UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-K
(Mark One)
[x] ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITES EXCHANGE
ACT OF 1934
(Fee Required)
For the Fiscal Year Ended December 31, 1995
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (No Fee Required)
For the Transition Period from __________ to __________
Commission File Number 0-10436
L. B. FOSTER COMPANY
(Exact name of registrant as specified in its charter)
Delaware 25-1324733
(State of Incorporation) (I.R.S.Employer Identification No.)
415 Holiday Drive, Pittsburgh, Pennsylvania 15220
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (412) 928-3400
Securities registered pursuant to Section 12(b) of the Act:
Name of Each Exchange On
Title of Each Class Which Registered
None
Securities registered pursuant to Section 12(g) of the Act:
Class A Common Stock, Par Value $.01
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein,
and will not be contained, to the best of registrant's
knowledge, in definitive proxy or information statements
incorporated by reference in Part III or this Form 10-K or any
amendment to this Form 10-K. [x]
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
The aggregate market value on March 20, 1996 of the voting stock
held by nonaffiliates of the Company was $37,030,545.
Indicate the number of shares outstanding of each of the
registrant's classes of common stock as of the latest
practicable date.
Class Outstanding at March 20, 1996
Class A Common Stock, Par Value $.01 9,937,738 Shares
Documents Incorporated by Reference:
Portions of the Proxy Statement prepared for the 1996 annual
meeting of stockholders are incorporated by reference in Items
10, 11, 12 and 13 of Part III.
<PAGE>
PART I
ITEM 1. BUSINESS
Summary Description of Businesses
L. B. Foster Company is engaged in the manufacture, fabrication
and distribution of rail and trackwork, piling, pile driving
equipment, highway products and tubular products. As used
herein, "Foster" or the "Company" means L. B. Foster Company and
its divisions and subsidiaries, unless the context otherwise
requires.
For rail markets, Foster provides a full line of new and used
rail, trackwork and accessories to railroads, mines and
industry. The Company also designs and produces bonded rail
joints, power rail, track fasteners, catenary systems,
coverboards and special accessories for mass transit and other
rail systems.
For the construction industry, the Company sells and rents steel
sheet piling and H-bearing pile for foundation and earth
retention requirements and pile driving equipment and
accessories for driving piling. In addition, Foster supplies
bridge decking, expansion joints, overhead sign structures and
other products for highway construction and repair.
For tubular markets, the Company is a national distributor of
standard, structural and line pipe for a variety of
applications. The Company supplies pipe and pipe coatings for
pipelines and utilities. Foster manufactures spiralweld pipe for
water transmission lines, foundation piling, slurry lines and
many other applications. In addition, the Company produces
pipe-related products for special markets, including water wells
and irrigation.
The Company classifies its activities into three business
segments: rail products, construction products and tubular
products. Financial information concerning the segments is set
forth in Note 21 to the financial statements included in the
Company's Annual Report to Stockholders for 1995. The following
table shows for the last three fiscal years the net sales
generated by each of the current business segments as a
percentage of total net sales.
<TABLE>
<CAPTION> Percentage of Net Sales
1995 1994 1993
<S> <C> <C> <C>
Rail Products 42% 38% 36%
Construction Products 34% 36% 32%
Tubular Products 24% 26% 32%
100% 100% 100%
</TABLE>
<PAGE>
RAIL PRODUCTS
L. B. Foster Company's rail products include heavy and light
rail, relay rail, rail joints, rail accessories, and transit
products. The Company is a major rail products supplier to
industrial plants, contractors, railroads, mines and mass
transit systems.
The Company sells heavy rail mainly to transit authorities,
industrial companies, and rail contractors for railroad sidings,
plant trackage, and other carrier and material handling
applications. Additionally, the Company makes some sales of
heavy rail to railroad companies and to foreign buyers. The
Company sells light rail for mining and material handling
applications.
Rail accessories include trackwork, ties, track spikes, bolts,
angle bars and other products required to install or maintain
rail lines. These products are sold to railroads, rail
contractors and industrial customers and are manufactured within
the company or purchased from other manufacturers.
The Company's Allegheny Rail Products (ARP) division engineers
and markets insulated rail joints and related accessories for
the railroad and mass transit industries. Manufacturing of the
insulated rail joint is subcontracted.
The Company's Transit Products Division supplies power rail,
direct fixation fasteners, catenary systems, coverboards and
special accessories primarily for mass transit systems. Most of
these products are manufactured by subcontractors and are
usually sold by sealed bid to transit authorities or to rail
contractors.
The Company's Midwest Steel Division in Pomeroy, Ohio is the
country's leading manufacturer of light trackwork for the mining
industry. It also produces new heavy trackwork for industrial
and export markets.
CONSTRUCTION PRODUCTS
L. B. Foster Company's construction products consist of sheet
and bearing piling, fabricated highway products and pile
driving/extracting and related equipment.
Sheet piling products are interlocking structural steel sections
that are generally used to provide lateral support at
construction sites. Bearing piling products are steel H-beam
sections which, in their principal use, are driven into the
ground for support of structures such as bridge piers and
high-rise buildings. Sheet piling is sold or leased and bearing
piling is sold principally to contractors and construction
companies.
Other construction products consist of fabricated highway
products and pile driving/extracting equipment. Fabricated
highway products consist principally of bridge decking, aluminum
bridge rail, overhead sign structures and other bridge products,
which are fabricated by the Company. The major purchasers of
these products are contractors for state, municipal and other
governmental projects.
<PAGE>
Two types of pile driving equipment, diesel and vibratory, have
historically been sold or leased by the Company. Vibratory pile
drivers also function as pile extractors. The majority of the
Company's sales and leases of pile drivers, extractors and other
construction equipment are to contractors. The Company also
distributes a hydraulic pile driving hammer manufactured by a
company located in the Netherlands.
Sales of the Company's construction products are partly
dependent upon the level of activity in the construction
industry. Accordingly, sales of these products have
traditionally been somewhat higher during the second and third
quarters than during the first and fourth quarters of each year.
TUBULAR PRODUCTS
L. B. Foster Company is a distributor of coated, line, warehouse
and structural grade pipe. Coated line pipe is used for oil and
gas transmission and for refinery, petrochemical plant and power
plant construction, as well as water transmission. Standard and
structural pipe is used in a variety of construction and
industrial applications. The Company, with the exception of
Fosterweld pipe, generally purchases the pipe it sells from pipe
manufacturers.
The Company includes within the tubular products segment, line
and standard pipe, manufactured Fosterweld pipe and oil country
tubular goods. Generally, the Company adds value to purchased
tubular products by preparing them to meet customer
specifications using various fabricating processes, including
the finishing of oil country tubular goods and the welding,
coating, wrapping and lining of other pipe products.
By converting purchased steel coils into pipe in continuous
forming mills, Fosterweld pipe can be produced in sizes up to
120 inches in diameter and 100 feet or more in length for use in
water transmission lines and other applications such as dredge
pipe, slurry lines, pneumatic lines, ventilation pipe,
foundation piling and caissons.
The Company provides fusion bond and other coatings for
corrosion protection on oil, gas and other pipelines.
The Company also supplies special pipe products such as water
well casing, column pipe, couplings, and related products for
agricultural, municipal and industrial water wells.
MARKETING AND COMPETITION
L. B. Foster Company generally markets its rail, construction
and tubular products directly in all major industrial areas of
the United States through a national sales force of 52
salespeople. The Company maintains 11 sales offices and 14
plants or warehouses nationwide. During 1995, approximately 5%
of the Company's total sales were for export.
<PAGE>
The major markets for the Company's products are highly
competitive. Product availability, quality, service and price
are principal factors of competition within each of these
markets. No other company provides the same product mix to the
various markets the Company serves. There are one or more
companies that compete with the Company in each product line.
Therefore, the Company faces significant competition from
different groups of companies.
RAW MATERIALS AND SUPPLIES
Most of the Company's inventory is purchased in the form of
finished or semifinished product. With the exception of relay
rail which is purchased from railroads or rail take-up
contractors, the Company purchases most of its inventory from
domestic and foreign steel producers. There are few domestic
suppliers of new rail and piling products and the Company could
be adversely affected if a domestic supplier ceased making such
material available to the Company. Approximately 70% of the
materials sold by the construction products segment are
purchased from one supplier. The Company's purchases from
foreign suppliers are subject to the usual risks associated with
changes in international conditions and to United States laws
which could impose import restrictions on selected classes of
products and antidumping duties if products are sold in the
United States below certain prices.
<PAGE>
BACKLOG
The dollar amount of firm, unfilled customer orders at December
31, 1995 and 1994 by segment follows (in thousands):
<TABLE>
<CAPTION> December 31, 1995 December 31, 1994
<S> <C> <C>
Rail Products $43,879 $47,582
Construction Products 28,239 18,574
Tubular Products 8,857 14,776
$80,975 $80,932
</TABLE>
Approximately 95% of the December 31, 1995 backlog is expected
to be shipped in 1996.
RESEARCH AND DEVELOPMENT
The Company's expenditures for research and development are negligible.
ENVIRONMENTAL DISCLOSURES
While it is not possible to quantify with certainty the
potential impact of actions regarding environmental matters,
particularly for future remediation and other compliance
efforts, in the opinion of management compliance with
environmental protection laws will not have a material adverse
effect on the financial condition, competitive position, or
capital expenditures of the Company. However, the Company's
efforts to comply with increasingly stringent environmental
regulations may have an adverse effect on the Company's future
earnings.
EMPLOYEES AND EMPLOYEE RELATIONS
The Company has 575 employees, of whom 303 are hourly production
workers and 272 are salaried employees. Approximately 88 of the
hourly paid employees are represented by unions. The Company has
not suffered any major work stoppages during the past five years
and considers its relations with its employees to be
satisfactory.
Substantially all of the Company's hourly paid employees are
covered by one of the Company's noncontributory, defined benefit
plans or by one of the union sponsored plans. Hourly nonunion
employees are also covered by a defined contribution plan with
contributions fixed at $0.12 per hour worked. Substantially all
of the Company's salaried employees are covered by a defined
contribution plan established by the Company.
<PAGE>
ITEM 2. PROPERTIES
The location and general description of the principal properties
which are owned or leased by L. B. Foster Company, together with
the segment of the Company's business using the properties, are
set forth in the following table:
<TABLE>
<CAPTION>
<S> Business Lease
Location Function Acres Segment Expires
<C> <C> <C> <C>
Birmingham, Alabama Pipe coating. 32 Tubular 1997
Doraville, Georgia Fabrication of 28 Tubular, Owned
bridge components. Rail and
Yard storage. Construction
Newport, Kentucky Pipe coating. 20 Tubular 1998
Niles, Ohio Rail fabrication. 35 Rail Owned
Yard storage.
Pomeroy, Ohio Trackwork manufac- 5 Rail Owned
turing.
Houston, Texas Casing, upset tub- 127 Tubular, Owned
ing, threading, Rail and
heat treating and Construction
painting. Yard
storage.
Bedford, Bridge component 10 Construction Owned
Pennsylvania fabricating plant.
Pittsburgh, Corporate Head- - Corporate 1997
Pennsylvania quarters.
Parkersburg, Fosterweld pipe 93 Tubular 1998
West Virginia manufacturing.
Pipe coating and
wrapping. Yard
storage.
</TABLE>
Including the properties listed above, the Company has 11 sales
offices and 14 warehouse, plant and yard facilities located
throughout the country. The Company's facilities are in good
condition and the Company believes that its production
facilities are adequate for its present and foreseeable
requirements.
<PAGE>
ITEM 3. LEGAL PROCEEDINGS
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED MATTERS
Stock Market Information
The Company had 1,403 common shareholders of record on January 30, 1996.
Common stock prices are quoted daily through the National Association of
Security Dealers, Inc. in its over-the-counter NASDAQ quotation service
(Symbol FSTRA). The quarterly high and low bid price quotations
for common shares (which represent prices between broker-dealers
and do not include markup, markdown or commission and may not
necessarily represent actual transactions) follow:
<TABLE>
<CAPTION> 1995 1994
Quarter High Low High Low
<S> <C> <C> <C> <C>
First $ 4 $ 3 $ 4 $ 3
Second 4 1/8 3 1/2 3 7/8 2 7/8
Third 4 3/4 4 3 3/4 2 7/8
Fourth 4 1/2 4 3 3/4 2 7/8
</TABLE>
Dividends
No dividends were paid on the Company's Common stock during 1995 and 1994.
Cash dividends on the Company's Common stock are restricted under the
terms of the Company's Revolving Credit Agreement (see Note 8 to consolidated
financial statements).
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
(All amounts are in thousands except per share data.)
<TABLE>
<CAPTION> Year Ended December 31,
Income Statement Data 1995 (1) 1994 1993 (2) 1992 1991
<S> <C> <C> <C> <C> <C>
Net sales $ 264,985 $ 234,262 $ 212,291 $ 204,961 $ 221,024
Income before cumulative
effect of change in
accounting principle 5,043 5,440 899 411 573
Net income 4,824 5,440 1,569 411 573
Earnings per common share
before cumulative effect
of change in accounting
principle 0.51 0.55 0.09 0.04 0.06
Earnings per common share 0.49 0.55 0.16 0.04 0.06
</TABLE>
<TABLE>
<CAPTION>
December 31,
Balance Sheet Data 1995 (1) 1994 1993 (2) 1992 1991
<S> <C> <C> <C> <C> <C>
Total assets $ 124,423 $ 122,585 $ 108,137 $ 104,952 $ 105,071
Working capital 57,859 52,519 49,755 48,163 50,611
Long-term debt 25,034 22,377 25,584 26,072 27,110
Stockholders' equity 63,173 58,319 52,879 51,310 50,899
</TABLE>
(1) Effective January 1, 1995, the Company adopted Financial
Accounting Standards Board (FASB) Statement No. 121, "Accounting
for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed Of." The effect of the adoption was to
decrease net income by $219,000 or $0.02 per share.
(2) Effective January 1, 1993, the Company adopted FASB
Statement No. 109, "Accounting for Income Taxes." The effect of
the adoption was to increase net income by $670,000 or $0.07 per
share. As permitted, prior periods were not restated.
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
(Dollars in thousands)
<TABLE>
<CAPTION> Three Months Ended Twelve Months Ended
December 31, December 31,
1995 1994 1995 1994 1993
<S> <C> <C> <C> <C> <C>
Net Sales:
Rail Products $ 29,262 $ 25,233 $111,582 $ 88,862 $ 75,141
Construction Products 19,161 25,645 88,735 85,488 68,633
Tubular Products 12,880 12,142 64,668 59,912 68,517
Total Net Sales $ 61,303 $ 63,020 $264,985 $234,262 $212,291
Gross Profit:
Rail Products $ 4,178 $ 4,377 $ 14,507 $ 13,745 $ 11,828
Construction Products 2,222 3,185 9,780 10,350 8,740
Tubular Products 360 483 4,928 3,502 3,935
Total Gross Profit 6,760 8,045 29,215 27,597 24,503
Expenses:
Selling and Admin-
istrative Expenses 5,694 5,957 22,446 21,413 21,400
Interest Expense 697 617 2,840 2,067 2,408
Other (Income) Expense (186) 62 (777) (274) 157
Total Expenses 6,205 6,636 24,509 23,206 23,965
Income Before Income Tax
Expense 555 1,409 4,706 4,391 538
Income Tax Benefit (337) (1,193) (337) (1,049) (361)
Income Before Cumulative
Effect of Changes in
Accounting Principles 892 2,602 5,043 5,440 899
Cumulative Effect of
Changes in Accounting
Principles (219) 670
Net Income $ 892 $ 2,602 $ 4,824 $ 5,440 $ 1,569
Fourth Quarter of 1995 vs. Fourth Quarter of 1994
The net income for the current quarter was $0.9 million or $0.09
per share. This compares to a 1994 fourth quarter net income
of $2.6 million or $0.26 per share. Net sales in 1995 were
$61.3 million or 3% lower than the comparable period last year.
Rail products' net sales of $29.3 million increased 16% from
the comparable period last year principally as a result of
higher shipments on major rail projects. Construction
products' net sales in the 1995 fourth quarter were 25% lower
than in 1994 due to a temporary shutdown by a major supplier to
modernize its production facilities. Tubular products' net
sales in the quarter were $12.9 million or an increase of 6%
from 1994 due primarily to higher sales of Fosterweld pipe.
Changes in net sales are primarily the result of changes in
volume rather than changes in prices.
<PAGE>
The gross margin percentage for the total company in the 1995
fourth quarter decreased to 11% versus 13% in the 1994 quarter.
Rail products' gross margin percentage declined to 14% due
primarily to reductions in the margins for used rail products
which exceeded improvements in the margins for new rail
products. Construction products' gross margin percentage
remained relatively unchanged at 12%. The gross margin
percentage for the Company's tubular products segment decreased
to 3% from 4% in 1994 as improved margins for Fosterweld pipe
only partly offset a decline in the performance of the pipe
coating unit. The pipe coating unit's performance was affected
by higher than anticipated plant operating costs primarily as a
result of the shutdown of an older coating line and continued
start-up problems at the Newport coating facility.
Selling and administrative expenses decreased 4% in the 1995
fourth quarter from the same period in the prior year. Interest
expense increased 13% due primarily to higher borrowings. The
income tax rate is less than the statutory rate in both the 1995
and 1994 periods principally as a result of changes in net
deferred tax assets and liabilities. See the year comparison
section for a more detailed discussion of the income tax
provisions.
The Year 1995 Compared to the Year 1994
The net income for 1995 was $4.8 million or $0.49 per share.
This compares to 1994 net income of $5.4 million or $0.55 per
share. Net sales in 1995 were $265.0 million or 13% higher than
last year.
Rail products' net sales improved 26% in 1995 to $111.6 million
as sales of new rail products increased. Despite a fourth
quarter weakness in piling products, construction products' net
sales for 1995 of $88.7 million were 4% higher than 1994 as
increased shipments of piling and fabricated products offset
reductions in pile driving equipment revenue. Tubular products'
net sales in 1995 increased to $64.7 million or 8% from last
year due to increased pipe coating volume at the Company's
Birmingham, Alabama facility. Changes in net sales are
primarily the result of changes in volume rather than changes
in prices.
The gross margin percentage for the total company declined to
11% from 12% in 1994. Rail products' gross margin percentage
decreased to 13% from approximately 16% last year as a result of
lower margins on running rail and used rail products.
Construction products' gross margin percentage declined to 11%
from 12% in 1994 as a result of lower margins on fabricated
products and vibratory pile driving equipment. The gross margin
percentage for the Company's tubular products increased to 8%
from 6% last year. The increase was the result of a change in
the mix of pipe coating products sold and improved Fosterweld
pipe margins.
<PAGE>
Selling and administrative expenses in 1995 of $22.4 million
increased 5% from the prior year primarily as a result of the
change in the employee vacation policy which reduced 1994
expense. Interest expense increased 37% principally as a
result of higher borrowings. Other income in 1995 included $0.3
million of interest income and a $0.2 million gain on the sale
of equipment held for disposal. Other income in 1994 included a
gain of $0.3 million from the sale of the Company's Houston,
Texas sales office and equipment depot.
The income tax rate is less than the statutory rate in both the
1995 and 1994 periods principally as a result of changes in net
deferred tax assets and liabilities. The Company's deferred tax
assets include net operating loss (NOL) carryforwards. In 1993,
the Company was required by accounting rules to record for book
purposes all available NOL carryforwards as assets.
Additionally, the Company was required to establish a valuation
reserve to reduce the total carrying value of the NOL
carryforwards to the amount projected to be actually used in
future years (i. e., the net realizable value). The net
realizable value of the Company's NOL carryforwards is computed
based on the average taxable income for the most recent three
years projected forward for three years. During 1995 and 1994,
the net realizable value of the NOL carryforwards increased and
the Company reduced the valuation reserve related to the NOL
carryforwards by $2.5 million and $2.4 million, respectively.
These favorable adjustments of the valuation reserve were
recorded as reductions of income tax expense. Expected
utilization of the net deferred tax assets is contingent upon
the Company earning in the aggregate approximately $11 million
of taxable income in future years.
Because the deferred tax asset valuation reserve at December 31,
1995 is only $0.2 million, income tax expense reported for book
purposes in future years will not be significantly reduced by
changes in the reserve. As a result, income tax expense for
book purposes in future years is anticipated to approximate the
amount that would be reported by applying statutory rates.
However, the Company will not make significant federal income
tax payments until the Company earns additional taxable income
in excess of $11 million. See Note 13 to the consolidated
financial statements for additional information on income taxes.
Effective January 1, 1995, the Company adopted Statement of
Financial Accounting Standards (SFAS) No. 121, "Accounting for
the Impairment of Long-Lived Assets and for Long-Lived Assets to
Be Disposed Of", and recorded a charge of $0.2 million, net of
income tax benefit, principally related to a Fosterweld facility
held for sale (see Note 2 to consolidated financial statements).
<PAGE>
The Year 1994 Compared to the Year 1993
For 1994, net income was $5.4 million or $0.55 per share
compared to a 1993 net income of $1.6 million or $0.16 per
share. In 1994, cost of goods sold was reduced by $0.3 million
and selling and administrative expenses were reduced by $0.6
million as a result of a change in the Company's policy for
employee vacations. Results for 1993 included a first quarter
gain of $0.7 million from the initial adoption of SFAS No. 109,
"Accounting for Income Taxes" (see Note 2 to consolidated
financial statements).
Net sales in 1994 were $234 million or an increase of 10% over
the 1993 period. Rail products' net sales improved in 1994 to
$88.9 million or 18% from 1993 as sales of new rail products for
transit projects and used rail products substantially increased.
Construction products' net sales for 1994 of $85.5 million
were 25% higher than the 1993 period as a result of higher
sales of piling and fabricated products. Tubular products' net
sales in 1994 decreased to $59.9 million or 13% from 1993 as
improvements in coated pipe operations were more than offset by
declines in the other tubular units. Changes in net sales
primarily are the result of changes in volume rather than
changes in prices.
The gross margin percentage for the total company in both years
was approximately 12%. Rail products' gross margin percentage
remained at approximately 16%. Improvements in margins for used
rail products were offset by the lower margins earned on new
rail products provided for transit projects and a higher LIFO
provision. Construction products' gross margin percentage
declined slightly as higher sales and margins in fabricated
products were more than offset by reduced revenues and margins
in pile driving equipment operations and the increase in lower
margin piling sales. The gross margin percentage for the
Company's tubular products segment remained approximately 6%.
Improved selling margins in most tubular units were offset by
reduced margins for the Company's threaded pipe unit and a
higher LIFO provision.
Selling and administrative expenses in 1994 were unchanged in
total from 1993 as lower insurance expense and the effect of the
change in the employee vacation policy offset an incentive
compensation provision. Interest expense declined 14% as a
result of lower interest rates due to the expiration of the
Company's swap agreements. Other income in 1994 included a gain
of $0.3 million from the sale of the Company's Houston, Texas
sales office and equipment depot. Other expense in 1993
included a charge of $0.4 million for the shutdown of certain
tubular yard and plant facilities.
