common stock, or a fraction thereof, automatically being converted
into one share of common stock of the Borrower, or fraction thereof resulting in
RMI becoming a wholly owned Subsidiary of the Borrower.
Reportable Event shall mean a reportable event described in
Section 4043 of ERISA and regulations thereunder with respect to a Plan or
Multiemployer Plan.
Required Lenders shall mean Lenders whose Revolving Credit
Commitments aggregate at least 51% of the Revolving Credit Commitments of all of
the Lenders.
Revolving Credit Commitment shall mean, as to any Lender at
any time, the aggregate amount initially set forth opposite its name on Schedule
l.0l(a), and thereafter on Schedule I to the most recent Assignment and
Assumption Agreement, as the same may be reduced pursuant to Sections 2.04 or 2.
l0(a) hereof, and Revolving Credit Commitments shall mean the aggregate
Short-Term Revolving Credit Commitments of all of the Lenders.
Revolving Credit Loans shall mean collectively, all Long-Term
Revolving Credit Loans and Short-Term Revolving Credit Loans, and Revolving
Credit Loan shall mean any Long-Term Revolving Credit Loan and any Short-Term
Revolving Credit Loan made by the Lenders or one of the Lenders to the Borrower
pursuant to Section 2.01 hereof.
Revolving Credit Notes shall mean collectively all the
promissory notes of the Borrower in the form of Exhibits "A-1" and "A-2" hereto
and Revolving Credit Note shall mean separately each promissory note of the
Borrower substantially in the form of either Exhibit "A-1" or "A-2" hereto in
each case evidencing the Revolving Credit Loans together with all amendments,
extensions, renewals, replacements, refinancings or refundings thereof or
thereto in whole or in part.
RMI shall mean RMI Titanium Company, an Ohio corporation.
RMI Credit Agreement shall mean the Credit Agreement dated as
of June 8, 1998, entered into by and among RMI, the banks which are parties
thereto, and PNC Bank as Agent.
S&P shall mean Standard & Poor's Ratings Group, a division of
McGraw Hill Corporation, and, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "S&P" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Agent, with the approval of the
Borrower, by notice to the Lenders.
Section 20 Subsidiary shall mean the Subsidiary of the bank
holding company controlling any Lender, which Subsidiary has been granted
authority by the Federal Reserve Board to underwrite and deal in certain
Ineligible Securities.
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<PAGE> 25
September 1998 Delivery Date shall mean the date on which the
quarterly financial statements described in Section 6.02(i) for the Fiscal
Quarter ending September 30, 1998, are delivered to the Agent.
Short-Term Applicable Commitment Fee shall have the meaning
ascribed to it in Section 2.03 of this Agreement.
Short-Term Commitment Fee shall have the meaning ascribed to
it in Section 2.03 of this Agreement.
Short-Term Expiration Date means May 31, 1999, unless extended
in accordance with the provisions of Section 2.04(b) hereof.
Short-Term Revolving Credit Commitment shall mean, as to any
Lender at any time, the aggregate amount initially set forth opposite its name
on Schedule l.0l(a) in the column labeled "Amount of Commitment for Revolving
Credit Loans--Short-Term", and thereafter on Schedule I to the most recent
Assignment and Assumption Agreement, as the same may be reduced pursuant to
Sections 2.04 or 2. l0(a) hereof, and Short-Term Revolving Credit Commitments
shall mean the aggregate Short-Term Revolving Credit Commitments of all of the
Lenders.
Short-Term Revolving Credit Loans shall mean collectively, all
Short-Term Revolving Credit Loans, and Short-Term Revolving Credit Loan shall
mean any Short-Term Revolving Credit Loan made by the Lenders or one of the
Lenders to the Borrower pursuant to Section 2.01 hereof.
Short-Term Revolving Credit Notes shall mean collectively all
the promissory notes of the Borrower in the form of Exhibit "A-2" hereto and
Short-Term Revolving Credit Note shall mean separately each promissory note of
the Borrower substantially in the form of Exhibit "A-2" hereto in each case
evidencing the Short-Term Revolving Credit Loans together with all amendments,
extensions, renewals, replacements, refinancings or refundings thereof or
thereto in whole or in part.
Sierra shall mean Sierra Alloys Company, a California
corporation.
Solid Waste shall mean any garbage, refuse or sludge from any
waste treatment plant, water supply treatment plant or air pollution control
facility generated by activities on the Property, and any unpermitted release
into the environment or the work place of any material as a result of activities
on the Property, including without limitation used Regulated Substances.
Solvent shall mean, with respect to any person on a particular
date, that on such date (i) the fair value of the property of such person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such person, (ii) the present fair salable value of
the assets of such person is not less than the amount that will be required to
pay the probable liability of such person on its debts as they become absolute
and matured, (iii) such person is able to realize upon its assets and pay its
debts and other liabilities, contingent obligations and other commitments as
they mature in the normal course of business, (iv) such person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
person's ability to pay as such debts and liabilities mature, and (v) such
person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which
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<PAGE> 26
such person's property would constitute unreasonably small capital after giving
due consideration to the prevailing practice in the industry in which such
person is engaged. In computing the amount of contingent liabilities at any
time, it is intended that such liabilities will be computed at the amount which,
in light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
Stated Amount shall mean as to any Letter of Credit, the
lesser of (i) the face amount thereof or (ii) the remaining available undrawn
amount thereof (regardless of whether any conditions for drawing could then be
met).
Subsidiary of any Person at any time shall mean (i) any
corporation or trust of which 50% or more (by number of shares or number of
votes) of the outstanding capital stock or shares of beneficial interest
normally entitled to vote for the election of one or more directors or trustees
(regardless of any contingency which does or may suspend or dilute the voting
rights) is at such time owned directly or indirectly by such Person or one or
more of such Person's Subsidiaries, (ii) any partnership of which such Person is
a general partner or of which 50% or more of the partnership interests is at the
time directly or indirectly owned by such Person or one or more of such Person's
Subsidiaries, (iii) any limited liability company of which such Person is a
member or of which 50% or more of the limited liability company interests is at
the time directly or indirectly owned by such Person or one or more of such
Person's Subsidiaries or (iv) any corporation, trust, partnership, limited
liability company or other entity which is Controlled or capable of being
Controlled by such Person or one or more of such Person's Subsidiaries.
Subsidiary Guarantor shall mean each Subsidiary of the
Borrower incorporated or organized in the United States of America.
Subsidiary Guaranty shall mean a guaranty agreement executed
by a Subsidiary Guarantor substantially in the form of Exhibit "H" attached
hereto, together in each case with all extensions, renewals, amendments,
substitutions and replacements thereto and thereof.
Swingline Loan shall mean a disbursement made by PNC Bank to
the Borrower pursuant to Section 2.13.
Swingline Note shall mean the promissory note of the Borrower
evidencing Indebtedness of the Borrower under the Swingline Option which note is
substantially in the form of Exhibit "A-3" attached hereto, together with all
extensions, renewals, amendments, modifications, substitutions and replacements
thereto and thereof.
Swingline Option shall mean the loan option between the
Borrower and PNC Bank pursuant to Section 2.13 hereof.
Syndication Date shall mean the earlier of (i) the date of
completion of syndication hereunder, as determined by the Agent, or (ii) ninety
(90) days after the Closing Date.
Total Utilization shall mean as of the time of determination
the sum of Revolving Credit Loans outstanding, Swingline Loans outstanding, the
Unreimbursed L/C Draws outstanding and the aggregate Stated Amount of the
Letters of Credit outstanding.
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<PAGE> 27
Transfer Effective Date shall have the meaning ascribed to it
in the applicable Assignment and Assumption Agreement.
Transferor Lender shall mean the selling Lender pursuant to am
Assignment and Assumption Agreement.
Uniform Commercial Code or UCC shall mean the Pennsylvania
Uniform Commercial Code and, if applicable, the Uniform Commercial Code in
effect in the state in which the place of business of the Borrower is located,
or, if the Borrower has more than one place of business, the state in which the
Borrower has its chief executive office.
Unreimbursed L/C Draw shall have the meaning ascribed to it in
Section 2.17(f).
Weld-Tech shall mean Weld-Tech Engineering LLP, a Texas
limited partnership.
1.02. Construction.
(a) Unless the context of this Agreement
otherwise clearly requires, the following rules of construction shall apply to
this Agreement and each of the other Loan Documents:
(i) Number: Inclusion. References to the
plural include the singular, the singular the plural and the part the whole,
"or" has the inclusive meaning represented by the phrase "and/or," and
"including" has the meaning represented by the phrase "including without
limitation".
(ii) Determination. References to
"determination" of or by the Agent, the L/C Issuer, PNC Bank or the Lenders
shall be deemed to include good faith estimates by the Agent, the L/C Issuer,
PNC Bank or the Lenders (in the case of quantitative determinations) and good
faith beliefs by the Agent, the L/C Issuer, PNC Bank or the Lenders (in the case
of qualitative determinations) and such determination shall be conclusive absent
manifest error.
(iii) Discretion and Consent. Whenever the
Agent, the L/C Issuer, PNC Bank or the Lenders are granted the right herein to
act in its or their sole discretion or to grant or withhold consent such right
shall be exercised in good faith.
(iv) Documents Taken as a Whole. The
words "hereof," "herein," "hereunder", "hereto" and similar terms in this
Agreement or any other Loan Document refer to this Agreement or such other Loan
Document as a whole and not to any particular provision of this Agreement or
such other Loan Document.
(v) Headings. The article, section and
other headings contained in this Agreement or such other Loan Documents and the
Table of Contents (if any) preceding this Agreement or such other Loan Document
are for reference purposes only and shall not control or affect the construction
of this Agreement or such other Loan Document or the interpretation thereof in
any respect.
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<PAGE> 28
(vi) Implied References. Article,
section, subsection, item, clause, schedule and exhibit references are to this
Agreement or to such other Loan Document, as the case may be, unless otherwise
specified.
(vii) Persons. Reference to any Person
includes such Person's successors and assigns, but, if applicable, only if such
successors and assigns are permitted by this Agreement or such other Loan
Document, as the case may be, and reference to a Person in a particular capacity
excludes such Person in any other capacity.
(viii) Laws and Agreements. Reference to
any Law, agreement or contract includes such Law, agreement or contract as the
same may be amended, supplemented, modified, extended, waived, consolidated,
replaced or renewed from time to time, but only to the extent permitted by, and
effected in accordance with, the terms thereof and of this Agreement and the
other Loan Documents.
(ix) From, To and Through. Relative to
the determination of any period of time, "from" means "from and including", "to"
means "to but excluding", and "through" means "through and including".
(x) Shall; Will. References to "shall"
and "will" are intended to have the same meaning.
(xi) UCC Terms. All terms used in Article
9 of the UCC and not specifically defined in this Agreement or in any other Loan
Document shall herein have the meanings assigned to such terms in the UCC as
from time to time in effect in the Commonwealth of Pennsylvania.
(xii) Writing; Written. References to
"writing" include printing, typing, lithography and other means of reproducing
words in a tangible visible form. References to "written" include "printed",
"typed", "lithographed" and other adjectives relating to words reproduced in a
tangible visible form consistent with the preceding sentence and also include
electronic images and images stored on computer disks, magnetic tape and like
media.
1.03. Accounting Principles. Except as otherwise provided in
this Agreement, all computations and determinations as to accounting or
financial matters and all financial statements to be delivered pursuant to this
Agreement shall be made and prepared in accordance with GAAP (including
principles of consolidation where appropriate), and all accounting or financial
terms shall have the meanings ascribed to such terms by GAAP.
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<PAGE> 29
ARTICLE II
REVOLVING CREDIT FACILITY
2.01. Revolving Credit Commitments. Subject to the terms and
conditions hereof and relying upon the representations and warranties herein set
forth, each Lender severally agrees to make revolving credit loans (the
"REVOLVING CREDIT LOANS") to the Borrower at any time or from time to time on or
after the date hereof to, but not including, the Expiration Date, provided that
the aggregate principal amount of each Lender's Revolving Credit Loans
outstanding hereunder to the Borrower shall not exceed at any one time such
Lender's Ratable Share of the aggregate Revolving Credit Commitments or the
Borrowing Base, whichever is less, minus such Lender's Ratable Share of the sum
of (i) the Swingline Loans outstanding, (ii) the aggregate Stated Amount of
outstanding Letters of Credit and (iii) the aggregate amount of Unreimbursed L/C
Draws. Within such limits of time and amount and subject to the other provisions
of this Agreement, the Borrower may borrow, repay and reborrow pursuant to this
Section 2.01. The aggregate amount of the Revolving Credit Commitments on the
Closing Date is $150,000,000. The Revolving Credit Commitment is divided into a
Long-Term Revolving Credit Commitment of $125,000,000 and a Short-Term Revolving
Credit Commitment of $25,000,000. All Long-Term Revolving Credit Commitments
shall expire on the Long-Term Expiration Date; and all Long-Term Revolving
Credit Loans outstanding on the Long-Term Expiration Date shall become due and
payable in full on such date. All Short-Term Revolving Credit Commitments shall
expire on the Short-Term Expiration Date; and all Short-Term Revolving Credit
Loans outstanding on the Short-Term Expiration Date shall become due and payable
in full on such date.
2.02. Nature of Lenders' Obligations with Respect to Revolving
Credit Loans. Each Lender shall be obligated to participate in each request for
Revolving Credit Loans pursuant to Section 2.05 hereof in accordance with its
Ratable Share. The aggregate principal amount of each Lender's Revolving Credit
Loans outstanding hereunder to the Borrower at any time shall never exceed such
Lender's Ratable Share of the aggregate Revolving Credit Commitments or the
Borrowing Base, whichever is less, minus such Lender's Ratable Share of the sum
of (i) Swingline Loans outstanding, (ii) the aggregate Stated Amount of
outstanding Letters of Credit and (iii) the aggregate amount of Unreimbursed L/C
Draws. The obligations of each Lender hereunder are several. The failure of any
Lender to perform its obligations hereunder shall not affect the obligations of
the Borrower, or any other Lender, to any other party nor shall the Borrower, or
any other Lender, be liable for the failure of such Lender to perform its
obligations hereunder. The Lenders shall have no obligation to make Revolving
Credit Loans hereunder on or after the relevant Expiration Date.
2.03. Commitment Fees
(a) Long-Term Commitment Fee. Accruing from the
Closing Date until the Long-Term Expiration Date, the Borrower agrees to pay to
the Agent for the account of each Lender, as consideration for such Lender's
Long-Term Revolving Credit Commitment hereunder, a commitment fee (the
"LONG-TERM COMMITMENT FEE") equal to the Long-Term Applicable Commitment Fee per
annum, as determined below, (all computed on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed) on the average daily amount
equal to such Lender's Long-Term Revolving Credit Commitment minus such Lender's
Ratable Share of Total Utilization relating to its Long-Term Revolving Credit
Commitment. For the purposes of calculating the Long-Term Commitment Fee, the
amount outstanding under the
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<PAGE> 30
Swingline Loans shall not be included in calculating any Lender's Ratable Share
of Total Utilization relating to its Long-Term Revolving Credit Commitment.
(b) Short-Term Commitment Fee. Accruing from the
Closing Date until the Short-Term Expiration Date, the Borrower agrees to pay to
the Agent for the account of each Lender, as consideration for such Lender's
Short-Term Revolving Credit Commitment hereunder, a commitment fee (the
"SHORT-TERM COMMITMENT FEE") equal to the Short-Term Applicable Commitment Fee
per annum, as determined below, (all computed on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed) on the average daily
amount equal to such Lender's Short-Term Revolving Credit Commitment minus such
Lender's Ratable Share of Total Utilization relating to the Short-Term Revolving
Credit Commitment. For purposes of calculating the Short-Term Commitment Fee,
the amount outstanding under the Swingline Loan shall not be included in
calculating any Lender's Ratable Share of Total Utilization relating to the
Short-Term Revolving Credit Commitment.
(c) Applicable Commitment Fee. For purposes of
this Agreement, the terms "LONG-TERM APPLICABLE COMMITMENT FEE" and "SHORT-TERM
APPLICABLE COMMITMENT FEE" shall mean the rate per annum set forth in the chart
below which corresponds to the range of ratios in which the Borrower's
Consolidated Total Indebtedness to Consolidated EBITDA Ratio, as at the end of
the preceding fiscal quarter, falls:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
Long-Term Applicable Short-Term Applicable
Consolidated Total Indebtedness Commitment Fee Commitment Fee
to Consolidated EBITDA Ratio
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Less than or equal to 1.0 to 1.0 .20% .10%
- ----------------------------------------------------------------------------------------------------------------------
Greater than 1.0 to 1.0 but less than or equal
to 1.5 to 1.0 .25% .125%
- ----------------------------------------------------------------------------------------------------------------------
Greater than 1.5 to 1.0 but less than or equal
to 2.0 to 1.0 .30% .15%
- ----------------------------------------------------------------------------------------------------------------------
Greater than 2.0 to 1.0 .375% .20%
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
All such adjustments shall be determined as of the date the Borrower's quarterly
financial. statements and Compliance Certificate are required to be delivered
to the Lenders pursuant to items (i) and (iii) of Section 6.02. The foregoing
notwithstanding, (i) the Long-Term Applicable Commitment Fee from the Closing
Date to and including the September 1998 Delivery Date shall be .20% and (ii)
the Short-Term Applicable Commitment Fee from the Closing Date to and including
the September 1998 Delivery Date shall be .10%. All Commitment Fees shall be
payable (i) quarterly in arrears beginning December 31, 1998, and continuing on
the last Business Day of each Fiscal Quarter occurring during the term of the
Long-Term Revolving Credit Commitment or the Short-Term Revolving Credit
Commitment, as appropriate, (ii) upon the relevant Expiration Date and (ii) upon
acceleration of the Notes.
2.04. Reduction, Extension of Revolving Credit Commitment
(a) Voluntary Reduction of Revolving Credit
Commitments. Subject to the provisions of Section 2.09 hereof, at any time and
from time to time upon at least five (5) Business Days' prior written notice to
the Agent, the Borrower may terminate, in whole or in part, without penalty, the
then unused portion of the Revolving Credit Commitments, thereby causing a
corresponding abatement of the Commitment Fee. Each such reduction shall be in a
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<PAGE> 31
minimum principal amount of $5,000,000 or, if in excess of $5,000,000, in
integral multiples of $1,000,000. The Commitment Fee shall cease to accrue with
respect to any unused portion of the Revolving Credit Commitments so terminated
five (5) Business Days after receipt of such notice. Notice of termination once
given shall be irrevocable and the portion of the Revolving Credit Commitments
so terminated shall not be available for borrowing once such notice has been
given under the terms hereof. The Agent shall promptly notify each Lender of its
Ratable Share of such terminated unused portion and the date of each such
termination. The foregoing notwithstanding, the Short-Term Revolving Credit
Commitment must be reduced to zero and terminated before there may be any
reduction of the Long-Term Revolving Credit Commitment.
(b) Extension of Short-Term Revolving Credit
Commitment. The Borrower, during the period April 15 through April 30, 1999, and
during each subsequent period of April 15 through April 30 to and including the
period April 15 through April 30, 2002, during which time the Short-Term
Revolving Credit Commitment is in effect, may request renewal of the Short-Term
Revolving Credit Commitment for a period of one year for the period beginning
June 1 and ending May 31. Such request shall be made by a written notice,
executed by an Authorized Officer and delivered to the Agent. The Agent, upon
receiving such notice, shall promptly notify the Lenders. If all of the Lenders
agree in writing to the request to extend the Short-Term Revolving Credit
Commitment, (i) it shall be extended for a one year period of June 1 to May 31,
and (ii) the Agent shall so inform the Borrower and the Lenders in writing. The
failure to request the extension of the Short-Term Revolving Credit Commitment
or the refusal of the Lenders to grant any such extension shall result in the
scheduled termination of the Short-Term Revolving Credit Commitment and
automatically eliminate the Borrower's privilege to request the extension of the
Short-Term Revolving Credit Commitment in any subsequent year.
2.05. Revolving Credit Loan Requests. Except as otherwise
provided herein, the Borrower may from time to time prior to the relevant
Expiration Date request the Lenders to make Revolving Credit Loans to the
Borrower by the delivery to the Agent, not later than noon (Pittsburgh,
Pennsylvania time) (i) three (3) Business Days prior to the proposed Borrowing
Date with respect to the making of Revolving Credit Loans to which the Euro-Rate
Option applies for any Revolving Credit Loans; and (ii) on the Business Day of
the proposed Borrowing Date with respect to the making of a Revolving Credit
Loan to which the Base Rate Option applies of a duly completed request therefor
substantially in the form of Exhibit "D" hereto or a request by telephone
immediately confirmed in writing by letter or facsimile in such form (each, a
"LOAN REQUEST"), it being understood that the Agent may rely on the authority of
any person making such a telephonic request without the necessity of receipt of
such written confirmation. Each Loan Request shall be irrevocable and shall
specify (i) the proposed Borrowing Date; (ii) the aggregate amount of the
proposed Revolving Credit Loans to be made on such Borrowing Date, which amount,
as to Base Rate Portions, shall be in integral multiples of $500,000 and not
less than $1,000,000 and, as to Euro-Rate Portions, shall be in integral
multiples of $1,000,000 and not less than $5,000,000; (iii) subject to Section
2.08(d), whether the Euro-Rate Option or the Base Rate Option shall apply to the
proposed Revolving Credit Loans to be made on such Borrowing Date; and (iv) in
the case of Revolving Credit Loans to which the Euro-Rate Option applies and
subject to Sections 2.08(d) and 2.08(e), an appropriate Euro-Rate Interest
Period for each Euro-Rate Portion of the Revolving Credit Loans to be made on
such Borrowing Date. The Borrower may request disbursements of Short-Term
Revolving Credit Loans only when the full amount of Long-Term Revolving Credit
Commitment is utilized.
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<PAGE> 32
2.06. Making Revolving Credit Loans. Subject to Section
9.03, the Agent shall, promptly after receipt by it of a Loan Request pursuant
to Section 2.05 (but not later than noon (Pittsburgh, Pennsylvania time) on the
Borrowing Date for same day funding and 2:00 p.m. (Pittsburgh, Pennsylvania
time) on the second Business Day preceding any Borrowing Date for which any
Portion of the Revolving Credit Loans to be made on such Borrowing Date bears
interest at the Euro-Rate Option), notify the Lenders of its receipt of such
Loan Request specifying: (i) the proposed Borrowing Date and the time and method
of disbursement of such Revolving Credit Loan; (ii) the amount and type of such
Revolving Credit Loan and the applicable Euro-Rate Portions and Euro-Rate
Interest Periods (if any); and (iii) the apportionment among the Lenders of the
Revolving Credit Loans as determined by the Agent in accordance with Section
2.02 hereof. Subject to Section 9.03, each Lender shall remit the principal
amount of each Revolving Credit Loan to the Agent such that the Agent is able
to, and the Agent shall, to the extent the Lenders have made funds available to
it for such purpose, fund such Revolving Credit Loan to the Borrower in Dollars
and immediately available funds at the Principal Office prior to 2:00 P.M.
(Pittsburgh, Pennsylvania time) on the Borrowing Date, provided that if any
Lender fails to remit such funds to the Agent in a timely manner, or any Lender
fails to advise the Agent of its intention not to fund, then the Agent may elect
in its sole discretion to fund with its own funds the Revolving Credit Loan of
such Lender on the Borrowing Date.
2.07. Notes. The obligation of the Borrower to repay the
aggregate unpaid principal amount of the Long-Term Revolving Credit Loans made
to the Borrower by each Lender, together with interest thereon, shall be
evidenced by a promissory note of the Borrower dated the Closing Date in
substantially the form attached hereto as Exhibit "A-1" payable to the order of
each Lender in a face amount equal to the Long-Term Revolving Credit Commitment
of such Lender. The obligation of the Borrower to repay the aggregate unpaid
principal amount of the Short-Term Revolving Credit Loans made to the Borrower
by each Lender, together with interest thereon, shall be evidenced by a
promissory note of the Borrower dated the Closing Date in substantially the form
attached hereto as Exhibit "A-2", payable to the order of each Lender in a face
amount equal to the Short-Term Revolving Credit Commitment of such Lender.
2.08. Interest Payments, Interest Rates and Certain Related
Payments Pertaining to the Revolving Credit Loans.
(a) Interest. The Revolving Credit Notes shall
bear interest on the actual unpaid principal amount thereof from time to time
outstanding from the date thereof until payment in full at the rates of interest
set forth in Section 2.08(b). The Borrower shall pay accrued interest on the
unpaid principal balance of the Revolving Credit Notes in arrears:
(i) with respect to the Base Rate
Portion, at the rate specified in the Base Rate Option, (A) on the last Business
Day of each Fiscal Quarter during the term of the Revolving Credit Commitment,
(B) at maturity, whether by acceleration or otherwise, of the Revolving Credit
Notes and (C) thereafter on demand until all amounts evidenced by the Revolving
Credit Notes are paid in full;
(ii) with respect to each Euro-Rate
Portion, at the rate specified in the Euro-Rate Option, (A) on the last day of
the Euro-Rate Interest Period applicable thereto; provided, however, if the
Euro-Rate Interest Period chosen for any EuroRate Portion exceeds three (3)
months, interest on that Euro-Rate Portion shall be due and payable at the end
of every three (3) months during such Euro-Rate Interest Period and on the last
day
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<PAGE> 33
of such Euro-Rate Interest Period, (B) at the maturity, whether by acceleration
or otherwise, of the Revolving Credit Notes and (C) thereafter on demand until
all amounts evidenced by the Revolving Credit Notes are paid in full; and
(iii) in addition, Borrower shall assume
all Indebtedness of RMI due under the RMI Credit Agreement which bears interest
thereunder at a euro-rate option under the RMI Credit Agreement having a
euro-rate interest period ending after September 30, 1998, and such Indebtedness
on the Closing Date shall be Revolving Credit Loans to the Borrower under this
Agreement bearing interest under the Euro-Rate Option until the expiration of
the relevant euro-rate interest period created under the RMI Credit Agreement.
(b) Interest Rate Options. During the term
hereof, the Borrower shall have the option of electing, from time to time, one
or more of the Interest Rate Options set forth below to be applied to the
Revolving Credit Loans.
(i) Base Rate Option. Interest under
this Interest Rate Option shall accrue, for the Base Rate Portion of the
Revolving Credit Loans outstanding, at a rate per annum equal to the Base Rate.
The Base Rate shall be adjusted automatically from time to time upon each change
in the Prime Rate or the Federal Funds Effective Rate, as the case may be, and
in accordance with the provisions of Section 2.08(c).
(ii) Euro-Rate Option. Interest under
this Interest Rate Option shall accrue, for each Euro-Rate Portion of the
Revolving Credit Loans outstanding, for any Euro-Rate Interest Period selected,
at a rate per annum equal to the sum of (A) the Euro-Rate plus (B) the
Applicable Euro-Rate Margin as determined below. The rate of interest
established pursuant to the preceding sentence of this Section 2.08(b)(ii) for
each Euro-Rate Portion shall be adjusted from time to time in accordance with
the provisions of Section 2.08(c).
For purposes of this Agreement, the term "APPLICABLE EURO-RATE MARGIN" shall
mean the rate per annum set forth in the chart below which corresponds to the
range of ratios in which the Borrower's Consolidated Total Indebtedness to
Consolidated EBITDA Ratio as at the end of the preceding Fiscal Quarter falls:
- --------------------------------------------------------------------------------
Consolidated Total Indebtedness Applicable Euro-Rate
to Consolidated EBITDA Ratio Margin
- --------------------------------------------------------------------------------
Less than or equal to 1.0 to 1.0 .50%
- --------------------------------------------------------------------------------
Greater than 1.0 to 1.0 but less than or equal
to 1.5 to 1.0 .75%
- --------------------------------------------------------------------------------
Greater than 1.5 to 1.0 but less than or equal
to 2.0 to 1.0 1.00%
- --------------------------------------------------------------------------------
Greater than 2.0 to 1.0 1.50%
- --------------------------------------------------------------------------------
All adjustments shall be determined as of the date the Borrower's quarterly
financial statements and Compliance Certificate are required to be delivered
pursuant to items (i) and (iii) of Section 6.02. The foregoing notwithstanding,
the Applicable Euro-Rate Margin from the Closing Date to and including the
September 1998 Delivery Date shall be .50.
(c) Interest After Maturity. After the
occurrence of an Event of Default and during the continuation thereof, the Base
Rate Portion shall bear interest at a rate per
27
<PAGE> 34
annum which shall be two hundred (200) basis points (2%) above the Base Rate
otherwise in effect during such period. After the occurrence of an Event of
Default and during the continuation thereof, all Euro-Rate Portions shall bear
interest (i) until the end of the then current Euro-Rate Interest Period for
each such Euro-Rate Portion, at a rate per annum which shall be two hundred
(200) basis points (2%) above the sum of (A) the Euro-Rate , (B) the Applicable
Euro-Rate Margin otherwise in effect during such period and (ii) at the end of
the then current Euro-Rate Interest Period for each such Euro-Rate Portion, such
Euro-Rate Portions shall automatically be converted to the Base Rate Portion,
and thereafter the interest rate shall be calculated in accordance with the
initial sentence of this Section 2.08(c).
(d) Interest Periods; Limitations on Elections.
At any time when the Borrower shall select, convert to or renew the Euro-Rate
Option to apply to all or any portion of the outstanding Revolving Credit Loans,
it shall elect one or more Euro-Rate Interest Periods as the case may be. All
the foregoing, however, is subject to the following:
(i) any Euro-Rate Interest Period which
would otherwise end on a day which is not a Business Day shall be extended to
the next Business Day unless such Business Day falls in the succeeding calendar
month in which case such Euro-Rate Interest Period shall end on the next
preceding Business Day; and
(ii) any Euro-Rate Interest Period which
begins on the last day of a calendar month or on a day for which there is no
numerically corresponding day in the subsequent calendar month during which such
Euro-Rate Interest Period is to end shall end on the last Business Day of such
subsequent month.
Elections by the Borrower of the Euro-Rate
Option shall be subject to the following limitations:
(i) The Euro-Rate Portion for each
Euro-Rate Interest Period shall be in an aggregate principal amount of
$5,000,000 or more; provided, however, that each increment in excess of
$5,000,000 shall be $1,000,000 or an integral multiple thereof;
(ii) No Euro-Rate Interest Period may be
elected at any time that a Default or an Event of Default shall have occurred
and be continuing;
(iii) No Euro-Rate Interest Period may be
elected which would end later than the relevant Expiration Date;
(iv) No Euro-Rate Interest Period may be
elected with regard to amounts outstanding which would be in excess of the
Revolving Credit Commitment or the Borrowing Base, whichever is less; and
(v) At no time may there be more than
four (4) separate EuroRate Interest Periods in effect.
(e) Election, Renewal or Conversion of Interest
Rate Options. Elections or renewals of, or conversions to, the Base Rate Option
shall continue in effect until converted or renewed as hereinafter provided.
Elections or renewals of, or conversions to, the Euro-Rate Option (including
those assumed from RMI) shall expire as to each Euro-Rate Portion at the
expiration of the applicable Euro-Rate Interest Period. At any time with respect
to
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<PAGE> 35
the Base Rate Portion or at the expiration of the applicable Euro-Rate Interest
Period with respect to any Euro-Rate Portion, the Borrower may cause (subject to
Subsection 2.08(d)) all or any part of the principal amount of such portion to
be converted to, or to be renewed under, the Euro-Rate Option by notice to the
Agent as hereinafter provided. Such notice (i) shall be irrevocable, (ii) shall
be given not later than noon (Pittsburgh, Pennsylvania time) in the case of a
conversion to or renewal of, either in whole or in part, the Euro-Rate Option,
not less than three (3) Business Days prior to the proposed effective date for
such conversion or renewal, and (iii) shall set forth:
(A) the effective date of such
conversion or renewal, which shall be a Business Day;
(B) the new Euro-Rate Interest Period(s)
selected; and
(C) with respect to each such Euro-Rate
Interest Period, the aggregate principal amount of the corresponding Euro-Rate
Portion.
At the expiration of each Euro-Rate Interest Period, any part (including the
whole) of the principal amount of the corresponding Euro-Rate Portion as to
which no notice of conversion or renewal has been received shall automatically
be converted to the Base Rate Option. The Agent shall promptly notify the
Borrower and the Lenders of any such automatic conversion.
(f) Notification of Election of an Interest Rate
Option. The Borrower, by an Authorized Officer, shall notify the Agent of each
election of an Interest Rate Option, each conversion from one Interest Rate
Option to another, the amount of the Revolving Credit Loans then outstanding to
be allocated to each Interest Rate Option and, where relevant, the Euro-Rate
Interest Periods as provided for in this Agreement. Any such communication may
be oral or written and if oral it shall be followed promptly by written
confirmation of such Interest Rate Option election executed by an Authorized
Officer of the Borrower.
(g) Calculation of Interest. Interest on the
Base Rate Portion shall be calculated on the basis of a 365 or 366 day year, as
the case may be, and the actual days elapsed. Interest on each Euro-Rate Portion
shall be calculated on the basis of a 360-day year and the actual days elapsed.
The calculation of the amount of interest due and owing to the Lenders shall be
evidenced by posting the amount of interest due under the Revolving Credit Notes
to the Loan Account established by the Agent pursuant to Section 2.14.
(h) Lawful Interest Rates Intended. In no event
whatsoever shall the interest rates charged hereunder exceed the highest rate
permissible under any law which a court of competent jurisdiction shall, in a
final determination, deem applicable hereto. In the event that such a court
determines that any Lender has received interest hereunder in excess of the
highest applicable rate, such Lender shall promptly refund such excess to the
Borrower, or at such Lender's option, apply such excess in reduction of the
principal balance of the Lender Obligations owing to the affected Lender.
2.09. Prepayments: Allocation of Repayments.
(a) Prepayments of Base Rate Portion. The
Borrower, upon oral or written notice to the Agent by an Authorized Officer of
Borrower given not later than 12:00 noon
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<PAGE> 36
(Pittsburgh, Pennsylvania time) on the proposed date for prepayment, may prepay
without penalty or premium any or all of the Base Rate Portion. Any oral notice
of election hereunder shall be followed immediately by written confirmation of
such prepayment election executed by an Authorized Officer of Borrower.
(b) Prepayments of Euro-Rate Portions. Except as
otherwise provided in Section 2.10(c), the Borrower, upon oral or written notice
to the Agent by an Authorized Officer of Borrower given at least three (3)
Business Days prior to the proposed date for repayment, may prepay, all or any
part of such Euro-Rate Portion. If such Euro-Rate Portion is prepaid on the last
day of the Euro-Rate Interest Period applicable thereto, such prepayment shall
be without premium or penalty. If the Borrower prepays a Euro-Rate Portion other
than on the last day of the Euro-Rate Interest Period applicable thereto, the
Borrower agrees to pay, in addition to the other amounts set forth in this
Section 2.09(b), such additional amounts as may be necessary to compensate each
Lender for any loss (including loss of profit on a pre-tax basis) and any direct
or indirect costs, including the costs of reemployment of funds prepaid at rates
lower than the cost to such Lender of such funds. Such losses and costs shall be
specified in writing to the Borrower by the affected Lenders (and such
specifications shall set forth in reasonable detail the calculation of such
losses and costs) and such specifications shall, absent manifest error, be
binding and conclusive on the Borrower. Such prepayment shall include the then
outstanding principal amount of the Euro-Rate Portion being prepaid together
with accrued interest, fees and other amounts then due and payable on the amount
prepaid, to the day of such prepayment. Except as provided in this Section
2.09(b), there shall be no voluntary prepayment of any Euro-Rate Portion.
(c) Allocation of Repayments of Principal. Any
voluntary prepayment pursuant to this Section 2.09 hereof shall be applied first
to the repayment of any Euro-Rate Portion of the Revolving Credit Loans for
which its associated Euro-Rate Interest Period expires on the date of such
payment, second, to the reduction of the Base Rate Portion of the Revolving
Credit Loans, and third, to the reduction of such Euro-Rate Portions of the
Revolving Credit Loans as directed by the Borrower, and if the Borrower fails to
give such directions, or if a Default or Event of Default has occurred and is
continuing, to the reduction of such Euro-Rate Portions of the Revolving Credit
Loans as the Agent may select in its sole and absolute discretion. Any reduction
in any Euro-Rate Portion on a date other than the date on which its associated
Euro-Rate Interest Period expires may result in a funding loss for which the
Borrower will owe the Lenders an indemnity payment pursuant to Section 2.10
hereof.
2.10. Yield Protection.
(a) If any change subsequent to the Closing Date
in any Law or in the interpretation or application thereof by any Official Body
or in the compliance with any guideline or request from any Official Body, shall
make it unlawful for any Lender to maintain or give effect to its obligations as
contemplated under the Revolving Credit Commitment or for PNC Bank to maintain
or give effect to its obligation to make Swingline Loans, such Lender shall
notify the Borrower and the Agent in writing of its determination of such
unlawfulness and an explanation thereof. Thereafter, such Lender's obligation to
make available any further Revolving Credit Loans hereunder, and PNC Bank's
obligation to make available any further Swingline Loans hereunder shall
forthwith be cancelled and the Borrower, within thirty (30) days, or within such
longer period as may be allowed by Law, if any, shall repay to such Lender so
affected its pro rata share of the outstanding principal amount of all Revolving
Credit Loans and/or Swingline Loans, together with interest thereon to the date
of repayment and fees, if
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any, due as of the date of termination; provided, however, that the affected
Lender's obligations which are lawful, if severable from those which are
unlawful, shall continue, and with respect to those obligations, this Agreement
shall not terminate.
(b) If any Law issued after the Closing Date
(including, without limitation, Regulation D of the Federal Reserve Board), or
if any change on or after the Closing Date in any Law (including, without
limitation, Regulation D) or in the interpretation thereof by any Official Body
charged with the administration thereof, shall
(i) subject any Lender to any tax, levy,
impost, charge, fee, duty, deduction or withholding or any kind hereunder (other
than any tax imposed or based upon the income of such Lender and payable to any
governmental or taxing authority in the United States of America, any state or
any municipality thereof); or
(ii) change the basis of taxation of any
Lender with respect to payments of principal or interest or other amounts due
hereunder (other than any change which affects, and only to the extent that it
affects, the taxation by the United States, any state or any municipality
thereof based upon the income of such Lender); or
(iii) impose, modify or deem applicable
any reserve, special deposit or similar requirements against assets held by any
Lender (other than such requirements which result solely from a change in the
credit quality of the Borrower or which are included in the determination of the
applicable rate of interest hereunder); or
(iv) impose upon any Lender any other
obligation or condition with respect to this Agreement,
and the result of any of the foregoing is to increase the cost to any Lender, to
decrease the yield to any Lender with respect to the Revolving Credit Loans, the
Swingline Loans or any Letters of Credit, to reduce the income receivable by any
Lender or to impose any expenses upon any Lender with respect to the Revolving
Credit Loans, the Swingline Loans or any Letters of Credit by an amount which
any Lender reasonably deems material, then and in any such case:
(A) the Lender so affected
shall promptly notify the Borrower and the Agent of the happening of such event;
(B) the Borrower shall pay to
the affected Lender, within five (5) Business Days of written demand such amount
as will compensate such Lender for such additional cost or reduced amount,
calculated from the date of the notification by such Lender; and
(C) the Borrower may pay to
such affected Lender the affected Revolving Credit Loan or Swingline Loan in
full without the payment of any additional amount other than on account of such
Lender's out-of-pocket losses (including funding losses, if any, as provided in
paragraph (c) below) not otherwise provided for in subparagraph (B) immediately
above.
The Lender so affected shall present to the Borrower and the Agent a certificate
setting forth such increased cost or reduced amount. Such certificate shall set
forth in reasonable detail the
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<PAGE> 38
calculation of the amount due and such Lender's reasons for invoking the
provisions of this Section 2.10(b). Such certificate shall be conclusive
evidence of the amount due thereunder except in the case of manifest error in
computation.
(c) The Borrower agrees to indemnify each
Lender, on demand, against any loss or expense (including loss of profit) which
such Lender may sustain or incur in liquidating or employing deposits from third
parties acquired to effect, fund or maintain such Euro-Rate Portions or any part
thereof as a consequence of (i) the failure of the Borrower to make a payment on
the due date thereof, (ii) the failure of the Borrower to borrow under, convert
to or renew under the Euro-Rate Option on the proposed effective date of such
borrowing, conversion or renewal, or (iii) the payment, prepayment or conversion
by the Borrower of any Euro-Rate Portions for any reason on a day other than the
last day of the applicable Euro-Rate Interest Period. Any Lender's determination
of an amount payable under this paragraph (c) shall be conclusive absent
manifest error.
(d) The foregoing notwithstanding, if the
affected Lender can mitigate or eliminate such increased cost or reduced yield
by transferring the Loans to another existing lending office of such Lender,
such Lender agrees to so transfer the Loans; provided, such transfer would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender.
2.11. Special Provisions Relating to the Euro-Rate Option.
(a) Euro-Rate Unascertainable. In the event that
on any date on which a Euro-Rate Option would otherwise be set, the Agent shall
have determined (which determination shall be final and conclusive) that, by
reason of circumstances affecting the London interbank market, adequate,
reasonable means do not exist for ascertaining the EuroRate, the Agent shall
give prompt notice of such determination to the Borrower and the Lenders. Until
the Agent notifies the Borrower and the Lenders that the circumstances giving
rise to such determination no longer exist (which notice shall be given promptly
following receipt of knowledge thereof by the Agent), the right of the Borrower
to borrow under, convert to or renew the Euro-Rate Option shall be suspended.
Any notice of borrowing under, conversion to or renewal of the Euro-Rate Option
which was to become effective during the period of such suspension shall be
treated as a request to borrow under, convert to or renew the Base Rate Option
with respect to the principal amount therein specified.
(b) Inability to Offer Euro-Rate. In the event
that any Lender shall determine, in its sole discretion, that it is unable to
obtain deposits in the London interbank market in sufficient amounts and with
maturities related to such Euro-Rate Portions which would enable such Lender to
fund such Euro-Rate Portions, then such Lender shall notify the Borrower and the
Agent that the right of the Borrower to borrow under, convert to or renew the
Euro-Rate Option, shall be suspended with respect to such Lender. Such notice
shall set forth in reasonable detail such Lender's reasons for invoking the
provisions of this Section 2.11(b). Following notification of the suspension of
the Euro-Rate Option with respect to such Lender, the Borrower agrees to
negotiate with such Lender for a modified or alternative fixed rate of interest,
which will allow such Lender to realize its anticipated and bargained-for yield.
In the event that the Borrower and such Lender cannot agree on a modified or
alternative fixed rate of interest, any notice of borrowing under, conversion to
or renewal of the Euro-Rate Option which was to become effective during the
period of suspension shall be treated as a request to borrow
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<PAGE> 39
under, convert to or renew the Base Rate Option with respect to the principal
amount specified therein attributable to such Lender.
(c) Illegality. If any Lender shall determine in
good faith (which determination shall be final and conclusive) that compliance
with any Law (whether or not having the force of law) or the interpretation or
application thereof by any Official Body, has made it unlawful or impractical
for such Lender to make or maintain the Revolving Credit Loans under the
Euro-Rate Option, such Lender shall give notice of such determination to the
Borrower and the Agent, which notice shall set forth in reasonable detail such
Lender's reasons for invoking the provisions of this Section 2.11(c).
Notwithstanding any provision of this Agreement to the contrary, unless and
until such Lender shall have given notice to the Borrower and the Agent that the
circumstances giving rise to such determination no longer apply (which notice
shall be given promptly following receipt of knowledge thereof by such Lender):
(i) with respect to any Euro-Rate Interest
Periods thereafter commencing, interest in an amount equal to such Lender's
Ratable Share of the corresponding Euro-Rate Portion shall be computed and
payable under the Base Rate Option; and
(ii) on such date, if any, as shall be required by
law, an amount equal to such Lender's Ratable Share of any Euro-Rate Portion, as
the case may be, then outstanding shall be automatically converted to the Base
Rate Option and the Borrower shall pay to such Lender the accrued and unpaid
interest on such amounts to (but not including) such conversion date.
The Borrower shall pay any such Lender any additional amounts reasonably
necessary to compensate such Lender for any costs incurred by such Lender as a
result of any conversion pursuant to clause (ii) above which occurs on a day
other than the last day of the relevant Euro-Rate Interest Period, including,
but not limited to, any interest or fees payable by such Lender to lenders of
funds obtained by them to loan or maintain the lending of the Revolving Credit
Loans so converted. Such Lender shall furnish to the Borrower and the Agent a
certificate as to the amount necessary to compensate it for such costs, which
certificate shall set forth in reasonable detail the calculation of the amount
due. Such certificate shall constitute conclusive evidence of the amount due
thereunder absent any manifest error in computation. The Borrower shall pay such
amount to such Lender, as additional consideration hereunder, within ten (10)
days of the Borrower's receipt of such certificate.
(d) The foregoing notwithstanding, if the
affected Lender can continue to offer the Euro-Rate Option to the Borrower by
transferring the Revolving Credit Loans to another existing lending office of
such Lender, such Lender agrees to so transfer the Revolving Credit Loans;
provided, such transfer would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender.
2.12. Capital Adequacy. If after the Closing Date (i) any
adoption of or any change in or in the interpretation by an Official Body of any
Law or (ii) compliance with any Law, guideline or request of any Official Body
exercising control over banks or financial institutions generally or any court
(whether or not having the force of law), affects or would affect the amount of
capital required or expected to be maintained by any Lender or any corporation
controlling such Lender other than those resulting solely from a change in the
credit quality of the Borrower (a "CAPITAL ADEQUACY EVENT"), and the result of
such Capital Adequacy Event is to reduce the rate of return on capital of such
Lender or any corporation controlling such Lender
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<PAGE> 40
as a consequence thereof to a level below that which such Lender could have
achieved but for such Capital Adequacy Event, taking into consideration such
Lender's policies with respect to capital adequacy, by an amount which such
Lender deems to be material, such Lender shall promptly deliver to the Borrower
and the Agent a statement of the amount necessary to compensate such Lender for
the reduction in the rate of return on its capital attributable to the
commitments under this Agreement or any of the Loan Documents (the "CAPITAL
COMPENSATION AMOUNT"). Each Lender shall determine the Capital Compensation
Amount in good faith, using reasonable attribution and averaging methods. Each
Lender shall, from time to time, furnish to the Borrower and the Agent a
certificate setting forth the amount so determined and the calculations of such
amount. Such certificate shall constitute conclusive evidence of the amount due
thereunder absent any manifest error in computation. Such amount shall be due
and payable by the Borrower to such Lender ten (10) days after such notice is
given. As soon as practicable after any Capital Adequacy Event, such Lender
shall submit to the Borrower and the Agent estimates of the Capital Compensation
Amounts that would be payable as a function of such Lender's Revolving Credit
Commitment hereunder.
2.13. Swingline Loans.
(a) Swingline Option. Subject to the provisions
of this Section 2.13, PNC Bank agrees that the Borrower may request that
Swingline Loans, in an aggregate amount at any one time outstanding not to
exceed the lesser of (i) $10,000,000 or (ii) an amount which, when added to the
aggregate principal amount of (A) all other Loans then outstanding, (B) the
aggregate Stated Amount of outstanding Letters of Credit issued pursuant to
Section 2.17 and (C) the aggregate amount of Unreimbursed L/C Draws does not
exceed $125,000,000. PNC Bank shall have no obligation to make Swingline Loans
hereunder on or after the Expiration Date.
(b) Limitations on and Evidence of Swingline
Loans. Each Swingline Loan or repayment of a Swingline Loan must be in the
minimum principal amount of $1,000,000 or, if in excess of $1,000,000, in
integral multiples of $500,000. Swingline Loans shall be repaid on the date
agreed upon by the Borrower and PNC Bank, not more than five (5) days after the
making of the Swingline Loan and not after the Expiration Date. The obligation
of the Borrower to repay, prior to the Expiration Date, the aggregate unpaid
principal amount of such Swingline Loans advanced by PNC Bank shall be evidenced
by the Swingline Note substantially in the form of Exhibit "A-3" hereto. The
principal amount actually due and owing PNC Bank shall be the aggregate unpaid
principal amount of all disbursements of Swingline Loans made by PNC Bank, all
as shown on such PNC Bank Loan Account established pursuant to Section 2.14.
(c) Swingline Loan Procedure. The Borrower may
from time to time from the Closing Date to the Business Day prior to the
Expiration Date request a Swingline Loan. Such request shall be made not later
than noon (Pittsburgh, Pennsylvania time) on the date of the proposed Swingline
Loan. Such request may be made to the Agent orally or in writing and if orally
confirmed in writing. The Agent shall promptly notify PNC Bank of such request.
PNC Bank shall make the Swingline Loan available to the Borrower not later than
3:00 P.M. (Pittsburgh, Pennsylvania time) on the same Business Day such
Swingline Loan is requested.
(d) Swingline Loan Interest. Interest on the
Swingline Loans shall accrue at a rate per annum as offered by PNC Bank and
accepted by the Borrower. After the occurrence of an Event of Default and during
the continuation thereof, the Swingline Loans
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shall bear interest at a rate per annum which shall be two hundred (200) basis
points (2%) above the Base Rate otherwise in effect during such period.