The income tax rate was less than the statutory rate in both the
1994 and 1993 periods principally as a result of changes in net
deferred tax assets and liabilities. During 1994 and 1993, the
Company reduced the valuation reserve related to the NOL
carryforwards by $2.4 million and $0.3 million, respectively.
<PAGE>
Liquidity and Capital Resources
The Company's ability to generate internal cash flow
("liquidity") results from the sale of inventory and the
collection of accounts receivable. During 1995, the average
turnover rates for accounts receivables and inventories were
relatively unchanged from the prior year. Working capital at
December 31, 1995 was $57.9 million compared to $52.5 million
at December 31, 1994.
During 1995, the Company had capital expenditures of $4.1
million. The Company's capital expenditures were principally
related to trackwork production equipment, the Newport coated
pipe facility and the pile driving equipment rental pool.
Capital expenditures in 1996 are expected to be approximately $3
million and are anticipated to be funded by cash flows from
operations.
During 1995, the Company executed a restated and amended
revolving credit agreement. The amended agreement increased the
borrowing commitment available to $45 million from $40 million,
slightly reduced interest rates and extended the term of the
agreement to July 1, 1999. Borrowings under the agreement are
secured by accounts receivable and inventory.
Total revolving credit agreement borrowings at December 31, 1995
were $29.8 million or a decrease of $4.2 million from the end of
the prior year. Outstanding letters of credit at December 31,
1995 were $1.1 million. At December 31, 1995, the Company had
approximately $14.1 million in unused borrowing commitment.
Management believes its internal and external sources of funds
are adequate to meet anticipated needs.
Other Matters
The Company currently owns stock with a book value of
approximately $2.0 million in a privately-held corporation. The
market value of the stock is not readily determinable and,
therefore, the investment is recorded in the Company's
accounts at its historical cost of $0.2 million (see Note 7 to
consolidated financial statements). The Company has been
advised that plans are being formulated to sell this business.
Although no assurances can be given as to the timing or results
of these plans, the Company believes that the potential sales
price could significantly exceed the privately-held
corporation's book value.
<PAGE>
The Company has made a decision to divest its Fosterweld
operations. Discussions with potential buyers concerning the
Parkersburg, West Virginia facility, which has fixed assets and
working capital with carrying values of approximately $3.0
million and $5.0 million, respectively, are currently ongoing.
The outcome of these discussions, however, is uncertain at this
time. Additionally, the Company has reached an agreement to
sell its facility at Windsor, New Jersey, which has fixed assets
with a carrying value of $1.0 million. These fixed assets have
been classified on the consolidated balance sheet as property
held for resale (see Note 5 to consolidated financial
statements). Additionally, the Company has decided to reduce
its investment in warehouse pipe products and concentrate its
efforts on the sale and marketing of coated line pipe. These
actions are not expected to have a material impact on the
financial condition of the Company. Management continues to
evaluate the overall performance of certain operations. A
decision to terminate an existing operation could have a
material effect on near-term earnings but would not be expected
to have a material adverse effect on the financial condition of
the Company.
Outlook
The Company's future operating results may be affected by a
number of factors. The Company is dependent upon a number of
major suppliers. If a critical supplier had operational problems
or ceased making material available to the Company, operations
could be adversely affected. In particular, approximately 70% of
the materials sold by the construction products segment are
purchased from one supplier. The Company's operations are in
part dependent on governmental funding of infrastructure
projects. Significant changes in the level of government funding
of these projects could have a favorable or unfavorable impact
on the operating results of the Company. Additionally,
governmental actions concerning taxation, tariffs, the
environment or other matters could impact the operating
results of the Company. The Company's operations results may
also be affected by the weather.
Although backlog is not necessarily indicative of future
operating results, total Company backlog at December 31, 1995
was approximately $81 million or equal to the backlog at the end
of the previous year. The following table provides the backlog
by business segment.
</TABLE>
<TABLE>
<CAPTION> December 31,
1995 1994 1993
(Dollars in thousands)
<S> <C> <C> <C>
Backlog:
Rail Products $43,879 $47,582 $34,502
Construction Products 28,239 18,574 27,172
Tubular Products 8,857 14,776 13,697
Total Backlog $80,975 $80,932 $75,371
</TABLE>
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
<TABLE>
<CAPTION>
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1995 AND 1994
ASSETS (In thousands) 1995 1994
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 1,325 $ 1,180
Accounts receivable (Note 3) 48,277 46,421
Inventories (Note 4) 40,304 43,651
Current deferred tax assets (Note 13) 1,005 897
Other current assets 831 666
Property held for resale (Note 5) 985
Total Current Assets 92,727 92,815
PROPERTY, PLANT AND EQUIPMENT -
at cost (Note 6) 22,605 23,367
PROPERTY HELD FOR RESALE (Note 5) 4,545 2,459
DEFERRED TAX ASSETS (Note 13) 2,018 1,428
OTHER ASSETS (Note 7) 2,528 2,516
TOTAL ASSETS $ 124,423 $ 122,585
LIABILITIES AND STOCKHOLDERS' EQUITY (In thousands, except share data)
CURRENT LIABILITIES:
Short-term borrowings (Note 8) $ 9,750 $ 13,920
Current maturities of long-term debt (Note 9) 1,266 798
Accounts payable - trade 18,065 19,775
Accrued payroll and employee benefits 2,682 2,524
Other accrued liabilities 3,105 3,279
Total Current Liabilities 34,868 40,296
LONG-TERM DEBT (Note 9) 25,034 22,377
OTHER LONG-TERM LIABILITIES 1,348 1,593
COMMITMENTS AND CONTINGENT LIABILITIES (Note 18)
STOCKHOLDERS' EQUITY (Notes 8, 10 and 11):
Class A Common stock, issued 10,188,739
shares in 1995 and 10,178,739 shares in
1994 102 102
Paid-in capital 35,148 35,118
Retained earnings 28,480 23,656
Treasury stock - at cost, Class A Common
stock, 256,001 shares (557) (557)
Total Stockholders' Equity 63,173 58,319
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 124,423 $ 122,585
</TABLE>
See Notes to Consolidated Financial Statements.
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENTS OF INCOME
FOR THE THREE YEARS ENDED
DECEMBER 31, 1995
(In thousands, except per share) 1995 1994 1993
<S> <C> <C> <C>
NET SALES $ 264,985 $ 234,262 $ 212,291
COSTS AND EXPENSES:
Cost of goods sold 235,770 206,665 187,788
Selling and administrative expenses 22,446 21,413 21,400
Interest expense 2,840 2,067 2,408
Other (income) expense (777) (274) 157
260,279 229,871 211,753
INCOME BEFORE INCOME TAXES AND
CUMULATIVE EFFECT OF CHANGES IN
ACCOUNTING PRINCIPLES 4,706 4,391 538
INCOME TAX BENEFIT (Note 13) (337) (1,049) (361)
INCOME BEFORE CUMULATIVE EFFECT
OF CHANGES IN ACCOUNTING PRINCIPLES 5,043 5,440 899
CUMULATIVE EFFECT OF CHANGES IN ACCOUNTING
PRINCIPLES (Note 2) (219) 670
NET INCOME $ 4,824 $ 5,440 $ 1,569
EARNINGS PER COMMON SHARE:
Income before cumulative effect of
changes in accounting principles $ 0.51 $ 0.55 $ 0.09
Cumulative effect of changes in
accounting principles (0.02) 0.07
EARNINGS PER COMMON SHARE (Note 12) $ 0.49 $ 0.55 $ 0.16
</TABLE>
See Notes to Consolidated Financial Statements.
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENTS OF
CASH FLOWS FOR THE THREE YEARS
ENDED DECEMBER 31, 1995
(In thousands) 1995 1994 1993
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 4,824 $ 5,440 $ 1,569
Adjustments to reconcile net income to
net cash provided (used) by operating
activities:
Deferred income taxes (565) (1,228) (427)
Depreciation and amortization 2,774 2,932 2,763
Gain on sale of property, plant and
equipment (532) (635) (558)
Cumulative effect of change in
accounting principle 219 (670)
Change in operating assets and liabilities:
Accounts receivable (1,856) (10,560) 74
Inventory 2,878 (4,240) 646
Other current assets (165) 49 (251)
Other noncurrent assets (171) 309 483
Accounts payable - trade (1,710) 2,526 1,100
Accrued payroll and employee benefits 158 354 440
Other current liabilities (174) (238) (1,227)
Other liabilites (245) (384) (19)
Net Cash Provided (Used) by Operating
Activities 5,435 (5,675) 3,923
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sale of property, plant
and equipment 3,880 2,107 2,428
Acquisition of business (Note 14) (4,784)
Capital expenditures on property, plant
and equipment (4,074) (2,800) (1,610)
Net Cash Used by Investing Activities (194) (693) (3,966)
CASH FLOWS FROM FINANCING ACTIVITIES:
(Repayments) proceeds of revolving credit
agreement borrowings (4,170) 7,420 45
Exercise of stock options 30
Repayments of long-term debt (Note 9) (956) (1,085) (1,130)
Net Cash (Used) Provided by Financing
Activities (5,096) 6,335 (1,085)
Net Increase (Decrease) in Cash and Cash
Equivalents 145 (33) (1,128)
Cash and Cash Equivalents at Beginning of
Year 1,180 1,213 2,341
Cash and Cash Equivalents at End of Year $ 1,325 $ 1,180 $ 1,213
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Interest Paid $ 2,906 $ 1,933 $ 2,481
Income Taxes Paid $ 188 $ 78 $ 70
</TABLE>
During 1995, 1994, and 1993, the Company financed certain
capital expenditures and related maintenance agreements totaling
$4,081,000, $415,000 and $819,000, respectively, through the
issuance of capital leases.
See Notes to Consolidated Financial Statements.
<PAGE>
CONSOLIDATED STATEMENTS OF
STOCKHOLDERS' EQUITY
FOR THE THREE YEARS ENDED
DECEMBER 31, 1995
<TABLE>
<CAPTION>
Class A
Common Paid-in Retained Treasury
(In thousands) Stock Capital Earnings Stock Total
<S> <C> <C> <C> <C> <C>
Balance, January 1, 1993 $ 102 $ 35,118 $ 16,647 $ (557) $ 51,310
Net Income 1,569 1,569
Balance, December 31, 1993 102 35,118 18,216 (557) 52,879
Net Income 5,440 5,440
Balance, December 31, 1994 102 35,118 23,656 (557) 58,319
Net Income 4,824 4,824
Exercise of option to purch-
ase 10,000 shares of Class A
Common stock (Note 11) 30 30
Balance, December 31, 1995 $ 102 $ 35,148 $ 28,480 $ (557) $ 63,173
</TABLE>
See Notes to Consolidated Financial Statements.
<PAGE>
Notes to Consolidated Financial Statements
Note 1.
Summary of Significant Accounting Policies
Basis of financial statement presentation - The consolidated
financial statements include the accounts of the Company and its
wholly owned subsidiaries. All significant intercompany
transactions have been eliminated. The term "Company" refers to
L. B. Foster Company and its subsidiaries, as the context
requires.
Cash equivalents - The Company considers securities with
maturities of three months or less, when purchased, to be cash
equivalents.
Inventories - Inventories are generally valued at the lower of
the last-in, first-out (LIFO) cost or market. Other inventories
of the Company, approximately 11% in 1995 and 1994, are valued
at average cost or market, whichever is lower.
Property, plant and equipment - Maintenance, repairs and minor
renewals are charged to operations as incurred. Major renewals
and betterments which substantially extend the useful life of
the property are capitalized. Upon sale or other disposition of
assets, the cost and related accumulated depreciation and
amortization are removed from the accounts and the resulting
gain or loss, if any, is reflected in income. Depreciation and
amortization are provided based upon the estimated useful lives
principally under the straight-line method. Leasehold
improvements are amortized over the lives of the respective
leases or the lives of the improvements, whichever is shorter.
Pile driving equipment held for rental is classified as
property, plant and equipment.
Financial derivatives - To hedge against exposures to changes in
interest rates on variable rate debt, the Company enters into
interest rate swap agreements. The effects of movements in
interest rates on these instruments are recognized as they occur.
Environmental remediation and compliance - Environmental
remediation costs are accrued, except to the extent costs can be
capitalized, based on estimates of known environmental
remediation exposures. Environmental compliance costs, which
principally include the disposal of waste generated by routine
operations, are expensed as incurred. Capitalized environmental
costs are depreciated, when appropriate, over their useful
life.
Net sales - Customers are invoiced and income is recognized when
material is shipped from stock or when the Company is billed for
material shipped directly from the vendor. Gross sales are
reduced by sales taxes, discounts and freight to determine net
sales.
Income taxes - The Company accounts for income tax expense and
liabilities under the liability method.
<PAGE>
Use of estimates - The preparation of financial statements in
conformity with generally accepted accounting principles
requires management to make estimates and assumptions that
affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those
estimates.
Stock-based compensation - The Company grants stock options for
a fixed number of shares to employees with an exercise price
equal to the fair value of the shares at the date of grant. The
Company follows the requirements of Accounting Principles Board
Opinion No. 25, "Accounting for Stock Issued to Employees," in
accounting for stock-based compensation, and accordingly,
recognizes no compensation expense for stock option grants.
Note 2.
Change in Accounting Principles
The Company adopted the provisions of the Statement of Financial
Accounting Standards (SFAS) No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be
Disposed Of," in its financial statements for the year ended
December 31, 1995. The cumulative effect as of January 1, 1995
of adopting Statement 121 decreased net income by $219,000, net
of an income tax benefit of $134,000, or $0.02 per share. The
Company adopted the provisions of SFAS No. 109, "Accounting for
Income Taxes," in its financial statements for the year ended
December 31, 1993. The cumulative effect as of January 1, 1993
of adopting Statement 109 increased net income by $670,000 or
$0.07 per share.
<PAGE>
Note 3.
Accounts Receivable
Accounts receivable at December 31, 1995 and 1994 are summarized
as follows (in thousands):
<TABLE>
<CAPTION> 1995 1994
<S> <C> <C>
Trade $ 49,966 $ 47,872
Allowance for doubtful accounts (1,800) (1,615)
Other 111 164
$48,277 $46,421
</TABLE>
The Company's customers are in the rail, construction and
tubular segments of the economy. As of December 31, 1995 and
1994, trade receivables, net of allowance for doubtful accounts,
from customers in these markets were as follows (in
thousands):
<TABLE>
<CAPTION> 1995 1994
<S> <C> <C>
Rail $21,366 $20,304
Construction 17,169 17,719
Tubular 9,631 8,234
$48,166 $46,257
</TABLE>
Credit is extended on an evaluation of the customer's financial
condition and generally collateral is not required.
Note 4.
Inventories
Inventories at December 31, 1995 and 1994 are summarized as
follows (in thousands):
<TABLE>
<CAPTION> 1995 1994
<S> <C> <C>
Finished goods $33,570 $28,495
Work-in-process 6,687 14,242
Raw materials 2,659 2,971
Total inventories at current costs 42,916 45,708
Less:
Current cost over LIFO
stated values (2,012) (1,457)
Reserve for decline in market
value of inventories (600) (600)
$40,304 $43,651
</TABLE>
At December 31, 1995 and 1994, the LIFO carrying value of
inventories for book purposes exceeded the LIFO carrying value
for tax purposes by approximately $3,516,000 and $3,374,000,
respectively. During 1995, inventory quantities were reduced
resulting in a liquidation of certain LIFO inventory layers
carried at costs which were lower than the costs of current
purchases. The effect of these reductions in 1995 was to
decrease cost of goods sold by $287,000.
<PAGE>
Note 5.
Property Held for Resale
Property held for resale at December 31, 1995 and 1994 consists
of the following (in thousands):
<TABLE>
<CAPTION>
Location 1995 1994
<S> <C> <C>
Parkersburg, WV $2,920
Windsor, NJ 985 $1,253
Marrero, LA 615 615
Houston, TX 261 261
Navasota, TX 356
Other 393 330
Property held for resale 5,530 2,459
Assets having sales commit-
ments within one year 985
$4,545 $2,459
</TABLE>
The Parkersburg, WV location produces Fosterweld spiralweld
pipe used for water transmission and other applications. During
1995, the Company decided that this product did not meet the
Company's long-term strategic goals. The assets of this
operation include machinery and equipment, buildings and
leasehold improvements. During 1995, the location generated
net sales and operating profit of approximately $10,300,000 and
$300,000, respectively, which are included in the Company's
tubular segment. The Company is currently negotiating with
several buyers. However, the outcome of these discussions is
uncertain at this time.
The Windsor, NJ location formerly produced Fosterweld pipe and was
used for yard storage. Assets of the location consist of land and
land improvements no longer used in the Company's business. The
cumulative effect of adopting SFAS No. 121 includes an impairment
loss of $268,000 based upon the estimated sales value of the assets,
net of related costs to sell. The Company anticipates disposing of
these assets during 1996.
The Marrero, LA location was formerly used for yard storage.
Assets of the location consist of land no longer used in the
Company's business. The land is currently being leased to a
third party. The Company does not anticipate disposing of the
land during 1996.
The Houston, TX location was formerly a pipe coal tar coating
facility. Assets of the location consist of land no longer
used in the Company's business. The land has been listed for
sale, although no assurances can be given that the land will be
sold during 1996.
<PAGE>
The Navasota, TX location produces couplings used in the
Company's threaded products business and is included in the
tubular products' business segment. The assets of this
operation include machinery and equipment, buildings and land.
During 1995, the Company received an offer from a third party to
buy the facility and to produce couplings for use in the
Company's operations. The Company has entered into an operating
lease agreement with the third party for six months with an
option to buy. If the third party does not purchase the
property, the operating lease converts to a capital lease for
five years based on a market value of $800,000, with an option
to buy. Separate net sales and operating profits for this
location cannot be identified.
Other consists of various machinery and equipment. The
cumulative effect of adopting SFAS No. 121 includes an
impairment loss of $86,000 related to these assets based upon
their estimated sales value net of related costs to sell.
Note 6.
Property, Plant and Equipment
Property, plant and equipment at December 31, 1995 and 1994
consists of the following (in thousands):
<TABLE>
<CAPTION> 1995 1994
<S> <C> <C>
Land $ 6,700 $ 6,700
Improvements to land and leaseholds 3,867 5,092
Buildings 2,563 4,808
Machinery and equipment, including
equipment under capitalized leases
of $7,728 in 1995 and $4,114 in 1994 23,862 31,424
Rental pile driving equipment 6,251 6,872
Construction in progress 318 222
43,561 55,118
Less accumulated depreciation and
amortization, including accumulated
amortization of capitalized leases
of $1,663 in 1995 and $1,117 in 1994 20,956 31,751
$ 22,605 $ 23,367
</TABLE>
<PAGE>
Property, plant and equipment include certain capitalized
leases. The following is a schedule, by year, of the
future minimum payments under these leases, together with the
present value of the net minimum payments as of December 31,
1995 (in thousands):
<TABLE>
<CAPTION>
Year ending December 31, Amount
<S> <C>
1996 $1,718
1997 1,663
1998 1,566
1999 1,176
2000 and thereafter 1,494
Total minimum lease payments 7,617
Less amount representing interest 1,317
Total present value of minimum
payments (Note 9) 6,300
Less current portion of such obligations 1,266
Long-term obligations with interest rates
ranging from 6.92% to 11.42% $5,034
</TABLE>
Note 7.
Other Assets
At December 31, 1995 and 1994, other assets include notes
receivable and accrued interest totaling $1,896,000 and
$1,573,000, respectively, from investors in a private corporation.
The notes, which are recorded at face value, are due if there is a
change in ownership of the private corporation or March 31, 1997,
whichever occurs earlier. Additionally, the Company owns stock in
the private corporation which is recorded at historical cost of $193,000.
Note 8.
Short-Term Borrowings
Effective November 1, 1995, the Company renegotiated its $45,000,000
revolving credit agreement. The interest rate is, at the Company's
option, based on the prime rate, the domestic certificate of deposit
rate (CD rate) or the Euro-bank rate. The interest rates are adjusted
quarterly based on the fixed charge coverage ratio defined in
the agreement. The ranges are prime to prime plus 0.25% , the
CD rate plus 0.45% to the CD rate plus 1.125%, and the Euro-bank
rate plus 0.45% to the Euro-bank rate plus 1.125%. Borrowings
under the agreement, which expires July 1, 1999, are secured by
accounts receivable and inventory.
The agreement includes financial covenants requiring a minimum net
worth, a fixed charge coverage ratio, a leverage ratio and a current ratio.
The agreement also places restrictions on dividends,
investments, capital expenditures, indebtedness and sales of
certain assets. As of December 31, 1995, the Company was in
compliance with all the agreement's covenants. At December 31,
1995, the Company had borrowed $29,750,000 under the agreement
of which $20,000,000 was classified as long- term (see Note 9).
Under the agreement, the Company had approximately $14,122,000
in unused borrowing commitment at December 31, 1995. At
December 31, 1995, $2,497,000 was available for future
dividend payments.
<PAGE>
Note 9.
Long-Term Debt and Related Matters
Long-term debt at December 31, 1995 and 1994 consists of the
following (in thousands):
<TABLE>
<CAPTION> 1995 1994
<S> <C> <C>
Revolving Credit Agreement with
weighted average interest rate of
6.57% at December 31, 1995 and
7.33% at December 31, 1994,
expiring July 1, 1999 $20,000 $20,000
Lease obligations payable in
installments through 2002 with a
weighted average interest rate of
8.0% at December 31, 1995 and
9.45% at December 31, 1994 6,300 3,175
26,300 23,175
Less current maturities 1,266 798
$25,034 $22,377
</TABLE>
The $20,000,000 revolving credit borrowings included in
long-term debt were obtained under the revolving
loan agreement discussed in Note 8 and are subject to the
same terms and conditions. This portion of the borrowings is
classified as long-term because the Company does not
anticipate reducing the borrowings below $20,000,000 during 1996.
During 1995, the Company entered into an interest rate swap
agreement to reduce the impact of changes in interest rates on a
portion of its revolving credit borrowings. The LIBOR interest
rate on the $10,000,000 swap agreement, which expires June 1999,
is 6.142%. The Company believes that the credit and market
risks associated with this agreement are not material. Any
additional interest expense incurred under the agreement is
accrued currently and paid quarterly.
The maturities of long-term debt for each of the succeeding five
years subsequent to December 31, 1995 are as follows: 1996 -
$1,266,000; 1997 - $1,312,000; 1998 - $1,322,000; 1999 -
$21,030,000; and 2000 and beyond - $1,370,000.
Note 10.
Stockholders' Equity
At December 31, 1995 and 1994, the number of authorized shares
of the Company's Class A Common stock were 20,000,000 shares and
Class B Common stock were 1,391,000 shares. No Class B Common
shares were issued. The Company's Class A and Class B Common
stock each have a par value of $.01 per share and are generally
identical except that the Class B Common stock has no
stockholder voting rights, and except that such holders shall be
entitled to one vote per share on matters such as consolidation
or merger of the Company. Class B Common stock may be converted
at any time on a share-for-share basis into Class A Common
stock.