(e) Risk Participation. Upon the disbursement of
each Swingline Loan and without any further action by or on behalf of such
Lender, each Lender hereby agrees to purchase, upon the occurrence of an Event
of Default, an undivided, full risk, nonrecourse participation in such Swingline
Loan, in an amount equal to (i) such Lender's Ratable Share (ii) multiplied by
the outstanding principal amount of such Swingline Loan on the date of the Event
of Default; provided, however, no Lender shall participate in any Swingline Loan
made after a notice of an Event of Default has been delivered pursuant to this
Agreement. If and to the extent PNC Bank receives payment of principal or
interest on a participated Swingline Loan, PNC Bank shall deliver to each Lender
such Lender's Ratable Share of such payment.
2.14 Loan Account. The Agent shall open and maintain on
its books a Loan Account in the name of the Borrower, with respect to (i)
Revolving Credit Loans and Swingline Loans made, repayments and prepayments of
the principal thereof, and the computation and payment of interest thereon, (ii)
Letters of Credit issued, or participated in, as the case may be, and draws and
reimbursements thereon or thereof, and (iii) the computation and payment of the
Fees due hereunder to the Lenders, the L/C Issuer and the Agent, and the
computation of other amounts due and sums paid to the Agent hereunder. Upon the
request of the Borrower to the Agent, the Agent shall promptly furnish to the
Borrower a statement of the Loan Account. The failure to record any such amount
shall not limit or otherwise affect the obligations of the Borrower hereunder or
under the Notes to repay all amounts owed hereunder and thereunder together with
all interest accrued thereon and all other fees and charges provided herein. The
Loan Account shall be conclusive evidence as to the amount at any time due to
the Lenders, the L/C Issuer and the Agent from the Borrower except in the case
of manifest error.
2.15. All Advances to Constitute One Loan. Notwithstanding
the limitations set forth herein, all Revolving Credit Loans, the Swingline
Loans and all other Lender Obligations shall constitute one loan and all
Indebtedness and obligations of the Borrower to the Lenders under this Agreement
and all other Loan Documents shall constitute a general obligation of the
Borrower. The parties hereto agree that all of the rights of the Agent, the L/C
Issuer, the Lenders and the Borrower set forth in this Agreement and the other
Loan Documents shall apply to any amendment or modification of or supplement to
this Agreement and the other Loan Documents.
2.16. Use of Proceeds. The proceeds of the Revolving Credit
Loans and the Swingline Loans shall be used exclusively (i) to pay interest,
Fees and other costs, and expenses hereunder and under the other Loan Documents,
(ii) to repay any Unreimbursed L/C Draw, (iii) to partially fund the
Acquisitions, (iv) to repay in full any amounts outstanding under the RMI Credit
Agreement (except to the extent assumed pursuant to item (iii) of Section
2.08(a)), and (v) to fund capital expenditures, working capital, acquisitions
and general corporate purposes of the Borrower and its Subsidiaries. No proceeds
of any Loan may be used for any purpose which contravenes applicable law or any
provision of any Loan Document.
2.17. Letter of Credit Subfacility.
(a) At the request of the Borrower, the L/C
Issuer will issue for the account of the Borrower, on the terms and conditions
hereinafter set forth (including without
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limitation Article V hereof), one or more Letters of Credit; provided, however,
no Letter of Credit shall have an expiry date later than the earlier of
twenty-four (24) months from the date of issuance or fifteen (15) days prior to
the Long-Term Expiration Date; and provided, further, however, that in no event
shall (i) the Stated Amount of the Letters of Credit issued pursuant to this
Section 2.17 exceed, at any one time, $25,000,000, or (ii) the sum of aggregate
outstanding principal balance of the Long-Term Revolving Credit Loans, the
aggregate unpaid balance of outstanding Swingline Loans, the aggregate unpaid
balance of any Unreimbursed L/C Draws and the aggregate Stated Amount of the
Letters of Credit issued by the L/C Issuer under this Section 2.17 exceed, at
any one time, the aggregate Long-Term Revolving Credit Commitments or the
Borrowing Base, whichever is less.
(b) (i) The Borrower shall pay (A) to the L/C
Issuer for its own account a fronting fee equal to 1/8 of 1% per annum (the "L/C
FRONTING FEE") on the aggregate daily (computed at the opening of business and
on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed) Stated Amount of the outstanding Letters of Credit for the period in
question, and (B) to the Agent for the ratable account of the Lenders a fee (the
"LETTER OF CREDIT FEE") equal to the Applicable Letter of Credit Fee per annum,
as determined below, on the aggregate daily (computed at the opening of business
and on the basis of a year of 365 or 366 days, as the case may be, and actual
days elapsed) Stated Amount of the outstanding Letters of Credit for the period
in question. The Letter of Credit Fee and the L/C Fronting Fee shall be payable
(A) quarterly in arrears on the last Business Day of each Fiscal Quarter
occurring during the term of this Agreement, (B) on the Long-Term Expiration
Date or (C) upon acceleration of the Notes. Any issuance of an amendment to
extend the stated expiration date of a Letter of Credit or an amendment to
increase the Stated Amount of a Letter of Credit shall be treated as an issuance
of a new Letter of Credit for purposes of calculation of the Letter of Credit
Fee and the L/C Fronting Fee due and payable hereunder. After the occurrence of
an Event of Default and during the continuation thereof, the rate at which the
Letter of Credit Fee is calculated shall be increased by two hundred (200) basis
points (2%) above the pre-default rate.
(ii) The Borrower shall also pay to the L/C
Issuer for the L/C Issuer's own account the L/C Issuer's customary documentation
fees payable with respect to the Letters of Credit as the L/C Issuer may
generally charge from time to time. Without limitation, the foregoing shall
include all charges and expenses paid or incurred by the L/C Issuer in
connection with any Letter of Credit, including without limitation: (A)
correspondents' charges, if any, (B) any and all reasonable out-of-pocket
expenses and charges of the L/C Issuer in connection with the performance,
administration, interpretation, collection and enforcement of this Agreement and
any Letter of Credit, including all reasonable legal fees and expenses, and (C)
any and all applicable reserve or similar requirements and any and all premiums,
assessments, or levies imposed upon the L/C Issuer by any Official Body.
(iii) If by reason of (A) any change in any
Law or any change in the interpretation or application by any judicial or
regulatory authority of any Law or (ii) compliance by the L/C Issuer with any
direction, request or requirement (whether or not having the force of law) of
any Official Body:
(A) the L/C issuer shall be
subject to any tax, levy, charge or withholding of any nature or to any
variation thereof or to any penalty with respect to the maintenance or
fulfillment of its obligations under this Section 2.17, whether directly or by
such being imposed on or suffered by the L/C Issuer;
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(B) any reserve, deposit or
similar requirement is or shall be applicable, imposed or modified in respect of
the Letters of Credit; or
(C) there shall be imposed on
the L/C Issuer any other condition regarding this Section 2.17 or the Letters of
Credit;
and if the result of any of the foregoing is to directly or indirectly increase
the cost to the L/C Issuer of issuing or maintaining any Letter of Credit, or to
reduce the amount receivable in respect thereof by, the L/C Issuer, then and in
any such case the L/C Issuer may, at any time after the additional cost is
incurred or the amount receivable is reduced, notify the Borrower and the Agent,
and the Borrower shall pay on demand such amounts as the L/C Issuer may specify
to be necessary to compensate the L/C Issuer for such additional cost or reduced
receipt, together with interest on such amount from the date of the notice of
such event which results in such increased cost or reduction in amount
receivable until payment in full thereof at a rate equal at all times to the
Base Rate. The determination by the L/C Issuer of any amount due pursuant to
this Subsection 2.17(b)(ii) as set forth in a certificate setting forth the
calculation thereof, shall, in the absence of manifest error, be final and
conclusive and binding on all of the parties hereto.
For purposes of this Agreement, the term "APPLICABLE LETTER OF CREDIT FEE" shall
mean the rate per annum set forth in the chart below which corresponds to the
range of ratios in which the Borrower's Consolidated Total Indebtedness to
Consolidated EBITDA Ratio as at the end of the preceding Fiscal Quarter falls:
-------------------------------------------------------------------------------
Consolidated Total Indebtedness Applicable Letter of
to Consolidated EBITDA Ratio Credit Fee
-------------------------------------------------------------------------------
Less than or equal to 1.0 to 1.0 .50%
-------------------------------------------------------------------------------
Greater than 1.0 to 1.0 but less than or equal
to 1.5 to 1.0 .75%
-------------------------------------------------------------------------------
Greater than 1.5 to 1.0 but less than or equal
to 2.0 to 1.0 1.00%
-------------------------------------------------------------------------------
Greater than 2.0 to 1.0 1.50%
-------------------------------------------------------------------------------
All adjustments shall be determined as of the date the Borrower's quarterly
financial statements and Compliance Certificate are required to be delivered
pursuant to items (i) and (iii) of Section 6.02. The foregoing notwithstanding,
the Applicable Letter of Credit Fee from the Closing Date to and including the
September 1998 Delivery Date shall be .50%.
(c) Immediately upon the issuance of each Letter
of Credit and each increase in the Stated Amount thereof, each Lender hereby
agrees to irrevocably purchase and shall be deemed to have irrevocably purchased
from the L/C Issuer an undivided, full risk, non-recourse participation in such
Letter of Credit and drawings thereunder in an amount equal to such Lender's
Ratable Share of the maximum amount which is or at any time may become available
to be drawn thereunder. In the event that the L/C Issuer is required for any
reason to refund or repay to the Borrower, any guarantor or any other Person all
or any portion of any amount remitted to the L/C Issuer pursuant to this
Agreement, the Lenders shall promptly remit to the L/C Issuer, upon three (3)
Business Days' demand therefor, their respective Ratable Shares of the amount
which is so refunded or repaid.
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(d) In the event any restrictions are imposed
upon the L/C Issuer or any of the Lenders by any Law of any Official Body having
jurisdiction over the banking activities of the L/C Issuer or any Lender which
would prevent the L/C Issuer from issuing the Letters of Credit or amending the
Letters of Credit or would prevent any Lender from honoring its obligations
under this Section 2.17, the commitment of the L/C Issuer to issue the Letters
of Credit or enter into any amendment with respect thereto shall be immediately
suspended. If any Lender believes any such restriction would prevent such Lender
from honoring its obligations under this Section 2.17, it shall promptly notify
the Agent. The Agent shall promptly notify the Borrower, the L/C Issuer and the
other Lenders of the existence and nature of (i) any restriction which would
cause the suspension of the commitment of the L/C Issuer to issue the Letters of
Credit or to enter into amendments with respect thereto and (ii) any restriction
which would prevent any Lender from honoring its obligations under this Section
2.17. The Borrower will thereupon undertake reasonable efforts to obtain the
cancellation of all outstanding Letters of Credit; provided, however, that the
refusal of any beneficiary of a Letter of Credit to surrender such Letter of
Credit will not be an Event of Default hereunder, provided that the Borrower
shall undertake good faith efforts to obtain substitute letters of credit for
the then existing and outstanding Letters of Credit. Nothing contained in this
Section 2.17 shall be deemed a termination of the Revolving Credit Commitments
and, in the event of a suspension of the commitment of the L/C Issuer to issue
Letters of Credit as set forth above, the Borrower may continue to borrow under
the Revolving Credit Commitments provided the requirements of Section 5.02 are
complied with.
(e) When the Borrower desires the issuance of a
Letter of Credit, the Borrower shall deliver a duly completed Application and
Agreement for Letter of Credit to the L/C Issuer, with a copy to the Agent, no
later than 11:00 A.M. (Pittsburgh, Pennsylvania time) at least three (3)
Business Days, or such shorter period as may be agreed to by the L/C Issuer, in
advance of the proposed date of issuance. Upon satisfaction of the conditions
set forth in Section 5.01 and, if applicable, Section 5.02, the L/C Issuer shall
be obligated to issue the Letter of Credit and shall notify the Agent and each
Lender of such issuance. In determining whether to pay under a Letter of Credit,
the L/C Issuer shall be responsible only to determine that the documents and
certificates required to be delivered under the Letter of Credit have been
delivered and that they comply on their face with the requirements of the Letter
of Credit.
(f) In the event of any request for drawing
under a Letter of Credit by the beneficiary thereof, the L/C Issuer shall
immediately notify the Borrower and the Agent, and the Borrower shall reimburse,
or cause the reimbursement of, the L/C Issuer on demand as set forth in the
applicable Application and Agreement for Letter of Credit in an amount in same
day funds equal to the amount of such drawing; provided, however, that anything
contained in this Agreement to the contrary notwithstanding, unless the Borrower
shall have notified the Agent and the L/C Issuer prior to such time that the
Borrower intends to reimburse the L/C Issuer for all or a portion of the amount
of such drawing with funds other than the proceeds of Revolving Credit Loans,
the Borrower shall be deemed to have given a Loan Request to the Agent
requesting the Lenders to make Revolving Credit Loans on the first Business Day
immediately following the date on which such drawing is honored in an aggregate
amount equal to the excess of the amount of such drawing over the amount
received by the L/C Issuer from such other funds in reimbursement thereof (the
"UNREIMBURSED L/C DRAW"), plus accrued interest on such amount at the rate set
forth in Subsection 2.08. Any such Revolving Credit Loan shall be deemed
advanced to the Borrower. If the Borrower shall be deemed to have given a Loan
Request, then, subject to satisfaction or waiver of the conditions specified in
Section 5.02, the
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Lenders shall, all as set forth in Section 2.17(g) hereof, on the first Business
Day immediately following the date of such drawing, make Revolving Credit Loans
in the aggregate amount of the Unreimbursed L/C Draw plus accrued interest on
such amount at the applicable rate set forth in Section 2.08. The proceeds of
any such Revolving Credit Loans shall be applied directly by the Agent upon
receipt from the Lenders to reimburse the L/C Issuer for the Unreimbursed L/C
Draw plus accrued interest on such amount. The foregoing shall not limit or
impair the obligation of the Borrower to reimburse the L/C Issuer on demand.
(g) In the event that the Borrower shall fail to
reimburse the L/C Issuer on demand as provided in the applicable Application and
Agreement for Letter of Credit and Section 2.17(f) above in an amount equal to
the amount of any drawing honored by the L/C Issuer under a Letter of Credit
plus accrued interest, the L/C Issuer shall promptly notify the Agent and each
Lender of the Unreimbursed L/C Draw plus accrued interest on such amount of such
drawing and of such Lender's respective participation therein. Each Lender shall
make available to the L/C Issuer an amount equal to its respective participation
in same day funds, at the office of the L/C Issuer specified in such notice, not
later than 12:00 Noon (Pittsburgh, Pennsylvania time) on the Business Day after
the date specified in such notice by the L/C Issuer. In the event that any
Lender fails to make available to the L/C Issuer the amount of such Lender's
participation in such Letter of Credit as provided in this Section 2.17(g), the
L/C Issuer shall be entitled to recover such amount on demand from such Lender
together with interest at the Federal Funds Effective Rate for three (3)
Business Days and thereafter at the Base Rate. Nothing in this Section 2.17(g)
shall be deemed to prejudice the right of any Lender to recover its Ratable
Share of the Unreimbursed L/C Draw from the L/C Issuer pursuant to this Section
2.17(g) in the event that it is determined by a court of competent jurisdiction
that payment with respect to a Letter of Credit by the L/C Issuer constituted
gross negligence or willful misconduct on the part of the L/C Issuer. The L/C
Issuer shall distribute to each Lender which has paid all amounts payable by it
under this Section 2.17(g) with respect to a Letter of Credit such other
Lender's Ratable Share of all payments received by the L/C Issuer from the
Borrower in reimbursement of drawing honored by the L/C Issuer under the Letter
of Credit when such payments are received.
(h) The obligations of the Borrower under this
Agreement to reimburse the L/C Issuer for all drawings upon the Letters of
Credit shall be absolute, unconditional and irrevocable, and shall not be
subject to any right of set-off or counterclaim and shall be paid or performed
strictly in accordance with the terms of this Agreement, under all circumstances
whatsoever, including the following circumstances:
(i) any lack of validity or
enforceability of this Agreement, any Letter of Credit or any of the Loan
Documents;
(ii) any amendment or waiver of any
provision of all or any of the Loan Documents;
(iii) the existence of any claim, set-off,
defense or other rights which the Borrower may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any Persons for whom
any such beneficiary or any such transferee may be acting), the L/C Issuer, the
Agent or any Lender (other than the defense of payment to the L/C Issuer in
accordance with the terms of this Agreement) or any other Person, whether in
connection with this Agreement, the Loan Documents or any transaction
contemplated hereby or thereby or any unrelated transaction;
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(iv) any draft, demand, certificate,
statement or document presented under any Letter of Credit, appearing on its
face to be valid and sufficient, but proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(v) payment by the L/C Issuer under any
Letter of Credit against presentation of any document which does not comply with
the terms of the Letter of Credit, provided that such payment shall not have
constituted gross negligence or willful misconduct of the L/C Issuer;
(vi) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, not resulting from
gross negligence or willful misconduct of the L/C Issuer; and
(vii) the fact that a Default or Event of
Default shall have occurred and be continuing.
(i) This Agreement is intended to supplement
each Application and Agreement for Letter of Credit executed by the Borrower and
delivered to the L/C Issuer. Whenever possible this Agreement is to be construed
as consistent with each Application and Agreement for Letter of Credit but, to
the extent that the provisions of this Agreement and each Application and
Agreement for Letter of Credit conflict, the terms of this Agreement shall
control.
(j) Existing Letters of Credit. As of the
Closing Date, each of the Existing Letters of Credit issued by the L/C Issuer
and outstanding on such date for the account of RMI and identified on Schedule
2.17(j) shall be deemed to be Letters of Credit issued hereunder and shall be
subject to all of the terms and provisions of this Agreement. The Borrower is
hereby deemed to be the account party with respect to each letter of credit
listed on Schedule 2.17(j) hereunder for all purposes thereunder and hereunder.
Each Lender agrees that its obligations with respect to Letters of Credit
pursuant to this Agreement shall include such Existing Letters of Credit. With
respect to each such Existing Letter of Credit, for the period commencing on the
Closing Date the Borrower shall pay all fees and commissions set forth in this
Agreement at the times and in the manner herein set forth. The obligations of
the Borrower under each application for letter of credit and reimbursement
agreement (together with any related amendments) executed by the Borrower with
respect to the Existing Letters of Credit are hereby expressly assumed by the
Borrower and each such application for letter of credit and reimbursement
agreement, as amended, is hereby deemed an Application and Agreement for Letter
of Credit. The existing reimbursement agreements shall be superseded in their
entirety by this Agreement which shall apply to Existing Letters of Credit set
forth on Schedule 2.17(j) as well as all Letters of Credit issued hereunder on
and after the date hereof.
(k) Obligations Absolute. Notwithstanding any
other provision of this Agreement, each Lender hereby agrees that its obligation
to participate in each Letter of Credit issued in accordance herewith and its
obligation to make the payments to be made by it under this Section 2.17 is
absolute, irrevocable and unconditional and shall not be affected by any event,
condition or circumstance whatever. The failure of any Lender to make any such
payment shall not relieve any other Lender of its funding obligation hereunder
on the date due,
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but no Lender shall be responsible for the failure of any other Lender to meet
its funding obligations hereunder.
(l) In addition to amounts payable as elsewhere
provided in this Section 2.17, the Borrower hereby agrees to protect, indemnify,
pay and save the Agent or the L/C Issuer harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) which the Agent or the L/C Issuer may
incur or be subject to as a consequence, direct or indirect, of (i) the issuance
of the Letters of Credit or any amendment thereto, other than as a result of the
gross negligence or willful misconduct of the Agent or the L/C Issuer as
determined by a court of competent jurisdiction, (ii) the failure of the L/C
Issuer to honor a draw under any Letter of Credit if the L/C Issuer in good
faith and upon advice of counsel believes that it is prohibited from making such
payment as a result of any requirement of Law or of any Official Body, or (iii)
any material breach by the Borrower of any representation, warranty, covenant,
term or condition in, or the occurrence of any default under, any document
related to the issuance or any amendment of the Letters of Credit. If any
proceeding shall be brought or threatened against the Agent or the L/C Issuer by
reason of or in connection with any event described in clauses (i) through (iii)
above, the Agent shall promptly notify the Borrower in writing, and the Borrower
shall assume the defense thereof, including the employment of counsel and
payment of all costs of litigation. Notwithstanding the preceding sentence, the
Agent and the L/C Issuer shall have the right to employ their own counsel and to
determine its own defense of such action in any such case, but the fees and
expenses of such counsel shall be at the expense of the Agent or the L/C Issuer,
as the case may be, unless (x) the employment of such counsel shall have been
authorized in writing by the Borrower, (y) the Borrower, after the
aforementioned notice of the action, shall not have employed counsel to have
charge of such defense or (z) if the position of the Borrower is adverse or
contrary to the position advocated by the Agent or the L/C Issuer, as the case
may be. In each case described in clauses (x), (y) and (z) immediately above the
reasonable fees and expenses of counsel for the Agent or the L/C Issuer, as the
case may be shall be borne by the Borrower. The Borrower shall not be liable for
any settlement of any such action affected without its consent.
(m) The L/C Issuer is hereby expressly
authorized and directed to honor any request for payment which is made under and
in compliance with the terms of any Letter of Credit without regard to, and
without any duty on the L/C Issuer's part to inquire into, the existence of any
disputes or controversies between the Borrower, the beneficiary of any Letter of
Credit or any other Person, or the respective rights, duties or liabilities of
any of them or whether any facts or occurrences represented in any of the
documents presented under any Letter of Credit are true or correct. Furthermore,
the Borrower fully understands and agrees that the L/C Issuer's sole obligation
to the Borrower shall be limited to honoring requests for payment made under and
in compliance with the terms of any Letter of Credit, the Application and
Agreement for Letter of Credit therefor and this Agreement and the L/C Issuer's
obligation remains so limited even if the L/C Issuer may have assisted the
Borrower in the preparation of the wording of any Letter of Credit or any
documents required to be presented thereunder or that the L/C Issuer may
otherwise be aware of the underlying transaction giving rise to any Letter of
Credit and this Agreement.
(n) As between the Borrower and the L/C Issuer,
the Borrower assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit by, the beneficiaries of the Letters of Credit. In furtherance
and not in limitation of the foregoing, the L/C Issuer shall not be responsible:
(i) for the form, validity, sufficiency, accuracy, genuineness
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or legal effect of any document submitted by any party in connection with the
application for or the issuance or amendment of the Letters of Credit, even if
it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign the
Letters of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) for failure of a beneficiary of a Letter of Credit to comply fully with
conditions required in order to draw upon such Letter of Credit; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telecopy, telex or otherwise, whether or
not they be in cipher; (v) for errors in interpretation of technical terms; (vi)
for any loss or delay in the transmission or otherwise of any document required
in order to make a draw under the Letters of Credit or of the proceeds thereof;
(vii) for the misapplication by a beneficiary of any Letter of Credit of the
proceeds of any drawing under such Letter of Credit; (viii) for any consequences
arising from causes beyond the control of the L/C Issuer, including, without
limitation, any Law; and (ix) for any other circumstances whatsoever in making
or failing to make payment under a Letter of Credit; except that the Borrower
shall have a claim against the L/C Issuer, and the L/C Issuer shall be liable to
the Borrower, to the extent, but only to the extent, of any direct, as opposed
to consequential, damages suffered by the Borrower by a court of competent
jurisdiction to be the result of (i) the L/C Issuer's willful misconduct or
gross negligence in determining whether documents presented under a Letter of
Credit comply with the terms of the Letter of Credit, (ii) the L/C Issuer's
willful misconduct or gross negligence in paying a draw under a Letter of Credit
to any Person other than the beneficiary of such Letter of Credit or its lawful
successor, representative or assign (or as otherwise directed in writing by the
beneficiary of such Letter of Credit) or (iii) the L/C Issuer's willful failure
to pay under a Letter of Credit after the presentation to it by the beneficiary
of such Letter of Credit or its lawful successor, representative or assign of a
sight draft and certificate or other documents strictly complying with the terms
and conditions of such Letter of Credit, unless the L/C Issuer in good faith and
upon advice of counsel believes that it is prohibited by law or other legal
authority from making such payment. None of the above shall affect, impair, or
prevent the vesting of any of the L/C Issuer's rights or powers hereunder.
(o) Except for the L/C Issuer's obligations to
issue Letters of Credit hereunder and its obligations under such Letters of
Credit, the L/C Issuer shall have no liability to the Borrower from a reduction
of the L/C Issuer's credit rating or any deterioration in its financial
condition.
(p) The Borrower shall bear and pay all
reasonable expenses of every kind (including all reasonable attorneys' fees) of
the enforcement of any of the L/C Issuer's rights under this Agreement or the
Letters of Credit, or of any claim or demand by the L/C Issuer against the
Borrower, or of any actual or attempted sale, exchange, enforcement, collection,
maintenance, retention, insurance, compromise, settlement, release, delivery on
trust receipt, or other security agreement, or delivery of any such security,
and of the receipt of proceeds thereof, and will repay to the L/C Issuer any
such expenses incurred by the L/C Issuer.
(q) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth, any action taken or
omitted by the L/C Issuer under or in connection with the Letters of Credit or
the related sight drafts or certificates or documents, if taken or omitted in
good faith, shall not put the L/C Issuer under any resulting liability to the
Borrower.
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(r) Whenever appropriate to prevent unjust
enrichment and to the end that the Borrower shall bear substantially all of the
risks relative to any Letter of Credit and the underlying transactions, the L/C
Issuer shall be subrogated (for purposes of defending against the Borrower's
claims and proceeding against others to the extent of the L/C Issuer's liability
to the Borrower) to the Borrower's rights against any Person who may be liable
to the Borrower on any underlying transaction, to the rights of any holder in
due course or Person with similar status against the Borrower, and to the rights
of the beneficiary or its assignee or person with similar status against the
Borrower.
(s) Except and to the extent inconsistent with
the specific provisions hereof, this Agreement, each Letter of Credit hereunder
and all transactions in connection therewith shall be interpreted, construed and
enforced according to: (i) the "Uniform Customs and Practice for Documentary
Credits" (1993 Revision), International Chamber of Commerce Publication No. 500
and subsequent revisions thereof which shall supersede inconsistent provisions
of applicable law to the extent not prohibited by applicable law and (ii) the
laws of the Commonwealth of Pennsylvania, including, without limitation, the
Uniform Commercial Code, and excluding conflict of laws rules.
2.18. Taxes. Each Lender that is not incorporated under the
laws of the United States of America or a state thereof agrees that it will
deliver to the Borrower and the Agent (i) two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224 or successor applicable form,
as the case may be (assuming that it is entitled to do so), and (ii) two duly
completed copies of Internal Revenue Service Form W-8 or W-9 or successor
applicable form. Each such Lender also agrees to deliver to the Borrower and the
Agent two further copies of the said Form 1001 or 4224 and Form W-8 or W-9, or
successor applicable forms or other manner of certification, as the case may be,
on or before the date that any such form expires or becomes obsolete or
otherwise is required to be resubmitted as a condition to obtaining an exemption
from withholding tax or after the occurrence of any event requiring a change in
the most recent form previously delivered by it to the Borrower and the Agent,
and such extensions or renewals thereof as may reasonably be requested by the
Borrower or the Agent, unless in any such case an event (including, without
limitation, any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender so advises the
Borrower and the Agent. Such Lender shall certify (i) in the case of Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes (assuming
that it is entitled to do so) and (ii) in the case of Form W-8 or W-9, that it
is entitled to an exemption from United States backup withholding tax.
2.19. Payments. All payments and prepayments to be made in
respect of principal, interest, Unreimbursed L/C Draws, Fees, or other amounts
due from the Borrower hereunder shall be payable prior to 11:00 A.M.
(Pittsburgh, Pennsylvania time) on the date when due without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived
by the Borrower, and without setoff, counterclaim or other deduction of any
nature, and an action therefor shall immediately accrue. Such payments shall be
made to the Agent at the Principal Office for the ratable account of the Lenders
or L/C Issuer, as the case may be, in Dollars and in immediately available
funds, and the Agent shall promptly distribute such amounts to the Lenders or
L/C Issuer, as the case may be, in immediately available funds in accordance
with the terms and provisions of Section 9.10 of this Agreement. The Agent's,
the
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L/C Issuer's and each Lender's statement of account, ledger or other relevant
record shall, in the absence of manifest error, be conclusive as the statement
of the amount of principal of and interest on the Revolving Credit Loans, the
Swingline Loans, the Unreimbursed L/C Draws, Fees and other amounts owing under
this Agreement and shall be deemed an "account stated." Notwithstanding anything
herein to the contrary, (i) any administration or underwriting fee paid by the
Borrower to the Agent shall be solely for the account of the Agent, (ii) any L/C
Fronting Fees paid by the Borrower shall be solely for the account of the L/C
Issuer and (iii) any interest paid on any Unreimbursed L/C Draw to the extent a
Lender has not been required to honor or has not honored its funding obligations
pursuant to Section 2.17(g) hereof shall be solely for the account of the L/C
Issuer.
2.20. Substitution of Lender. In the event any Lender (i)
gives notice under Sections 2.10 (Yield Protection), 2.11(b) (Inability to Offer
Euro-Rate), 2.11(c) (Illegality) or 2.12 (Capital Adequacy), (ii) does not fund
Revolving Credit Loans because the making of such Loans would contravene any Law
applicable to such Lender, (iii) does not approve any action as to which consent
of the Required Lenders is requested by the Borrower and obtained hereunder, or
(iv) becomes subject to the control of an Official Body (other than normal and
customary supervision), then, if the Borrower designates one or more substitute
institutions to purchase the Loans and assume the Revolving Credit Commitments
of such Lender, such Lender will at the Borrower's request sell its Loans and
assign its rights under this Agreement to such substitution institutions, with
reasonable promptness after such designation in accordance with Section 10.05,
for a payment equal to the principal amount of its Loans, plus all accrued and
unpaid interest and Fees to but excluding the date of purchase, plus any other
amounts accrued or payable to such Lender under this Agreement to but excluding
the date of purchase, plus any amount that would be payable to such Lender under
Section 2.10(c) (as if such purchase were treated as a prepayment of the
outstanding Loans to such Lender), together with any other loss or expense
incurred by it (or by a Participant in the related Loans or Revolving Credit
Commitment); provided that all of the provisions of Section 10.05(b) must first
be complied with, and provided, further that the Agent may only be replaced
subject to the requirements of Section 9.13 (Successor Agent) . Nothing in this
Section 2.20 limits the rights of the Agent, the Co-Agents, the Lenders, PNC
Bank, or the L/C Issuer under any provisions of any of the Loan Documents.
ARTICLE III
LOAN DISBURSEMENT ACCOUNT, GUARANTEES, ETC.
3.01. Loan Disbursement Account. The Borrower shall
maintain at all times during this Agreement with the Agent, at the Agent's
office in Pittsburgh, Pennsylvania, a demand deposit account (the "LOAN
DISBURSEMENT ACCOUNT"), into which proceeds of Revolving Credit Loans, Swingline
Loans and other monies transferred to the Borrower hereunder shall be deposited
from time to time. The Loan Disbursement Account shall be in the name of the
Borrower and, subject to the other provisions of this Agreement and the other
Loan Documents, monies therein shall be disbursed as directed by the Borrower,
from time to time. To secure the payment and performance of Lender Obligations,
the Borrower hereby pledges and assigns, and grants to the Agent for the benefit
of the Agent, the L/C Issuer and the Lenders, a lien on and security interest in
the Loan Disbursement Account, all funds from time to time deposited or held
therein, all interest and other income derived therefrom, and all proceeds of
all the foregoing.
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3.02. Designation of Subsidiary Guarantors. Each Subsidiary
of the Borrower incorporated or organized in the United States of America,
whether now in existence or hereafter acquired, that owns Receivables and
Inventory (priced at the lower of cost or market) shall be automatically
designated as a Subsidiary Guarantor by the Lenders. Any Subsidiary designated
as a Subsidiary Guarantor shall continue as a Subsidiary Guarantor until
released in writing by all Lenders.
3.03. Further Cooperation. The Borrower shall perform, or
cause a Subsidiary Guarantor to perform, on the reasonable request of the Agent
and at the Borrower's expense, such reasonable acts as may be necessary or
reasonably advisable to carry out the intent of this Agreement and the other
Loan Documents. Without limiting the generality of the preceding sentence, the
Borrower shall cause each newly-created or acquired Subsidiary Guarantor to
execute and deliver a Subsidiary Guaranty to the Agent with a reasonable period
of time following the creation or acquisition of such Subsidiary Guarantor.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Representations and Warranties. The Borrower represents and
warrants to the Agent, the Co-Agents, each of the Lenders and the L/C Issuer as
follows:
4.01. Organization and Qualification.
(a) The Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Ohio, the Borrower has the lawful power to own or lease its properties and to
engage in the business it presently conducts or proposes to conduct; and the
Borrower is duly licensed or qualified and in good standing in each jurisdiction
listed on Schedule 4.01 hereto and in all other jurisdictions where the property
owned or leased by it or the nature of the business transacted by it makes such
licensing or qualification necessary, except for those jurisdictions where the
Borrower's non-qualification would not cause there to be a Material Adverse
Change.
(b) Each Subsidiary of the Borrower is a
corporation, business trust or limited partnership, as the case may be, duly
organized, validly existing and in good standing under the laws of the state of
its incorporation or organization, as the case may be, shown on Schedule 4.01;
each Subsidiary of the Borrower has the lawful power to own or lease its
properties and to engage in the business it presently conducts or proposes to
conduct; and each Subsidiary of the Borrower is duly licensed or qualified and
in good standing in each jurisdiction listed on Schedule 4.01 hereto and in all
other jurisdictions where the property owned or leased by it or the nature of
the business transacted by it makes such licensing or qualification necessary,
except for those jurisdictions where such Subsidiary's non-qualification would
not cause there to be a Material Adverse Change.
4.02. Capitalization and Ownership. As of September 30,
1998, the authorized capital stock of the Borrower consists of 30,000,000 shares
of common stock of which 20,521,302 shares were issued and outstanding, and
5,000,000 shares of preferred stock, of which no shares were issued and
outstanding. All of the capital stock of the Borrower has been validly issued
and is fully paid and nonassessable. Except as set forth in Schedule 4.02, there
are no options, warrants or other rights outstanding to purchase any such
capital stock.
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4.03. Subsidiaries. Except for the Subsidiaries and
investments in other Persons set forth in Schedule 4.03, the Borrower does not
own directly or indirectly any capital stock of any other Person, is not a
partner (general or limited) of any partnership, is not a party to any joint
venture and does not own (beneficially or of record) any equity interest or
similar interest in any other Person.
4.04. Power and Authority. The Borrower and each
Subsidiary Guarantor has full power to enter into, execute, deliver, carry out
and perform this Agreement and the Loan Documents to which it is a party, to
incur the Indebtedness contemplated by the Loan Documents and to perform its
obligations under the Loan Documents to which it is a party and all such actions
have been duly authorized by all necessary corporate proceedings on its part.
4.05. Validity and Binding Effect. This Agreement has
been, and each Loan Document, when executed and delivered by the Borrower and
each Subsidiary Guarantor, will have been, duly and validly executed and
delivered by the Borrower or such Subsidiary Guarantor. This Agreement and each
of the other Loan Documents executed and delivered by the Borrower and each
Subsidiary Guarantor will constitute legal, valid and binding obligations of the
Borrower or such Subsidiary Guarantor, enforceable against the Borrower or such
Subsidiary Guarantor in accordance with their respective terms, except to the
extent that enforceability of any of the Loan Documents may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforceability of creditors' rights generally or limiting the
right of specific performance.
4.06. No Conflict.
(a) Neither the execution and delivery by the
Borrower of this Agreement or the Loan Documents to which the Borrower is a
party, nor the consummation of the transactions herein or therein contemplated,
nor compliance with the terms and provisions hereof or thereof by the Borrower
will (i) conflict with, constitute a default under or result in any breach of
(A) the terms and conditions of the certificate of incorporation, by-laws or
other organizational documents of the Borrower or (B) any Law or any agreement
or instrument or order, writ, judgment, injunction or decree to which the
Borrower is a party or by which it is bound or to which it is subject, which
conflict, default or breach would cause a Material Adverse Change, or (ii)
result in the creation or enforcement of any Lien upon any property (now or
hereafter acquired) of the Borrower (other than the Permitted Liens).
(b) Neither the execution and delivery by a
Subsidiary Guarantor of a Subsidiary Guaranty to which such Subsidiary Guarantor
is a party, nor the consummation of the transactions contemplated by this
Agreement or the other Loan Documents, nor compliance with the terms and
provisions hereof or thereof by such Subsidiary Guarantor will (i) conflict
with, constitute a default under or result in any breach of (A) the terms and
conditions of the articles of incorporation, by-laws or other organizational
documents of such Subsidiary or (B) any Law or any agreement or instrument or
order, writ, judgment, injunction or decree to which such Subsidiary is a party
or by which it is bound or to which it is subject, which conflict, default or
breach would cause a Material Adverse Change, or (ii) result in the creation or
enforcement of any Lien upon any property (now or hereafter acquired) of such
Subsidiary (other than the Permitted Liens).
4.07. Litigation. Except for the litigation set forth on
Schedule 4.07, there are no actions, suits, proceedings or investigations
pending or, to the knowledge of the Borrower,
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threatened against the Borrower or any Subsidiary of the Borrower, at law or in
equity, before any Official Body which individually or in the aggregate, if
adversely determined, would be likely to result in any Material Adverse Change.
Neither the Borrower nor any Subsidiary of the Borrower is in violation of any
order, writ, injunction or decree of any Official Body which could be expected
to result in any Material Adverse Change.
4.08. Financial Statements.
(i) Financial Statements. RMI has delivered to
the Agent the consolidated annual financial statements of RMI and its
Subsidiaries for the Fiscal Year ended December 31, 1997, and the consolidated
quarterly financial statements of RMI and its Subsidiaries for the Fiscal
Quarter ended June 30, 1998. All such financial statements are complete and
correct in all material respects and fairly present the consolidated financial
condition of RMI and its Subsidiaries in all material respects and the results
of their operations as of the dates and for the periods referred to, and have
been prepared in accordance with GAAP throughout the period included.
(ii) Accuracy of Financial Statements. The
Borrower and its Subsidiaries existing immediately prior to the Acquisitions
have no liabilities, contingent or otherwise, that are not disclosed in the
financial statements referred to in clause (i) above and that would be required
to be disclosed in accordance with GAAP, except for those incurred since the
date of such financial statements in the ordinary course of business.
(iii) Pro Forma Financial Statements. The Borrower
has delivered to the Agent pro forma financial statements as of September 30,
1998, which reflect the Reorganization, the Acquisitions and the Indebtedness to
be incurred to accomplish the Reorganization and the Acquisitions. Such
financial statements fairly present to the best of Borrower's knowledge the
Borrower's consolidated financial position taking into account the
Reorganization, the Acquisitions and the Indebtedness incurred to accomplish the
Reorganization and the Acquisitions.
4.09. Margin Stock; Section 20 Subsidiaries. Neither the
Borrower nor any of its Subsidiaries engage or intend to engage principally, or
as one of its important activities, in the business of incurring Indebtedness or
extending credit to others (including, without limitation, any of the
Subsidiaries of the Borrower) for the purpose, immediately, incidentally or
ultimately, of purchasing or carrying margin stock (within the meaning of any
Margin Regulation). No part of the proceeds of any Revolving Credit Loan or
Swingline Loan has been or will be used, immediately, incidentally or
ultimately, to purchase or carry any margin stock or to extend credit to others
(including, without limitation, any of its Subsidiaries) for the purpose of
purchasing or carrying any margin stock or to refund or retire Indebtedness
originally incurred for such purpose, or for any purpose which entails a
violation of or which is inconsistent with the provisions of the Margin
Regulations of the Board of Governors of the Federal Reserve System. The
Borrower does not intend to hold, and shall not permit its Subsidiaries to hold,
margin stock. Neither the Borrower not any of its Subsidiaries intends to use
any portion of the proceeds of the Loans, directly or indirectly, to purchase
during the underwriting period, or for thirty (30) days thereafter, Ineligible
Securities being underwritten by a Section 20 Subsidiary.
4.10. Full Disclosure. Neither this Agreement nor any Loan
Document, nor any certificate, statement, agreement or other document furnished
to the Agent, the L/C Issuer or any Lender in connection herewith or therewith,
contains any misstatement of a material fact or
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omits to state a material fact necessary in order to make the statements
contained herein and therein, in light of the circumstances under which they
were made, not misleading. There is no fact known to the Borrower which
materially adversely affects the business, property, assets, financial
condition, results of operations or prospects of the Borrower and its
Subsidiaries, taken as a whole, which has not been set forth in this Agreement
or the Loan Documents or in the certificates, statements, agreements or other
documents furnished in writing to the Agent, the Lenders or the L/C Issuer prior
to or at the date hereof in connection with the transactions contemplated hereby
and thereby.
4.11. Tax Returns and Payments. The Borrower is a member
of an affiliated group of companies which files consolidated federal tax
returns. All such federal tax returns that are required by law to be filed have
been filed or properly extended. All taxes, assessments and other governmental
charges levied upon members of such affiliated group or any of their respective
properties, assets, income or franchises which are due and payable have been
paid in full other than (i) those presently payable without penalty or interest,
(ii) those which are being contested in good faith by appropriate proceedings
and (iii) those which, if not paid, would not, in the aggregate, constitute a
Material Adverse Change; and as to each of items (i), (ii) and (iii) the
affiliated group has established reserves for such claim as have been determined
to be adequate by application of GAAP consistently applied. There are no
agreements or waivers extending the statutory period of limitations applicable
to any consolidated federal income tax return of the Borrower and its
consolidated Subsidiaries for any period, except as set forth on Schedule 4.11.
4.12. Consents and Approvals. No consent, approval,
exemption, order or authorization of, or a registration or filing with any
Official Body or any other Person is required by any Law or any agreement in
connection with the execution, delivery and carrying out of this Agreement and
the Loan Documents to which the Borrower or any Subsidiary Guarantor is a party,
except as listed on Schedule 4.12 attached hereto, all of which items set forth
on Schedule 4.12 shall have been obtained or made on or prior to the Closing
Date.
4.13. No Event of Default; Compliance with Instruments. No
event has occurred and is continuing and no condition exists or will exist after
giving effect to the borrowings to be made on the Closing Date under the Loan
Documents which constitutes an Event of Default or a Default. Neither the
Borrower nor any of its Subsidiaries is in violation of (i) any term of its
certificate of incorporation, by-laws or other organizational documents or (ii)
any material agreement or instrument to which it is a party or by which it or
any of its properties may be subject or bound where such violation would
constitute a Material Adverse Change.
4.14. Compliance with Laws. The Borrower and its
Subsidiaries are in compliance in all material respects with all applicable Laws
(other than Environmental Laws, which are addressed in Section 4.20) in all
jurisdictions in which the Borrower, and its Subsidiaries, are presently or will
be doing business except where the failure to do so would not, individually or
in the aggregate, constitute a Material Adverse Change.
4.15. Investment Company; Public Utility Holding Company.
Neither the Borrower nor any Subsidiary Guarantor is an "investment company"
registered or required to be registered under the Investment Company Act of 1940
or under the "control" of an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended from time to time, and shall not
become such an "investment company" or under such "control." Neither the
Borrower nor any Subsidiary Guarantor is a "holding company" or a "subsidiary
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company" of a "holding company" or an "affiliate" of a "holding company" within
the meaning the Public Utility Holding Company Act of 1935, as amended from time
to time. The Borrower is not subject to any Law of any Official Body (in each
case whether United States federal, state or local, or other) having
jurisdiction over the Borrower, which purports to restrict or regulate its
ability to borrow money, or to extend or obtain credit, or to pledge its
interests in the Loan Disbursement Account. No Subsidiary Guarantor is subject
to any Law of any Official Body (in each case whether United States federal,
state or local, or other) having jurisdiction over such Subsidiary Guarantor
which purports to restrict or regulate its ability to borrow money or to extend
or obtain credit.
4.16. Plans and Benefit Arrangements. Except as set forth
on Schedule 4.16 hereto:
(i) The Borrower and each member of the ERISA
Group are in compliance in all material respects with any applicable provisions
of ERISA with respect to all Benefit Arrangements, Plans and Multiemployer
Plans. There has been no Prohibited Transaction with respect to any Benefit
Arrangement or any Plan (other than a Multiemployer Plan) or, to the knowledge
of the Borrower, with respect to any Multiemployer Plan or Multiple Employer
Plan, which could result in any material liability of the Borrower or any other
member of the ERISA Group. The Borrower and all members of the ERISA Group have
made when due any and all payments required to be made under any agreement
relating to a Multiemployer Plan or a Multiple Employer Plan or any Law
pertaining thereto. With respect to each Plan and, to the knowledge of Borrower,
each Multiemployer Plan, the Borrower and each member of the ERISA Group (i)
have fulfilled in all material respects their obligations under the minimum
funding standards of ERISA, (ii) have not incurred any liability to the PBGC
(other than for premiums not yet due) and (iii) have not had asserted against
them any penalty for failure to fulfill the minimum funding requirements of
ERISA.
(ii) To the best of the Borrower's knowledge,
each Multiemployer Plan and Multiple Employer Plan is able to pay benefits
thereunder when due.
(iii) Neither the Borrower nor any other member of
the ERISA Group has instituted or intends to institute proceedings to terminate
any Plan.
(iv) No event requiring notice to the PBGC under
Section 302(f)(4)(A) of ERISA has occurred or is reasonably expected to occur
with respect to any Plan, and no amendment with respect to which security is
required under Section 307 of ERISA has been made or is reasonably expected to
be made to any Plan.
(v) Neither the Borrower nor any other member of
the ERISA Group has incurred or reasonably expects to incur any material
withdrawal liability under ERISA to any Multiemployer Plan or Multiple Employer
Plan. Neither the Borrower nor any other member of the ERISA Group has been
notified by any Multiemployer Plan or Multiple Employer Plan that such
Multiemployer Plan or Multiple Employer Plan has been terminated within the
meaning of Title IV of ERISA and, to the knowledge of the Borrower, no
Multiemployer Plan or Multiple Employer Plan is reasonably expected to be
reorganized or terminated, within the meaning of Title IV of ERISA.
(vi) To the extent that any Benefit Arrangement
is insured, the Borrower and all members of the ERISA Group have paid when due
all premiums required to
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be paid for all periods ending through and including the Closing Date. To the
extent that any Benefit Arrangement is funded other than with insurance, the
Borrower and all members of the ERISA Group have made when due all
contributions, to the extent required by applicable Law or the terms of such
Benefit Arrangement to be paid for all periods ending through and including the
Closing Date.
4.17. Title to Properties. The Borrower and each of its
Subsidiaries have good title to, or a valid leasehold interest in, all their
respective real and personal property, except to the extent the failure to have
such title or leasehold interests is not reasonably likely, individually or in
the aggregate, to result in a Material Adverse Change, and none of such property
is subject to any Lien except Permitted Liens.
4.18. Insurance. There are in full force and effect for
the benefit of the Borrower and its Subsidiaries insurance policies and bonds
providing adequate coverage from reputable and financially sound insurers in
amounts sufficient to insure the assets and risks of the Borrower and its
Subsidiaries in accordance with prudent business practice in the industry of the
Borrower and its Subsidiaries. No notice has been given or claim made and to the
knowledge of the Borrower, no grounds exist, to cancel or void any of such
policies or bonds or to reduce the coverage provided thereby.
4.19. Employment Matters. The Borrower and each Subsidiary
of the Borrower are in compliance with all employee benefit plans, employment
agreements, collective bargaining agreements and labor contracts (the "LABOR
CONTRACTS") and all applicable federal, state and local labor and employment
Laws including, but not limited to, those related to equal employment
opportunity and affirmative action, labor relations, minimum wage, overtime,
child labor, medical insurance continuation, worker adjustment and relocation
notices, immigration controls and worker and unemployment compensation, except
where the failure to comply would not constitute a Material Adverse Change.
There are no outstanding grievances, arbitration awards or appeals therefrom
arising out of the Labor Contracts or current or, to the knowledge of the
Borrower, threatened strikes, picketing, handbilling or other work stoppages or
slowdowns at facilities of the Borrower or any Subsidiary of the Borrower which
in any case would constitute a Material Adverse Change. All payments due from
Borrower or any of its Subsidiaries on Receivable of employee health and welfare
insurance which could reasonably be expected to have a Material Adverse Change
if not paid have been paid or accrued as a liability on the books of Borrower or
such Subsidiary.
4.20. Environmental Matters. Except as disclosed on
Schedule 4.20 hereto:
(i) The Borrower has not received any
Environmental Complaint from any Official Body or private person alleging that
the Borrower, any Subsidiary of the Borrower or any prior or subsequent owner of
any of the Property is a potentially responsible party under the Comprehensive
Environmental Response, Cleanup and Liability Act, 42 U.S.C. Section 9601, et
seq., in connection with the Property which Environmental Complaint is
reasonably expected to result in any Material Adverse Change, and the Borrower
has no reason to believe that such an Environmental Complaint is reasonably
likely to be received. There are no pending or, to the knowledge of the
Borrower, threatened Environmental Complaints relating to the Borrower, any
Subsidiary of the Borrower or, to the Borrower's knowledge, without any inquiry,
any prior or subsequent owner of the Property pertaining to, or arising out of,
any Environmental Conditions in connection with the Property, which
Environmental Complaints are reasonably expected to result in any Material
Adverse Change.