<PAGE>
No cash dividends on Common stock were paid in 1995, 1994, and
1993.
Note 11.
Stock Options
The 1985 Long-Term Incentive Plan (Plan) of the Company, as
amended and restated in March 1994, provides for the award of
options to key employees and directors to purchase up to
1,500,000 shares of Common stock at no less than 100% of fair
market value on the date of the grant. The Plan provides for
the granting of "nonqualified options" and "incentive stock
options" with a duration of not more than ten years from the
date of grant. The Plan also provides that, unless otherwise
set forth in the option agreement, options are exercisable in
installments of up to 25% annually beginning one year from date
of grant. Stock to be offered under the Plan may be authorized
but unissued Common stock or previously issued shares which have
been reacquired by the Company and held as Treasury shares. At
December 31, 1995, 1994 and 1993, Common stock options
outstanding under the Plan had option prices ranging from $2.63
to $6.00, with a weighted average price of $3.35, $3.33, and
$3.25 per share, respectively.
The Option Committee of the Board of Directors which administers
the Plan may, at its discretion, grant stock appreciation rights
at any time prior to six months before an option's expiration
date. Upon exercise of such rights, the participant surrenders
the exercisable portion of the option in exchange for payment
(in cash and/or Common stock valued at its fair market value) of
an amount not greater than the spread, if any, by which the
average of the high and low sales prices quoted in the
Over-the-Counter Exchange on the trading day immediately
preceding the date of exercise of the stock appreciation right
exceeds the option price. No stock appreciation rights were
issued or outstanding during 1995, 1994 or 1993.
Options exercised during 1995 totaled 10,000 shares at an
exercise price of $3.00 per share. There were no options
exercised during 1994 and 1993.
Certain information for the three years ended December 31, 1995
relative to employee stock options is summarized as follows:
<TABLE>
<CAPTION>
1995 1994 1993
<S> <C> <C> <C>
Number of shares under
Incentive Plan option:
Outstanding at begin-
ning of year 975,000 725,000 651,625
Granted 25,000 256,000 74,000
Canceled (25,000) (6,000) (625)
Exercised (10,000)
Outstanding at end of year 965,000 975,000 725,000
Exercisable at end of year 748,000 712,500 649,500
Number of shares available
for future grant:
Beginning of year 316,250 66,250 139,625
End of year 316,250 316,250 66,250
</TABLE>
<PAGE>
Note 12.
Earnings Per Common Share
Earnings per common share are computed by dividing net income
by the average number of Class A Common shares and common stock
equivalents outstanding during the year. The weighted average
number of Class A Common shares outstanding during the year
ended December 31, 1995 were approximately 9,927,000 and
approximately 9,923,000 during the years ended 1994 and
1993.
Common stock equivalents are the net additional
number of shares which would be issuable upon the exercise of
the outstanding common stock options (see Note 11), assuming
that the Company used the proceeds to purchase additional shares
at market value. Common stock equivalents had no material effect
on the computation of earnings per share for the three years
ended December 31, 1995.
Note 13
Income Taxes
Effective January 1, 1993, the Company changed its method of
accounting for income taxes as required by Statement No. 109,
"Accounting for Income Taxes," (see Note 2). The cumulative
effect of adopting Statement 109 as of January 1, 1993 was to
increase net income by $670,000.
At December 31, 1995, the Company has available net operating
loss carryforwards of approximately $7,800,000 for federal
income tax purposes that expire in 2001. The federal
carryforwards resulted from losses generated in 1986. The tax
benefit of net operating loss carryforwards available for state
income tax purposes was approximately $800,000 as of December
31, 1995. The Company also has alternative minimum federal tax
credit carryforwards at December 31, 1995 of approximately
$1,000,000. For financial purposes, a valuation allowance of
$200,000 has been recognized to offset the deferred tax assets
related to the state income carryforwards. Deferred income taxes
reflect the net tax effects of temporary differences between the
carrying amounts of assets and liabilities for financial
reporting purposes and the amounts used for income tax purposes.
Significant components of the Company's deferred tax
liabilities and assets as of December 31, 1995 and 1994 are as
follows (in thousands):
<PAGE>
<TABLE>
<CAPTION> 1995 1994
<S> <C> <C>
Deferred tax liabilities:
Depreciation $1,227 $ 602
Other - net (60) 68
Total deferred tax liabilities 1,167 670
Deferred tax assets:
Net operating loss carryforwards 3,419 4,496
Tax credit carryforwards 971 886
Other - net 312
Total deferred tax assets 4,390 5,694
Valuation allowance for
deferred tax assets 200 2,699
Deferred tax assets 4,190 2,995
Net deferred tax assets $3,023 $2,325
</TABLE>
The valuation allowance for deferred tax assets was reduced by
$2,499,000, $2,374,000 and $322,000 during 1995, 1994 and 1993,
respectively.
Significant components of the provision for income taxes are as
follows (in thousands):
<TABLE>
<CAPTION> 1995 1994 1993
<S> <C> <C> <C>
Current:
Federal $ 102 $ 81 $ 13
State 126 98 53
Total current 228 179 66
Deferred:
Federal (339) (1,182) (388)
State (360) (46) (39)
Total deferred (699) (1,228) (427)
Total income tax benefit $ (471) $(1,049) $ (361)
</TABLE>
Income tax benefit is included in the consolidated
statements of income as follows (in thousands):
<TABLE>
<CAPTION> 1995 1994 1993
<S> <C> <C> <C>
Continuing operations $(337) $(1,049) $(361)
Cumulative effect of
accounting change (134)
$(471) $(1,049) $(361)
</TABLE>
<PAGE>
The reconciliation of income tax computed at statutory rates to
income tax benefit is as follows:
<TABLE>
<CAPTION> 1995 1994 1993
<S> <C> <C> <C>
Statutory rate 34.0% 34.0% 34.0%
State income tax (3.0) 0.7 1.6
Nondeductible expenses 3.0 3.1 11.7
Net operating loss (22.9) (28.6) (64.5)
Change in valuation reserve (30.2) (25.5) (61.7)
Prior period tax 13.2 (11.5)
Other (1.3) 3.9 11.8
(7.2)% (23.9)% (67.1)%
</TABLE>
Note 14.
Acquisitions
In May 1993, the Company acquired the rail-related assets and
assumed the trade payables of Midwest Corporation, a subsidiary
of UNR Industries for $4,784,000. The purchase includes a plant
in Pomeroy, Ohio for manufacturing light trackwork and Midwest's
distribution business for new and used rail products.
The acquisition has been reported using the purchase method of
accounting and has been included in operations since the date
of acquisition. The purchase price was allocated to the assets
and liability based on the estimated fair values as of the
acquisition date. Cost in excess of net assets acquired is
being amortized on a straight-line basis over 25 years.
Note 15.
Rental and Lease Information
The Company leases certain plant facilities, office facilities
and equipment. Rental expense for the years ended December 31,
1995, 1994 and 1993 amounted to $1,867,000, $1,693,000, and
$1,877,000, respectively.
At December 31, 1995, the Company is committed to total minimal
rental payments under all noncancellable operating leases of
$1,417,000 . Generally, these leases include escalation
clauses.
The minimum future rental commitments are payable as follows:
1996 - $863,000; 1997 - $377,000; 1998 - $87,000; 1999 -
$70,000; and 2000 - $20,000.
<PAGE>
Note 16.
Retirement Plans
Substantially all of the Company's hourly paid employees are
covered by one of the Company's noncontributory, defined benefit
plans. Hourly nonunion employees are also covered by a defined
contribution plan with contributions fixed at $0.12 per hour
worked. Substantially all of the Company's salaried employees
are covered by a defined contribution plan established by the
Company.
Benefits for hourly employees over age 21 are generally based on
hours of service. The salaried plan for employees over age 21
is based on years of qualifying service.
The Company's funding policy for defined benefit plans is to
contribute the minimum required by the Employee Retirement
Income Security Act of 1974. Net periodic pension cost for the
three years ended December 31, 1995 is summarized as follows (in
thousands):
<TABLE>
<CAPTION> 1995 1994 1993
<S> <C> <C> <C>
Service cost $ 71 $ 78 $ 61
Interest cost 121 110 99
Actual return on plan assets (131) (120) (114)
Other (3) (3) (11)
Net periodic pension cost $ 58 $ 65 $ 35
</TABLE>
The hourly plan assets consist of allocated and unallocated
insurance contracts. The following table presents a
reconciliation of the funded status of the defined
benefit plans at December 31, 1995 and 1994 with the accrued
pension cost included in other current liabilities on the
Company's balance sheet (in thousands):
<TABLE>
<CAPTION> 1995 1994
Underfunded Overfunded Underfunded
Plans Plan Plan
<S> <C> <C> <C>
Projected benefit obligation:
Vested benefits $1,810 $1,106 $ 268
Nonvested benefits 67 25 24
Total projected benefit obligation 1,877 1,131 292
Fair value of plan assets 1,718 1,404 190
Excess (deficit) of plan assets
over projected benefit obligation (159) 273 (102)
Unrecognized net transition asset (121) (125) (5)
Unrecognized prior service cost 88 8 86
Unrecognized net (gain) loss 31 (266) (20)
Adjustment for minimum liability (126) (61)
Accrued pension cost $ (287) $ (110) $ (102)
</TABLE>
<PAGE>
The Company's defined contribution plan, available to
substantially all salaried employees, contains a matched savings
provision that permits both pretax and after-tax employee
contributions. Participants can contribute from 2% to 15% of
their annual compensation and receive a 50% matching employer
contribution on up to 6% of their annual compensation.
Further, the plan requires an additional matching employer
contribution, based on the ratio of the Company's pretax income
to equity, up to 50% of 6% of the employee's annual
compensation. Additionally, the Company contributes 1% of all
salaried employees' annual compensation to the plan without
regard for employee contribution. The Company may also make
additional discretionary contributions to the plan. The defined
contribution plan expense was: $727,000 in 1995, $710,000 in
1994 and $431,000 in 1993.
Assumptions used to measure the projected benefit obligation and
develop net periodic pension costs for the three years ended
December 31, 1995 were:
<TABLE>
<CAPTION> 1995 1994 1993
<S> <C> <C> <C>
Assumed discount rate 7% 8% 7 1/4%
Expected rate of return on
plan assets 8% 8% 8%
</TABLE>
As a result of the change in the discount rate, the
projected benefit obligation as of December 31, 1995 is
approximately $270,000 more than it would have been using the
previous 8% discount rate. The change had no effect on net
pension cost in 1995.
Note 17.
Related Party Transactions
As of January 1, 1993, the Company entered into an agreement
with Foster Industries, Inc. ("FII"), the Company's predecessor,
to share the environmental remediation costs up to $2,700,000
associated with a former coal tar pipe coating operation. For
the three years ended December 31, 1995, the Company's
president and chief executive officer and a director were
officers, shareholders and directors of FII. During 1994 and
1993, the Company contributed $89,000 and $1,372,000,
respectively, and FII contributed $56,000 and $918,000,
respectively, to remediate the site. This cleanup was completed
during 1994.
<PAGE>
Note 18.
Commitments and Contingent Liabilities
The Company is subject to laws and regulations relating to the
protection of the environment. While it is not possible to
quantify with certainty the potential impact of actions
regarding environmental matters, particularly any future
remediation and other compliance efforts, in the opinion of
management, compliance with the present environmental protection
laws will not have a material adverse effect on the financial
condition, competitive position, or capital expenditures of the
Company. However, the Company's efforts to comply with
increasingly stringent environmental regulations may have an
adverse effect on the Company's future earnings.
The Company is subject to legal proceedings and claims which
arise in the ordinary course of its business. In the opinion of
management, the amount of ultimate liability with respect to
these actions will not materially affect the financial position
of the Company.
At December 31, 1995, the Company had outstanding letters of
credit of approximately $1,128,000.
Note 19.
Risks and Uncertainties
The Company's future operating results may be affected by a
number of factors. The Company is dependent upon a number of
major suppliers. If a critical supplier had operational
problems or ceased making material available to the Company,
operations could be adversely affected. In particular,
approximately 70% of the materials sold by the construction
products segment are purchased from one supplier. The Company's
operations are in part dependent on governmental funding of
infrastructure projects. Significant changes in the level of
government funding of these projects could have a favorable or
unfavorable impact on the operating results of the Company.
Additionally, governmental actions concerning taxation, tariffs,
the environment or other matters could impact the operating
results of the Company. The Company's operations results may
also be affected by the weather.
Note 20.
Fair Values of Financial Instruments
The following methods and assumptions were used to estimate the
fair value of financial instruments:
Cash and cash equivalents: The carrying amount reported in the
balance sheet for cash and cash equivalents approximates its
fair value.
Accounts receivable and accounts payable: The carrying amount
of accounts receivable and accounts payable approximates fair
value.
<PAGE>
Short-term and Long-term debt: The carrying amount of the
revolving credit facility approximates fair value.
The carrying amounts of the Company's financial instruments at
December 31, 1995, approximate fair value with the exception of
the interest rate swap agreement. At December 31, 1995, the
interest rate swap agreement had no book value but had an
intrinsic value of ($260,000) if the swap agreement had been
canceled according to its terms on December 31, 1995.
Note 21.
Business Segments
L. B. Foster Company is engaged in the manufacture, fabrication
and distribution of rail, construction and tubular products.
The Company's rail segment provides a full line of new and used
rail, trackwork and accessories to railroads, mines and
industry. The Company also designs and produces bonded rail
joints, power rail, track fasteners, catenary systems,
coverboards and special accessories for mass transit and other
rail systems.
The Company's construction segment sells and rents steel sheet
piling and H-bearing pile for foundation and earth retention
requirements and pile driving equipment and accessories for
driving piling. In addition, the Company sells bridge decking,
expansion joints, sign structures and other products for highway
construction and repair.
The Company's tubular segment supplies pipe and pipe coatings
for pipelines and utilities. Additionally, the Company
manufactures spiralweld pipe for water transmission lines,
foundation piling, slurry lines and many other applications.
The Company also produces pipe-related products for special
markets, including water wells and irrigation.
The Company markets its products directly in all major
industrial areas of the United States through a national sales
force.
<PAGE>
A summary of revenues, operating profit, identifiable assets,
depreciation and amortization, and capital expenditures of each
business segment for the three years ended December 31, 1995
follows (in thousands):
<TABLE>
<CAPTION> 1995
Net Operating Identifiable Depreciation/ Capital
Sales Profit Assets Amortization Expenditures
<S> <C> <C> <C> <C> <C>
Rail products $111,582 $ 5,705 $ 48,622 $ 570 $ 347
Construction
products 88,735 2,592 32,652 1,018 1,346
Tubular
products 64,668 720 33,658 1,160 2,375
264,985 9,017 114,932 2,748 4,068
Corporate and
other 9,491 26 6
Total $264,985 9,017 $124,423 $ 2,774 $ 4,074
Nonoperating
income (expense):
General corp-
orate expense
and unallocated
other income
and expense -
net (1,471)
Interest expense (2,840)
Income before
income taxes $ 4,706
</TABLE>
<TABLE>
<CAPTION> 1994
Net Operating Identifiable Depreciation/ Capital
Sales Profit/Loss Assets Amortization Expenditures
<S> <C> <C> <C> <C> <C>
Rail products $ 88,862 $ 6,052 $ 46,426 $ 357 $ 319
Construction
products 85,488 4,245 34,923 1,079 1,709
Tubular
products 59,912 (2,063) 33,579 1,347 763
234,262 8,234 114,928 2,783 2,791
Corporate and
other 7,657 149 9
Total $234,262 8,234 $122,585 $ 2,932 $ 2,800
Nonoperating
income
(expense):
General corp-
orate expense
and unallocated
other income
and expense -
net (1,776)
Interest expense (2,067)
Income before
income taxes $ 4,391
</TABLE>
<PAGE>
<TABLE>
<CAPTION> 1993
Net Operating Identifiable Depreciation/ Capital
Sales Profit/Loss Assets Amortization Expenditures
<S> <C> <C> <C> <C> <C>
Rail products $ 75,141 $ 5,444 $ 34,323 $ 233 $ 149
Construction
products 68,633 2,701 32,060 1,103 514
Tubular
products 68,517 (2,867) 34,838 1,107 813
212,291 5,278 101,221 2,443 1,476
Corporate and
other 6,916 320 134
Total $212,291 5,278 $108,137 $ 2,763 $ 1,610
Nonoperating
income
(expense):
General corp-
orate expense
and unallocated
other income
and expense -
net (2,332)
Interest expense (2,408)
Income before
income taxes $ 538
</TABLE>
Sales for export were $14,286,000 in 1995, $16,597,000 in 1994
and $23,062,000 in 1993. Sales to any individual customer do
not exceed 10% of consolidated net sales. Sales between
segments are immaterial. Identifiable assets by segment are
those assets that are used exclusively by such segments.
Corporate assets are principally cash, investments and deferred
tax assets.
Depreciation and capital expenditure amounts for the construction
products segment include the regular replacement and depreciation
of rental pool assets.
Note 22.
Quarterly Financial Information (Unaudited)
Quarterly financial information for the years ended December 31,
1995 and 1994 is presented below (in thousands, except per share
amounts):
<PAGE>
<TABLE>
<CAPTION> 1995
First Second Third Fourth
Quarter Quarter Quarter Quarter Total
<S> <C> <C> <C> <C> <C>
Net sales $ 55,456 $ 72,564 $ 75,662 $ 61,303 $264,985
Gross profit $ 6,424 $ 7,748 $ 8,283 $ 6,760 $ 29,215
Income before cumulative
effect of change in
accounting principle $ 402 $ 1,724 $ 2,025 $ 892 $ 5,043
Net income $ 183 $ 1,724 $ 2,025 $ 892 $ 4,824
Earnings per common
share before cumulative
effect of change in
accounting principle $ 0.04 $ 0.17 $ 0.21 $ 0.09 $ 0.51
Earnings per common
share $ 0.02 $ 0.17 $ 0.21 $ 0.09 $ 0.49
</TABLE>
Effective January 1, 1995, the Company adopted SFAS No. 121,
"Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to be Disposed Of." This change in accounting
reduced net income reported for the first quarter of 1995 by
$219,000 or $0.02 per share and increased income from continuing
operations in the third quarter of 1995 by $250,000 or $0.03 per
share. The second quarter of 1995 includes additional interest
income of $197,000. The third quarter of 1995 includes a gain
of $180,000 from the sale of equipment held for disposal. The
fourth quarter of 1995 includes a tax benefit of $337,000
principally for changes in net operating loss recognition and
the valuation reserve.
<TABLE>
<CAPTION> 1994
First Second Third Fourth
Quarter Quarter Quarter Quarter Total
<S> <C> <C> <C> <C> <C>
Net sales $ 45,045 $ 60,670 $ 65,527 $ 63,020 $234,262
Gross profit $ 4,831 $ 7,061 $ 7,660 $ 8,045 $ 27,597
Net income (loss) $ (291) $ 1,203 $ 1,926 $ 2,602 $ 5,440
Earnings (loss) per
common share $ ( 0.03) $ 0.12 $ 0.20 $ 0.26 $ 0.55
</TABLE>
The third quarter of 1994 includes the following: 1) a $622,000
reduction of costs and expenses related to a change in the
Company's policy for employee vacations, 2) a LIFO provision of
$475,000, and 3) a gain of $307,000 from the sale of the
Company's Houston, TX sales office and equipment depot. The
fourth quarter of 1994 includes the following: 1) a $270,000
reduction of costs and expenses related to the change in the
Company's policy for employee vacations, 2) a LIFO provision
of $305,000, 3) a $399,000 favorable adjustment of the reserve
for market decline in inventories, and 4) a tax benefit of
$1,193,000 principally for changes in net operating loss
recognition and the valuation reserve.
<PAGE>
REPORT OF INDEPENDENT AUDITORS AND
RESPONSIBILITY FOR FINANCIAL STATEMENTS
To the Board of Directors and Stockholders
of L. B. Foster Company:
We have audited the accompanying consolidated balance sheets of
L. B. Foster Company as of December 31, 1995 and 1994, and the
related consolidated statements of income, stockholders' equity
and cash flows for each of the three years in the period ended
December 31, 1995. Our audits also included the financial
statement schedule listed in the index at Item 14(a). These
financial statements and schedule are the responsibility of the
Company's management. Our responsibility is to express an
opinion on these financial statements and schedule based on our
audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that
our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred
to above present fairly, in all material respects, the
consolidated financial position of L. B. Foster Company at
December 31, 1995 and 1994, and the consolidated results of its
operations and its cash flows for each of the three years in the
period ended December 31, 1995, in conformity with generally
accepted accounting principles. Also, in our opinion, the
related financial statement schedule, when considered in
relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set
forth therein.
As discussed in Note 2 to the financial statements, in 1995 and
1993, the Company changed its methods of accounting for
long-lived assets and income taxes, respectively.
/s/Ernst & Young LLP
(Ernst & Young LLP)
January 24, 1996
Pittsburgh, PA
<PAGE>
To the Stockholders of L. B. Foster Company:
The management of L. B. Foster Company is responsible for the
integrity of all information in the accompanying consolidated
financial statements and other sections of the annual report.
Management believes the financial statements have been prepared
in conformity with generally accepted accounting principles that
reflect, in all material respects, the substance of events and
transactions, and that the other information in the annual
report is consistent with those statements. In preparing the
financial statements, management makes informed judgments and
estimates of the expected effects of events and transactions
being accounted for currently.
The Company maintains a system of internal accounting control
designed to provide reasonable assurance that assets are
safeguarded and that transactions are executed in accordance
with management's authorization and are properly recorded to
permit the preparation of financial statements in accordance
with generally accepted accounting principles. Underlying the
concept of reasonable assurance is the evaluation of the costs
and benefits derived from control. This evaluation requires
estimates and judgments by the Company. The Company believes
that its internal accounting controls provide an appropriate
balance between costs and benefits.
The Board of Directors pursues its oversight role with respect
to the financial statements through the Finance and Audit
Committee which is composed of outside directors. The Finance
and Audit Committee meets periodically with management,
internal auditors and our independent auditors to discuss the
adequacy of the internal accounting control, the quality of
financial reporting and the nature, extent and results of the
audit effort. Both the internal auditors and the independent
auditors have free access to the Finance and Audit Committee.
/s/Lee B. Foster II
(Lee B. Foster II
President and Chief Executive Officer)
January 24, 1996
/s/Roger F. Nejes
(Roger F. Nejes
Senior Vice President
Finance and Administration
and Chief Financial Officer)
January 24, 1996
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information concerning the directors is set forth under
"Election of Directors" in the Company's Proxy Statement for the
1996 annual meeting of stockholders ("1996 Proxy Statement").
Such information is incorporated herein by reference.
Information concerning the executive officers who are not
directors of the Company is set forth below. With respect to the
period prior to August 18, 1977, references to the Company are
to the Company's predecessor, Foster Industries, Inc.