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(ii) Except for conditions, violations or
failures which individually and in the aggregate are not reasonably likely to
result in a Material Adverse Change, there are no circumstances at, on or under
the Property that constitute a breach of or non-compliance with any of the
Environmental Laws, and there are no past or present Environmental Conditions
at, on or under the Property or, to the knowledge of the Borrower, without any
inquiry at, on or under adjacent property, that prevent compliance with the
Environmental Laws at the Property.
(iii) Neither the Property nor any structures,
improvements, equipment, fixtures, activities or facilities thereon or
thereunder contain or use Regulated Substances except in compliance with
Environmental Laws, other than such containment or use which individually and in
the aggregate is not reasonably likely to result in any Material Adverse Change.
There are no processes, facilities, operations, equipment or any other
activities at, on or under the Property, or, to the Borrower's knowledge,
without any inquiry, at, on or under adjacent property, that currently result in
the release or threatened release of Regulated Substances on to the Property in
violation of the Environmental Laws, except to the extent that such releases or
threatened releases are not likely to result in a Material Adverse Change.
(iv) There are no underground storage tanks, or
underground piping associated with such tanks, used for the management of
Regulated Substances at, on or under the Property that are not in compliance
with all Environmental Laws, other than those with respect to which the failure
to comply with Environmental Laws is not reasonably likely, either individually
or in the aggregate, to result in a Material Adverse Change, and there are no
abandoned underground storage tanks or underground piping associated with such
tanks, previously used for the management of Regulated Substances at, on or
under the Property that have not been either abandoned in place, or removed, in
accordance with the Environmental Laws, other than those with respect to which
the failure to comply with Environmental Laws is not reasonably likely, either
individually or in the aggregate, to result in a Material Adverse Change.
(v) The Borrower and each Subsidiary of the
Borrower have all material permits, licenses, authorizations and approvals
necessary under the Environmental Laws for the conduct of the respective
businesses of the Borrower and each Subsidiary of the Borrower as presently
conducted, other than those with respect to which the failure to comply with
Environmental Laws is not reasonably likely, either individually or in the
aggregate, to result in a Material Adverse Change. The Borrower and each
Subsidiary of the Borrower have submitted all notices, reports and other filings
required by the Environmental Laws to be submitted to an Official Body which
pertain to past and current operations on the Property, except for any failure
to submit which would not be reasonably likely to result in a Material Adverse
Change.
(vi) Except for violations which individually and
in the aggregate are not likely to result in a Material Adverse Change, all past
and present on-site generation, storage, processing, treatment, recycling,
reclamation or disposal of Solid Waste at, on, or under the Property and all
off-site transportation, storage, processing, treatment, recycling, reclamation
or disposal of Solid Waste has been done in accordance with the Environmental
Laws.
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4.21. Senior Debt Status. The obligations of the Borrower
under this Agreement and the Notes rank at least pari passu in priority of
payment with all other Indebtedness of the Borrower, except Indebtedness of the
Borrower to the extent secured by Permitted Liens. The obligations of a
Subsidiary Guarantor under a Subsidiary Guaranty executed by such Subsidiary
Guarantor rank at least pari passu in priority of payment with all other
Indebtedness of such Subsidiary Guarantor except Indebtedness of such Subsidiary
Guarantor to the extent secured by Permitted Liens. There is no Lien upon or
with respect to any of the properties or income of the Borrower or any of its
Subsidiaries which secures Indebtedness or other obligations of any Person
except for Permitted Liens.
4.22. Solvency. On the date hereof, and as of the date of
each advance of the Revolving Credit Loan and issuance or renewal of any Letter
of Credit, as the case may be, and after giving effect to such advance or the
issuance or renewal of a Letter of Credit, each of the Borrower and each
Subsidiary Guarantor is, and will be, Solvent.
4.23. Material Contracts; Burdensome Restrictions. All
material contracts relating to the business operations of each Loan Party,
including all employee benefit plans and Labor Contracts, are valid, binding and
enforceable upon such Loan Party and each of the other parties thereto in
accordance with their respective terms, and there is no default thereunder with
respect to such Loan Party, and there is no default thereunder, to the Loan
Parties' knowledge, with respect to parties other than such Loan Party. No
contract, lease, agreement or other instrument to which Borrower or any of its
Subsidiaries is a party or is bound and no provision of any applicable Law or
governmental regulation would reasonably be expected to have a Material Adverse
Change.
4.24 Patents, Trademarks, Copyrights, Licenses, Etc. The
Borrower and each of its Subsidiaries owns or possesses all the material
patents, trademarks, service marks, trade names, copyrights, licenses,
registrations, franchises, permits and rights necessary to own and operate its
properties and to carry on its business as presently conducted and planned to be
conducted by the Borrower or such Subsidiary, without known possible, alleged or
actual conflict with the rights of others.
4.25. Brokers. No broker or finder acting on behalf of
Borrower brought about the obtaining, making or closing of the loans made
pursuant to this Agreement, and Borrower has no obligation to any other Person
in respect of any finder's or brokerage fees in connection with the loans
contemplated by this Agreement.
4.26. No Material Adverse Change. No event has occurred
since December 31, 1997, and is continuing which has had or would reasonably be
expected to have a Material Adverse Change.
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ARTICLE V
CONDITIONS OF LENDING OR ISSUANCE OF LETTER OF CREDIT
The obligation of each Lender to make the Revolving Credit
Loans hereunder, or of the L/C Issuer to issue Letters of Credit hereunder, or
of PNC Bank to make Swingline Loans hereunder, is subject to the performance by
the Borrower of its obligations to be performed hereunder at or prior to the
making of any such Revolving Credit Loans or Swingline Loans, or the issuance of
any such Letter of Credit, as the case may be, and to the satisfaction of the
following further conditions.
5.01. Conditions to Initial Borrowings. On the Closing Date
the following actions shall be completed or satisfied to the sole satisfaction
of the Agent:
(a) The representations and warranties of the
Borrower or the Subsidiaries contained in Article IV and in the other Loan
Documents executed and delivered by the Borrower or any of its Subsidiaries in
connection with the Closing shall be true and accurate in all material respects
on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date (except
representations and warranties which relate solely to an earlier date or time,
which representations and warranties shall be true and correct on and as of the
specific date or times referred to therein), and the Borrower, and each
Subsidiary of the Borrower which has executed any Loan Documents, shall have
performed, observed and complied with all covenants and conditions hereof and
contained in the other Loan Documents; no Event of Default or Default under this
Agreement shall have occurred and be continuing or shall exist; no Material
Adverse Change shall have occurred; and there shall be delivered to the Agent,
for the benefit of each Lender, the L/C Issuer and the Agent, a certificate of
the Borrower, dated the Closing Date and signed by the chief executive officer
and president or chief financial officer of the Borrower, to each such effect.
(b) There shall be delivered to the Agent for
the benefit of each Lender and the L/C Issuer a certificate dated the Closing
Date and signed by the secretary or an assistant secretary of the Borrower,
certifying as appropriate as to:
(i) all corporate action taken by the
Borrower in connection with this Agreement and the other Loan Documents;
(ii) the names, offices and titles of the
Borrower's officer or officers authorized to sign this Agreement and the other
Loan Documents and the true signatures of such officer or officers and the
identities of the Authorized Officers permitted to act on behalf of the Borrower
for purposes of this Agreement and the other Loan Documents and the true
signatures of such officers, on which the Agent, each Lender and the L/C Issuer
may conclusively rely;
(iii) (A) copies of the Borrower's
organizational documents, including its articles of incorporation as in effect
on the Closing Date certified by the Secretary of State of its incorporation as
well as a copy of the Borrower's by-laws, (B) a certificate as to the continued
existence and good standing of the Borrower issued by the Secretary of State of
its incorporation, and (C) a certificate concerning the due qualification of the
Borrower as a foreign corporation authorized to due business, and the good
standing of the Borrower, issued by the Secretary of State of each jurisdiction
shown on Schedule 4.01;
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(iv) all corporate or partnership action
taken by each Subsidiary Guarantor in connection with each Subsidiary Guaranty;
(v) the names, offices and titles of
each Subsidiary Guarantor's officer or officers authorized to sign each
Subsidiary Guaranty and the true signatures of such officer or officers and the
identities of the Authorized Officers permitted to act on behalf of each
Subsidiary Guarantor for purposes of each Subsidiary Guaranty and the true
signatures of such officers, on which the Agent, each Lender and the L/C Issuer
may conclusively rely; and;
(vi) (A) copies of each Subsidiary
Guarantor's organizational documents, as in effect on the Closing Date,
certified, by the secretary of state of the state of its organization, (B) a
certificate as to the continued existence and good standing of each Subsidiary
Guarantor issued by the secretary of state of the state of its organization, and
(C) a certificate concerning the due qualification of each Subsidiary Guarantor
as a foreign Person authorized to due business, and the good standing of such
Subsidiary Guarantor, issued by the Secretary of State of each jurisdiction
shown on Schedule 4.01 to this Agreement.
(c) This Agreement and the other Loan Documents
required by the Agent to be executed and delivered by the Borrower or a
Subsidiary of the Borrower at the Closing shall have been duly executed and
delivered by the Borrower to the Agent for the benefit of the Lenders, the L/C
Issuer and the Agent.
(d) The Reorganization has occurred.
(e) There shall be delivered to the Agent for
the benefit of each Lender a written opinion of Dawne S. Hickton, Esq., Vice
President and General Counsel for the Borrower and the Subsidiary Guarantors,
dated the Closing Date and in form and substance reasonably satisfactory to the
Agent and its counsel as to the matters set forth on Exhibit "G":
(f) All legal details and proceedings in
connection with the transactions contemplated by this Agreement and the other
Loan Documents including, without limitation, the Reorganization shall be in
form and substance satisfactory to the Agent and its counsel, and the Agent
shall have received all such other counterpart originals or certified or other
copies of such documents and proceedings in connection with such transactions,
in form and substance reasonably satisfactory to the Agent and said counsel, as
the Agent or said counsel may reasonably request.
(g) No Material Adverse Change shall have
occurred since December 31, 1997, and no material litigation shall have been
instituted by or against the Borrower or any Subsidiary or any of their
respective material properties or assets; and there shall be delivered to the
Agent for the benefit of each Lender, the L/C Issuer and the Agent a certificate
of the Borrower dated the Closing Date and signed by the Chief Executive
Officer, President or Chief Financial Officer of the Borrower to each such
effect.
(h) The Borrower shall deliver evidence
acceptable to the Agent that adequate insurance in compliance with Section 6.05
hereof is in full force and effect.
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(i) All material consents required to effectuate
the transactions contemplated hereby as set forth on Schedule 4.12 shall have
been obtained.
(j) The making and/or assumption of any Loan or
the issuance of a Letter of Credit or assumption of any reimbursement liability
with regard thereto, shall not contravene any Law applicable to the Borrower,
any Subsidiary Guarantor, any of the Agent, the Lenders or the L/C Issuer.
(k) Except as set forth on Schedule 4.07, no
action, suit, proceeding, investigation, regulation or legislation shall have
been instituted, threatened or proposed before any court or other Official Body
(i) with respect to the Borrower or its Subsidiaries or this Agreement, the
other Loan Documents or the consummation of the transactions contemplated hereby
or thereby to enjoin, restrain or prohibit, or to obtain damages in respect of,
their performance under this Agreement or any other Loan Documents or the
consummation of the transactions contemplated hereby or thereby or (ii) which in
the reasonable opinion of Agent would have a Material Adverse Change.
(l) The Agent and its counsel shall have
received UCC lien search reports of filings against the Borrower and each
existing Subsidiary Guarantor as well as Sierra, New Century and Weld-Tech and
their respective Subsidiaries, and tax lien and judgment searches relating to
the Borrower and each existing Subsidiary Guarantor as well as Sierra, New
Century and Weld-Tech and their respective Subsidiaries, which are satisfactory
in form and substance to the Lender.
(m) The Agent shall have received evidence that
the RMI Credit Agreement has been terminated and all amounts due thereunder,
except as expressly assumed hereunder, have been paid in full.
(n) The Agent on its own behalf and on behalf of
the Lenders and the L/C Issuer shall be in receipt of all Fees due and payable
on or prior to the Closing Date and all reimbursable expenses incurred on or
prior to the Closing Date.
(o) All matters and circumstances set forth as
qualifications, limitations, exceptions, additional matters or other materials
set forth in the Schedules hereto provided by or on behalf of the Borrower or
its Subsidiaries shall be acceptable to the Agent, the L/C Issuer and the
Lenders in their reasonable discretion.
5.02. Each Additional Revolving Credit Loan, Swingline Loan
or Issuance of a Letter of Credit. At the time of making any Revolving Credit
Loans or Swingline Loans or the issuance of, or renewal of, a Letter of Credit
and after giving effect to the proposed borrowings or issuance:
(a) the representations and warranties of the
Borrower contained in Article IV hereof and in the other Loan Documents shall be
true and correct in all material respects on and as of the earlier of: (x) the
date of such additional Revolving Credit Loan or Swingline Loan or issuance of a
Letter of Credit or (y) the specific dates or times referred to therein, with
the same effect as though such representations and warranties have been made on
and as of such date;
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(b) the Borrower shall have performed and
complied in all material respects with all covenants and conditions hereof;
(c) no Default or Event of Default shall have
occurred and be continuing or shall exist;
(d) no material litigation shall have been
instituted against the Borrower or any Subsidiary or any of their respective
materials properties or assets;
(e) no Material Adverse Change shall have
occurred;
(f) the making of any Loan or the issuance of
any Letter of Credit shall not contravene any Law applicable to the Borrower,
any of the Lenders or the L/C Issuer;
(g) the Borrower shall have delivered to the
Agent a duly executed and completed Loan Request and with respect to the
issuance of a Letter of Credit, the Borrower shall have complied with the
reasonable requirements of the L/C Issuer not inconsistent with the terms
hereof;
(h) Total Utilization shall not exceed the
lesser of the aggregate Revolving Credit Commitments or the Borrowing Base;
provided, however, that prior to the advance of any Loan on a Borrowing Date the
proceeds of which will repay any Unreimbursed L/C Draw, for the purpose of
calculating Total Utilization and compliance with this Subsection 5.02(f) on
such date, the existing Total Utilization immediately prior to such advance
shall be reduced pro tanto by the dollar amount of the Loans to be advanced on
such Borrowing Date which will be used to repay any outstanding Unreimbursed L/C
Draws;
(i) if the proceeds of the Loan are to be used
to fund directly or indirectly an Acquisition, the following additional
conditions need to be satisfied:
(i) as to the relevant Acquisition, each
pre-condition to the completion thereof, except payment due thereunder has been
completed;
(ii) certified copies of all corporate or
partnership action taken by the relevant Subsidiary Guarantor in connection with
the relevant Subsidiary Guaranty shall be delivered to the Agent;
(iii) the names, offices and titles of the
relevant Subsidiary Guarantor's officer or officers authorized to sign the
relevant Subsidiary Guaranty and the true signatures of such officer or officers
and the identities of the Authorized Officers permitted to act on behalf of the
relevant Subsidiary Guarantor for purposes of the relevant Subsidiary Guaranty
and the true signatures of such officers, on which the Agent, the Co-Agents,
each Lender and the L/C Issuer may conclusively rely shall be delivered to the
Agent;
(iv) (A) copies of the relevant
Subsidiary Guarantor's organizational documents, as in effect immediately after
the Acquisition, certified by the secretary of state of the state of its
organization, (B) a certificate as to the continued existence and good standing
of the relevant Subsidiary Guarantor issued by the secretary of state of the
state of its organization, and (C) a certificate concerning the due
qualification of the relevant Subsidiary Guarantor as a foreign Person
authorized to do business, and the good standing of
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the relevant Subsidiary Guarantor issued by the secretary of state of each
jurisdiction where such qualification is material shall be delivered to the
Agent; and
(v) an opinion of Borrower's counsel as
to the relevant Subsidiary Guarantor substantially in the form of Exhibit "G"
hereto and addressing the issues set forth in paragraph nos. 2, 4, 6, 7, 8, 9
and 10 of Exhibit "G" hereto shall be delivered to the Agent.
5.03. Location of Closing. The Closing shall take place at
10:00 A.M., Pittsburgh, Pennsylvania time, on the Closing Date at the offices of
Tucker Arensberg, P.C., 1500 One PPG Place, Pittsburgh, Pennsylvania 15222, or
at such other time and place as the parties agree.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, until payment in full
of the Loans and interest thereon, payment in full of all Letter of Credit
reimbursement obligations and interest thereon, satisfaction of all of the
Borrower's other obligations hereunder and termination of the Revolving Credit
Commitments, and the expiration and cancellation of all Letters of Credit issued
hereunder, the Borrower shall comply, or cause compliance, at all times with the
affirmative covenants set forth in Sections 6.01 through and including Section
6.14.
6.01. Preservation of Existence, Etc.
(a) The Borrower shall maintain its corporate
existence and its license or qualification and its good standing in the state of
its incorporation and in each other jurisdiction in which its ownership or lease
of property or the nature of its businesses makes such license or qualification
necessary (except for such other jurisdictions in which such failure to be so
licensed or qualified individually and in the aggregate would not result in a
Material Adverse Change).
(b) Each Subsidiary of the Borrower shall
maintain its corporate existence and its license or qualification and its good
standing in the state of its incorporation and in each other jurisdiction in
which its ownership or lease of property or the nature of its businesses makes
such license or qualification necessary (except for such other jurisdictions in
which such failure to be so licensed or qualified individually and in the
aggregate would not result in a Material Adverse Change).
6.02. Accounting System; Reporting Requirements. The
Borrower will maintain, and will cause its Subsidiaries to maintain, a system of
accounting established and administered in accordance with GAAP, and will and
will cause its Subsidiaries to set aside on its books all such proper reserves
as shall be required by GAAP. Further, the Borrower will:
(i) deliver to the Agent within forty-five (45)
days after the end of each of the first three (3) Fiscal Quarters in each Fiscal
Year of the Borrower, (A) consolidated balance sheet as at the end of such
period for the Borrower and its Subsidiaries, (B) consolidated statements of
income for such period for the Borrower and its Subsidiaries and, in the case of
the second and third quarterly periods, for the period from the beginning of the
current Fiscal Year to the end of such quarterly period, and (C) consolidated
statements of cash
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flow for such period for the Borrower and its Subsidiaries and, in the case of
the second and third quarterly periods, for the period from the beginning of the
current Fiscal Year to the end of such quarterly period; and each such statement
shall set forth, in comparative form, corresponding figures for the
corresponding period in the immediately preceding Fiscal Year; and all such
statements shall be prepared in reasonable detail and certified, subject to
changes resulting from year-end adjustments, by the chief financial officer or
treasurer of the Borrower;
(ii) deliver to the Agent within 90 days after
the end of each Fiscal Year of the Borrower, (A) consolidated balance sheets as
at the end of such year for the Borrower and its Subsidiaries, (B) consolidated
statements of income for such year for the Borrower and its Subsidiaries, (C)
consolidated statements of cash flow for such year for the Borrower and its
Subsidiaries, and (D) consolidated statements of shareholders equity for such
year for the Borrower and its Subsidiaries; and each such statement shall set
forth, in comparative form, corresponding figures for the immediately preceding
Fiscal Year; and all such financial statements shall present fairly in all
material respects the financial position of the Borrower and its consolidated
Subsidiaries, as at the dates indicated and the results of its operations and
its cash flow for the periods indicated, in conformity with GAAP; and the
Borrower shall cause each of the consolidated financial statements described in
clauses (A) through (D) of the Section 6.02(ii) to be certified without
limitation as to scope or material qualification by Price Waterhouse or other
independent certified public accountants acceptable to the Required Lenders;
(iii) deliver to the Agent, together with each
delivery of financial statements pursuant to items (i) and (ii) above, a
Compliance Certificate of the Borrower substantially in the form of Exhibit "F"
hereto, properly completed and signed by the chief financial officer or
treasurer of the Borrower, (A) stating (1) that such officer has reviewed the
terms of the Loan Documents and has made, or caused to be made under his
supervision, a review of the transactions and condition of the Borrower and its
Subsidiaries during the accounting period covered by such financial statements
and that such review has not disclosed the existence during such accounting
period, and (2) that the Borrower does not have knowledge of the existence, as
at the date of such Compliance Certificate, of any condition or event which
constitutes an Event of Default or a Default, or, if any such condition or event
existed or exists, specifying the nature and period of existence thereof and
what action the Borrower has taken or is taking or proposes to take with respect
thereto, and (B) demonstrating in reasonable detail compliance as at the end of
such accounting period with the restrictions contained in Sections 7.12 and 7.13
hereof;
(iv) Within ten (10) Business Days following the
end of each calendar month, a completed, executed Borrowing Base Certificate
substantially in the form of Exhibit "B" for the calendar month just ended,
executed by an Authorized Officer and containing such additional information as
may be requested by the Agent from time to time;
(v) promptly give written notice to the Agent of
the happening of any event (which is known to the Borrower) which constitutes an
Event of Default or a Default hereunder, but in no event shall any such notice
be given later than five (5) Business Days after the Borrower knows or should
have known of such event;
(vi) promptly give written notice to the Agent of
any pending or, to the knowledge of the Borrower, overtly threatened claim in
writing, litigation or threat of litigation which arises between the Borrower,
or any of its Subsidiaries, and any other party or parties
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(including, without limitation, any Official Body) which claim, litigation or
threat of litigation, individually or in the aggregate, is reasonably likely to
cause a Material Adverse Change, any such notice to be given not later than five
(5) Business Days after any of the Borrower becomes aware of the occurrence of
any such claim, litigation or threat of litigation;
(vii) promptly deliver to the Agent, but in no
event later than ten (10) days after the Borrower, or any of its Subsidiaries,
receives, copies of (A) all reports, notices and proxy statements sent by the
Borrower to its shareholders, and (B) all regular and periodic reports and
definitive proxy materials (including but not limited to Forms 10-K, 10-Q and
8-K) filed by the Borrower with any securities exchange or the Federal
Securities and Exchange Commission; and
(viii) such other reports and information as the
Agent or the Required Lenders may from time to time reasonably request.
6.03. Notices Regarding Plans and Benefit Arrangements.
(a) Promptly upon becoming aware of the
occurrence thereof, notice (including the nature of the event and, when known,
any action taken or threatened by the Internal Revenue Service or the PBGC with
respect thereto) shall be given to the Agent by the Borrower of:
(i) any Reportable Event with respect to
the Borrower or any member of the ERISA Group,
(ii) any Prohibited Transaction which
could subject the Borrower or any member of the ERISA Group to a civil penalty
assessed pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of
the Internal Revenue Code in connection with any Plan, Benefit Arrangement or
any trust created thereunder, if such tax and/or penalty is reasonably likely to
result in a Material Adverse Change,
(iii) any assertion of material withdrawal
liability with respect to any Multiemployer Plan,
(iv) any partial or complete withdrawal
from a Multiemployer Plan by the Borrower or any member of the ERISA Group under
Title IV of ERISA (or assertion thereof), where such withdrawal is likely to
result in material withdrawal liability,
(v) any cessation of operations (by the
Borrower of any member or the ERISA Group) at a facility in the circumstances
described in Section 4062(e) of ERISA,
(vi) withdrawal by the Borrower or any
member of the ERISA Group from a Multiple Employer Plan,
(vii) a failure by the Borrower or any
member of the ERISA Group to make a payment to a Plan required to avoid
imposition of a lien under Section 302(f) of ERISA,
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(viii) the adoption of an amendment to a
Plan requiring the provision of security to such Plan pursuant to Section 307 of
ERISA, or
(ix) any change in the actuarial
assumptions or funding methods used for any Plan, where the effect of such
change is to materially increase or materially reduce the unfunded benefit
liability or obligation to make periodic contributions.
(b) Promptly after receipt thereof, copies of
(i) all notices received by the Borrower or any member of the ERISA Group of the
PBGC's intent to terminate any Plan administered or maintained by the Borrower
or any member of the ERISA Group, or to have a trustee appointed to administer
any such Plan; and (ii) at the request of the Agent or any Lender each annual
report (IRS Form 5500 series) and all accompanying schedules, the most recent
actuarial reports, the most recent financial information concerning the
financial status of each Plan administered or maintained by the Borrower or any
member of the ERISA Group, and schedules showing the amounts contributed to each
such Plan by or on behalf of the Borrower or any member of the ERISA Group in
which any of their respective personnel participate or from which such personnel
may derive a benefit, and each Schedule B (Actuarial Information) to the annual
report filed by the Borrower or any member of the ERISA Group with the Internal
Revenue Service with respect to each such Plan shall be given to the Agent by
the Borrower.