Name Age Position
William S. Cook, Jr. 54 Vice President - Strategic Planning &
Acquisitions
Paul V. Dean 64 Vice President - Piling Products
Dean A. Frenz 52 Senior Vice President - Rail and Tubular
Products
Stan L. Hasselbusch 48 Senior Vice President - Construction
Products
David L. Minor 52 Treasurer
Roger F. Nejes 53 Senior Vice President - Finance and
Administration and Chief Financial
Officer
Henry M. Ortwein, Jr. 53 Vice President - Rail Manufacturing
John L. Rice 48 Vice President - Rail Distribution
Robert W. Sigle 66 Vice President - Tubular Products
Linda M. Terpenning 50 Vice President - Human Resources
David L. Voltz 43 Vice President, General Counsel and
Secretary
Donald F. Vukmanic 44 Controller
<PAGE>
Mr. Cook was elected Vice President - Strategic Planning &
Acquisitions in October 1993. Prior to joining the Company in
March 1993 as Director of Strategic Planning and Acquisitions,
he was President of Cook Corporate Development, a business and
financial advisory firm serving midsized public and private
companies.
Mr. Dean was named a Vice President in September 1987. Prior to
September 1987, he served in various other capacities with the
Company since his employment in 1964.
Mr. Frenz was elected Senior Vice President - Rail and Tubular
Products in September, 1995 having served as Senior Vice
President - Product Management from October 1993, Vice President - Rail
Products from June 1992 to September 1993 and having served as
Vice President - Sales from August 1987 to May 1992. Mr. Frenz
joined the Company in 1966.
Mr. Hasselbusch was elected Senior Vice President - Construction
Products in September 1995 having served as Senior Vice
President - Sales from October 1993. Previously, he served as
the Company's Central/Western Regional Sales Manager since
September 1990, and Chicago Sales District Manager from 1987.
Mr. Hasselbusch joined the Company in 1972.
Mr. Minor was elected Treasurer in February 1988. Mr. Minor
joined the Company in 1983.
Mr. Nejes was elected Senior Vice President - Finance and
Administration and Chief Financial Officer in October 1993,
having served as Vice President - Finance and Chief Financial
Officer from February 1988.
Mr. Ortwein was elected Vice President - Rail Manufacturing in
October 1993. Additionally, he served as President of Allegheny
Rail Products, Inc. from May 1992 and as its Chief Operating
Officer from January 1992. Previously, he was Vice President of
Sales for Midwest Steel Corporation from January 1991 to
December 1991 and National Sales Manager from November 1989 to
December 1990. Prior to joining Midwest Steel Corporation, he
was a Regional Sales Manager for Bethlehem Steel Corporation
from July 1986 to October 1989.
Mr. Rice was elected Vice President - Rail Distribution in
October 1993, after having served as Manager - New Rail Products
since 1985. Mr. Rice has served in various capacities since
joining the Company in 1972.
Mr. Sigle was elected Vice President - Tubular Products in
December 1990, having served as Vice President - Tubular and
Coating Sales Development since September 1987, and in various
capacities with the Company since his employment in 1965.
Ms. Terpenning was elected Vice President - Human Resources in
October 1987. Ms. Terpenning joined the Company in 1985.
<PAGE>
Mr. Voltz was elected Vice President, General Counsel and
Secretary in December 1987, having previously served as General
Counsel and Secretary since December 1986. Mr. Voltz joined the
Company in 1981.
Mr. Vukmanic was elected Controller in February 1988. Mr.
Vukmanic joined the Company in 1977.
Officers are elected annually at the organizational meeting of
the Board of Directors following the annual meeting of
stockholders.
ITEM 11. EXECUTIVE COMPENSATION
The information set forth under "Executive Compensation" in the
1996 Proxy Statement is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The information set forth under "Ownership of Securities by
Management" and "Principal Stockholders" in the 1996 Proxy
Statement is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information set forth under "Certain Transactions" in the
1996 Proxy Statement is incorporated herein by reference.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) The following documents are filed as a part of this Report:
1. Financial Statements
The following consolidated financial statements, accompanying notes and
report of independent auditors in the Company's Annual Report to
stockholders for 1995 have been included in Item 8 of this Report:
Consolidated Balance Sheets at December 31, 1995 and 1994.
Consolidated Statements of Income For the Three Years Ended
December 31, 1995.
Consolidated Statements of Cash Flows For the Three Years
Ended December 31, 1995.
Consolidated Statements of Stockholders' Equity for the Three
Years Ended December 31, 1995.
Notes to Consolidated Financial Statements.
Report of Independent Auditors.
<PAGE>
2. Financial Statement Schedule
Schedules for the Three Years Ended December 31, 1995:
II - Valuation and Qualifying Accounts.
The remaining schedules are omitted because of the absence of
the conditions upon which they are required.
3. Exhibits
The exhibits marked with an asterisk are filed herewith. All exhibits
are incorporated herein by reference:
3.1 Restated Certificate of Incorporation as amended to date,
filed as Exhibit 3.1 to Form 10-Q for the quarter ended March
31, 1987.
3.2 Bylaws of the Registrant, as amended to date, filed as Exhibit
3.2 to Form 10-K for the year ended December 31, 1993.
* 4.1 Amended and Restated Loan Agreement by and among the Registrant
and Mellon Bank, N.A., NBD Bank, and Corestates Bank, N.A. dated
as of November 1, 1995.
10.15 Lease between the Registrant and Amax, Inc. for manufacturing
facility at Parkersburg, West Virginia, dated as of October 19,
1978, filed as Exhibit 10.15 to Registration Statement
No. 2-72051.
10.16 Lease between Registrant and Greentree Building Associates for
Headquarters office, dated as of June 9, 1986, as amended to
date, filed as Exhibit 10.16 to Form 10-K for the year ended
December 31, 1988.
10.16.1 Amendment dated June 19, 1990 to lease between Registrant and
Greentree Building Associates, filed as Exhibit 10.16.1 to
Form 10-Q for the quarter ended June 30, 1990.
10.19 Lease Between the Registrant and American Cast Iron Pipe Company
for Pipe-Coating Facility in Birmingham, Alabama dated December
11, 1991 and filed as Exhibit 10.19 to Form 10-K for the year
ended December 31, 1991.
10.33.2 Amended and Restated 1985 Long Term Incentive Plan, as amended
and restated March 2, 1994 and filed as Exhibit 10.33.2 to
Form 10-K for the year ended December 31, 1993. **
10.44 Amended Agreement between the Registrant and James W. Wilcock
dated as of February 19, 1991 and filed as Exhibit 10.44 to
Form 10-K for the year ended December 31, 1990. **
10.45 Medical Reimbursement Plan, filed as Exhibit 10.45 to Form 10-K
for the year ended December 31, 1992. **
10.46 Leased Vehicle Plan, as amended to date. Filed as Exhibit 10.46
to Form 10-K for the year ended December 31, 1993. **
<PAGE>
10.49 Lease agreement between Newport Steel Corporation and L.B. Foster
Company dated as of October 12, 1994 and filed as Exhibit 10.49
to Form 10-Q for the quarter ended September 30, 1994.
* 10.50 L. B. Foster Company 1996 Incentive Compensation Plan. **
10.51 Supplemental Executive Retirement Plan. Filed as Exhibit 10.51
to form 10-K for the year ended December 31, 1994. **
19 Exhibits marked with an asterisk are filed herewith.
* 23.7 Consent of Independent Auditors.
** Identifies management contract or compensatory plan or
arrangement required to be filed as an Exhibit.
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the fourth
quarter of 1995.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
L. B. FOSTER COMPANY
March 28, 1996 By /s/ Lee B. Foster II
(Lee B. Foster II, President
and Chief Executive Officer)
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons
on behalf of the Registrant and in the capacities and on the
dates indicated.
Name Position Date
By: /s/ Lee B. Foster II President, Chief Executive March 28, 1996
(Lee B. Foster II) Officer and Director
By: /s/ Roger F. Nejes Senior Vice President - March 28, 1996
(Roger F. Nejes) Finance & Administration
and Chief Financial Officer
By: /s/ John W. Puth Director March 28, 1996
(John W. Puth)
By: /s/ Richard L. Shaw Director March 26, 1996
(Richard L. Shaw)
By: /s/Donald F. Vukmanic Controller March 28, 1996
(Donald F. Vukmanic)
By: /s/ James W. Wilcock Chairman of the Board March 28, 1996
(James W. Wilcock)
<PAGE>
<TABLE>
<CAPTION>
L. B. FOSTER COMPANY AND SUBSIDIARIES
SCHEDULE II VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED DECEMBER 31, 1995, 1994, AND 1993
(In Thousands)
Additions
Balance at Charged to Balance
Beginning Costs and Deduc- at End
of Year Expenses Other tions of Year
<S> <C> <C> <C> <C> <C>
1995
Deducted from assets
to which they apply:
Allowance for
doubtful accounts $ 1,615 $ 232 $ $ 47(1) $ 1,800
Provision for de-
cline in market
value of inventories $ 600 $ $ $ $ 600
Not deducted from
assets:
Provision for spec-
ial termination
benefits $ 82 $ 10 $ $ 29(3) $ 63
Provision for envir-
onmental compliance
& remediation $ 279 $ 91 $ $ 110(3) $ 260
1994
Deducted from
assets to which
they apply:
Allowance for
doubtful accounts $ 1,598 $ 345 $ $ 328(1) $ 1,615
Provision for de-
cline in market
value of inventories $ 999 $ $ $ 399(2) $ 600
Not deducted from
assets:
Provision for spec-
ial termination
benefits $ 113 $ 12 $ $ 43(3) $ 82
Provision for envir-
onmental compliance
& remediation $ 452 $ 172 $ $ 345(3) $ 279
<PAGE>
1993
Deducted from
assets to which
they apply:
Allowance for
doubtful accounts $ 1,521 $ 335 $ $ 258(1) $ 1,598
Provision for de-
cline in market
value of inventories $ 999 $ $ $ $ 999
Not deducted from
assets:
Provision for spec-
ial termination
benefits $ 161 $ 21 $ $ 69(3) $ 113
Provision for envir-
onmental compliance
& remediation $ 1,363 $ 339 $ $1,250(3) $ 452
</TABLE>
(1) Notes and accounts receivable written off as uncollectible.
(2) The deduction is the result of a reduction in the specific
tubular inventories to which the reserve applies.
(3) Payments made on amounts accrued and reversals of accruals.
<PAGE>
AMENDED AND RESTATED LOAN AGREEMENT
by and among
L. B. FOSTER COMPANY
as Borrower
and
MELLON BANK, N.A.,
NBD BANK
and
CORESTATES BANK, N.A.
(the "Banks")
and
MELLON BANK, N.A.,
as Agent for the Banks
Dated as of November 1, 1995
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. CERTAIN DEFINITIONS; ACCOUNTING PRINCIPLES 1
Section 1.01. Definitions 1
Section 1.02. Accounting Principles 13
ARTICLE II. THE CREDITS 14
Section 2.01. Commitments 14
Section 2.02. Letters of Credit 16
(a) Documentary Letters of Credit 16
(b) Standby Letters of Credit 16
(c) Letter of Credit Fees 16
(d) Payments With Respect to Letters of Credit 17
(e) Pro Rata Treatment of Payments 18
(f) Participating Interests in Letter of Credit 18
(g) Additional Understandings Regarding Letters of Credit 19
Section 2.03. Making of Revolving Credit Loans 21
Section 2.04. Notes 22
Section 2.05. Interest Rates 22
(a) Interest Rate Options 22
(b) Funding Periods 25
(c) Transactional Amounts 26
(d) CD Rate or Euro-Rate Unascertainable; Impracticability 27
(e) Conversion or Renewal 28
(f) Failure to Convert or Renew 29
(g) Effect of Funding Periods on Loan Maturities 29
(h) Changes in Interest Rates;
Consolidated Fixed Charge Coverage Ratio 30
Section 2.06. Prepayment of Loans 30
Section 2.07. Payments 31
(a) Interest Payment Dates 31
(b) Principal Payment Dates 31
(c) Place, Time and Amounts 31
Section 2.08. Additional Compensation in Certain Circumstances 32
(a) Compensation for Taxes, Reserves
and Expenses on Outstanding Loans 32
(b) Indemnity 33
Section 2.09. Funding By Branch, Subsidiary or Affiliate 34
(a) Notional Funding 34
(b) Actual Funding 34
Section 2.10. Fees; Termination or Reduction of Commitments 35
(a) Fees 35
(b) Reduction/Termination of Commitments 36
ARTICLE III. REPRESENTATIONS AND WARRANTIES 36
Section 3.01. Organization and Qualification 36
Section 3.02. Power and Authority 36
Section 3.03. Financial Statements 36
Section 3.04. Litigation or Proceedings; Commitments
and Contingencies 37
Section 3.05. Material Adverse Change 37
Section 3.06. Title to Properties 37
Section 3.07. No Conflict with Other Documents;
Authorizations and Approvals 38
Section 3.08. Tax Returns 38
Section 3.09. Validity and Binding Effect 39
Section 3.10. Regulations G, U, T and X; Investment Company Status 39
Section 3.11. ERISA Compliance 39
Section 3.12. Defaults 40
Section 3.13. Compliance with Laws 40
Section 3.14. Disclosure
Section 3.15. Continuing Effect 41
ARTICLE IV. CONDITIONS OF LENDING 41
Section 4.01. First Revolving Credit Loans 41
Section 4.02. Subsequent Revolving Credit Loans; Letters of Credit 43
(a) Effect of Borrowing Request or Application 43
(b) Legal Details 43
ARTICLE V. COVENANTS 44
Section 5.01. Affirmative Covenants Other Than
Reporting Requirements 44
(a) Preservation of Corporate Existence, etc. 44
(b) Payment of Taxes, etc. 44
(c) Compliance with Laws 44
(d) Maintenance of Insurance Laws 44
(e) Maintenance of Properties, etc. 45
(f) Financial Accounting Practices 45
(g) Visitation Rights 45
(h) Maintenance of Minimum Consolidated Fixed Charge Coverage Ratio 45
(i) Maintenance of Minimum Consolidated Tangible Net Worth 45
(j) Maintenance of Minimum Ratio of Consolidated Current Assets
to Consolidated Current Liabilities 46
(k) ERISA Covenants 46
(1) Satisfaction of Judgments 46
(m) Maintenance of Minimum Eligible Accounts 46
(n) Environmental Covenant 46
Section 5.02. Negative Covenants 47
(a) Maintenance of Maximum Ratio of Consolidated Total
Liabilities to Consolidated Tangible Net Worth 47
(b) Indebtedness 47
(c) Negative Pledge; Liens 48
(d) Contingent Liabilities 51
(e) Mergers, Etc. 51
(f) Sales of Assets, Etc. 51
(g) Investments 51
(h) Restrictions on Distributions 53
(i) Transactions with Controlling Persons 53
(j) Debt Retirement, Purchases and Redemptions 53
(k) Consolidated Capital Expenditures 54
(1) Operating Leases 54
Section 5.03. Reporting Requirements 54
(a) Financial Statements 54
(b) Accounts Receivable- Inventory Reports; Officer's Certificates 55
(c) Proxy/Registration Statements 55
(d) ERISA Notifications 56
(e) Notices of Default 56
(f) Notices of Material Litigation 56
(g) Notices of Adverse Judgments 57
(h) Material Adverse Changes 57
(i) Copies of Reports, Filings, etc. 57
(j) Returns, etc. 57
(k) Other Information 57
ARTICLE VI. DEFAULT 58
Section 6.01. Events of Default 58
Section 6.02. Consequences of Event of Default 59
Section 6.03. Rights of Set-Off 60
ARTICLE VII. THE AGENT 61
Section 7.01. Appointment 61
Section 7.02. Delegation of Duties 61
Section 7.03. Nature of Duties; Independent Credit Investigation 61
Section 7.04. Actions in Discretion of Agent;
Instructions from the Banks 62
Section 7.05. Exculpatory Provisions 62
Section 7.06. Reimbursement and Indemnification 62
Section 7.07. Reliance by Agent 63
Section 7.08. Agent in its Individual Capacity 63
Section 7.09. Holders of Notes 63
Section 7.10. Equalization of Banks 64
Section 7.11. Successor Agent 64
ARTICLE VIII. MISCELLANEOUS 64
Section 8.01. Modifications, Amendments or Waivers 64
Section 8.02. No Implied Waivers; Cumulative Remedies;
Writing Required 65
Section 8.03. Reimbursement of Expenses; Taxes 66
Section 8.04. Indemnity 66
Section 8.05. Holidays 67
Section 8.06. Notices 67
Section 8.07. Survival 68
Section 8.08. Governing Law 68
Section 8.09. Successors and Assigns 68
Section 8.10. Severability 70
Section 8.11. Nature of Liabilities 70
Section 8.12. Marshalling; Payments Set Aside 70
Section 8.13. Prior Understandings 71
Section 8.14. Counterparts 71
Section 8.15. Section Headings 71
Section 8.16. Waiver of Right to Trial by Jury 71
EXHIBITS AND SCHEDULES
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Letter Of Credit Agreement
Exhibit C-1
Exhibit C-2 Form of Application For Standby Letter of Credit
Exhibit D Form of Letter of Credit Summary
Exhibit E Form of Agreement Regarding Bailments
Exhibit F Form Of Accounts Receivable - Inventory Report
Schedule 3.04 Litigation
Schedule 3.11 ERISA Plans
Schedule 3.13 Compliance with Laws
Schedule 5.02(b) Existing Indebtedness
Schedule 5.02(d) Existing Guarantees
<PAGE>
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (this "Agreement")
made as of this 1st day of November, 1995, by and among L. B.
FOSTER COMPANY, a Delaware corporation (hereinafter referred to
as "Foster" or as the "Borrower"), and MELLON BANK, N.A., NBD
BANK and CORESTATES BANK, N.A. (separately called a "Bank" and
collectively the "Banks") and MELLON BANK, N.A., as agent for
the Banks (in such capacity the "Agent");
WITNESSETH THAT:
WHEREAS, the Borrower and the Banks are parties to a Loan
Agreement dated as of February 15, 1990, as amended by the First
Amendment to Loan Agreement dated November 29, 1990, by the
Second Amendment to Loan Agreement dated May 22, 1991, by the
Third Amendment to Loan Agreement dated as of January 29, 1992,
by the Fourth Amendment to Loan Agreement dated as of May 11,
1992, by the Fifth Amendment to Loan Agreement dated as of
September 25, 1992, by the Sixth Amendment to Loan Agreement
dated April 20, 1993, by the Seventh Amendment to Loan Agreement
dated as of December 31, 1993, by the Eighth Amendment to Loan
Agreement dated as of February 22, 1995 and by the Ninth
Amendment to Loan Agreement dated as of May 3, 1995 (as so
amended, the "Original Loan Agreement");
WHEREAS, the Borrower and the Banks desire to amend and restate
the Original Loan Agreement to, among other things, provide for
a permanent increase in the Commitment and an extension of the
Expiration Date; and
WHEREAS, it is the intention of the Borrower and the Banks that
this Agreement and the execution and delivery of substituted
promissory notes by the Borrower not effectuate a novation of
the obligations of the Borrower to the Banks under the Original
Loan Agreement, but merely a restatement and, where applicable,
a substitution of the terms governing, evidencing and securing
the Borrower's obligations thereunder.
NOW, THEREFORE, in consideration of the terms and provisions
herein contained and subject to the terms and conditions hereof,
the Original Loan Agreement is hereby amended, consolidated and
restated in its entirety, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS; ACCOUNTING PRINCIPLES
Section 1.01. Definitions. In addition to the words and terms
defined elsewhere in this Agreement, as used in this Agreement,
the
following terms shall have the following meanings (all terms
defined in this Section 1.01 or in other provisions of this
Agreement in the singular to have the same meanings when used in
the plural and vice versa):
"Accounts Receivable - Inventory Report" shall mean the
Accounts Receivable - Inventory Report to be delivered to the
Agent pursuant to Section 4.01(a) hereof, in substantially the
form attached as Exhibit F hereto, as amended and supplemented
by the Borrower from time to time hereafter pursuant to Section
5.03(b) hereof.
"Agreement" shall mean this Loan Agreement and all exhibits,
schedules, documents and instruments attached hereto, as any or
all of the foregoing may be amended, modified or supplemented
from time to time.
"Allegheny" shall mean Allegheny Rail Products, Inc., a
Pennsylvania corporation.
"Allegheny Security Agreement" shall mean the Security
Agreement dated as of May 11, 1992 by Allegheny in favor of the
Banks, as the same may be amended, modified or supplemented from
time to time.
"Applicable Margin" shall have the meaning set for in Section
2.05(h) hereof.
"Application" shall mean, (i) with respect to Letters of Credit
issued prior to November 1, 1995, in the case of Documentary
Letters of Credit, a duly executed and completed Application and
Agreement for Documentary Letter of Credit in substantially the
form attached as Exhibit B to the Original Loan Agreement and,
in the case of Standby Letters of Credit, a duly executes and
completed Application and Agreement for Standby Letter of Credit
in substantially the form attached as Exhibit C to the Original
Loan Agreement, as either such form of Application and Agreement
may be amended, modified or supplemented from time to time and
(ii) with respect to Letters of Credit issued on or after
November 1, 1995, a duly executed and completed Letter of Credit
Agreement in the form attached hereto as Exhibit B together with
a duly executed and completed Application for Documentary Letter
of Credit in substantially the form attached as Exhibit C-1 or a
duly executed and completed Application for Standby Letter of
Credit in substantially the form attached as Exhibit C-2, as the
case may be, as either such form of Agreement or Application may
be amended, modified or supplemented from time to time.
"Base Rate" shall mean at any time the interest rate per annum
equal to the higher of (a) the Prime Rate or (b) the sum of 1/2
of 1% plus the Federal Funds Effective Rate for such day;
provided, however, if the Federal Reserve Bank of New York (or
its successor) does not announce such rate on any day, the
Federal Funds Effective Rate for such day shall be equal to the
Federal Funds Effective Rate for the last day on which such rate
was announced by the Federal Reserve Bank of New York (or its
successor).
"Base Rate Funding Period" shall have the meaning assigned to
such term in Section 2.05(b) hereof.
"Base Rate Loan" shall mean a Loan bearing interest at any time
under the Base Rate Option.
"Base Rate Option" shall have the meaning assigned to such
term in Section 2.05(a) (i) hereof.
"Base Rate Portion" shall mean, at any time, the portion,
including the whole, of a loan bearing interest under the Base
Rate Option at such time, or at a rate calculated by reference
to the Base Rate under Section 2.05(a) hereof.
"Business Day" shall mean (a) in the case of an outstanding or
proposed Base Rate Portion or CD Rate Portion of a Loan, any day
other than a Saturday, Sunday or other day on which commercial
banks in Pittsburgh, Pennsylvania are required or authorized to
close under applicable law, and (b) in the case of an
outstanding or proposed Euro-Rate Portion of a Loan, any day on
which dealings for Dollar deposits are transacted in the London
interbank market and commercial banks are open for domestic and
international business in Pittsburgh, Pennsylvania.
"Capitalized Lease" shall mean a lease under which the
obligations of the lessee would, in accordance with GAAP, be
included in determining total liabilities as shown on the
liability side of a balance sheet of the lessee. The term
"Capitalized Lease Obligations" shall mean the amount of the
liability reflecting the aggregate discounted amount of future
payments under all Capitalized Leases calculated in accordance
with GAAP.
"CD Rate" and "CD Rate Option" shall have the meanings assigned
to such terms in Section 2.05(a) (ii) of this Agreement.
"CD Rate Funding Period" shall mean an interest period
applicable to a Loan bearing interest at the CD Rate, as
determined in accordance with Section 2.05(b) of this Agreement.
"CD Rate Loan" shall mean a Loan bearing interest at any time
under the CD Rate Option.
"CD Rate Portion" shall mean, at any time, that portion,
including the whole, of a Loan bearing interest under the CD
Rate Option at such time, or at a rate calculated by reference
to Section 2.05(a) hereof.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and any successor statute, and the rules and
regulations promulgated thereunder. References to sections or
provisions of the Code shall be deemed to also refer to
corresponding or similar sections or provisions of any successor
statute or of the Internal Revenue Code of 1954, as amended.
"Collateral" means, collectively, all of the Borrower's present
and future right, title and interest in and to the following
property, whether now or hereafter existing or acquired and
wherever located: (a) all inventory (including returned or
repossessed goods but excluding any inventory of third parties
which has been consigned to the Borrower and material owned by
third parties for which the Borrower has performed coating or
other services), accounts, open accounts, chattel paper,
receivables, and other amounts owing to the Borrower and arising
out of the sale or lease of goods or the rendition of services,
whether or not they arise or are acquired in the Borrower's
ordinary course of business, including without limitation, all
such property described specifically or by type in the Accounts
Receivable Inventory Report; (b) all Guarantees, letters of
credit, collateral security, claims, rights, remedies and
privileges relating to any of the foregoing; and (c) all
products and proceeds of any of the foregoing (including,
without limitation, any and all instruments, notes, drafts,
chattel paper and insurance policies and proceeds).
"Commitment" shall mean, at any time, with respect to each
Bank, the commitment of such Bank hereunder as set forth in
Section 2.01 hereof, as such commitment may have been reduced by
termination or reduction under Section 2.10(b) hereof.
"Consolidated Capital Expenditures" shall mean all amounts
debited to the fixed asset accounts on the consolidated balance
sheet of Foster and its Consolidated Subsidiaries (or required
to be so debited in accordance with GAAP) in respect of the
acquisition, construction, improvement, replacement or
betterment of land, buildings, machinery, equipment or of any
other fixed assets or leaseholds, and shall include, without
limitation, all amounts so debited in respect of Capitalized
Lease Obligations, but shall exclude all amounts so debited in
respect of inventory constituting equipment acquired for the
purpose of leasing or resale to others.
"Consolidated Current Assets" shall include, at any date as of
which the amount thereof shall be determined, all assets which
should, in accordance with GAAP, be classified as current
assets, determined on a consolidated basis for Foster and its
Consolidated Subsidiaries.
"Consolidated Current Liabilities" shall include, at any date
as of which the amount thereof shall be determined, all
Indebtedness which should, in accordance with GAAP, be
classified as current liabilities, including all principal
payments in respect of Indebtedness due within one year or less,
determined on a consolidated basis for Foster and its
Consolidated Subsidiaries.
"Consolidated Fixed Charge Coverage Ratio" shall mean, as to
any period for which such amount shall be determined, the ratio
of (a) the sum of Consolidated Net Income for such period
(provided that, in the event that the Borrower realizes a net
loss on the disposition of its Fosterweld operations, a maximum
of $1,500,000 of such net loss shall be excluded from
calculating Consolidated Net Income in determining the
Consolidated Fixed Charge Coverage Ratio as of the end of each
of the twelve consecutive months beginning with the month in
which such disposition occurs) plus all provisions for federal
and state income taxes during such period plus the sum of all
depreciation and amortization deducted from income in
determining Consolidated Net Income plus Consolidated Interest
Expenses for such period plus the amounts of any and all
payments due and owing under any Operating Lease for such
period, to (b) the sum of Consolidated Interest Expense for such
period plus amounts of any and all payments due and owing under
any Operating Lease for such period plus payments actually made
in respect of federal and state income taxes during such period.
"Consolidated Interest Expense" shall mean, for any period for
which such amount shall be computed, all interest accrued during
such period on the Indebtedness, including without limitation
all interest required under GAAP to be capitalized during such
period, determined on a consolidated basis for Foster and its
Consolidated Subsidiaries.
"Consolidated Net Income" shall mean, for any period, the
consolidated net income after taxes of Foster and its
Consolidated Subsidiaries for such period determined in
accordance with GAAP; provided, however that Consolidated Net
Income shall not include any gain or loss attributable to
extraordinary items or any taxes or tax savings as a result
thereof; and provided, further, that net income of any
Subsidiary shall not be included for any period prior to the
time at which such Subsidiary first becomes a Subsidiary.
"Consolidated Subsidiary" shall mean any Subsidiary of Foster
whose accounts are consolidated with the accounts of Foster in
accordance with the Foster's policy of consolidation in effect
from time to time and with GAAP.
"Consolidated Tangible Net Worth" means the stockholders'
equity of Foster and its Consolidated Subsidiaries, determined,
both as to classification of items and amounts, in accordance
with GAAP, except that there shall be deducted from
stockholders' equity all intangible assets of Foster and its
Consolidated Subsidiaries, including, but not limited to,
organization costs, securities issuance costs, unamortized debt
discount and expense, goodwill, excess of purchase price over
net assets acquired, agreements not to compete, patents,
trademarks, copyrights, trade secrets, know-how, licenses,
franchises, research and development expenses and any amount
reflected as treasury stock.
"Consolidated Total Liabilities" shall mean, at any time, the
aggregate amount of all liabilities which under GAAP should
appear on the liability side of the consolidated balance sheet
of Foster and its Consolidated Subsidiaries as at such time,
including preferred stock obligations.
"Controlled Group" shall mean a "controlled group of
corporations" as that term is defined in Section 1563 of the
Code, of which Foster is a part from time to time, and all
"trades or businesses (whether or not incorporated) which are
under common control" as that term is defined in Section 414 of
the Code, of which Foster is a part from time to time.
"Controlling Person" shall mean any person or entity who is, or
is an associate of any person or entity who either alone or with
one or more of its associates is, in control of Foster,
including any executive officer and any person who is both an
employee and director of Foster. A person, entity or group of
persons or entities shall be deemed to be in control of another
person or entity (including Foster) when the first person,
entity or group of persons or entities possesses, directly or
indirectly, the power to direct or cause the direction of the
management or policies of such other person or entity, whether
through the ownership of voting securities, by contract or
otherwise. A person or entity shall not be deemed to be in
control of another person or entity (including Foster) by reason
of the fact that such person or entity serves as a member of the
board of directors but not as an employee of such other person
or entity. A person or entity shall be deemed to be an associate
of another person or entity when (a) either shall be in control
of the other, (b) either shall be an officer, an employee and
director, a partner or a manager of the other, or (c) there
shall exist between them any contract, arrangement or
understanding (express or otherwise) with respect to the actual
or potential exercise of control of the other.
"Corresponding Source of Funds" shall mean: (a) in the case of
any Funding Segment of a CD Rate Portion, the proceeds of
hypothetical issuances by a Bank of one or more of its
certificates of deposit at the beginning of the CD Rate Funding
Period corresponding to such Funding Segment, having maturities
approximately equal to such CD Rate Funding Period and in an
aggregate amount approximately equal to such Funding Segment;
and (b) in the case of any Funding Segment of a Euro-Rate
Portion, the proceeds of hypothetical receipts by a Notional
Euro-Rate Funding Office or by a Bank through a Notional
Euro-Rate Funding Office of one or more Dollar deposits in the
interbank eurodollar market at the beginning of the Euro-Rate
Funding Period corresponding to such Funding Segment, having
maturities approximately equal to such Euro-Rate Funding Period
and in an aggregate amount approximately equal to such Funding
Segment.
"Debt" means, collectively, (a) all loans and advances made
hereunder by any Bank to or at the request of Borrower,
including all interest and other charges thereon, (b) all
obligations of Borrower arising out of the issuance of Letters
of Credit by the Agent at Borrower's request, (c) all covenants,
agreements, liabilities and other obligations of Borrower
hereunder, and (d) all costs, expenses, liabilities and
obligations, including attorneys' fees and expenses, incurred by
the Agent or any Bank enforcing any or all of this Agreement or
the Debt, in collecting any or all of the Debt or in taking any
other action permitted under this Agreement.
"Distribution" shall mean (a) the declaration or payment of any
Dividend on or in respect of any shares of any class of capital
stock of Foster or any Subsidiary, other than Dividends payable
solely in shares of common stock of the corporation involved;
(b) the purchase, redemption or other acquisition of any shares
of any class of capital stock of Foster or any Subsidiary
directly or indirectly through a Subsidiary or otherwise.
"Dividend" shall mean a distribution of cash, securities or
other property (other than capital stock) on capital stock of
the corporation involved.
"Documentary Letters of Credit" shall mean documentary letters
of credit issued pursuant to an Application and Section 2.02(a)
hereof.
"Documentary Letter of Credit Limit" shall have the meaning
assigned to such term in Section 2.02(a) hereof.
"Dollar" and the symbol "$" shall mean lawful money of the
United States of America.
"Eligible Accounts" shall mean trade accounts receivable
created or acquired by Borrower in the ordinary course of
business in which the Agent has a Prior Security Interest for
the benefit of the Banks, which are not more than ninety (90)
days past due from the date of the invoice or sales journal
entry therefor and which are and at all times continue to be
acceptable to the Agent in the exercise of the Agent's
reasonable judgment; provided, however, without limiting the
generality of the foregoing, that, if 50% or more of the
accounts of an account debtor are more than ninety (90) days
past due from the date of invoice or sales journal entry
therefor, any other accounts of such account debtor shall also
be ineligible.
"Eligible Inventory" means Borrower's inventory, excluding
works in process, of saleable raw materials and finished goods
manufactured or acquired by Borrower in the ordinary course of
business, subject to its control or sole possession, stored in
an Eligible Location and in a manner acceptable to the Agent,
valued at the lower of cost or market value, which inventory is
and at all times continues to be acceptable to the Agent in the
exercise of the Agent's reasonable judgment and in which the
Agent has a Prior Security Interest at all times. Standards of
acceptability shall be fixed and may be revised from time to
time solely by the Agent in its exclusive judgment.
"Eligible Location" shall mean one of the addresses listed on
Schedule 1 to the Security Agreement or to the Allegheny
Security Agreement at which Foster or Allegheny, as the case may
be, maintains, keeps or stores Collateral. The Borrower and the
Agent and the Banks may agree jointly to add other addresses of
the Borrower to such list at any time by substituting an amended
Schedule 1 to either the Security Agreement or the Allegheny
Security Agreement. The Agent may in its reasonable discretion,
at any time after thirty (30) days' notice to the Borrower,
delete any address from the list of Eligible Locations.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may from time to time be amended including,
but not limited to, the Multiemployer Pension Plan Amendments
Act of 1980, and the rules and regulations promulgated
thereunder by any governmental agency or authority, as from time
to time in effect, and any successor statute.
"Euro-Rate" and "Euro-Rate Option" shall have the meanings
assigned to such terms in Section 2.05(a) (iii) of this
Agreement.
"Euro-Rate Funding Period" shall mean any interest period
applicable to a Loan bearing interest at the Euro-Rate, as
determined in accordance with Section 2.05(b) of this Agreement.
"Euro-Rate Loan" shall mean a Loan bearing interest at any time
under the Euro-Rate Option.
"Euro-Rate Portion" shall mean, at any time, that portion,
including the whole, of a Loan bearing interest under the
Euro-Rate Option at such time, or at a rate calculated by
reference to Section 2.05(a) hereof.
"Event of Default" or "Default" shall mean any of the events of
default described in Section 6.01 of this Agreement.
"Expiration Date" shall mean July 1, 1999.
"Facility Fees" shall mean the Facility Fees described in
Section 2.10(a) hereof.
"Federal Funds Effective Rate" shall mean for any day the
weighted average of the rates on overnight federal funds
transactions arranged on such day by Federal Funds Brokers
computed and released by the Federal Reserve Bank of New York
(or any successor) in substantially the same manner as such
Federal Reserve Bank currently computes and releases the
weighted average it refers to as the "Federal Funds Effective
Rate."
"Fixed GAAP" shall have the meaning assigned to such term in
Section 1.02 hereof.
"Funding Period Maturity Date" shall have the meaning
assigned to such term in Section 2.05(b) hereof.
"Funding Periods" shall have the meaning assigned to such term
in Section 2.05(b) of this Agreement.
"Funding Segment" of a CD Rate Portion or a Euro-Rate Portion,
as the case may be, at any time shall mean the entire principal
amount of such Portion to which at such time there is applicable
a particular Funding Period beginning on a particular day.
"GAAP" shall have the meaning assigned to such term in Section
1.02 hereof.
"Guarantee" shall include any guarantee of the payment or
performance of any Indebtedness or other obligation and any
other arrangement whereby credit is extended to one obligor on
the basis of any promise of another person, firm or corporation,
whether that promise is expressed in terms of an obligation to
pay the Indebtedness of such obligor, or to purchase an
obligation owed by such obligor, or to purchase goods and
services from such obligor pursuant to a take-or-pay contract,
or to maintain the capital, working capital, solvency or general
financial condition of such obligor, whether or not any such
arrangement is listed in the balance sheet of such other person,
firm or corporation, or referred to in a footnote thereto, but
shall not include endorsements of items for collection in the
ordinary course of business.
"Guaranty and Suretyship Agreements" shall mean the Guaranty
and Suretyship Agreements, dated as of May 11, 1992 and executed
and delivered by each of Foster and Allegheny in favor of the
Banks, as the same may be amended, modified or supplemented from
time to time.
The phrases "herein", "hereof", "hereunder", and the like mean
this Agreement as a whole and not any particular section or
other subdivision.
"Indebtedness" shall include all obligations, contingent or
otherwise, which in accordance with GAAP should be classified on
the obligor's balance sheet as liabilities.
"Intercreditor Agreement" shall mean the agreement described in
Section 5.02(b) (6) hereof.
"Interest Rate Option" shall have the meaning set forth in
Section 2.05(a) of this Agreement.
"Investments" means amounts paid or agreed to be paid, whether
in cash or in other consideration, for stock, securities,
liabilities or assets of, or loaned, advanced or contributed to
others (including, without limitation, to a joint venture
partnership or trust). The term Investments shall not include
any increase or decrease in the assets of any corporation
derived from the earnings or losses thereof or any assets
purchased in the ordinary course of business but shall include
the acquisition of a business. If any Investment is made by the
transfer or exchange of property other than cash, the amount of
such Investment shall be deemed to have been made in an original
principal or capital amount equal to the fair market value of
such property.
"Law" shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction,
writ, decree or award of any Official Body.
"Letters of Credit" shall mean Documentary Letters of Credit
and Standby Letters of Credit issued by the Agent pursuant to
Section 2.02 hereof together with Documentary Letters of Credit
and Standby Letters of Credit outstanding on the date hereof and
issued by the Agent pursuant to Section 2.02 of the Original
Loan Agreement.
"Lien" shall mean any mortgage, pledge, security interest,
bailment, encumbrance, claim, lien or charge of any kind,
including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, and any
lease in the nature thereof.
"Loan" or "Loans" shall mean the revolving credit loans made by
the Banks to the Borrower under this Agreement as described in
Article II of this Agreement.
"Loan Documents" shall mean this Agreement, the Notes, the
Security Agreement, the Pledge Agreement, the Guaranty and
Suretyship Agreements, the Allegheny Security Agreement, the
Applications and Letters of Credit, and all other instruments,
certificates and agreements and documents contemplated by or
delivered or required to be delivered under this Agreement or in
connection herewith, in each instance as the same may be
amended, modified or supplemented from time to time. "Notice of
Renewal" shall have the meaning assigned to such term in Section
2.05(e) of this Agreement.
"Notional Euro-Rate Funding Office" shall have the meaning
assigned to such term in Section 2.09(a) of this Agreement.
"Office" shall mean the office of the Agent located at Three
Mellon Bank Center, Pittsburgh, Pennsylvania 15259-0003.
"Official Body" shall mean the United States of America or any
foreign government or state, any state and any political
subdivision thereof, and any agency, department, court,
commission, board, bureau or instrumentality of any of them.
"Operating Lease" shall mean any lease other than a Capitalized
Lease.
"Option" shall mean, when used in conjunction with CD Rate,
Euro-Rate or Base Rate, an Interest Rate Option bearing interest
at such specified rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established under ERISA, or any successor to the PBGC.
"Percentage Share" of any Bank, when used with reference to any
Letter of Credit, shall mean an undivided participating interest
in such Letter of Credit in the proportion that such Bank's
Commitment at such time bears to the total Commitments of all
the Banks hereunder at such time, and when used in any other
context, shall mean such Bank's pro rata share of the amount
involved, determined in the proportion that such Bank's
Commitment at such time bears to the total Commitments of all
the Banks hereunder at such time.
"Plan" shall mean any plan, including a single employer plan,
multiple employer plan or multiemployer plan, established,
sponsored or maintained at any time or from time to time by or
for a Plan Employer for its employees to which Section 4021(a)
of ERISA applies.
"Plan Employer" shall mean Borrower, any Subsidiary or any
member of a Controlled Group which is the sponsor of or
contributor to a Plan for the benefit of some or all of its or
their employees.
"Pledge Agreement" shall mean the Pledge Agreement, dated as of
May 11, 1992, whereby Foster has pledged all of the issued and
outstanding stock of Allegheny in favor of the Banks, as the
same may be amended, modified or supplemented from time to time.
"Portion" shall mean a Base Rate Portion, a CD Rate Portion,
or a Euro-Rate Portion, as the case may be.
"Potential Event of Default" shall mean an event, condition,
act or omission to act constituting a default in the performance
or observance of an act, covenant, agreement or provision of
this Agreement, the other Loan Documents or any Note, which
event, condition, act or omission to act with the passage of
time or the giving of notice, or both, and without subsequent
cure within any applicable period of time, would become or
constitute an Event of Default or Default.
"Prime Rate" shall mean the interest rate per annum announced
from time to time by Mellon Bank, N.A., at its principal office
in Pittsburgh, Pennsylvania, as its Prime Rate. The Prime Rate
is determined from time to time by Mellon Bank, N.A. as a means
of pricing some loans to its customers, is not tied to any
external rate of interest, and does not necessarily reflect the
lowest rate of interest actually charged by Mellon Bank, N.A. to
any particular category of customers.
"Prior Security Interest" means an enforceable, perfected
security interest under the UCC which is prior to all Liens,
except Liens for taxes not yet due and payable to the extent
given priority by statute.
"Private Placement Debt" shall mean Indebtedness of Borrower in
an aggregate principal amount not to exceed an amount equal to
the difference between (a) the sum of $60,000,000 and (b) the
Commitment, which is purchased by and placed with an entity
which is acceptable to, and has been approved by, the Agent on
behalf of the Banks, and which involves such terms and
conditions which are acceptable to the Agent on behalf of the
Banks.
"RPF" shall have the meaning set forth in Section 5.02(f).
"Reportable Event" shall mean any of the events described in
paragraphs (5) or (6) of Section 4043(b) of ERISA.
"Required Banks" shall mean, until and including the Expiration
Date, Banks whose Commitments aggregate at least 66-2/3% of the
total Commitments of all the Banks and thereafter the holders of
at least 66-2/3% of the aggregate unpaid principal amount of all
Loans outstanding at such time.
"Responsible Officer" of Borrower shall mean the president,
chief financial officer, treasurer or controller of Borrower.
"Rollover Loan" shall mean any Loan made on the Funding Period
Maturity Date of any preceding Loan or Loans, with the aggregate
principal amount of such Rollover Loan being less than or equal
to the aggregate principal amount of such preceding Loan or
Loans, as the case may be.
"Security Agreement" shall mean the Security Agreement dated as
of January 29, 1992, by and between the Borrower and the Banks,
as the same may be amended, modified or supplemented from time
to time.
"Standby Letters of Credit" shall mean standby letters of
credit issued by the Agent pursuant to an Application and
Section 2.02(b) hereof.
"Standby Letter of Credit Limit" shall have the meaning
assigned to such term in Section 2.02(b) hereof.
"Stock Purchase" means any redemption, acquisition or other
retirement of any capital account or other equity interest in
the Borrower or of warrants, rights or other options to purchase
any such capital account or other equity interest.
"Subsidiary" shall mean any corporation of which a majority of
the outstanding capital stock entitled to vote for the election
of directors (otherwise than as the result of a default) is
owned by Borrower directly or indirectly through Subsidiaries.
The term "Wholly-Owned Subsidiary" shall mean any Subsidiary of
which Borrower shall at the time own, directly or indirectly
through a Wholly-Owned Subsidiary, 100% of the outstanding
voting stock or other voting interest, other than directors'
qualifying shares.
"UCC" shall mean the Uniform Commercial Code (or any successor
statute thereto) as in effect in the Commonwealth of
Pennsylvania or in such other jurisdiction where a security
interest shall be granted to the Agent in the Collateral. Terms
and phrases defined in the UCC are used herein as therein
defined except where the context otherwise requires.
Section 1.02. Accountinq Principles. As used herein, "GAAP"
shall mean generally accepted accounting principles consistently
applied (unless any inconsistency is approved or concurred in by
the Borrower's independent certified public accountants and is
disclosed in the report of such accountants), which shall
include but not be limited to the official interpretations
thereof as defined by the Financial Accounting Standards Board,
its predecessors or successors. The character or amount of any
asset, liability, capital account or reserve and of any item of
income or expense to be determined, and any consolidation or
other accounting computation to be made, and the construction of
any definition containing a financial term, pursuant to this
Agreement, shall be determined or made, as the case may be,
using GAAP in effect as of the date of such determination,
computation or construction, unless such principles
are inconsistent with the express requirements of this
Agreement, except that, as used in the definitions of the terms
Capitalized Lease, Capitalized Lease Obligations, Consolidated
Capital Expenditures, Consolidated Current Assets, Consolidated
Current Liabilities, Consolidated Fixed Charge Coverage Ratio,
Consolidated Interest Expense, Consolidated Net Income,
Consolidated Tangible Net Worth, Consolidated Total Liabilities
and Indebtedness contained in this Agreement, references to
"GAAP" shall mean GAAP in effect on December 31, 1994 (herein
referred to as "Fixed GAAP") and, after the date of this
Agreement, all financial statements delivered pursuant to
Section 5.03 hereof shall be prepared in a manner consistent
with GAAP as in effect for the applicable period and such
financial statements shall be accompanied by a statement
reconciling such financial statements to Fixed GAAP.