(c) Promptly upon the filing thereof, copies of
any PBGC Form 200, 500, 600 or 601, or any successor form, filed with the PBGC
in connection with the termination of any Plan.
6.04. Payment of Liabilities, Including Taxes, etc. The
Borrower shall duly pay and discharge, and shall cause its Subsidiaries to pay
and discharge timely (subject, where applicable, to specified grace periods and,
in the case of trade payables, to normal payment practices), all liabilities
which singularly are in excess of $100,000 or which in the aggregate exceed
$500,000 to which they are subject or which are asserted against them, promptly
as and when the same shall become due and payable, including all taxes,
assessments and governmental charges upon them or any of their properties,
assets, income or profits, prior to the date on which penalties attach thereto;
provided, however, the Borrower may choose not to pay any such liabilities,
including taxes, assessments or charges, if the same are being contested in good
faith and for which such reserves (including reserves for any additional amounts
which would be payable as a result of the failure to discharge timely any such
liabilities) or other appropriate provisions, if any, as shall be required by
GAAP shall have been made.
6.05. Maintenance of Insurance. The Borrower shall insure,
and shall cause its Subsidiaries to insure, their respective properties and
assets against loss or damage in such amounts as similar properties and assets
are insured by prudent companies in similar circumstances carrying on similar
businesses, and with reputable and financially sound insurers, including
self-insurance to the extent customary. The Borrower will furnish to the Agent
on the Closing Date and thereafter simultaneously with the delivery of the
annual financial information delivered pursuant to Section 6.02(ii) a
certificate of the Borrower executed by an Authorized Officer of the Borrower
certifying that such insurance is in force, is adequate in nature and amount and
complies with the Borrower's obligations under this Section 6.05.
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6.06. Maintenance of Properties and Leases. The Borrower
and its Subsidiaries shall maintain in good repair, working order and condition
(ordinary wear and tear excepted) in accordance with the general practice of
other businesses of similar character and size, all of those properties useful
or necessary to their respective businesses, and from time to time, the Borrower
will make or cause to be made all appropriate repairs, renewals or replacements
thereof.
6.07. Maintenance of Permits and Franchises. The Borrower
and its Subsidiaries shall maintain in full force and effect all franchises,
permits and other authorizations necessary for the ownership and operation of
their respective properties and business if the failure so to maintain the same,
individually or in the aggregate, would constitute a Material Adverse Change.
6.08. Visitation Rights. The Borrower shall permit, and
shall cause its Subsidiaries to permit, any of the officers or authorized
employees or representatives of the Agent or any of the Lenders to visit and
inspect any of the properties of the Borrower, or a Subsidiary of the Borrower,
and to examine and make excerpts from its books and records and discuss its
respective business affairs, finances and accounts with its officers, all in
such detail and at such times and as often as any of the Lenders may reasonably
request, provided that each Lender shall provide the Borrower, or the Subsidiary
of the Borrower, as the case may be, and the Agent with reasonable notice prior
to any visit or inspection and that only the Agent and its authorized employees
or representatives are permitted to conduct audits.
6.09. Keeping of Records and Books of Account. The
Borrower, and its Subsidiaries, shall maintain and keep proper books of record
and account which enable the Borrower to issue financial statements in
accordance with GAAP and as otherwise required by applicable Laws of any
Official Body having jurisdiction over the Borrower and its Subsidiaries, and in
which full, true and correct entries shall be made in all material respects of
all their respective dealings and business and financial affairs.
6.10. Plans and Benefit Arrangements. The Borrower shall,
and shall cause each member of the ERISA Group to, comply with ERISA, the
Internal Revenue Code and other applicable Laws applicable to Plans and Benefit
Arrangements except where such failure, alone or in conjunction with any other
failure, would not result in a Material Adverse Change. Without limiting the
generality of the foregoing, the Borrower shall cause all of its Plans and all
Plans maintained by any member of the ERISA Group to be funded in accordance
with the minimum funding requirements of ERISA and shall make, and cause each
member of the ERISA Group to make, in a timely manner, all contributions due to
Plans, Benefit Arrangements and Multiemployer Plans.
6.11. Compliance with Laws. The Borrower and its
Subsidiaries shall comply with all applicable Laws (other than Environmental
Laws) in all respects, provided that they shall not be deemed to be a violation
of this Section 6.11 if any failure to comply with any Law would not result in
fines, penalties, other similar liabilities or injunctive relief which in the
aggregate would constitute a Material Adverse Change.
6.12. Use of Proceeds. The Borrower will use the proceeds
of the Loans only for lawful purposes in accordance with Section 2.16 hereof as
applicable and such uses shall not contravene any applicable Law or any other
provision hereof. The Borrower will permit the use of the Letters of Credit only
for lawful purposes in accordance with Section 2.17 hereof as
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applicable, and such uses shall not contravene any applicable Law or any other
provision hereof. The Borrower and its Subsidiaries shall not use any portion of
the proceeds of the Loans, directly or indirectly, to purchase during the
underwriting period, or for thirty (30) days thereafter, Ineligible Securities
being underwritten by a Section 20 Subsidiary.
6.13. Environmental Laws.
(i) The Borrower and its Subsidiaries shall
comply in all material respects, subject to the disclosure set forth in Schedule
4.20, with all Environmental Laws and shall obtain and comply in all material
respects with and maintain any and all licenses, approvals, registrations or
permits required by Environmental Laws;
(ii) The Borrower and its Subsidiaries shall
conduct and complete in all material respects all investigations, studies,
sampling and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Official Bodies respecting Environmental Laws,
except to the extent that the same are being contested in good faith by
appropriate and lawful proceedings diligently conducted and for which such
reserves or other appropriate provisions, if any, required by GAAP shall have
been made; and
(iii) The Borrower shall defend, indemnify and
hold harmless the Agent and the Lenders, and their respective employees, agents,
officers and directors, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of or noncompliance with any Environmental Laws
applicable to the real property owned or operated by the Borrower or any of its
Subsidiaries, or any orders, requirements or demands of any Official Bodies
related thereto, including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees, court costs and litigation
expenses, except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification therefor.
6.14. Senior Debt Status. The obligations of the Borrower
under this Agreement and the Notes will rank at least pari passu in priority of
payment with all other Indebtedness of the Borrower except Indebtedness of the
Borrower to the extent secured by Permitted Liens. The obligations of a
Subsidiary Guarantor under the Subsidiary Guaranty, executed by it will rank at
least pari passu in priority of payment with all other Indebtedness of such
Subsidiary Guarantor except Indebtedness of such Subsidiary Guarantor to the
extent secured by Permitted Liens.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that, until payment in full
of the Loans and interest thereon, payment in full of all Letter of Credit
reimbursement obligations and interest thereon, satisfaction of all of the
Borrower's other obligations hereunder and termination of the Revolving Credit
Commitments, and the expiration and cancellation of all Letters of Credit issued
hereunder, the Borrower shall comply, or cause the compliance, with the negative
covenants set forth in this Article VII.
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7.01. Indebtedness. The Borrower and its Subsidiaries shall
not on a consolidated basis at any time, create, incur, assume or suffer to
exist any Indebtedness (including Indebtedness secured by Permitted Liens),
except:
(i) Indebtedness under the Loan Documents;
(ii) Existing Indebtedness as set forth on
Schedule 7.01 hereto (including any extensions or renewals thereof provided
there is no increase in the amount thereof or other significant change in the
terms thereof);
(iii) Indebtedness of a Subsidiary of the Borrower
to the Borrower or to another Subsidiary of the Borrower or the Indebtedness of
the Borrower to a Subsidiary of the Borrower;
(iv) Indebtedness with respect to foreign
exchange hedging transactions entered into in the ordinary course of business to
manage foreign currency risk for the Borrower and/or one or more of its
Subsidiaries;
(v) Indebtedness incurred pursuant to Interest
Hedge Agreements; and
(vi) Other Indebtedness not covered by items (i)
through (v) above, provided that the aggregate amount of such Indebtedness
permitted by this item (vi) shall not exceed $50,000,000 at any one time
outstanding.
7.02. Liens. The Borrower and its Subsidiaries shall not at
any time create, incur, assume or suffer to exist any Lien on any of their
respective property or assets, tangible or intangible, now owned or hereafter
acquired, or agree or become liable to do so, except Permitted Liens.
7.03. Loans, Acquisitions and Investments. The Borrower and
its Subsidiaries shall not at any time make any loan or advance to, or purchase
or otherwise acquire any stock, bonds, notes or securities of, or any
partnership interest (whether general or limited) or other equity interest in,
or assets of, or any other investment or interest in, or make any capital
contribution to, any other Person, or agree to or become liable to do any of the
foregoing, except for:
(i) trade credit extended on usual and customary
terms in the ordinary course of business;
(ii) fixed assets, equipment or Inventory
acquired in the ordinary course of business;
(iii) loans and advances to employees to meet
expenses incurred by such employees in the ordinary course of business,
including without limitation relocation expenses;
(iv) Cash Equivalents;
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(v) investments, capital contributions and
advances by the Borrower in existence as of the date hereof, which investments,
capital contributions and advances are set forth on Schedule 7.03 hereof;
(vi) investments and capital contributions by the
Borrower in, and loans and advances by Borrower to, a third Person so long as
after giving effect to each such investment or capital contribution the Borrower
shall not have caused a violation of the Loan Documents;
(vii) loans, advances and capital contributions by
a Subsidiary of the Borrower to the Borrower or any of the Borrower's other
Subsidiaries or loans, advances and capital contributions by the Borrower to any
of its Subsidiaries; and
(viii) the Borrower or any Subsidiary may acquire
the assets or voting securities of any other Person provided that (A) at the
time of such acquisition no Default or Event of Default shall have occurred and
be continuing or be caused by such acquisition, (B) the acquired Person, if any,
shall become a Subsidiary Guarantor simultaneously with such acquisition and
shall execute all Loan Documents required of a Subsidiary Guarantor, (C) the
board of directors or other equivalent governing body of such acquired Person
shall have approved such acquisition and, if the Borrower shall use any portion
of the Loans to fund such acquisition, the Borrower also shall have delivered to
the Lenders written evidence of the approval of the board of directors (or
equivalent governing body) of such Person for such acquisition, and (D) the
Borrower shall have provided the Agent with a certificate stating that (i) such
acquisition will not violate any covenants of this Agreement and (ii) after
giving effect to such acquisition, the leverage ratio set forth in item (iii) of
Section 7.12 hereof shall not exceed 2.00 to 1.00; provided that this
requirement shall not be deemed to amend item (iii) of Section 7.12.
7.04. Liquidations, Mergers and Consolidations. The
Borrower shall not, and shall not permit any Subsidiary of Borrower to,
dissolve, liquidate or wind-up its affairs, or become a party to any merger,
consolidation or other business combination, whether accounted for under GAAP as
a purchase or a pooling of interests and regardless of whether the value of the
consideration paid or received is comprised of cash, common or preferred stock
or other equity interests, or other assets, or sell, lease, transfer, or
otherwise dispose of all or substantially all of its assets, provided that:
(i) any Subsidiary of Borrower may consolidate
or merge into the Borrower or another Subsidiary of the Borrower;
(ii) any Subsidiary of the Borrower may sell,
lease, transfer or otherwise dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary
of the Borrower; and
(iii) the Borrower or any Subsidiary may
consolidate or merge with any Person, provided that (A) such Person must be
engaged in businesses in the non-ferrous, corrosion resistant engineered
products segment, (B) if the Borrower is a party to such merger or
consolidation, the Borrower is the surviving Person, (C) at the time of the
consolidation or merger no Default or Event of Default shall have occurred and
be continuing or be caused by such consolidation or merger, (D) the surviving
Person, if not the Borrower, shall become a Subsidiary Guarantor, (E) the
consolidation or merger shall not be contested by such Person or
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the holders of its equity securities and shall be approved by such Person's
board of directors or other governing body and, if the Borrower shall use any
portion of the Loans to fund such consolidation or merger, the Borrower also
shall have delivered to the Lenders written evidence of the approval of the
board of directors (or equivalent governing body) of such Person for such
consolidation or merger, and (F) the Borrower shall have provided the Agent with
a certificate stating that (i) such merger or consolidation will not violate any
covenants of this Agreement and (ii) after giving effect to such merger or
consolidation, the leverage ratio set forth in item (iii) of Section 7.12 hereof
shall not exceed 2.00 to 1.00; provided that this requirement shall not be
deemed to amend item (iii) of Section 7.12.
7.05. Dispositions of Assets or Subsidiaries. Excluding the
payment of cash as consideration for assets purchased by, or services rendered
to, the Borrower or any Subsidiary, neither the Borrower nor any of its
Subsidiaries shall sell, convey, assign, lease, or otherwise transfer or dispose
of, voluntarily or involuntarily, any of its properties or assets, tangible or
intangible (including but not limited to sale, assignment, discount or other
disposition of Receivables, contract rights, chattel paper, equipment or general
intangibles with or without recourse or of capital stock, shares or beneficial
interests or partnership interests in Subsidiaries), except:
(i) any sale, transfer or disposition of
surplus, obsolete or worn out assets of the Borrower or a Subsidiary;
(ii) any sale, transfer or lease of Inventory by
the Borrower or any Subsidiary of the Borrower in the ordinary course of
business;
(iii) any sale, transfer or lease of assets by any
Subsidiary of the Borrower to the Borrower or any other Subsidiary of the
Borrower or by the Borrower to any Subsidiary of the Borrower; or
(iv) any sale, transfer or lease of assets, other
than those specifically excepted pursuant to clauses (i) through (iii) above,
which in any one sale, transfer or lease of assets, or in any number of sales,
transfers or leases of assets occurring in any consecutive twelve month period,
involves the sale, transfer or lease of assets having a book value of not more
than $25,000,000 (measured with respect to a series of sales, transfers or
leases of assets on the day of the first sale).
7.06. Affiliate Transactions. Except as set forth on
Schedule 4.02 and as set forth on Schedule 7.06, neither the Borrower nor any
Subsidiary of the Borrower shall enter into or carry out any material
transaction (including, without limitation, purchasing property or services or
selling property or services) with an Affiliate unless such transaction is not
otherwise prohibited by this Agreement or the other Loan Documents, is entered
into in the ordinary course of business upon fair and reasonable arm's-length
terms and conditions which are fully disclosed to the Agent and is in accordance
with all applicable Law.
7.07. Subsidiaries, Partnerships and Joint Ventures. Except
as permitted by Section 7.03, (i) neither the Borrower nor any Subsidiary of the
Borrower shall own or create any Subsidiaries other than those listed in
Schedule 4.03 or 7.03; and (ii) neither the Borrower nor any Subsidiary of the
Borrower shall become or agree to become a general partner in any general or
limited partnership or a joint venturer in any joint venture, without the
consent of the Required Lenders, such consent not to be unreasonably withheld.
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7.08. Continuation of or Change in Business. Neither the
Borrower nor any Subsidiary of the Borrower shall engage in any business other
than the business activities of such Persons substantially as conducted and
operated by the Borrower and its Subsidiaries on the Closing Date, and the
Borrower shall not permit any material change in such business.
7.09. Plans and Benefit Arrangements. The Borrower shall
not, and shall not permit any member of the ERISA Group to:
(i) fail to satisfy the minimum funding
requirements of ERISA and the Internal Revenue Code with respect to any Plan;
(ii) request a minimum funding waiver from the
Internal Revenue Service with respect to any Plan;
(iii) engage in a Prohibited Transaction with any
Plan, Benefit Arrangement or Multiemployer Plan which, alone or in conjunction
with any other circumstances or set of circumstances resulting in liability
under ERISA, would constitute a Material Adverse Change;
(iv) fail to make when due any contribution to
any Multiemployer Plan that the Borrower or any member of the ERISA Group may be
required to make under any agreement relating to such Multiemployer Plan, or any
Law pertaining thereto;
(v) withdraw (completely or partially) from any
Multiemployer Plan or be deemed under Section 4062(e) of ERISA to withdraw from
any Multiple Employer Plan, where any such withdrawal is likely to result in a
material liability of the Borrower or any member of the ERISA Group;
(vi) terminate, or institute proceedings to
terminate, any Plan, where such termination is likely to result in a material
liability to the Borrower or any member of the ERISA Group;
(vii) make any amendment to any Plan with respect
to which security is required under Section 307 of ERISA; or
(viii) fail to give any and all notices and make
all disclosures and governmental filings required under ERISA or the Internal
Revenue Code, where such failure is likely to result in a Material Adverse
Change.
7.10. Fiscal Year. Neither the Borrower nor any Subsidiary
of the Borrower shall change its Fiscal Year from a period beginning January 1
and ending on the immediately succeeding December 31.
7.11. Changes in Organizational Documents. The Borrower
shall not, and shall not permit any Subsidiary Guarantor of Borrower to, amend
in any respect its certificate or articles of incorporation without providing at
least thirty (30) calendar days' prior written notice to the Agent and the
Lenders and, in the event such change would be materially adverse to the Lenders
as determined by the Agent in its sole but reasonable discretion, obtaining the
prior written consent of the Required Lenders.
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7.12. Financial Covenants.
(i) Minimum Consolidated Tangible Net Worth. The
Borrower will not at any time permit its Consolidated Tangible Net Worth to be
less than an amount equal to the sum of (i) 85% of the Consolidated Tangible
Net Worth as of September 30, 1998, plus (ii) 50% of the positive net income for
each Fiscal Quarter ending after September 30, 1998 of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP
consistently applied, plus (iii) an amount equal to 75% of all increases to
equity from the issuance by the Borrower after September 30, 1998 of further
equity securities or other equity capital investments.
(ii) Interest Coverage. As of the last day of
each Fiscal Quarter, the Borrower shall not permit its ratio, measured on a
rolling four Fiscal Quarter basis, of Consolidated EBIT to Consolidated Interest
Expense to be less than 2.5 to 1.0.
(iii) Leverage Ratio. As of the last day of each
Fiscal Quarter, the Borrower shall not permit its Consolidated Total
Indebtedness to Consolidated EBITDA Ratio to exceed 2.5 to 1.0.
7.13 Operating Leases. The Borrower and its Subsidiaries
may not incur operating leases which in the aggregate require rental payments in
a Fiscal Year to exceed $5,000,000.
7.14. Limitation on Negative Pledge Clauses. Neither the
Borrower nor any of its Subsidiaries shall enter into any agreement with any
Person (other than the Lenders pursuant hereto) which prohibits or limits the
ability of the Borrower or any of its Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired.
ARTICLE VIII
DEFAULT
8.01. Events of Default. An "Event of Default" shall mean
the occurrence or existence of any one or more of the following events or
conditions (whatever the reason therefor and whether voluntary, involuntary or
effected by operation of Law):
(a) (i) The Borrower shall fail to pay any
principal of any Loan (including scheduled installments, mandatory prepayments
or the payment due at maturity, whether by acceleration or otherwise) when due,
or (ii) the Borrower shall fail to pay any Unreimbursed L/C Draw when due, or
(iii) the Borrower shall fail to pay any interest on any Loan, any Unreimbursed
L/C Draw, any Fee, or any other amount owing hereunder or under any other Loan
Documents after such interest, Fee or other amount becomes due in accordance
with the terms hereof or thereof and such failure shall continue for a period of
five (5) days;
(b) Any representation or warranty made at any
time by the Borrower herein or in any other Loan Document or by a Subsidiary
Guarantor in any Loan Document executed by such Subsidiary Guarantor, or in any
certificate, other instrument or statement
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furnished pursuant to the provisions hereof or thereof, shall prove to have been
false or misleading in any material respect as of the time it was made or
furnished;
(c) The Borrower shall default in the observance
or performance of any covenant contained in Sections 6.13 or 6.14 or Article VII
hereof;
(d) The Borrower shall default in the observance
or performance of any other covenant, condition or provision hereof, or of any
other Loan Document and, if remediable, such default shall continue unremedied
for a period of thirty (30) days after any officer of the Borrower becomes aware
of the occurrence thereof; or a Subsidiary Guarantor shall default in the
observance or performance of any other covenant, condition or provision
contained in a Subsidiary Guaranty or any other Loan Document executed by such
Subsidiary Guarantor, and such default shall continue unremedied for a period of
thirty (30) days after any officer of such Subsidiary Guarantor becomes aware of
the occurrence thereof;
(e) A default or event of default shall occur at
any time under the terms of any agreements involving Indebtedness under which
the Borrower or any Subsidiary of the Borrower may be obligated as borrower,
guarantor or otherwise in excess of One Million Dollars ($1,000,000 ) in the
aggregate, and such breach, default or event of default consists of the failure
to pay (beyond any period of grace permitted with respect thereto, whether
waived or not) any Indebtedness when due (whether at stated maturity, by
acceleration or otherwise) or if such breach or default causes the acceleration
of any such Indebtedness or such breach or default permits the acceleration of
any Indebtedness;
(f) Any judgments or orders for the payment of
money in excess of One Million Dollars ($1,000,000 ) in the aggregate shall be
entered against the Borrower or any of its Subsidiaries, by a court having
jurisdiction in the premises which judgments are not satisfied, discharged,
vacated, bonded or stayed pending appeal within a period of thirty (30) days
from the respective date of entry;
(g) Any of the Loan Documents shall cease to be
legal, valid and binding agreements enforceable against the party executing the
same or such party's successors and assigns (as permitted under the Loan
Documents) in accordance with the respective terms thereof (except to the extent
that enforceability of any of the Loan Documents may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforceability of creditors' rights generally or limiting the right of specific
performance) or shall in any way be terminated (except in accordance with terms)
or become or be declared ineffective or inoperative or shall in any way be
challenged or contested or cease to give or provide the respective rights,
titles, interests, remedies, powers or privileges intended to be created thereby
in all material respects;
(h) A notice of lien, levy or assessment in
excess of One Million Dollars ($1,000,000) in the aggregate is filed of record
with respect to all or any part of the assets of the Borrower or a Subsidiary
Guarantor by the United States, or any department, agency or instrumentality
thereof, or by any state, county, municipal or other governmental agency,
including, without limitation, the PBGC, or if any taxes or debts in excess of
One Million Dollars ($1,000,000) owing at any time or times hereafter to any one
of these becomes payable and the same is not paid within thirty (30) days after
the same becomes payable, or if such notice is filed or such payment is not so
made, unless the Borrower or such Subsidiary Guarantor (i) contests such lien,
assessment, tax or debt in good faith by appropriate and lawful
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proceedings diligently conducted but only so long as such proceedings could not
subject the Agent, the Lenders or the L/C Issuer to any criminal penalties, (ii)
establishes such reserves or other appropriate provisions, if any, as shall be
required by GAAP and (iii) pays such Lien, assessment, tax or debt in accordance
with the terms of any final judgments or orders relating thereto within thirty
(30) days after the entry of such judgments or orders;
(i) The Borrower or a Subsidiary Guarantor
ceases to be Solvent or admits in writing its inability to pay debts as they
mature;
(j) Any of the following occurs: (i) any
Reportable Event, which constitutes grounds for the termination of any Plan by
the PBGC or the appointment of a trustee to administer or liquidate any Plan,
shall have occurred and be continuing; (ii) proceedings shall have been
instituted or other action taken to terminate any Plan, or a termination notice
shall have been filed with respect to any Plan; (iii) a trustee shall be
appointed to administer or liquidate any Plan; (iv) the PBGC shall give notice
of its intent to institute proceedings to terminate any Plan or Plans or to
appoint a trustee to administer or liquidate any Plan and, in the case of the
occurrence of (i), (ii), (iii) or (iv) of this Section 8.01(j), the amount of
Borrower's liability or the liability of the other members of the ERISA Group is
likely to exceed five percent (5%) of the Consolidated Tangible Net Worth; (v)
the Borrower or any member of the ERISA Group shall fail to make any
contributions when due to a Plan or a Multiemployer Plan; (vi) the Borrower or
any member of the ERISA Group shall make any amendment to a Plan with respect to
which security is required under Section 307 of ERISA; (vii) the Borrower or any
member of the ERISA Group shall withdraw completely or partially from a
Multiemployer Plan; (viii) the Borrower or any member of the ERISA Group shall
withdraw (or shall be treated under Section 4062(e) of ERISA as having
withdrawn) from a Multiple Employer Plan; or (ix) any applicable Law is adopted,
changed or interpreted by any Official Body with respect to or otherwise
affecting one or more Plans, Multiemployer Plans or Benefit Arrangements and,
with respect to any of the events specified in (v), (vi), (vii), (viii) or (ix),
any such occurrence would be reasonably likely to materially and adversely
affect the total enterprise represented by the Borrower and the other members of
the ERISA Group;
(k) The Borrower or a Subsidiary Guarantor is
enjoined, restrained or in any way prevented by court order from conducting all
or any material part of its business and such injunction, restraint or other
preventive order is not stayed or dismissed within thirty (30) days after the
entry thereof;
(1) (i) any person or group of persons
(within the meaning of Sections 13(g) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended) other than USX Corporation shall have acquired beneficial
ownership of (within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under said Act) 35% or more of the voting capital stock of
the Borrower;
(ii) within a period of twelve (12)
consecutive months, individuals who were directors of the Borrower on the first
day of such period and/or individuals who become directors of the Borrower
pursuant to a nomination or election that was recommended or approved by the
individuals who were directors on the first day of such period shall cease to
constitute a majority of the board of directors of the Borrower; or
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(iii) the Borrower or a Subsidiary shall
own less than 80% of the voting capital stock or voting partnership or other
equity interest of any Subsidiary Guarantor;
(m) A proceeding shall have been instituted in a
court having jurisdiction in the premises seeking a decree or order for relief
in respect of the Borrower, or a Subsidiary Guarantor, in an involuntary case
under any applicable bankruptcy, insolvency, reorganization or other similar law
now or hereafter in effect, or a receiver, liquidator, assignee, custodian,
trustee, sequestrator, conservator (or similar official) of the Borrower, or a
Subsidiary Guarantor, for any substantial part of such Person's property, or for
the winding-up or liquidation of such Person's affairs, and such proceeding
shall remain undismissed or unstayed and in effect for a period of thirty (30)
consecutive days or such court shall enter a decree or order granting any of the
relief sought in such proceeding;
(n) The Borrower, or a Subsidiary Guarantor,
shall commence a voluntary case under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, shall consent to
the entry of an order for relief in an involuntary case under any such law, or
shall consent to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator (or other similar
official) of itself or for any substantial part of property or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay
debts as they become due, or shall take any action in furtherance of any of the
foregoing;
(o) any of the Loan Documents shall cease to be
in full force and effect or shall be declared to be null and void by a court of
competent jurisdiction; or
(p) any garnishment proceeding concerning a sum
in excess of One Million Dollars ($1,000,000) shall be instituted by attachment,
levy or otherwise, against any deposit Account maintained by the Borrower or a
Subsidiary Guarantor with any Lender.