ARTICLE II
THE CREDITS
Section 2.01. Commitments. Subject to the terms and conditions
hereof, and relying upon the representations and warranties of
the Borrower herein set forth, each Bank severally agrees to
make Loans to Borrower, on any Business Day, at any time or from
time to time prior to the Expiration Date, in an aggregate
principal amount not exceeding at any one time outstanding the
amount set forth opposite its name below (such amount, as the
same may be reduced from time to time hereafter in accordance
with Section 2.10(b) hereof, being herein referred to as the
"Commitment"):
<TABLE>
<CAPTION>
Name and Commitment until
Address of Bank Expiration Date Percentage
<S> <C> <C>
MELLON BANK, N.A. $19,406,250 43.125W
One Mellon Bank Center
Pittsburgh, PA 15258
NBD BANK $12,796,875 28.4375%
611 Woodward Avenue
Detroit, MI 48226
CORESTATES BANK, N.A. $12,796,875 28.4375%
Broad & Chestnut Streets
Philadelphia, PA 19101
Total $45,000,000 100%
</TABLE>
provided, that if for any day when the Borrower's Consolidated
Fixed Charge Coverage Ratio for the period of twelve consecutive
months ending on the day before the first day of the then most
recently completed month is less than or equal to 2.00 to 1, the
aggregate amount of Debt attributable to the Loans outstanding
on such day shall not exceed an amount equal to the sum of (a)
75% of Eligible Accounts plus (b) 45% of Eligible Inventory (the
sum of such percentage of Eligible Accounts and Eligible
Inventory being referred to herein collectively as the
"Borrowing Base"); provided, further, that the sum of all Loans
outstanding at any one time plus the face amount of all
outstanding Letters of Credit shall not exceed the sum of the
Banks' Commitments; provided, further, that the sum of the face
amounts of all outstanding Letters of Credit shall not exceed
$10,000,000 at any time.
It is the intention of the parties that (a) the aggregate
outstanding principal balances of all Loans hereunder shall at
no time exceed the lesser of (i) the sum of the Banks'
Commitments less the face amounts of all outstanding Letters of
Credit and (ii) the Borrowing Base, and if, at any time, an
excess shall for any reason exist, the Borrower shall forthwith
repay to the Agent for the ratable account of the Banks, in
funds immediately available, the amount of such excess, together
with all interest on the amount so repaid.
Within such limits of time and amount and provided that the
conditions of lending set forth in Section 4.02 hereof are
satisfied and that no Event of Default or Potential Event of
Default has occurred and is continuing or exists, Borrower may
borrow, prepay, repay and reborrow hereunder until the
Expiration Date, when the Commitment of each Bank shall cease
and all Loans shall become immediately due and payable in full.
The proceeds of the Loans shall be used by Borrower for working
capital, general corporate purposes.
Section 2.02. Letters of Credit.
(a) Documentary Letters of Credit. At the request of Borrower
(which shall be made at least five (5) Business Days prior to
the date, which shall be a Business Day, on which such Letter of
Credit is proposed to be issued), and pursuant to an Application
duly executed by Borrower, one or more Documentary Letters of
Credit will be issued by the Agent for the account of Borrower
in an aggregate face amount not exceeding the lesser of (i) an
amount equal to the Borrowing Base at such time minus the
aggregate principal amount of all then outstanding Loans
(including the aggregate face amount of outstanding Letters of
Credit, as the same may be changed from time to time by
amendment or otherwise pursuant to the terms thereof) and (ii)
$10,000,000 (the "Documentary Letter of Credit Limit"). The
aggregate face amount of outstanding Documentary Letters of
Credit, as the same may be changed from time to time by
amendment or otherwise pursuant to the terms thereof, shall be
charged against the Documentary Letter of Credit Limit and
against the total Commitments of the Banks hereunder. The Banks
shall participate in such Documentary Letters of Credit as
provided in Section 2.02(f) hereof.
(b) Standby Letters of Credit. At the request of Borrower
(which shall be made at least five (5) Business Days prior to
the date, which shall be a Business Day, on which such Letter of
Credit is proposed to be issued), and pursuant to an Application
duly executed by Borrower one or more Standby Letters of Credit
will be issued by the Agent for the account of Borrower in an
aggregate face amount not exceeding the lesser of (i) an amount
equal to the Borrowing Base at such time minus the aggregate
principal amount of all then outstanding Loans (including the
aggregate face amount of outstanding Letters of Credit, as the
same may be changed from time to time by amendment or otherwise
pursuant to the terms thereof) and (ii) $10,000,000 (the
"Standby Letter of Credit Limit"). The aggregate face amount of
outstanding Standby Letters of Credit, as the same may be
changed from time to time by amendment or otherwise pursuant to
the terms thereof, shall be charged against the Standby Letter
of Credit Limit and against the sum of the Banks' Commitments.
The Banks shall participate in such Standby Letters of Credit as
provided in the Section 2.02(f) hereof.
(c) Letter of Credit Fees. In lieu of any letter of credit
fronting fees provided for in the Applications or otherwise, the
Borrower agrees to pay to the Agent upon the issuance of each
Standby Letter of Credit a fee equal to 1/10 of 1% of the face
amount of such Standby Letter of Credit, and the Borrower
further agrees to pay to the Agent from time to time any
issuance, amendment, payment, telex, postage and courier fees,
at the Agent's standard rates (a schedule of which has been
provided to the Borrower), in respect of Letters of Credit. The
Borrower agrees that upon the issuance of a Standby Letter of
Credit, the Agent shall be paid a fee per annum based upon the
amount of the Standby Letter of Credit issued, which fee shall
be equal to the applicable margin with respect to the Euro-Rate
in effect pursuant to Section 2.05(h) hereof at the time of the
issuance of such Standby Letter of Credit. Such letter of credit
commission shall be payable on the last Business Day of each
calendar quarter, and on the last date on which any Standby
Letter of Credit issued hereunder expires, in each case for the
preceding period for which such fee has not been paid. The
Borrower agrees that upon the issuance of a Documentary Letter
of Credit, the Agent shall be paid a fee equal to 1/2 of 1% of
the face amount of the Documentary Letter of Credit issued;
provided, however, that in the case of the acceptance by the
Bank of any time draft with respect to a Documentary Letter of
Credit issued hereunder, the Borrower agrees to pay to the Agent
an acceptance fee per annum based upon the amount of the
Documentary Letter of Credit issued, which acceptance fee shall
be equal to the applicable margin with respect to the Euro-Rate
in effect pursuant to Section 2.05(h) hereof at the time of the
acceptance of any such time draft.
(d) Payments with Respect to Letters of Credit. As to each
Letter of Credit:
(i) Reimbursement. Borrower shall reimburse the Agent,
forthwith and otherwise in accordance with the terms of any
related Application or reimbursement or other like agreement,
for any payment made by the Agent under a Letter of Credit
issued for the benefit of such entity. Any such reimbursement to
the Agent shall be made absolutely and unconditionally and
without any set-off, counterclaim or reduction and free and
clear of any withholding or similar taxes other than any tax,
levy, impost or duty based, in whole or in part, upon the
income, revenues or operations of the Agent. Borrower shall pay
to the Agent interest on any unreimbursed portion of each such
payment made by the Agent from the date of such payment by the
Agent until reimbursement in full therefor at a rate per annum
equal to 2.0% above the rate applicable to the Base Rate Option
from time to time.
(ii) Funding. If at any time the Agent honors a draft drawn
under a Letter of Credit in accordance with the terms of such
Letter of Credit and is not reimbursed therefor on the same
Business Day, the Agent shall promptly notify each other Bank of
such payment. Forthwith upon and not later than one Business Day
after its receipt of such notice, each other Bank shall transfer
to the Agent, in immediately available funds, an amount equal to
such other Bank's Percentage Share of such payment. If any Bank
shall fail to so transfer to the Agent its percentage of any
unreimbursed payment made by the Agent on account of any Letter
of Credit, such Bank shall pay to the Agent interest on its
Percentage Share of such unreimbursed payment from the date of
such Bank's receipt of such notice from the Agent until payment
by such Bank of such Percentage Share in full at a rate per
annum for each day equal to the Federal Funds Effective Rate for
such day, such interest rate to change automatically from time
to time effective as of the date of each change in the Federal
Funds Effective Rate.
(e) Pro Rata Treatment of Payments. If at any time after the
Agent has made a payment on account of any Letter of Credit and
has received from any other Bank such Bank's Percentage of such
payment, the Agent shall hold any reimbursement (in whole or in
part) for such payment, any other amount received from the
account party, Borrower or any other person in respect of such
payment (including any payment of interest or fees, any payment
under any guarantee of the obligations of the account party and
any amount received by way of set-off, but excluding any funds
received by the Agent from any other Bank pursuant to Section
2.02(c)(ii) hereof), any documents evidencing the right to
reimbursement for such payment for the pro rata benefit of the
Agent and any other Bank from whom the Agent has received such
Bank's Percentage Share of such payment and shall forthwith
transfer to such other Bank such other Bank's Percentage Share
of such reimbursement or other amount; provided, however, that
in the event that the receipt by the Agent of such reimbursement
or other amount is found to have been a transfer in fraud of
creditors or a preferential payment under the United States
Bankruptcy Code or is otherwise required to be returned pursuant
to a final order of a court of competent jurisdiction, such
other Bank shall, upon demand therefor by the Agent, return to
the Agent any portion thereof previously transferred by the
Agent to such other Bank.
(f) Participatinq Interests in Letters of Credit.
Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, effective as of
the date hereof in the case of outstanding Letters of Credit and
effective as of the date of issuance of other Letters of Credit,
the Agent agrees to allot and does allot, and each Bank
severally and irrevocably agrees to take and does take, such
Bank's Percentage Share of each such Letter of Credit. Within
five Business Days after the issuance of any Letter of Credit by
the Agent under this Agreement, the Agent shall send to each
Bank and to the Borrower a letter of credit summary
substantially in the form of Exhibit D hereto.
Notwithstanding anything to the contrary contained herein, in
any other Loan Document or in any document to be delivered in
connection herewith or therewith, Borrower acknowledges and
agrees that all rights of the Agent under any Application and
any reimbursement or like agreement with respect to any Letter
of Credit shall inure to the benefit of each Bank to the extent
of its Percentage Share as fully as if such Bank was a party to
such Application or such reimbursement or like agreement.
(g) Additional Understandinqs Reqardinq Letters of Credit.
In order to induce the Agent to establish each Letter of Credit
and to induce each other Bank to take its Percentage Share
thereof:
(i) Borrower agrees that neither the Agent nor any other Bank
shall be responsible or liable for, and the obligation of
Borrower to reimburse the Agent for any payment made by the
Agent under or in respect of any Letter of Credit shall not be
affected by (A) the validity, enforceability or genuineness of
any instrument or document (or any endorsement thereof)
presented under such Letter of Credit which, upon examination by
the Agent and in the absence of gross negligence or willful
misconduct, appears on its face to be in accordance with the
terms and conditions of such Letter of Credit, even if such
instrument or document (or such endorsement) is proven to be
invalid, unenforceable, fraudulent or forged, or (B) any dispute
between Borrower and the beneficiary or beneficiaries under such
Letter of Credit;
(ii) Borrower agrees that any action taken or omitted to be
taken by the Agent in connection with any Letter of Credit, if
taken or omitted to be taken in good faith and in the absence of
gross negligence or willful misconduct, shall be binding upon
Borrower and shall not create any liability for the Agent or any
other Bank to the Borrower and agrees that no other Bank shall
be liable to the Borrower for any such action taken or omitted
to be taken by the Agent in bad faith or constituting gross
negligence or willful misconduct;
(iii) Borrower agrees that the provisions of each Application
and each reimbursement or like agreement in respect of any
Letter of Credit, including provisions providing for
reimbursement to the Agent in the event of the imposition or
implementation of, or increase in, any reserve, special deposit
or similar requirement in respect of the Letter of Credit
relating thereto, shall apply equally to each other Bank in
respect of its Percentage Share in such Letter of Credit as
fully as if such Bank was a party to such Application or
reimbursement or like agreement;
(iv) Borrower agrees that (A) drawings under any Letter of
Credit issued hereunder may be made only upon presentation of an
appropriate sight draft or upon presentation of a time draft
which requires payment at no later than 180 days, (B) no Letter
of Credit will be issued hereunder at or after the Expiration
Date and (C) no Letter of Credit will be issued hereunder which
expires later than the Expiration Date, after giving effect to
the foregoing provision for time drafts requiring payment not
later than 180 days after the issuance thereof;
(v) Each Bank severally and not jointly agrees to reimburse the
Agent for all expenses (including, without limitation,
reasonable counsel fees and the expenses incurred by officers or
employees of the Agent's asset-based lending division or credit
recovery group) incurred by the Agent and not reimbursed by
Borrower in enforcing the obligations and liabilities of
Borrower under any Application or other reimbursement agreement
relating to a Letter of Credit in accordance with such Bank's
Percentage Share. Each Bank further severally and not jointly
agrees to indemnify the Agent (to the extent not reimbursed by
Borrower) against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, reasonable counsel fees
and expenses incurred by officers or employees of the Agent's
asset-based lending division or credit recovery group) or
disbursements of any kind or nature whatsoever
(A) which may at any time be imposed on, incurred by or asserted
against the Agent in any way relating to any Letter of Credit or
any action taken or omitted by the Agent under or in connection
with any of the foregoing, and (B) which would not have been
imposed on, incurred by or asserted against the Agent but for
its having entered into any Application; provided, however, that
the Banks shall in no event be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses and disbursements resulting
from the gross negligence or willful misconduct of the Agent. In
determining whether to pay any drawing under a Letter of Credit,
the Agent shall have no obligation to the Banks other than to
confirm in good faith that any documents required to be
delivered under such Letter of Credit appear to have been
delivered in compliance and that they appear to comply on their
face with the requirements of such Letter of Credit. The
agreements in the three preceding sentences shall survive the
termination of any Application or this Agreement; and
(vi) Each Bank by its execution hereof represents and warrants
that its participation in Letters of Credit is without recourse
to the Agent, that it expressly assumes all risk of loss in
connection with its participation therein as if it had issued
said Letters of Credit, that it has not relied upon any
statement, information or representation furnished or made by
the Agent and that it has made, and will continue to make, its
own independent investigation, evaluation and analysis of
Borrower. Except as otherwise expressly provided herein, the
Agent has no duty or responsibility, either initially or on a
continuing basis, to provide any Bank with any credit, financial
or other information with respect to Borrower, whether coming
into its possession prior to the issuance of any Letter of
Credit or at any time thereafter.
Section 2.03. Making of Revolving Credit Loans. All Loans shall
be made ratably from the Banks in proportion to their respective
Commitments; provided, however, that the failure of any Bank to
make a Loan shall not relieve any other Bank of its obligation
to lend hereunder. Whenever Borrower desires that the Banks make
Loans (including Rollover Loans), Borrower shall give to the
Agent at its Office at least three (3) Business Days' notice in
the case of a Euro-Rate Loan, two (2) Business Days' notice in
the case of a CD Rate Loan, and notice on the same Business Day
in the case of a Base Rate Loan, of the date, which shall be a
Business Day, on which such Loans are to be made. Each notice (a
"Notice of Borrowing") required pursuant to this Section 2.03
shall be given no later than 11:00 a.m., Pittsburgh time, in the
case of Base Rate Loans, or no later than 10:00 a.m.,Pittsburgh
time, in the case of CD Rate Loans or Euro-Rate Loans, on the
last date permitted for such Notice of Borrowing, shall be
signed by a Responsible Officer of Borrower, and shall state (a)
the date on which the Loan is to be made, (b) the amount of the
Loan, which shall be the sum of the principal amounts selected
pursuant to subsection (c) of this Section 2.03 and, (c) the
Interest Rate Option or Options selected in accordance with
Section 2.05(a) hereof and the principal amounts of Portions
selected in accordance with Section 2.05(c) hereof and, in the
case of a Euro-Rate Portion or a CD Rate Portion, the Euro-Rate
Funding Period or CD Rate Funding Period, as the case may be.
Each Notice of Borrowing shall be irrevocable and shall be
written, telecopied, by telephone confirmed in writing or by
electronic request. The rights and obligations of the parties
set forth in this Agreement, including without limitation all
representations, warranties and covenants, shall not be affected
by the medium chosen by Borrower to make a Loan request, except
that Borrower assumes all liability for any and all losses,
liabilities, obligations, costs or damages ("Losses") arising
from the chosen medium, including without limitation, in the
case of electronic Loan requests, any Losses arising from
transmission errors, delayed transmissions, transmissions not
received or unauthorized transmissions. The Agent shall promptly
give telecopied or telexed notice or telephoned notice confirmed
in writing to each Bank of its Percentage Share and the date of
such borrowings. On the date specified in such Notice of
Borrowing, each Bank shall make the proceeds of its Loan
available at the Office of the Agent, no later than 12:00 noon,
Pittsburgh time, in immediately available funds, and upon
fulfillment of all applicable conditions set forth herein (and
against delivery to the Agent of an appropriate Note for the
initial Loans, with payment schedules attached thereto, for each
Bank, payable to the order of such Bank as provided in Section
2.04 hereof), the Agent shall pay or deliver the proceeds of the
borrowing to or upon the order of Borrower. Upon making the
initial Loans, the Agent shall deliver each such Note to or upon
the order of the Bank to, which it is payable.
Section 2.04. Notes. The obligations of Borrower to repay the
aggregate unpaid principal amount of the Loans made by the Banks
shall be evidenced by three amended and restated promissory
notes of Borrower payable to the respective Banks in the
aggregate amount of each Bank's Commitment, dated the date of
this Agreement (hereinafter called a "Note" or the "Notes") in
substantially the form attached hereto as Exhibit A with the
blanks appropriately filled, payable at the Office of the Agent
to the order of each Bank in a face amount equal to each Bank's
initial Commitment, and bearing interest as provided in Section
2.05 hereof and in said form of Note, and maturing as provided
in said form of Note. Each Note of Borrower payable to each Bank
shall be dated, and shall be delivered to the Agent on behalf of
such Bank, on or prior to the date of the initial Loans to
Borrower hereunder. Each holder shall, and is hereby authorized
by Borrower to, endorse on the schedule annexed to its Note an
appropriate notation evidencing the date and amount of each Loan
made by such Bank as well as the date and amount of each payment
by Borrower with respect thereto; provided, however, that the
failure to make any such notation shall not limit or otherwise
affect the obligations of Borrower under any such Note.
Section 2.05. Interest Rates.
(a) Interest Rate Options. Borrower agrees to pay interest upon
the unpaid principal balance of the Loans disbursed and
outstanding from time to time on a basis selected by Borrower
from one of the three interest rate options set forth below
(each an "Interest Rate Option" and, collectively, the "Interest
Rate Options"), it being understood that subject to the
provisions of this Agreement, Borrower may select any number of
such Interest Rate Options to apply simultaneously to different
parts of a Loan and may select any number of different Funding
Segments to apply simultaneously to different parts of the CD
Rate Portion or Euro-Rate Portion of a Loan:
(i) Base Rate Option. Interest shall accrue on Base Rate Loans
at a rate per annum for each day equal to the Base Rate for such
day plus the Applicable Margin for such day.
Loans accruing interest pursuant to the Base Rate Option shall
be referred to herein as "Base Rate Portions". The rate of
interest on Base Rate Portions shall be calculated on the basis
of a year of 365 or 366 days, as the case may be, and shall
change automatically from time to time effective on and as of
the effective date of each change in the Base Rate. The Agent
shall promptly notify the Borrower and each Bank of any such
change in the Base Rate and the effective date thereof; however,
any failure of the Agent to so notify shall not relieve the
Borrower of its obligations hereunder or under the Notes.
(ii) CD Rate Option. Interest shall accrue on CD Rate Loans at
a rate per annum (based on a year of 360 days and actual days
elapsed) for each day at a rate equal to the CD Rate plus the
Applicable Margin for such day.
"CD Rate" for any day, as used herein, shall mean for each
Funding Segment of the CD Rate Portion corresponding to a
proposed or existing CD Rate Funding Period the rate per annum
determined by the Agent by adding:
(A) the rate per annum obtained by dividing (the resulting
quotient to be rounded upward to the nearest 1/100 of 1%) (1)
the rate of interest (which shall be the same for each day in
such CD Rate Funding Period) determined in good faith by the
Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error)
to be the average of the secondary market bid rates at or
about 11:00 a.m., Pittsburgh time, on the first day of such CD Rate
Funding Period by dealers of recognized standing in negotiable
certificates of deposit for the purchase at face value of negotiable
certificates of deposit of the Agent for delivery on such day
in amounts comparable to such Funding Segment and having
maturities comparable to such CD Rate Funding Period by (2) a
number equal to 1.00 minus the CD Rate Reserve Percentage; and
(B) the Assessment Rate.
The "CD Rate" described in this Section 2.05(a)(ii) may also be
expressed by the following formula:
[average of the secondary market]
[bid rates determined by the Agent]
[per subsection (ii)(A)(1) of this]
CD Rate = [Section 2.05(a) ] + Assessment Rate
-----------------------------------
[1.00 - CD Rate Reserve Percentage]
The "CD Rate Reserve Percentage" for any day is the maximum
effective percentage (expressed as a decimal, rounded upward to
the nearest 1/100 of 1%), as determined in good faith by the
Agent (which determination shall be conclusive absent manifest
error), which is in effect on such day as prescribed by the
Board of Governors of the Federal Reserve System (or any
successor) for determining the reserve requirements (including
without limitation supplemental, marginal and emergency reserve
requirements) for a member bank of such system in respect of
nonpersonal time deposits in Dollars in the United States. The
CD Rate shall be adjusted automatically as of the effective date
of each change in the CD Rate Reserve Percentage.
The "Assessment Rate" for any day is the rate per annum
(rounded upward to the nearest 1/100 of 1%) determined in good
faith by the Agent in accordance with its usual procedures
(which determination shall be conclusive absent manifest error)
to be the maximum effective assessment rate per annum payable by
a bank insured by the Federal Deposit Insurance Corporation (or
any successor) for such day for insurance on Dollar time
deposits, exclusive of any credit allowed against such annual
assessment on account of assessment payments made or to be made
by such bank. The CD Rate shall be adjusted automatically as of
the effective date of each change in the Assessment Rate.
The Agent shall give prompt notice to Borrower of the CD Rate
so determined or adjusted, which determination or adjustment
shall be conclusive if made in good faith and absent manifest
error.
(iii) Euro-Rate Option. Interest shall accrue on Euro-Rate
Loans at a rate per annum (based on a year of 360 days and
actual days elapsed) for each day at a rate equal to the
EuroRate plus the Applicable Margin for such day.
"Euro-Rate" as used herein shall mean, for each Funding Segment
of a proposed or existing Euro-Rate Portion of the Loans
corresponding to a proposed or existing Euro-Rate Funding
Period, the rate per annum obtained by dividing (the resulting
quotient to be rounded upward to the nearest 1/100 of 1%) (A)
the rate per annum (which shall be the same for each day in such
Euro-Rate Funding Period) determined in good faith by the Agent
in accordance with its usual procedures (which determination
shall be conclusive absent manifest error) to be the average of
the rates per annum for deposits in Dollars offered to the Agent
in the London interbank market at approximately 11:00 a.m.,
London time, two (2) Business Days prior to the first day of
such Euro-Rate Funding Period for delivery on the first day of
such Euro-Rate Funding Period in amounts comparable to such
Funding Segment and having maturities comparable to such
Euro-Rate Funding Period by (B) 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 the rates offered to ]
[the Agent estimated ]
[by the Agent per subsection ]
Euro-Rate = [(iii) of this Section 2.05(a) ]
---------------------------------------------
[1.00 - Euro-Rate Reserve Percentage)]
The "Euro-Rate Reserve Percentage" for any Euro-Rate Funding
Period for each Bank's Euro-Rate Loan applicable to such
Euro-Rate Funding Period bearing interest as provided in this
Section 2.05(a)(iii) is that percentage which is specified on
the first day of such Euro-Rate Funding Period in Regulation D
of the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement with
respect to Eurocurrency Liabilities (as defined in such
Regulation D), but only to the extent demonstrated to have been
actually incurred by such Bank, such Bank's determination
thereof to be conclusive in the absence of manifest error.
The Agent shall give prompt notice to Borrower of the Euro-Rate
so determined, which determination shall be conclusive if made
in good faith and absent manifest error.
(b) Funding Periods. At any time when the Borrower shall
select, convert to or renew the CD Rate Option, Euro-Rate Option
or Base Rate Option to apply to any part of the Loans, Borrower
shall fix one or more periods during which such Option shall
apply, such periods (the "Funding Periods") being set forth in
the chart below:
Interest Rate Option Available Funding Periods
CD Rate Option 30, 60 or 90 days or other
period as agreed to among
Borrower, the Agent and the
Banks ("CD Rate Funding
Period")
Euro-Rate Option One, two or three month or
other period as agreed to among
Borrower, the Agent and the
Banks ("Euro-Rate Funding
Period")
Base Rate Option One (1) day
The selection of Funding Periods shall be subject to the
following limitations:
(i) Each CD Rate Funding Period which would otherwise end on a
day which is not a Business Day shall be extended to the next
succeeding Business Day.
(ii) The initial Euro-Rate Funding Period for any EuroRate
Portion shall begin on the day the Euro-Rate Portion is made
(including the day of any conversion from another Interest Rate
Option to a Euro-Rate Portion) and each renewed Euro-Rate
Funding Period thereafter in respect of such Euro-Rate Portion
shall begin on the day upon which the next preceding Euro-Rate
Funding Period expires. Interest payable with respect to any
Euro-Rate Funding Period shall include the first day, but not
the last day, of such Funding Period, provided that (to the
extent not repaid on such last day) interest under another
Interest Rate Option is accruing on and after the last day on
the Funding Segment in respect of which a Euro-Rate Funding
Period is terminating.
(iii) If any Euro-Rate Funding Period would otherwise end on a
day which is not a Business Day, such Euro-Rate Funding Period
shall expire on the next succeeding Business Day unless such
next succeeding Business Day falls in another calendar month, in
which case such Euro-Rate Funding Period shall end on the next
preceding Business Day.
(iv) Borrower may not fix a Funding Period that would end
after the Expiration Date.
Each Loan made hereunder shall mature, and the principal amount
thereof shall become due and payable, on the last day of each CD
Rate Funding Period, Euro-Rate Funding Period or Base Rate
Funding Period (each such date being referred to herein as a
"Funding Period Maturity Date") for such Loan.
(c) Transactional Amounts. Every selection of, conversion from,
conversion to or renewal of an Interest Rate Option and every
payment in respect of the Loans (other than a payment in full)
shall be in a principal amount such that after giving effect
thereto the principal amount of each Portion of the Loans or of
each Funding Segment of such Portion of the Loans, as the case
may be, shall be as set forth in the table below:
Portion or Funding Segment Allowable Principal Amounts
Base Rate Portion $100,000 minimum;
Each Funding Segment of the $1,000,000 or an integral
CD Rate Portion multiple thereof; and
Each Funding Segment $1,000,000 or an integral
of the Euro-Rate Portion multiple thereof.
(d) CD Rate or Euro-Rate Unascertainable; Impracticability If:
(i) on any date on which a CD Rate or a Euro-Rate would
otherwise be set a Bank shall have in good faith determined
(which good faith determination shall be conclusive) that:
(A) adequate and reasonable means do not exist for ascertaining
such CD Rate or Euro-Rate, or
(B) a contingency has occurred which materially and adversely
affects the secondary market for negotiable certificates of
deposit maintained by dealers of recognized standing or the
interbank eurodollar market, as the case may be, or
(C) the effective cost to such Bank of funding a proposed
Funding Segment of a CD Rate Portion or a Euro-Rate Portion of
the Loans from a Corresponding Source of Funds shall exceed the
CD Rate or the Euro-Rate, as the case may be, applicable to such
Funding Segment, or
(ii) at any time a Bank shall have determined in good faith
(which good faith determination shall be conclusive) that the
making, maintenance or funding of any part of a CD Rate Portion
or a Euro-Rate Portion of the Loans has been made impracticable
or unlawful by (A) the occurrence of a contingency which
materially and adversely affects the interbank eurodollar
market, or (B) compliance by such Bank or a Notional Euro-Rate
Funding Office in good faith with any Law or guideline or
interpretation or administration thereof by any Official Body
charged with the interpretation or administration thereof or
with any request or directive of any such Official Body (whether
or not having the force of Law);
then, and in any such event, such Bank (a "Terminating Bank")
may notify Borrower and the Agent of such determination. Upon
such date as shall be specified in such notice (which shall not
be earlier than the date such notice is given) the obligation of
the Terminating Bank to allow Borrower to select, convert to or
renew the CD Rate Option or the Euro-Rate Option, as the case
may be, shall be suspended until the Terminating Bank shall have
later notified Borrower of the Terminating Bank's determination
in good faith (which good faith determination shall be
conclusive) that the circumstances giving rise to such previous
determination no longer exist.
If the Terminating Bank notifies Borrower of a determination
under this Section 2.05(d) with respect to the maintenance of
any part of the CD Rate Portion or the Euro-Rate Portion of the
Loans, as the case may be, Borrower shall, as to such part of
the CD Rate Portion or the Euro-Rate Portion of the Loans, as
the case may be, on the date specified in such notice either
convert such Portion of the Loans to the Base Rate Option in
accordance with Section 2.05(e) hereof or prepay such Portion of
the Loans in accordance with Section 2.06 hereof. Absent due
notice from Borrower of conversion or prepayment the CD Rate
Portion or the Euro-Rate Portion of the Loans, as the case may
be, shall automatically be converted to the Base Rate Option
upon such specified date.
If at the time the Terminating Bank makes a determination under
this Section 2.05(d) Borrower has previously notified the Agent
that Borrower wishes to select, convert to or renew the CD Rate
Option or the Euro-Rate Option, as the case may be, but such
Option has not yet gone into effect, such notification shall be
deemed to provide for selection, conversion to or renewal of the
Base Rate Option instead of the CD Rate Option or Euro-Rate
Option, as the case may be.
(e) Conversion or Renewal. Subject to the provisions of
Sections 2.05(c) and (d) hereof Borrower may convert any part of
the Loans from any Interest Rate Option or Options to one or
more different Interest Rate Options and may renew the CD Rate
Option or the Euro-Rate Option as to any Funding Segment of a CD
Rate Portion or a Euro-Rate Portion of the Loans:
(i) at any time with respect to conversion from the Base Rate
Option;
(ii) at the expiration of any Funding Period with respect to
conversions from or renewals of the CD Rate Option or Euro-Rate
Option, as the case may be, as to the Funding Segment
corresponding to such expiring Funding Period; or
(iii) on the date specified in a notice by a Terminating Bank
pursuant to Section 2.05(d) hereof with respect to conversions
from the CD Rate Option or the Euro-Rate Option, as the case may
be.
Whenever Borrower desires to convert or renew any Interest Rate
Option or Options, Borrower shall provide to the Agent at its
Office a notice (a "Notice of Conversion" or "Notice of
Renewal," respectively) setting forth the following information:
(iv) the date, which shall be a Business Day (not earlier than
the second Business Day after such notice is given, in the case
of a conversion to or renewal of a Euro-Rate Option), on which
the proposed conversion or renewal is to be made;
(v) the principal amounts selected in accordance with Section
2.05(c) hereof of the Base Rate Portion, and each Funding
Segment of the CD Rate Portion or Euro-Rate Portion of the
Loans, as the case may be, to be converted from or renewed;
(vi) the Interest Rate Option or Options selected in
accordance with Section 2.05(a) hereof and the principal
amounts selected in accordance with Section 2.05(c) of the
Base Rate Portion, and each Funding Segment of the CD Rate
Portion or Euro-Rate Portion of the Loans, as the case may
be, to be converted to or renewed; and
(vii) with respect to each Funding Segment of a Loan to be
converted to or renewed, the Funding Period selected in
accordance with Section 2.05(b) hereof to apply to such
Funding Segment.
Notice of Conversion or Notice of Renewal having been so
provided, after the date specified in such Notice interest shall
be calculated upon the principal amount of the Loans as so
converted or renewed. Interest on the principal amount of any
part of the Loans required to be converted or renewed
(automatically or otherwise) shall be due and payable on the
conversion or renewal date.
(f) Failure to Convert or Renew. Absent due notice from
Borrower of conversion or renewal in the circumstances described
in Section 2.05(e) hereof, any part of the CD Rate Portion or
the Euro-Rate Portion of the Loans for which such notice is not
received automatically shall be converted to the Base Rate
Option on the last day of the expiring Funding Period. Any part
of the Base Rate Portion of the Loans which is outstanding on
the applicable Funding Period Maturity Date shall be renewed
automatically under the Base Rate Option on the last day of the
expiring Funding Period.
(g) Effect of Funding Periods on Loan Maturities. Without
limiting the effects of Article VI hereof, each Loan hereunder
shall mature and the principal amount thereof shall . become due
and payable on the applicable Funding Period Maturity Date. On
each day on which a Loan so matures, Borrower may request that a
Rollover Loan be made in the same principal amount by exercising
its rights to convert or renew the applicable Interest Rate
Option under Section 2.05 (e) hereof for such principal amount;
provided, however, that (i) the making of each such Rollover
Loan shall be subject to the conditions set forth in Section
4.02 hereof, and (ii) the proceeds of each Rollover Loan shall
simultaneously and automatically be applied on the applicable
Funding Period Maturity Date to the payment of the principal of
such Loan maturing on such Funding Period Maturity Date.
(h) Changes in Interest Rates: Consolidated Fixed Charge
Coverage Ratio. The Applicable Margin for any day and for each
type of Loan shall be determined with reference to the
Consolidated Fixed Charge Coverage Ratio for the period of four
consecutive fiscal quarters most recently completed prior to
such day, as follows:
Applicable Margin
Consolidated Fixed
Charge Coverage Ratio Base Rate CD Rate Euro-Rate
3.75 or greater 0 .45% .45%
2.75 to 3.74 0 .65% .65%
2.25 to 2.74 0 .725% .725%
1.75 to 2.24 0 .925% .925%
less than 1. 75 0.25% 1.125% 1.125%
Borrower shall provide evidence of the Consolidated Fixed
Charge Coverage Ratio to the Agent and the Banks within twenty
(20) days of the end of each fiscal quarter.
Section 2.06. Prepayment of Loans. Subject to the provisions of
Section 2.08 (b) hereof, Borrower shall have the right at
Borrower's option from time to time to pay the Loans in whole or
part:
(a) with respect to any part of the Base Rate Portion, at any
time without premium or penalty; provided, however, that the
minimum prepayment amount with respect to payment of a Base Rate
Portion shall be $100,000;
(b) with respect to payment of any Funding Segment of the CD
Rate Portion or the Euro-Rate Portion of the Loans:
(i) at the expiration of any CD Rate Funding Period or
Euro-Rate Funding Period, as the case may be, without premium or
penalty;
(ii) on the date specified in a notice by a Terminating Bank
pursuant to Section 2.05(d) hereof, with respect to any part of
the CD Rate Portion or the Euro-Rate Portion, without premium or
penalty; or
(iii) at any time prior to the expiration of any CD Rate
Funding Period or any Euro-Rate Funding Period, as the case may
be, by giving not less than five (5) Business Days' prior
telecopied or telexed notice or telephone notice confirmed in
writing to such effect to the Agent; provided, however, that in
such event the Borrower shall forthwith pay to the Agent for the
ratable account of the Banks an amount equal to the sum of any
costs, expenses and lost profits incurred by any of the Banks as
a result of such voluntary prepayment, as determined in the sole
discretion of the Banks;
provided, however, that the minimum prepayment amount with
respect to payment or prepayment of the Funding Segment of the
CD Rate Portion or the Euro-Rate Portion shall be $1,000,000 and
any prepayment amounts in excess of $1,000,000 shall be integral
multiplies of $500,000.
Section 2.07. Payments.
(a) Interest Payment Dates. Interest on the Loans shall be due
and payable monthly in arrears on the first day of each month
and on the Expiration Date. After maturity of any part of the
Loans by demand or otherwise, interest on such part of the Loans
shall be due and payable on demand.
(b) Principal Payment Dates. Loans shall be due and payable on
the Expiration Date without demand or, after the occurrence of
an Event of Default, immediately upon demand made by the Agent
and the Banks at any time under Section 6.02(a) hereof or
automatically under Section 6.02(b) hereof, as the case may be.
(c) Place, Time and Amounts. All payments to be made in respect
of principal, interest, Facility Fees, Administrative Fee, or
other charges or amounts due from the Borrower hereunder shall
be payable at the Agent's Office at 12:00 Noon, Pittsburgh time,
on the day when due without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived,
and an action therefor shall immediately accrue. Such payments
shall be, made to the Agent in Dollars in immediately available
funds without setoff, counterclaim or other deduction of any
nature. After the principal amount of any part of the Base Rate
Portion of the Loans shall have become due (by acceleration or
by maturity at the Expiration Date, but excluding Funding Period
Maturity Dates), such amounts shall bear interest for each day
until paid (before and after judgment), payable on demand, at a
rate per annum (based on a year of 365 or 366 days, as the case
may be) equal to two percent (2%) above the rate applicable to
the Base Rate Option, such interest rate to change automatically
from time to time effective on and as of the effective date of
each change in the Prime Rate. After the principal amount of any
part of the CD Rate Portion or the Euro-Rate Portion of the
Loans shall have become due (by acceleration or by maturity at
the Expiration Date, but excluding Funding Period Maturity
Dates), such amounts shall bear interest for each day until paid
(before and after judgment), payable on demand, (i) until the
end of the applicable then current Funding Period at a rate per
annum equal to two percent (2%) above the rate otherwise
applicable to such amounts and (ii) thereafter in accordance
with the immediately preceding sentence. All payments to the
Agent shall be made in the amount due, absolutely free, clear
and net of any charges, taxes or other amounts withheld.
Section 2.08. Additional Compensation in Certain Circumstances.
(a) Compensation for Taxes, Reserves and Exsenses on
Outstandinq Loans. If any Law or guideline or interpretation or
application thereof by any Official Body charged with the
interpretation or administration thereof or compliance with any
request or directive of any central bank or other Official Body
(whether or not having the force of Law):
(i) subjects any Bank (including the Agent) or any Notional
Euro-Rate Funding Office to any tax, or changes the basis of
taxation with respect to this Agreement, the Notes, the Loans,
or payments by Borrower of principal, interest or other amounts
due from Borrower hereunder or under the Notes (except for taxes
on the overall net income of such Bank or such Notional
Euro-Rate Funding Office imposed by the jurisdiction in which
such Bank's principal executive office or Notional Euro-Rate
Funding Office is located);
(ii) imposes, modifies or deems applicable any reserve, special
deposit or similar requirement against assets held by, credit
extended by, deposits with or for the account of, or other
acquisition of funds by, any Bank or any Notional Euro-Rate
Funding Office (other
than requirements expressly included herein in the
determination of the CD Rate or Euro-Rate, as the case may be,
hereunder); or
(iii) imposes upon any Bank or any Notional Euro-Rate Funding
Office any other condition or expense with respect to this
Agreement, the Notes, the Commitment, or its making, maintenance
or funding of any part of the Loans, including, without
limitation, any capital adequacy or similar requirement;
and the result of any of the foregoing is to increase the cost
to, reduce the income receivable by, or impose any expense upon
any Bank or any Notional Euro-Rate Funding Office with respect
to this Agreement, the Notes, or the making, maintenance or
funding of any part of the Loans by an amount which any Bank
deems to be material (such Bank being deemed for this purpose to
have made, maintained or funded each Funding Segment of the CD
Rate Portion and the Euro-Rate Portion of the Loans from a
Corresponding Source of Funds), such Bank shall from time to
time notify Borrower of the amount determined in good faith
(using any averaging and attribution methods employed in good
faith) by such Bank (which determination shall be conclusive) to
be necessary to compensate such Bank or such Notional Euro-Rate
Funding Office for such increase in cost, reduction in income or
additional expense. Such amount shall be due and payable by
Borrower to such Bank ten (10) Business Days after such notice
is given. Such notice shall be given to the Borrower within a
reasonable time following such Bank's determination of the
amount owed.
(b) Indemnity. In addition to the compensation required by
Section 2.08(a) hereof, Borrower shall indemnify the Banks
against any loss or expense (including loss of margin) which any
Bank has sustained or incurred as a consequence of any:
(i) payment, prepayment or conversion (other than a prepayment
or conversion made pursuant to Section 2.05(d) hereof) of any
part of any Funding Segment of the CD Rate Portion or the
Euro-Rate Portion of the Loans on a day other than the last day
of the corresponding Funding Period (whether or not such
payment, prepayment or conversion is mandatory or automatic and
whether or not such payment or prepayment is then due);
(ii) attempt by Borrower to revoke (expressly, by later
inconsistent notices or otherwise) in whole or part any notice
stated herein to be irrevocable (any Bank having in its sole
discretion the option (A) to give effect to such attempted
revocation and obtain indemnity under this Section 2.08(b) or
(B) to treat such attempted revocation as having no force or
effect, as if never made); or
(iii) default by Borrower in the performance or observance of
any covenant or condition contained in this Agreement or the
Notes or any other Loan Document, including without limitation
any failure of Borrower to pay when due (by acceleration or
otherwise) any principal, interest or any other amount due
hereunder or under the Notes or any other Loan Document.
If any Bank sustains or incurs any such loss or expense it shall
from time to time notify Borrower of the amount determined in
good faith by such Bank (which determination shall be conclusive
absent manifest error) to be necessary to indemnify such Bank
for such loss or expense (such Bank being deemed for this
purpose to have made, maintained or funded each Funding Segment
of the CD Rate Portion and the Euro-Rate Portion from a
Corresponding Source of Funds). Such amount shall be due and
payable by Borrower to such Bank ten (10) Business Days after
such notice is given. Such notice shall be given to Borrower
within a reasonable time following such Bank's determination of
the amount owed.
Section 2.09. Fundinq by Branch. Subsidiary or Affiliate.
(a) Notional Fundinq. Any Bank shall have the right from time
to time, prospectively or retrospectively, without notice to
Borrower, to deem any branch, subsidiary or affiliate of such
Bank to have made, maintained or funded any part of the
Euro-Rate Portion of the Loans at any time. Any branch,
subsidiary or affiliate so deemed shall be known as a "Notional
Euro-Rate Funding Office." Any Bank shall deem any part of the
Euro-Rate Portion of the Loans or the funding therefor to have
been transferred to a different Notional Euro-Rate Funding
Office if such transfer would avoid or cure an event or
condition described in Section 2.05(e) hereof or would lessen
any compensation or indemnity payable to such Bank under Section
2.08 hereof, and if such Bank determines in its sole discretion
that such transfer would be practicable and would not have a
material adverse effect on such part of the Loans, such Bank or
any Notional Euro-Rate Funding Office (it being assumed for
purposes of such determination that each part of the Euro-Rate
Portion of the Loans is actually made or maintained by or funded
through the corresponding Notional Euro-Rate Funding Office).
Notional Euro-Rate Funding Offices may be selected by each Bank
without regard to such Bank's actual methods of making,
maintaining or funding the Loans or any sources of funding
actually used by or available to such Bank.
(b) Actual Funding. Any Bank shall have the right from time to
time to make or maintain any part of the EuroRate Portion of the
Loans by arranging for a branch, subsidiary or affiliate of such
Bank to make or maintain such part of the Euro-Rate Portion of
the Loans. Any Bank shall have the right to (i) hold any
applicable Note payable to its order for the benefit and account
of such branch, subsidiary or affiliate or (ii) request Borrower
to issue one or more promissory notes in the principal amount of
such part of the Euro-Rate Portion of the Loans in substantially
the form attached hereto as Exhibit A, with the blanks
appropriately filled, payable to such branch, subsidiary or
affiliate and with appropriate changes reflecting that the
holder thereof is not obligated to make any additional Loans to
Borrower. Borrower agrees to comply promptly with any request
under subsection (ii) of this Section 2.09 (b). If any Bank
causes a branch, subsidiary or affiliate to make or maintain any
part of the Loans hereunder, all terms and conditions of this
Agreement shall, except where the context clearly requires
otherwise, be applicable to such part of the Loans and to any
note payable to the order of such branch, subsidiary or
affiliate to the same extent as if such part of the EuroRate
Portion of the Loans were made or maintained by such Bank and
Such note were a Note payable to such Bank's order.
Section 2.10. Fees; Termination or Reduction of Commitments.
(a) Fees.
(i) Facility Fees. Borrower agrees to pay to the Agent, for the
account of each Bank in accordance with such Bank's Percentage
Share, as consideration for each Bank's Commitment hereunder,
for each day during the period from the date hereof through and
including the Expiration Date, fees (the "Facility Fees"),
payable quarterly in arrears on the last day of each fiscal
quarter, on the average daily amount of the sum of the Banks'
Commitments (whether borrowed or unborrowed) at a rate per annum
(based on a year of 365 or 366 days, as the case may be)
determined with reference to the Consolidated Fixed Charge
Coverage Ratio for the period of four consecutive fiscal
quarters most recently completed prior to such day, as follows:
Consolidated Fixed
Charge Coverage Ratio Fee Rate
3.75 or greater .175%
2.75 to 3.74 .225%
2.25 to 2.74 .275%
1.75 to 2.24 .325%
less than 1. 75 .375%
(ii) Administration Fee. As a consideration for the Agent's
administration of the credit facility contemplated by this
Agreement, Borrower agrees to pay to the Agent for the Agent's
own account a quarterly administration fee (the "Administration
Fee") of $6,250 payable on each March 17, June 17, September 17
and December 17 hereafter, commencing on June 17, 1990, and on
the Expiration Date.