8.02. Consequences of Event of Default.
(a) If an Event of Default specified in any of
items (a) through (1) or item (o) or (p) of Section 8.01 hereof shall occur and
be continuing, the Lenders shall be under no further obligation to make Loans
hereunder, the L/C Issuer shall be under no further obligation to issue or amend
Letters of Credit hereunder and the Agent may, and upon the request of the
Required Lenders shall, by written notice to the Borrower, terminate the
Revolving Credit Commitment and declare the unpaid principal amount of the Notes
then outstanding and all interest accrued thereon, any unpaid fees and all other
Indebtedness of the Borrower to the Lenders, the Agent and the L/C Issuer
hereunder and under the other Loan Documents to be forthwith due and payable,
and the same shall thereupon become and be immediately due and payable to the
Agent for the benefit of each Lender, the Agent and the L/C Issuer without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived; and
(b) If any Event of Default specified in item
(m) or (n) of Section 8.01 hereof shall occur, the Lenders shall be under no
further obligations to make Loans hereunder, the L/C Issuer shall be under no
further obligation to issue or amend Letters of Credit hereunder, the Revolving
Credit Commitment shall be terminated and the unpaid principal amount of the
Notes then outstanding and all interest accrued thereon, any unpaid fees and all
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other Indebtedness of the Borrower to the Lenders, the Agent and the L/C Issuer
hereunder and under the other Loan Documents shall be immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived; further, during the thirty (30) day period
referred to in item (m) the Lenders shall be under no further obligation to make
Loans and the L/C Issuer shall be under no further obligation to issue or amend
Letters of Credit hereunder; and
(c) If an Event of Default shall occur and be
continuing, any Lender, the Agent or the L/C Issuer to whom any obligation is
owed by the Borrower hereunder or under any other Loan Document, of such Lender,
Agent or L/C Issuer and any branch, subsidiary or affiliate of such Lender,
Agent or L/C Issuer anywhere in the world shall each have the right, in addition
to all other rights and remedies available to it, without notice to the
Borrower, to set-off against and apply to the then unpaid balance of all the
Loans and all other obligations of the Borrower hereunder or under any other
Loan Document, any debt owing to, and any other funds held in any manner for the
account of, the Borrower by such Lender, the Agent or the L/C Issuer or by such
branch, subsidiary or affiliate, including, without limitation, all funds in all
deposit accounts (whether time or demand, general or special, provisionally
credited or finally credited, or otherwise) now or hereafter maintained by the
Borrower for its own account (but not including funds held in custodian or trust
accounts) with such Lender, the Agent or the L/C Issuer or such branch,
subsidiary or affiliate. Such right shall exist in each case whether or not any
Lender, the Agent or the L/C Issuer shall have made any demand under this
Agreement or any other Loan Document, whether or not such debt owing to or funds
held for the account of the Borrower is or are matured or unmatured and
regardless of the existence or adequacy of any other security, right or remedy
available to any Lender, the Agent or the L/C Issuer; and
(d) In addition to all of the rights and
remedies contained in this Agreement or in any of the other Loan Documents, the
Agent, the L/C Issuer and the Lenders shall have all of the rights and remedies
of a creditor under applicable Law, all of which rights and remedies shall be
cumulative and non-exclusive, to the extent permitted by Law. The Agent may, and
upon the request of the Required Lenders shall, exercise all post-default rights
granted to the Agent, the L/C Issuer and the Lenders under the Loan Documents or
applicable Law; and
(e) Upon the occurrence of any Event of Default
described in the foregoing Sections 8.01(m) or (n) or upon the declaration by
the Required Lenders of any other Event of Default and the termination of the
Revolving Credit Commitments, the obligation of the L/C Issuer to issue or amend
Letters of Credit shall terminate, the L/C Issuer or the Agent may provide
written demand to any beneficiary of a Letter of Credit to present a draft
against such Letter of Credit, and an amount equal to the maximum amount which
may at any time be drawn under the Letters of Credit then outstanding (whether
or not any beneficiary of such Letters of Credit shall have presented, or shall
be entitled at such time to present, the drafts or other documents required to
draw under the Letters of Credit) shall automatically become immediately due and
payable, without presentment, demand, protest or other requirements of any kind,
all of which are hereby expressly waived by the Borrower; provided that the
foregoing shall not affect in any way the obligations of the Lenders to purchase
from the L/C Issuer participations in the unreimbursed amount of any drawings
under the Letters of Credit as provided in Section 2.17(c). So long as the
Letters of Credit shall remain outstanding, any amounts declared due pursuant to
this Section 8.02(e) with respect to the outstanding Letters of Credit when
received by the Agent shall be deposited and held by the Agent in an interest
bearing account denominated in the name of the Agent for the benefit of the
Agent, the Lenders
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and the L/C Issuer over which the Agent shall have sole dominion and control of
withdrawals (the "CASH COLLATERAL ACCOUNT") as cash collateral for the
obligation of the Borrower to reimburse the L/C Issuer in the event of any
drawing under the Letters of Credit and upon any drawing under such Letters of
Credit in respect of which the Agent has deposited in the Cash Collateral
Account any amounts declared due pursuant to this Section 8.02(e), the Agent
shall apply such amounts held by the Agent to reimburse the L/C Issuer for the
amount of such drawing. In the event that any Letter of Credit in respect of
which the Agent has deposited in the Cash Collateral Account any amounts
described above is cancelled or expires or in the event of any reduction in the
maximum amount available at any time for drawing under the Letters of Credit
outstanding, the Agent shall apply the amount then in the Cash Collateral
Account designated to reimburse the L/C Issuer for any drawings under the
Letters of Credit less the maximum amount available at any time for drawing
under the Letters of Credit outstanding immediately after such cancellation,
expiration or reduction, if any, to the payment in full of the outstanding
Lender Obligations, and second, to the payment of any excess, to the Borrower.
ARTICLE IX
THE AGENTS
9.01. Appointment and Grant of Authority. Each of the
Lenders and the L/C Issuer hereby appoints PNC Bank, National Association, and
PNC Bank, National Association, hereby agrees to act, as the Agent under this
Agreement and the other Loan Documents. Each of the Lenders and the L/C Issuer
hereby appoints each of Mellon Bank, N.A. and Bank One, National Association as
Co-Agent hereunder. The Agent shall have and may exercise such powers under this
Agreement and the other Loan Documents as are specifically delegated to it by
the terms hereof or thereof, together with such other powers as are incidental
thereto. Without limiting the foregoing, the Agent, on behalf of the Lenders and
the L/C Issuer, is authorized to execute all of the Loan Documents (other than
this Agreement) and to accept all of the Loan Documents and all other
agreements, documents or instruments reasonably required to carry out the intent
of the parties to this Agreement.
9.02. Delegation of Duties. The Agent may perform any of
its duties hereunder by or through agents or employees (provided such delegation
does not constitute a relinquishment of duties as the Agent hereunder) and,
subject to Sections 9.07 and 10.03 hereof, shall be entitled to engage and pay
for the advice or services of any attorneys, accountants, or other experts
concerning all matters pertaining to duties hereunder and to rely upon any
advice so obtained.
9.03. Reliance by Agent on Lenders for Funding. Unless the
Agent shall have received notice from a Lender prior to any Borrowing Date that
such Lender will not make available to the Agent such Lender's portion of net
disbursements of Loans, the Agent may assume that such Lender has made such
portion available to the Agent and the Agent may, in reliance upon such
assumption, make Loans to the Borrower. If and to the extent that such Lender
has not made such portion available to the Agent on or prior to any Borrowing
Date, such Lender and the Borrower severally agree to repay to the Agent
immediately upon demand, in immediately available funds, such unpaid amount,
together with interest thereon for each day from the applicable Borrowing Date
until such amount is repaid to the Agent, at (i) in the case of the Borrower, at
the rate of interest then in effect for such Loan and (ii) in the case of such
Lender, at the Federal Funds Effective Rate. If such Lender shall repay to the
Agent such corresponding amount, such amount shall constitute a Loan made by
such Lender for purposes
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of this Agreement. The failure by any Lender to pay its portion of a Revolving
Credit Loan made by the Agent shall not relieve any other Lender of the
obligation to pay its portion of net disbursements of Revolving Credit Loans on
any Borrowing Date, but no Lender shall be responsible for the failure of any
other Lender to make its net share of Revolving Credit Loans to be made by such
other Lender on such Borrowing Date.
9.04. Non-Reliance on Agents. Each Lender and the L/C
Issuer agree that (i) it has, independently and without reliance on the Agent or
the Co-Agents, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and its Subsidiaries
and decision to enter into this Agreement and (ii) that it will, independently
and without reliance upon the Agent or the Co-Agents, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under this
Agreement. Except as otherwise provided herein or under any other Loan Document,
neither the Agent nor any Co-Agent shall have any duty to keep the Lenders or
the L/C Issuer informed as to the performance or observance by the Borrower of
this Agreement or any other document referred to or provided for herein or to
inspect the properties or books of the Borrower or any of its Subsidiaries. The
Agent and the Co-Agents, in the absence of gross negligence or willful
misconduct, shall not be liable to any Lender or the L/C Issuer for their
failure to relay or furnish to the Lender any information.
9.05. Responsibility of Agents and Other Matters.
(a) Ministerial Nature of Duties. As between the
Lenders, the L/C Issuer and itself, the Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in the
other Loan Documents, and those duties and responsibilities shall be subject to
the limitations and qualifications set forth in this Article IX. The duties of
the Agent shall be ministerial and administrative in nature. The Co-Agents shall
have no duties as agents hereunder.
(b) Limitation of Liability. As between the
Lenders, the L/C Issuer, the Agent and the Co-Agents, neither the Agent nor
either Co-Agent nor any of their respective directors, officers, employees or
agents shall be liable, in the absence of gross negligence or willful
misconduct, for any action taken or omitted (whether or not such action taken or
omitted is within or without the Agent's responsibilities and duties expressly
set forth in this Agreement) under or in connection with this Agreement or any
other instrument or document in connection herewith. Without limiting the
foregoing, neither the Agent nor either Co-Agent nor any of their representative
directors, officers, employees or its agents, shall be responsible for, or have
any duty to examine (i) the genuineness, execution, validity, effectiveness,
enforceability, value or sufficiency of (A) this Agreement or any of the other
Loan Documents or (B) any other document or instrument furnished pursuant to or
in connection with this Agreement, (ii) the collectability of any amounts owed
by the Borrower to the Agent, the Co-Agents, the Lenders or the L/C Issuer,
(iii) the truthfulness of any recitals or statements or representations or
warranties made to the Agent, the Co-Agents or the Lenders in connection with
this Agreement, (iv) any failure of any party to this Agreement to receive any
communication sent, including any telegram, telex, teletype, telecopy, bank
wire, cable, or telephone message or any writing, application, notice, report,
statement, certificate, resolution, request, order, consent letter or other
instrument or paper or communication entrusted to the mails or to a delivery
service, or (v) the assets or liabilities or financial condition or results of
operations or business or creditworthiness of the Borrower or any of its
Subsidiaries.
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(c) Reliance. The Agent shall be entitled to act, and
shall be fully protected in acting upon, any telegram, telex, teletype,
telecopy, bank wire or cable or any writing, application, notice, report,
statement, certificate, resolution, request, order, consent, letter or other
instrument or paper or communication believed by the Agent in good faith to be
genuine and correct and to have been signed or sent or made by a proper Person.
The Agent may consult counsel and shall be entitled to act, and shall be fully
protected in any action taken in good faith, in accordance with advice given by
counsel. The Agent may employee agents and attorneys-in-fact and shall not be
liable for the default or misconduct of any such agents or attorneys-in-fact
selected by the Agent with reasonable care. The Agent shall not be bound to
ascertain or inquire as to the performance or observance of any of the terms,
provisions or conditions of this Agreement or any of the other Loan Documents on
the part of the Borrower.
9.06. Actions in Discretion of Agent; Instructions from the
Lenders. The Agent agrees, upon the written request of the Required Lenders, to
take or refrain from taking any action of the type specified as being within the
Agent's rights, powers or discretion herein or under any Loan Documents,
provided that the Agent shall not be required to take any action which exposes
the Agent to personal liability or which is contrary to this Agreement or any
other Loan Document or applicable Law. In the absence of a request by the
Required Lenders, the Agent shall have authority, in its sole discretion, to
take or not to take any such action, unless this Agreement specifically requires
the consent of the Required Lenders or all of the Lenders. Any action taken or
failure to act pursuant to such instructions or discretion shall be binding on
the Lenders and the L/C Issuer, subject to Section 9.05(b) hereof. Subject to
the provisions of Section 9.05(b), no Lender shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting hereunder in accordance with the instructions of the Required Lenders.
9.07. Indemnification. To the extent the Borrower does not
reimburse and save harmless the Agent or the Co-Agents according to the terms
hereof for and from all costs, expenses and disbursements in connection
herewith, such costs, expenses and disbursements, shall be borne by the Lenders
ratably in accordance with respective Lender's Ratable Share. Each Lender hereby
agrees on such basis (i) to reimburse the Agent and the Co-Agents for such
Lender's Ratable Share of all such reasonable costs, expenses and disbursements
on request and (ii) to the extent of each such Lender's Ratable Share, to
indemnify and save harmless the Agent and the Co-Agents against and from any and
all losses, obligations, penalties, actions, judgments and suits and other
costs, expenses and disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent and the Co-Agents, other
than as a consequence of gross negligence or willful misconduct on the part of
the Agent and the Co-Agents, arising out of or in connection with this
Agreement, the other Loan Documents or any other agreement, instrument or
document in connection herewith or therewith, or any request of the Required
Lenders, including without limitation the reasonable costs, expenses and
disbursements in connection with defending itself against any claim or liability
related to the exercise or performance of any of its powers or duties under this
Agreement, the other Loan Documents, or any of the other agreements, instruments
or documents delivered in connection herewith or the taking of any action under
or in connection with any of the foregoing.
9.08. Agents' Rights as Lenders. With respect to the
Revolving Credit Commitment of the Agent and the Co-Agents as Lenders hereunder,
any Loans of the Agent or the Co-Agents under this Agreement, the Agent's and
the Co-Agents' Ratable Share of any
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Unreimbursed L/C Draws, the participation as a Lender, and as to PNC Bank, as
the L/C Issuer under this Agreement the other Loan Documents and any other
agreements, instruments and documents delivered pursuant hereto, and the
issuance of any Letter of Credit under the terms hereof, the Agent and the
Co-Agents shall have the same rights and powers, duties and obligations under
this Agreement, the other Loan Documents or any other agreement, instrument or
document as any Lender and may exercise such rights and powers and shall perform
such duties and fulfill such obligations as though it were not the Agent, as the
case may be. The Agent and the Co-Agents may accept deposits from, lend money
to, and generally engage, and continue to engage, in any kind of business with
the Borrower or any of its Subsidiaries.
9.09. Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of an Event of Default unless the
Agent has received written notice from a Lender or the Borrower referring to
this Agreement, describing such Event of Default and stating that such notice is
a "notice of default".
9.10. Payment to Lenders. Except as otherwise set forth in
Section 9.03 hereof, promptly after receipt from the Borrower of any principal
repayment of the Revolving Credit Loans or any Unreimbursed L/C Draw, interest
due on the Revolving Credit Loans or any Unreimbursed L/C Draws, and any Fees
(other than the underwriting fee and the administration fee paid to the Agent
and the L/C Fronting Fee paid to the L/C Issuer) or other amounts due under any
of the Loan Documents, the Agent shall distribute to each Lender that Lender's
Ratable Share of the funds so received except that funds received from the
Borrower or a Subsidiary Guarantor to reimburse the L/C Issuer for drawings on
Letters of Credit (other than a Lender's Ratable Share of such reimbursement
payment to the extent such Lender has complied fully with any funding
obligations under Section 2.17(g) hereof) or to fund any risk participant in the
Letters of Credit or to pay the L/C Fronting Fee shall be paid solely for the
account of L/C Issuer. If the Agent fails to distribute collected funds received
by 2:00 P.M. on any Business Day by 3:00 P.M. of such Business Day or collected
funds received after 2:00 P.M. on any Business Day by 3:00 P.M. the next
Business Day the funds shall bear interest until distributed at the Federal
Funds Effective Rate. The Agent agrees to make its best efforts to provide
telephonic notice to each Lender that it is in receipt of funds from the
Borrower and the day on which it will commence a wire transfer of such Lender's
share of such funds.
9.11. Holders of Notes. The Agent may deem and treat any
payee of any Note as the owner thereof for all purposes hereof unless and until
written notice of the assignment or transfer thereof shall have been filed with
the Agent. Any request, authority or consent of any person who at the time of
making such request or giving such authority or consent is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
9.12. Equalization of Lenders. Each borrowing and each
payment or prepayment by, or for the account of, the Borrower with respect to
principal, interest, Fees, or other amounts due from the Borrower hereunder to
the Lenders with respect to the Revolving Credit Loans, shall (except as
provided in Section 2.10, 2.12, 2.17(b) or 9.03 hereof) be made in proportion to
the Revolving Credit Loans outstanding from each Lender or, if no such Revolving
Credit Loans are then outstanding, in proportion to the Ratable Share of each
Lender. Each payment of Unreimbursed L/C Draws shall be made for the account of
the L/C Issuer. The Lenders agree among themselves that, with respect to all
amounts received by any Lender (in its capacity solely as a Lender) or any such
holder for application on any obligation
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hereunder or under any Note or under any such participation, whether received by
voluntary payment, by realization upon security, by the exercise of the right of
set-off or banker's lien, by counterclaim or by any other non-pro rata source,
equitable adjustment will be made in the manner stated in the following sentence
so that, in effect, all such excess amounts will be shared ratably among the
Lenders and such holders in proportion to their interest in payments under the
Notes, except as otherwise expressly provided herein. The Lenders or any such
holder receiving any such amount shall purchase for cash, from each of the other
Lenders, an interest in such Lender's Revolving Credit Loans in such amount as
shall result in a ratable participation by the Lenders and each such holder in
the aggregate unpaid amount under the Notes, provided that if all or any portion
of such excess amount is thereafter recovered from the Lender or the holder
making such purchase, such purchase shall be rescinded and the purchase price
restored to the extent of such recovery, together with interest or other
amounts, if any, required by Law (including court order) to be paid by the
Lender or the holder making such purchase.
9.13. Successor Agent. The Agent may resign as the Agent
upon sixty (60) days' written notice to the Lenders and the Borrower. If such
notice shall be given, the Lenders shall appoint from among the Lenders a
successor agent for the Lenders, during such 60-day period, which successor
agent shall be reasonably satisfactory to the Borrower, to serve as agent
hereunder and under the several documents, the forms of which are attached
hereto as exhibits, or which are referred to herein. If at the end of such
60-day period the Lenders have not appointed such a successor, the Agent shall
procure a successor reasonably satisfactory to the Lenders and the Borrower, to
serve as agent for the Lenders hereunder and under the several documents, the
forms of which are attached hereto as exhibits, or which are referred to herein.
Any such successor agent shall succeed to the rights, powers and duties of the
Agent. Upon the appointment of such successor agent or upon the expiration of
such 60-day period (or any longer period to which the Agent has agreed), the
former Agent's rights, powers and duties as Agent shall be terminated, without
any other or further act or deed on the part of such former Agent or any of the
parties to this Agreement. After any retiring Agent's resignation hereunder as
the Agent, the provisions of this Article IX shall inure to the benefit of such
retiring Agent as to any actions taken or omitted to be taken by it while it was
the Agent under this Agreement. A Co-Agent may resign upon ten (10) days prior
written notice to the Agent.
9.14. Calculations. In the absence of gross negligence or
willful misconduct, the Agent shall not be liable for any error in computing the
amount payable to any Lender whether in respect of the Revolving Credit Loans,
fees or any other amounts due to the Lenders or the L/C Issuer under this
Agreement. In the event an error in computing any amount payable to any Lender
or the L/C Issuer is made, the Agent, the Borrower and each affected Person
shall, forthwith upon discovery of such error, make such adjustments as shall be
required to correct such error, and any compensation therefor will be calculated
at the Federal Funds Effective Rate.
9.15. Beneficiaries. Except as expressly provided herein,
the provisions of this Article IX are solely for the benefit of the Agent, the
Co-Agents, the Lenders and the L/C Issuer, and the Borrower shall not have any
rights to rely on or enforce any of the provisions hereof. In performing its
functions and duties under this Agreement, the Agent shall act solely as agent
of the Lenders and does not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for the Borrower.
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ARTICLE X
GENERAL PROVISIONS
10.01. Amendments and Waivers. The Required Lenders, or the
Agent with the consent in writing of the Required Lenders, and the Borrower may,
subject to the provisions of this Section 10.01, from time to time enter into
written supplemental agreements to this Agreement and the other Loan Documents
for the purpose of adding or deleting any provisions or otherwise changing,
varying or waiving in any manner the rights of the Lenders, the Agent or the
obligor thereunder or the conditions, provisions or terms thereof or waiving any
Event of Default thereunder or consenting to an action of any of the Borrower or
any of its Subsidiaries, but only to the extent specified in such written
agreements; provided, however, that no such supplemental agreement shall,
without the consent of all the Lenders:
(i) waive an Event of Default by the Borrower in
any payment of principal, interest, Fees or other amounts due hereunder and
under any of the other Loan Documents, or otherwise postpone any schedule
payment date of any of the foregoing;
(ii) reduce the interest rate relating to the
Revolving Credit Loans or change the definition of the terms Base Rate, Prime
Rate, Applicable Euro-Rate Margin, Euro-Rate, Euro-Rate Interest Period,
Euro-Rate Reserve Percentage or Federal Funds Effective Rate so as to decrease
the interest rate relating to the Revolving Credit Loans;
(iii) change the Long-Term Expiration Date or the
Short-Term Expiration Date;
(iv) reduce any Fee;
(v) increase the maximum principal amount of
either Revolving Credit Commitment of any Lender, or increase the maximum Stated
Amount of Letters of Credit which may be issued and outstanding under the terms
hereof;
(vi) change the definition of the term Required
Lenders; or
(vii) amend or waive the provisions of this
Section 10.01.
Any such supplemental agreement shall apply equally to each of
the Lenders and the L/C Issuer and shall be binding upon the Borrower, the
Lenders, the Agent and the Co-Agents, all future holders of the Notes and all
Participants. In the case of any waiver, the Borrower, the Lenders, the L/C
Issuer, the Agent and the Co-Agents shall be restored to former positions and
rights, and any Event of Default waived shall be deemed to be cured and not
continuing, but no such waiver shall extend to any subsequent or other Event of
Default, or impair any right consequent thereon.
10.02. Taxes. The Borrower shall pay any and all stamp,
document, transfer and recording taxes, filing fees and similar impositions
payable or hereafter determined by the Agent, the Co-Agents, the Lenders or the
L/C Issuer to be payable in connection with this Agreement, the other Loan
Documents and any other documents, instruments and transactions pursuant to or
in connection with any of the Loan Documents. The Borrower agrees to save the
Agent, the Co-Agents, the Lenders and the L/C Issuer harmless from and against
any and all
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present and future claims or liabilities with respect to, or resulting from, any
delay in paying or failure to pay any such taxes or similar impositions.
10.03. Costs and Expenses, etc.
(a) The Borrower shall:
(i) pay or reimburse the Agent for all
reasonable out-of-pocket costs and expenses incurred by the Agent in connection
with (A) the preparation, negotiation and execution of this Agreement, any other
Loan Documents or any instrument or document prepared in connection herewith or
therewith; (B) the completion of the Agent's "due diligence" permitted as a
condition of the closing; (C) the syndication efforts of the Agent with respect
to this Agreement and the commitments hereunder; and (D) the consummation of the
transactions contemplated hereby and thereby (including, without limitation, in
each case the reasonable fees and out-of-pocket expenses of the counsel to the
Agent); and
(ii) reimburse the Agent, the Co-Agents,
the L/C Issuer and each Lender on demand for all reasonable out-of-pocket costs
and expenses incurred by the Agent, the Co-Agents, the L/C Issuer or such Lender
in connection with the enforcement of or preservation of any of its Liens,
rights, powers, interests or remedies under this Agreement or any other Loan
Document (including, without limitation, in each case the reasonable fees and
out-of-pocket expenses of the respective counsel to the Agent, the Co-Agents,
the L/C Issuer and each Lender).
(b) All of such costs, expenses and indemnities
shall be payable by the Borrower to the Agent, the Co-Agents, the Lenders or the
L/C Issuer as appropriate upon demand or as otherwise agreed upon by the Agent,
the Co-Agents, the Lenders or the L/C Issuer as appropriate and the Borrower,
and shall constitute Lender Obligations under this Agreement.
10.04. Notices.
(a) Notice to the Borrower. All notices required
to be delivered to the Borrower pursuant to this Agreement shall be in writing
and shall be sent to the following address, by hand delivery, recognized
national overnight courier service with all charges prepaid, telex, telegram,
telecopier or by United States certified mail, postage prepaid:
RTI International Metals, Inc.
1000 Warren Avenue
Niles, OH 44446
Attention: Lawrence W. Jacobs
Vice President and Treasurer
Telephone: 330-544-7620
Telecopier: 330-544-7701
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With a copy to:
Dawne S. Hickton, Esq.
Vice President and General Counsel
RTI International Metals, Inc.
1000 Warren Avenue
Niles, OH 44446
Telephone: 330-544-7818
Telecopier: 330-544-7701
(b) Notice to the Agent. All notices required to
be delivered to the Agent pursuant to this Agreement shall be in writing and
shall be sent to the following address, by hand delivery, recognized national
overnight courier service with all charges prepaid, telex, telegram, telecopier
or by United States certified mail, postage prepaid:
PNC Bank, National Association
Multibank Loan Administration
One PNC Plaza, 22nd Floor
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Attention: Arlene M. Ohler,
Vice President
Telephone: 412-762-3627
Telecopier: 412-762-8672
(c) Notice to L/C Issuer. All notices required
to be sent to the L/C Issuer pursuant to this Agreement shall be in writing and
shall be sent to the following address by hand delivery, recognized national
overnight courier service with all charges prepaid, telex, telegram, telecopier
or by United States certified mail, postage prepaid:
PNC Bank, National Association
Multibank Loan Administration
One PNC Plaza, 22nd Floor
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Attention: Arlene M. Ohler
Vice President
Telephone: 412-762-3627
Telecopier: 412-762-8672
(d) Notice to Lenders. All notices required to
be sent to the Lenders pursuant to this Agreement shall be in writing and shall
be sent to the notice address of each Lender as set forth on Schedule 1.01 (a)
hereto or such Lender's signature page to the Assignment and Assumption
Agreement executed by it as a Purchasing Lender, as the case may be, by hand
delivery, overnight courier service with all charges prepaid, telex, telegram,
telecopier or other means of electronic data communication or by the United
States mail, first class postage prepaid.
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All such notices shall be effective three days after mailing,
the date of telecopy transmission or when received, whichever is earlier. The
Borrower, the Lenders, the L/C Issuer and the Agent may each change the address
for service of notice upon it by a notice in writing to the other parties
hereto.
10.05. Participation and Assignment.
(a) Sale of Participation.
(i) Any Lender may, in the ordinary
course of its commercial lending business and in accordance with applicable law,
and without the consent of the Borrower, at any time sell to one or more
Participants (which Participants may be Affiliates of such Lender)
Participations in the Revolving Credit Commitment of such Lender or any
Revolving Credit Loan, the Note, or other interest of such Lender hereunder. In
the event of any such sale of a Participation, such Lender's obligations under
this Agreement to the Borrower shall remain unchanged, such Lender shall remain
solely responsible for its performance under this Agreement, such Lender shall
remain the holder of the Note made payable to it for all purposes under this
Agreement (including all voting rights hereunder) and the Borrower shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the other Loan
Documents.
(ii) As between a Participant and that
Participant's selling Lender only, the sole issues on which the Participant
shall have a contractual right to vote are: (A) an increase in such Lender's
Revolving Credit Commitment, (B) any change of the term Base Rate, Euro-Rate,
Euro-Rate Reserve Percentage, or Applicable Euro-Rate Margin so as to decrease
the interest rate relating to the Revolving Credit Loans, (C) extension of the
term of either Revolving Credit Commitment, or (D) postponement of the scheduled
payment of principal, interest or Fees due under any of the Loan Documents.
(b) Assignments. Subject to the remaining
provisions of this Section 10.05(b), any Lender may at any time, in the ordinary
course of its commercial lending business, in accordance with applicable law,
sell to one or more Purchasing Lenders (which Purchasing Lender may be
affiliates of the Transferor Lender), all or a portion of its rights and
obligations under this Agreement and the Note then held by it, pursuant to an
Assignment and Assumption Agreement substantially in the form of Exhibit "E" and
satisfactory to the Agent, executed by the Transferor Lender, such Purchasing
Lender, the Agent and the Borrower; subject, however to the following
requirements:
(i) The Agent and the Borrower must each
give its prior consent to any such assignment which consent shall not be
unreasonably withheld; it being agreed that it shall not be deemed unreasonable
for the Borrower to decline to consent to such assignment if (A) such assignment
would result in incurrence of additional costs to the Borrower under Section
2.10, 2.11 or 2.12, or (B) the proposed assignee has not provided to the
Borrower any tax forms received under Section 10.05(d); provided, however, no
consent is required for the transfer by a Lender to its Affiliate so long as the
conditions in clauses (A) and (B) immediately above are satisfied;
(ii) Each such assignment must be in a
minimum amount of $5,000,000, or, if in excess of $5,000,000, in integral
multiples of $1,000,000;
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(iii) each such assignment shall be of a
constant, and not a varying, percentage of the Transferor Lender's Long-Term
Revolving Credit Commitment, Short-Term Revolving Credit Commitment, outstanding
Revolving Credit Loans and all other rights and obligations under this Agreement
and the other Loan Documents; and
(iv) The Transferor Lender shall pay to
the Agent, for its own Account, a fee of $3,500 for each such assignment (the
"ASSIGNMENT FEE").
Upon the execution, delivery, acceptance and recording of any
such Assignment and Assumption Agreement, from and after the Transfer Effective
Date determined pursuant to such Assignment and Assumption Agreement, (i) the
Purchasing Lender thereunder shall be a party hereto as a Lender and, to the
extent provided in such Assignment and Assumption Agreement, shall have the
rights and obligations of a Lender hereunder with a Revolving Credit Commitment
as set forth therein, and (ii) the Transferor Lender thereunder shall, to the
extent provided in such Assignment and Assumption Agreement, be released from
its obligations under this Agreement as a Lender. Such Assignment and Assumption
Agreement shall be deemed to amend this Agreement to the extent, and only to the
extent, necessary to reflect the addition of such Purchasing Lender as a Lender
and the resulting adjustment of Ratable Share arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of such
Transferor Lender under this Agreement and the Notes. On or prior to the
Transfer Effective Date, the Borrower shall execute and deliver to the Agent, in
exchange for the surrendered Notes held by the Transferor Lender, new Notes to
the order of such Purchasing Lender in an amount equal to the Long-Term
Revolving Credit Commitment and Short-Term Revolving Credit Commitment assumed
by it and purchased by it pursuant to such Assignment and Assumption Agreement,
and new Notes to the order of the Transferor Lender in an amount equal to the
Long-Term Revolving Credit Commitment and Short-Term Revolving Credit Commitment
retained by it hereunder.
(c) Assignment Register. The Agent shall
maintain at its address referred to in Section 10.04(b) a copy of each
Assignment and Assumption Agreement delivered to it and a register (the
"REGISTER") for the recordation of the names and addresses of the Lenders and
the amount of the Revolving Credit Loans owing to each Lender from time to time.
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Agent, the Lender and the L/C Issuer may treat each
Person whose name is recorded in the Register as the owner of the Revolving
Credit Loans recorded therein for all purposes of this Agreement. The Register
shall be available at the office of the Agent for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Withholding of Income Taxes. At least five
(5) Business Days prior to the first date on which interest or fees are payable
hereunder for the account of any Purchasing Lender or Participant, each
Purchasing Lender or Participant that is not incorporated under the laws of the
United States or a state thereof shall deliver to the Borrower and the
Transferor Lender two duly completed copies of United States Internal Revenue
Service Form W-9, 4224 or 1001 or other applicable form prescribed by the
Internal Revenue Service. Such form shall certify that such Purchasing Lender or
Participant is entitled to receive payments under this Agreement and the Notes
without deduction or withholding of any United States Federal income taxes, or
is subject to such tax at a reduced rate under an applicable tax treaty or under
United States Internal Revenue Service Form W-8, or another applicable form or a
certificate of such Purchasing Lender or Participant indicating that no such
exemption or
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reduced rate is allowable with respect to such payments. Each Purchasing Lender
or Participant which delivers a Form W-8, W-9, 4224 or 1001 further undertakes
to deliver to the Borrower and its Transferor Lender two additional copies of
such form (or a successor form) on or before the date that such form expires or
becomes obsolete or otherwise is required to be resubmitted as a condition to
obtaining an exemption from withholding tax or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
required by the Borrower or its Transferor Lender, either certifying that such
Purchasing Lender or Participant is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
Federal income taxes or is subject to such tax at a reduced rate under an
applicable tax treaty or stating that no such exemption or reduced rate is
allowable. The Borrower, in the case of a Purchasing Lender or Transferor Lender
in the case of a Participant shall be entitled to withhold United States Federal
income taxes at the full withholding rate, unless the Purchasing Lender or
Participant as the case may be establishes an exemption, or at the applicable
reduced rate, as established pursuant to this provisions of this Section
10.05(d).
(e) Assignments to Federal Reserve Bank. In
addition to the assignments permitted above, any Lender may assign and pledge
all or any portion of its Loans and Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Lender from its obligations
and duties hereunder or under the other Loan Documents.
10.06. Successors and Assigns. This Agreement shall be
binding upon the Borrower and the Agent, the Co-Agents, the Lenders, the L/C
Issuer and their respective successors and assigns, and shall inure to the
benefit of the Borrower, the Agent, the Co-Agents, the Lenders, the L/C Issuer
and respective successors and assigns; provided, however, that the Borrower
shall not assign its rights or duties hereunder or under any of the other Loan
Documents without the prior written consent of the Lenders.
10.07. No Implied Waivers; Cumulative Remedies; Writing
Required. No course of dealing and no delay or failure of the Agent, the
Co-Agents or any Lender in exercising any right, power, remedy or privilege
under this Agreement or any other Loan Document shall affect any other or future
exercise thereof or operate as a waiver thereof; nor shall any single or partial
exercise thereof or any abandonment or discontinuance of steps to enforce such a
right, power, remedy or privilege preclude any further exercise thereof or of
any other right, power, remedy or privilege. The rights and remedies of the
Agent, the Co-Agents and the Lenders under this Agreement and any other Loan
Documents are cumulative and not exclusive of any rights or remedies which they
would otherwise have. Any waiver, permit, consent or approval of any kind or
character on the part of any Lender of any breach or default under this
Agreement or any such waiver of any provision or condition of this Agreement
must be in writing and shall be effective only to the extent specifically set
forth in such writing.
10.08. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or enforceability
without invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
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10.09. Indemnity. The Borrower hereby agrees to indemnify
the Agent, the Co-Agents, the Lenders, the L/C Issuer, and the directors,
officers, employees, attorneys, agents and Affiliates or all of the foregoing
(each of the foregoing an "Indemnified Person") against, and hold each of them
harmless from, any loss, liabilities, damages, claims, costs and expenses
(including reasonable attorneys' fees and disbursements) suffered or incurred by
any Indemnified Person (except those caused by such Indemnified Person's gross
negligence or willful misconduct,) arising out of, resulting from or in any
manner connected with, the execution, delivery and performance of each of the
Loan Documents, the Lender Obligations and any and all transactions related to
or consummated in connection with the Lender Obligations, including, without
limitation, losses, liabilities, damages, claims, costs and expenses suffered or
incurred by any Indemnified Person arising out of or related to investigating,
preparing for, defending against, or providing evidence, producing documents or
taking any other action in respect of any commenced or threatened litigation,
administrative proceeding or investigation under any Federal securities law or
by any Official Body of any jurisdiction, or at common law or otherwise, that is
alleged to arise out of or is based on (i) any untrue statement or alleged
untrue statement of any material fact of the Borrower or any Affiliate of the
Borrower in any document or schedule filed with the Securities and Exchange
Commission or any other Official Body, (ii) any omission or alleged omission to
state any material fact required to be stated in such document or schedule, or
necessary to make the statements made therein, in light of the circumstances
under which made, not misleading; (iii) any actual or alleged acts, practices or
omissions of the Borrower, any Subsidiary Guarantor, or any of their respective
directors, officers, partners, employees, attorneys, agents or Affiliates,
related to the making of any acquisition, purchase of shares or assets pursuant
thereto, financing of such purchases or the consummation of any other
transactions contemplated by any such acquisitions that are alleged to be in
violation of any Federal securities law or of any other statute, regulation or
other law of any jurisdiction applicable to the making of any such acquisition,
the purchase of shares or assets pursuant thereto, the financing of such
purchases or the consummation of the other transactions contemplated by any such
acquisition; or (iv) any withdrawals, termination or cancellation of any such
proposed acquisition for any reason whatsoever. The indemnity set forth in this
Section 10.9 shall be in addition to any other obligations or liabilities of the
Borrower to the Agent, the Co-Agents, the Lenders or the L/C Issuer, or at
common law or otherwise. The provisions of this Section 10.9 shall survive the
payment of the Lender Obligations and the termination of this Agreement and the
other Loan Documents.
10.10 Confidentiality. The Agent, the Co-Agents, the
Lenders and the L/C Issuer shall keep confidential and not disclose to any
Person, other than to their respective directors, officers, employees,
Affiliates and agents, and to actual and potential Purchasing Lenders and
Participants, all non-public information concerning the Borrower and the
Borrower's Affiliates which comes into the possession of the Agent, the
Co-Agents, the Lenders or the L/C Issuer during the term hereof. Notwithstanding
the foregoing, the Agent, the Co-Agents, the Lenders and the L/C Issuer may
disclose information concerning the Borrower (i) in accordance-with normal
banking practices and the Agent's, such Co-Agent's, such Lender's or the L/C
Issuer's policies concerning disclosure of such information in connection with
syndication or sales of Participations, subject to informing the recipient of
such information of the duties of confidentiality hereunder, (ii) pursuant to
what the Agent, such Co-Agent, such Lender or the L/C Issuer believes to be the
lawful requirements or request of any Official Body regulating banks or banking,
(iii) as required by governmental regulation or rule, judicial process or
subpoena; provided however, if permitted by law, the Agent, the Co-Agents, or
such Lender shall notify the Borrower and permit the Borrower, at the Borrower's
cost, to contest such
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subpoena; and (iv) to their respective attorneys, accountants and auditors who
have been informed of the confidentiality hereunder.
10.11. Survival. All representations, warranties,
covenants and agreements of the Borrower contained herein or in the other Loan
Documents or made in writing in connection herewith shall survive the issuance
of the Notes and the Letters of Credit and shall continue in full force and
effect so long as the Borrower may borrow hereunder and so long thereafter until
payment in full of all the Notes and the Lender Obligations is made. The
obligations of the Borrower under Sections 6.13, 10.02 and 10.03 shall survive
the termination of this Agreement and the discharge of the other obligations of
the Borrower hereunder, and any other Loan Documents, and shall also survive the
payment in full of all Lender Obligations, the termination of the Long-Term
Revolving Credit Commitment in accordance with the provisions of this Agreement
and the termination or expiration of all Letters of Credit in accordance with
their respective terms.
10.12. GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING
CONFLICT OF LAWS, EXCEPTING APPLICABLE FEDERAL LAW AND EXCEPT ONLY TO THE EXTENT
PRECLUDED BY THE MANDATORY APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
10.13. FORUM. THE PARTIES HERETO AGREE THAT ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS TO WHICH THE BORROWER IS A PARTY MAY BE COMMENCED IN THE COURT OF
COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA OR IN THE DISTRICT COURT OF THE
UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA, AND THE PARTIES HERETO
AGREE THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION OR PROCEEDING IN EITHER
OF SUCH COURTS SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION
IF SERVED PERSONALLY OR BY CERTIFIED MAIL TO THE PARTIES AT THEIR ADDRESSES SET
FORTH IN SECTION 10.04, OR AS OTHERWISE PROVIDED UNDER THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA. FURTHER, THE BORROWER HEREBY SPECIFICALLY CONSENTS
TO THE PERSONAL JURISDICTION OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
PENNSYLVANIA AND THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF PENNSYLVANIA AND WAIVES AND HEREBY ACKNOWLEDGES THAT IT IS ESTOPPED
FROM RAISING ANY OBJECTION BASED ON FORUM NON CONVENIENS, ANY CLAIM THAT EITHER
SUCH COURT LACKS PROPER VENUE OR ANY OBJECTION THAT EITHER SUCH COURT LACKS
PERSONAL JURISDICTION OVER THE BORROWER SO AS TO PROHIBIT EITHER SUCH COURT FROM
ADJUDICATING ANY ISSUES RAISED IN A COMPLAINT FILED WITH EITHER SUCH COURT
AGAINST THE BORROWER BY THE AGENT, THE CO-AGENTS, THE LENDERS OR THE L/C ISSUER
CONCERNING THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR PAYMENT TO THE LENDERS.
THE BORROWER HEREBY ACKNOWLEDGES AND AGREES THAT THE CHOICE OF FORUM CONTAINED
IN THIS SECTION 10.13 SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY
JUDGMENT OBTAINED IN ANY FORUM OR THE TAKING OF ANY ACTION UNDER THE LOAN
DOCUMENTS TO ENFORCE THE SAME IN ANY APPROPRIATE JURISDICTION.
84
<PAGE> 91
10.14. Non-Business Days. Whenever any payment hereunder
or under the Notes is due and payable on a day which is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of
time shall in each such case be included in computing interest in connection
with such payment.
10.15. Integration. This Agreement and the other Loan
Documents constitute the entire agreement between the parties relating to this
financing transaction and they supersede all prior understandings and
agreements, whether written or oral, between the parties hereto relating to the
transactions provided for herein.
10.16. Counterparts. This Agreement and any amendment
hereto may be executed in several counterparts and by each party on a separate
counterpart, each of which, when so executed and delivered, shall be an
original, but all of which together shall constitute but one and the same
instrument. In proving this Agreement, it shall not be necessary to produce or
account for more than one such counterpart signed by the other party against
whom enforcement is sought. Delivery of an executed counterpart of a signature
page to this Agreement by telecopier shall be as effective as delivery of a
manually executed counterpart of this Agreement.
10.17. Funding by Branch, Subsidiary or Affiliate.
(a) Notional Funding. Each Lender shall have
the right from time to time, without notice to the Borrower, to deem any branch,
subsidiary or affiliate (which for the purposes of this Section 10.17 shall mean
any corporation or association which is directly or indirectly controlled by or
is under direct or indirect common control with any corporation or association
which directly or indirectly controls such Lender) of such Lender to have made,
maintained or funded any Revolving Credit Loan to which the Euro-Rate Option
applies at any time, provided that immediately following (on the assumption that
a payment were then due from the Borrower to such other office) and as a result
of such change the Borrower would not be under any greater financial obligation
to such Lender hereunder, pursuant to Section 2.08, 2.10, 2.11 or 2.12 hereof
than it would have been in the absence of such change. Notional funding offices
may be selected by each Lender without regard to a Lender's actual methods of
making, maintaining or funding the Revolving Credit Loans or any sources of
funding actually used by or available to such Lender.
(b) Actual Funding. Each Lender shall have the
right from time to time to make or maintain any Revolving Credit Loan by
arranging for a branch, subsidiary or affiliate of such Lender to make or
maintain such Revolving Credit Loan subject to the last sentence of this Section
10.17(b). If any Lender causes a branch, subsidiary or affiliate to make or
maintain any part of the Revolving Credit Loans hereunder, all terms and
conditions of this Agreement shall, except where the context clearly requires
otherwise, be applicable to such part of the Revolving Credit Loans to the same
extent as if such Revolving Credit Loans were made or maintained by such Lender
but in no event shall any Lender's use of such a branch, subsidiary or affiliate
to make or maintain any part of the Revolving Credit Loans hereunder cause such
Lender or such branch, subsidiary or affiliate to incur any cost or expenses
payable by the Borrower hereunder or require the Borrower to pay any other
compensation to any such Lender (including, without limitation, any expenses
incurred or payable pursuant to Section 2.08, 2.10, 2.11 or 2.12 hereof) which
would otherwise not be incurred.
85
<PAGE> 92
10.18 WAIVER OF JURY TRIAL. THE BORROWER, EACH LENDER, THE
AGENT, THE CO-AGENTS AND THE L/C ISSUER EACH HEREBY WAIVES THE RIGHT TO TRIAL BY
JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY TYPE IN WHICH THE
BORROWER, THE LENDERS, THE AGENT, THE CO-AGENTS, THE L/C ISSUER OR ANY OF THEIR
RESPECTIVE SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS
ARISING OUT OF THIS AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
86
<PAGE> 93
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have caused this Revolving Credit and Letter of Credit
Issuance Agreement to be executed by their respective duly authorized officers
as of the date first written above.
RTI INTERNATIONAL METALS, INC.,
an Ohio corporation
By:____________________________(SEAL)
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
in its capacities as Agent and L/C
Issuer and as a Lender
By:____________________________(SEAL)
Name:
Title:
MELLON BANK, N.A., in its capacity as
Co-Agent and as a Lender
By:____________________________(SEAL)
Name:
Title:
BANK ONE, NATIONAL ASSOCIATION, in
its capacity as Co-Agent and as a
Lender
By:____________________________(SEAL)
Name:
Title:
FIFTH THIRD BANK OF NORTHEASTERN
OHIO
By:____________________________(SEAL)
Name:
Title:
<PAGE> 94
ABN AMRO BANK N.V.
By:____________________________(SEAL)
Name:
Title:
By:____________________________(SEAL)
Name:
Title:
THE BANK OF NOVA SCOTIA
By:____________________________(SEAL)
Name:
Title:
THE BANK OF NEW YORK
By:____________________________(SEAL)
Name:
Title:
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<CIK> 0001068717
<NAME> RTI INTERNATIONAL METALS
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
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<CURRENT-ASSETS> 261,294
<PP&E> 171,081
<DEPRECIATION> (108,968)
<TOTAL-ASSETS> 357,216
<CURRENT-LIABILITIES> 51,272
<BONDS> 0
0
0
<COMMON> 205
<OTHER-SE> 282,682
<TOTAL-LIABILITY-AND-EQUITY> 357,216
<SALES> 266,608
<TOTAL-REVENUES> 266,608
<CGS> 191,664
<TOTAL-COSTS> 206,530
<OTHER-EXPENSES> (2,231)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 57
<INCOME-PRETAX> 62,252
<INCOME-TAX> 1,086
<INCOME-CONTINUING> 61,166
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 61,166
<EPS-PRIMARY> 2.98
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