(b) Reduction/Termination of Commitments. Borrower may at any
time or from time to time terminate in whole or reduce ratably
the Commitments of the Banks hereunder to an amount not less
than the aggregate principal amount of the Loans then
outstanding, by giving not less than five (5) Business Days'
prior telecopied or telexed notice or telephoned notice
confirmed in writing to such effect to the Agent, provided that
any such reduction shall be in the aggregate amount of
$1,000,000 or an integral multiple thereof. After each such
termination or reduction, the Facility Fees payable hereunder
shall be calculated upon the Commitments of the Banks as so
reduced. Facility Fees shall be paid quarterly on the last day
of each fiscal quarter after the date hereof tq and including
the Expiration Date of the Commitments and on the date of each
termination or reduction of the Banks' Commitments on the amount
so terminated or reduced, for the preceding period for which
such fee has not been paid.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Borrower, in addition to its other representations and
warranties contained herein or made pursuant hereto, hereby
represents and warrants to the Agent and each of the Banks that:
Section 3.01. Orqanization and Qualification. The Borrower is a
corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation, and duly
qualified to do business as a foreign corporation and in good
standing in each jurisdiction in which the nature of its
activities or ownership (or leasing) of property, or both makes
such qualification or licensing necessary and where the failure
to be so qualified or licensed would have a material adverse
effect on the financial condition or business of Borrower.
Section 3.02. Power and Authority. Borrower has corporate power
and authority to make and carry out this Agreement and the Loan
Documents, to make the borrowings provided for herein, and to
perform its obligations hereunder and under the other Loan
Documents and under the Notes; and all such action has been duly
authorized by all necessary corporate proceedings on its part.
Borrower and each Subsidiary have all requisite corporate power
and authority to own and operate their respective properties and
to carry out their respective businesses as now conducted and as
presently contemplated to be conducted.
Section 3.03. Financial Statements. Foster has furnished to
each Bank copies of its 1994 audited consolidated financial
statements of Foster and its Consolidated Subsidiaries for the
fiscal year ended December 31, 1994. The consolidated financial
statements fairly present the financial position of Foster and
its Consolidated Subsidiaries and the results of their
operations and the changes in financial position for the periods
then ended, in conformity with GAAP.
Section 3.04. Litigation or Proceedings; Commitments and
Continqencies.
(a) There is no litigation or governmental proceeding by or
against Borrower or any Subsidiary pending or, to the knowledge
of Borrower, threatened which, in the opinion of Borrower,
involves any substantial risk of any material adverse effect on
the financial condition or business of the total enterprise
represented by Foster and its Subsidiaries on a consolidated
basis. As of the date of this Agreement, Foster and its
Subsidiaries are parties to the pending litigation or
governmental investigations or proceedings, involving exposure
to possible loss individually in the amount of $500,000 or more,
identified in the Schedule of Litigation attached hereto as
Schedule 3.04.
(b) Neither Borrower nor any of its Subsidiaries has any known
contingent liabilities which, in the opinion of Borrower, could
have a material adverse effect on the financial condition or
business represented by Foster and its Subsidiaries on a
consolidated basis which are not referred to (i) in the
financial statements referred to in Section 3.03 hereof, (ii) in
the notes thereto, or (iii) in Section 5.02(d) hereof.
Section 3.05. Material Adverse Chanqe. Since December 31, 1994,
there has been no material adverse change in the business,
assets or financial condition of the total enterprise
represented by Foster and its Subsidiaries on a consolidated
basis, and neither of the Borrower nor any Subsidiary has
entered into any material transaction outside the ordinary
course of business.
Section 3.06. Title to Properties.
(a) Foster has and will have good and marketable title to all
material properties, assets and other rights which they purport
to own, or which are reflected in their books and records other
than leasehold property, free and clear of all Liens (except
those permitted by Section 5.02(c) hereof and those which are
not material to the business or financial condition of Foster).
(b) Foster has good and marketable title to all Eligible
Accounts and all Eligible Inventory, free and clear of all Liens
except Liens permitted under clause (1), (2), (4) or (6) of
Section 5.02(c) hereof.
(c) All information set forth in the financial statements,
other documents and reports furnished by Borrower to the Agent
or the Banks from time to time is true, correct and complete and
is expressly incorporated herein by this reference.
(d) On each occasion on which Borrower evidences to the Agent
the balances on and the nature and extent of those accounts in
which Borrower has rights, Borrower shall be deemed to have
warranted, to the best of its knowledge after due inquiry in
accordance with established credit and accounting policies, that
(i) every account so evidenced is valid and enforceable without
performance by any person of any other act, (ii) the balances so
evidenced are in fact owing to Borrower and (iii) there are no
setoffs, counterclaims or defenses against any such account.
Section 3.07. No Conflict with Other Documents; Authorizations
and Approvals. Neither the execution and delivery of this
Agreement or any of the other Loan Documents, the consummation
of the transactions herein and therein contemplated nor
compliance with the terms and provisions hereof or thereof will
conflict with or result in a breach of any of the terms,
conditions or provisions of the articles or by-laws of Borrower
or of any law or of any regulation, order, writ, injunction or
decree of any court or governmental instrumentality or of any
material agreement or instrument to which Borrower or any of its
Subsidiaries is a party or by which it is bound or to which it
is subject, or constitute a default thereunder or result in the
creation or imposition of any security interest, Lien, charge or
encumbrance of any nature whatsoever upon any of the material
properties of Borrower or of any of its Subsidiaries pursuant to
the terms of any such agreement or instrument. No approval,
authorization or other action by any governmental authority or
any other person, firm or corporation is required to be obtained
by Borrower or any of its Subsidiaries in connection with the
execution, delivery and performance of this Agreement, the other
Loan Documents, or any other agreement between or among any or
all of the Banks and Borrower or any of its Subsidiaries or the
transactions contemplated hereby or thereby, or the making of
any borrowing by Borrower hereunder.
Section 3.08. Tax Returns. The Borrower has filed all Federal
tax returns which are required to be filed and all other tax
returns which are required to be filed (except for tax returns
for which an unexpired extension has been granted by the
appropriate Official Body) and has paid, or made adequate
provision for the payment of, all taxes which have or may become
due pursuant to said returns or to assessments received. All
Federal tax returns of the Borrower through the fiscal years
ended on December 31, 1985 have been audited by the Internal
Revenue Service or are not subject to such audit by virtue of
the expiration of the applicable period of limitations and the
results of such audits are fully reflected in the most recent
balance sheet referred to in Section 3.03 hereof. The Borrower
knows of no material additional assessment since said date for
which adequate reserves appearing ir. the said balance sheet
have not been established. The Borrower has made adequate
provision for all current taxes, and in the opinion of the
Borrower there will not be any material additional assessments
for any fiscal periods prior to and including that which ended
December 31, 1988 in excess of the amounts reserved therefor in
such balance sheet.
Section 3.09. Validity and Binding Effect. This Agreement has
been duly and validly executed and delivered by Borrower. This
Agreement constitutes, and the other Loan Documents when duly
executed and delivered by Borrower pursuant to the provisions
hereof will constitute, valid and binding obligations of
Borrower, enforceable in accordance with their respective terms
except as such enforceability may be limited by bankruptcy,
insolvency, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
Section 3.10. Requlations G. U, T and X; Investment Company
Status. Neither Borrower nor any Subsidiary is engaged
principally, or as one of its most important activities, in the
business of extending credit for the purpose of purchasing or
carrying Margin Stock. This Agreement does not violate
Regulations G, U, T, and X of the Board of Governors of the
Federal Reserve System. Neither Borrower nor any Subsidiary, or
any agent acting on the behalf of Borrower or any Subsidiary,
has taken any action or will take any action that might cause
this Agreement or any Note to violate Regulations G, U, T, and X
or any other regulation the Board of Governors of the Federal
Reserve System or to violate Section 7 of the Securities Act of
1934, as in effect from time to time. Borrower is not an
"investment company" or a company "controlled" by an investment
company within the meaning of the Investment Company Act of
1940, as amended.
Section 3.11. ERISA Compliance. (a) Foster or any of its
Subsidiaries or member of a Controlled Group maintains only the
Plans described on the Schedule of Plans attached hereto as
Schedule 3.11; (b) each Plan has been funded in all material
respects in accordance with its terms and with the minimum
funding standards of Part Three of Title I of ERISA and will be
funded in all material respects in accordance with such terms
and standards; (c) each Plan has been maintained in accordance
with its terms and with all provisions of ERISA applicable
thereto and will be maintained in all material respects in
accordance with such terms and will be in material compliance
with ERISA; (d) no Reportable Event which would have a material
adverse effect on the Plan Employer and which could cause PBGC
to institute proceedings under Section 4042 of ERISA has
occurred and is continuing with respect to any Plan; (e) no
material liability to PBGC has been incurred with respect to any
Plan, other than for premiums due and payable; (f) except as
disclosed on Schedule 3.11, no Plan has been terminated, no
proceedings have been instituted to terminate any Plan, and no
decision has been made by the board of directors of a Plan
Employer or by the Plan administrator to terminate or institute
proceedings to terminate any Plan; (g) no withdrawal, either
complete or partial, has occurred or commenced with respect to
any multiemployer Plan and no decision has been made by the
board of directors of a Plan Employer or by the Plan
administrator either to completely or partially withdraw from
any multiemployer Plan; and (h) except as disclosed on Schedule
3.11, there has been no cessation of, and no decision has been
made by the board of directors of a Plan Employer or by the Plan
administrator to cease, operations at a facility or facilities
where such cessation could reasonably be expected to result in a
separation from employment of more than 20% of the total number
of employees who are participants under a Plan. Each
single-employer Plan has been timely amended to comply with all
the applicable provisions of the Tax Equity and Fiscal
Responsibility Act of 1982, the Deficit Reduction Act of 1984
and the Retirement Equity Act of 1984, and the Borrower has no
knowledge of any fact relating to any Plan which involves any
substantial risk or reasonable possibility of resulting in a
material adverse change in the financial condition of Foster and
its Subsidiaries taken together as a whole. Borrower has
provided to the Agent and each of the Banks a copy of the most
recent Annual Report (Form 5500 or 5500C), including all
attachments thereto, filed with the Internal Revenue Service in
respect of each Plan and each such Annual Report fairly presents
the funding status of the Plan to which it relates. There has
been no material deterioration in the funding status of any Plan
since the date of the Annual Report filed in respect thereof.
Section 3.12. Defaults. Neither Borrower nor any Subsidiary is
in default under any provision of its charter or by-laws or, so
as to affect adversely in any material manner the business or
assets or the condition, financial or otherwise, of Borrower on
an individual basis, or of the Borrower and its Subsidiaries on
a consolidated basis, under any provision of any agreement,
lease or other instrument to which it is a party or by which it
is bound.
Section 3.13. Compliance with Laws. To the best of Borrower's
knowledge, except as set forth in Schedule 3.13 hereto, neither
Borrower nor any Subsidiary is in violation of or subject to any
contingent liability on account of any Law (including but not
limited to ERISA, the Code, any applicable occupational and
health or safety Law, environmental protection Law, or hazardous
waste or toxic substances management, handling or disposal Law
and including but not limited to (a) any restrictions,
specifications or requirements pertaining to products that
either Borrower or any Subsidiary manufactures, processes or
sells or pertaining to the services each performs, (b) the
conduct of their respective businesses and (c) the use,
maintenance or operation of the real and personal properties
owned or possessed by them), except for violations which in the
aggregate do not have a material adverse effect on the business,
operations or financial condition of Borrower or the Subsidiary
which is in violation of such Law.
Section 3.14. Disclosure. To the best knowledge of Borrower,
neither this Agreement nor any agreement, document, certificate
or statement furnished to the Agent or the Banks by or on behalf
of Borrower in connection with the transactions contemplated
hereby contains any untrue statement of material fact or omits
to state a material fact necessary in order to make the
statements contained herein or therein not misleading.
Section 3.15. Continuing Effect. All representations and
warranties of Borrower hereunder are and shall be continuing
ones and shall be true, correct and complete so long as Borrower
shall have obligations outstanding and unperformed under this
Agreement and the other Loan Documents.
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Bank to make Loans hereunder are subject
to the accuracy, as of the date hereof, of the representations
and warranties herein contained, to the performance by Borrower
of its obligations to be performed hereunder on or before the
date of each such Loan and to the satisfaction of the following
further conditions:
Section 4.01. First Revolvinq Credit Loans. At the time of the
making of the initial Loans after the date of this Agreement:
(a) The Agent shall have received the following documents:
(i) Opinion of Counsel for the Borrower. A favorable opinion of
David Voltz, Esq., counsel for Borrower, dated the date of the
initial Loans, in form and scope satisfactory to Reed Smith Shaw
& McClay, special counsel for the Agent and the Banks, as to (A)
the matters referred to in Sections 3.01, 3.02, 3.07, and 3.09
hereof; and (B) such other matters incident to the transactions
herein contemplated as the Agent and said special counsel may
reasonably request;
(ii) Certified Resolutions. Articles of Incorporation and
Bylaws. etc. (A) Copies of all documents evidencing corporate
action taken by Borrower relative to this Agreement and the
other Loan Documents in form and substance satisfactory to the
Agent and said special counsel for the Agent and the Banks,
certified by the Secretary of Borrower, (B) copies of the
Articles of Incorporation and By-Laws of Borrower (such Articles
of Incorporation and By-Laws being certified by the Secretary of
Borrower) and (C) certificates, dated a recent date, of the
Secretary of State or other similar officials as to the good
standing of Borrower under the laws of the state of its
incorporation;
(iii) Incumbency Certificates. Certificates, signed by a
Secretary or an Assistant Secretary of Borrower, certifying as
to the name of the officer or officers of Borrower authorized to
sign this Agreement and the other Loan Documents and as to the
specimens of the true signatures of such officer or officers, on
which the Agent and the Banks may conclusively rely until a
revised certificate is similarly so delivered;
(iv) Officer's Certificate. Certificates, signed by a
Responsible Officer of Borrower as to the fulfillment of the
condition precedent set forth in Sections 4.01(b)(i)-(iii)
hereof;
(v) Other Loan Documents. The duly executed Notes, initial
Accounts Receivable-Inventory Report, and such other Loan
Documents as the Agent and the Banks may request; and
(b) The following conditions precedent shall be satisfied:
(i) Representations and Warranties. Borrower's representations
and warranties in Article III hereof shall be true and accurate
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);
(ii) Absence of Event of Default. No Event of Default and no
Potential Event of Default shall have occurred and be continuing
or shall exist;
(iii) Compliance with Covenants. Borrower shall be in
compliance with the covenants set forth in Article V hereof;
(iv) Opinion of Accountants. The report of independent
certified public accountants accompanying the most recent
audited financial statements delivered pursuant to Section 5.03
hereof shall not contain any material qualification or exception
not acceptable to the Agent;
(v) Material Adverse Change. No material adverse change
(individually or in the aggregate) shall have occurred, in the
reasonable judgment of the Agent, with respect to the condition
(financial or otherwise), business, assets or financial
condition of the total enterprise represented by Foster and its
Subsidiaries on a consolidated basis from the date of the last
audited financial statements delivered pursuant to Section 5.03
hereof to the date of such borrowing;
(vi) Legal Details. All legal details and proceedings in
connection with the transactions contemplated by this Agreement
and all documents delivered to the Agent pursuant to this
Section 4.01 shall be in form and substance satisfactory to the
Agent and the Agent shall have received all such counterpart
originals or certified or other copies of such documents and
proceedings in connection with such transactions, in form and
substance satisfactory to the Agent, as the Agent shall
reasonably request; and
(vii) Amendment Fee. The Borrower shall have paid to the Agent,
for the pro rata benefit of the Banks, an amendment fee equal to
$50,000.
Section 4.02. Subsequent Revolving Credit Loans; Letters of
Credit. The making of Loans made subsequent to the initial Loans
made pursuant to Section 4.01 hereof and the issuance of Letters
of Credit, shall be made subject to the following terms and
conditions:
(a) Effect of Borrowinq Request or Application. The submission
of a Notice of Borrowing pursuant to Section 2.04 hereof
subsequent to the date of this Agreement and the submission of
an Application pursuant to Section 2.02 hereof, shall be deemed
to be a certification, as of the date of such submission or
request, that:
(i) Representations, Warranties and Covenants. The
representations and warranties in Article III hereof shall be
true and accurate with the same effect as though such warranties
and representations had been made on and as of such date (except
representations and warranties which relate solely to an earlier
date) and Borrower is in compliance with the covenants set forth
in Article V hereof; and
(ii) Event of Default. No Event of Default or Potential Event
of Default shall have occurred and be continuing or shall exist.
(b) Leqal Details. All legal details and proceedings in
connection with the transactions contemplated by this Agreement
shall be in form and substance satisfactory to the Agent and the
Agent shall have received all such counterpart originals or
certified or other copies of such documents and proceedings in
connection with such transactions, in form and substance
satisfactory to the Agent, as the Agent shall reasonably request.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants Other Than Reporting
Requirements. Borrower covenants to the Agent and each of the
Banks that, so long as Borrower may borrow hereunder and until
payment in full of all of the Debt, Borrower will:
(a) Preservation of Corporate Existence, etc. Preserve and
maintain its corporate existence, rights, franchises, licenses,
and privileges in the jurisdiction of its incorporation, and
qualify and remain qualified as a foreign corporation in each
jurisdiction in which such qualification is necessary in view of
its business and operations or the ownership of its properties,
except where the failure to do so would not have a material
adverse effect on the financial condition or business of
Borrower.
(b) Payment of Taxes, etc. Pay and discharge, and cause each
Subsidiary to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties owned by it, prior to
the date on which penalties attach thereto, and all lawful
claims for labor, materials or supplies which, if unpaid, might
become a Lien upon any material properties of Borrower or any
Subsidiary, provided that neither Borrower nor any Subsidiary
shall be required to pay any such tax, assessment, charge, levy
or claim which is being contested in good faith and by proper
proceedings and for which Borrower or the Subsidiary in question
shall have set aside on its books in accordance with GAAP
appropriate reserves with respect thereto.
(c) Compliance with Laws. Comply, and cause each Subsidiary to
comply, with all applicable Laws (including but not limited to
ERISA, the Code, and any applicable tax law, occupational safety
or health Law, or environmental protection or pollution control
Law) in all material respects; provided that Borrower shall not
be deemed to be in violation of this Section 5.01(c) as a result
of any failure to comply that would not result in fines,
penalties, injunctive relief or other civil or criminal
liabilities which, in the aggregate, would materially affect the
business, operations or financial condition of Foster and its
Subsidiaries taken as a whole or the ability of the Borrower to
perform its obligations under this Agreement or any other Loan
Document.
(d) Maintenance of Insurance. Maintain, and cause each
Subsidiary to maintain, insurance on its or their properties
with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which
Borrower or such Subsidiary operates. Borrower will deliver to
the Agent, at the time of making the first Loans and on the last
day of each fiscal year thereafter a statement or insurance
company certificate in such detail as the Agent may request as
to all insurance coverage of Borrower and all of its
Subsidiaries.
(e) Maintenance of Properties, etc. Maintain, keep and
preserve, and cause each Subsidiary to maintain, keep and
preserve, all of its properties (tangible and intangible) which
are necessary or useful in the proper conduct of its business in
good working order and condition, ordinary wear and tear
excepted, except where the failure to do so would not effect
adversely the financial condition or business of Borrower or the
Subsidiary which owns such property.
(f) Financial Accountinq Practices. Make, and shall cause each
Subsidiary to make, and keep books, records and accounts which,
in reasonable detail and determined on a consolidated basis for
Foster and its Consolidated Subsidiaries, accurately and fairly
reflect transactions and dispositions of assets and maintain a
system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization,
(ii) transactions are recorded as necessary (A) to permit
preparation of consolidated financial statements in conformity
with GAAP and (B) to maintain accountability for assets, (iii)
access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(g) Visitation Riqhts. At any reasonable time and from time to
time, permit the Agent or the Banks or any agents or
representatives thereof to examine and make copies of and
abstracts from the records and books of account of, and visit
the properties of, Borrower and any of the Subsidiaries, and to
discuss the affairs, finances and accounts of Borrower and any
of the Subsidiaries with any of their respective officers,
employees, or directors or independent accountants.
(h) Maintenance of Minimum Consolidated Fixed Charge Coverage
Ratio. Maintain a Consolidated Fixed Charge Coverage Ratio
greater than or equal to 1. 60 to 1 as of the end of each month
on the basis of the twelve consecutive months then ending.
(i) Maintenance of Minimum Consolidated Tangible Net Worth.
From and after January 1, 1990, maintain at all times a
Consolidated Tangible Net Worth greater than or equal to the sum
of (A) $45,000,000 plus (b) 50% of the cumulative Consolidated
Net Income for each fiscal quarter of Borrower commencing with
the fiscal quarter ending March 31, 1990 and for each fiscal
quarter thereafter, such initial determination to be made as of
December 31, 1990 and each subsequent determination to be made
as of the end of each fiscal quarter of Borrower thereafter. For
purposes of this Section 5.01 (i) only, Consolidated Net Income
shall not include any loss attributable to any such period of
determination.
(j) Maintenance of Minimum Ratio of Consolidated Current Assets
to Consolidated Current Liabilities. Maintain a ratio of
Consolidated Current Assets to Consolidated Current Liabilities
of at least 1. 25 to 1, determined as of the end of each fiscal
month of Foster and its Consolidated Subsidiaries.
(k) ERISA Covenants. (i) Cause each Plan Employer with respect
to its Plans (A) to satisfy the minimum funding standards of
Section 412 of the Code with respect to any single-employer Plan
and (B) to comply in all material respects with the provisions
of ERISA and the Code which are applicable to any Plan and (ii)
not permit any Plan Employer with respect to its Plans (A) to
terminate any single-employer Plan which could result in any
liability to the PBGC under Title IV of ERISA as set forth on
IRS Form 5310 in an amount greater than $500,000 for any
individual Plan or greater than $750,000 for any group of Plans
terminated in any calendar year, (B) to engage in any prohibited
transaction as described in Section 406 of ERISA or to incur a
Reportable Event, (C) to withdraw from any multi-employer Plan
which could result in the incurrence of withdrawal liability in
an amount greater than $500,000, (D) to adopt any new Plan
without prior written notice to the Agent and the Banks, (E) to
lose the qualified status of any Plan under Section 401 of the
Code or the exempt status of any related trust under Section 501
of the Code or (F) to cease operations at a multiple-plant
facility within the meaning of Section 4062 (e) of ERISA and
which could reasonably be expected to result in liability to the
PBGC under Title IV of ERISA in an amount greater than $750,000,
whether or not such liability is paid to the PBGC or secured by
the filing of a bond with the PBGC.
(l) Satisfaction of Judqments. Pay or otherwise satisfy, and
cause of each of its Subsidiaries to pay or otherwise satisfy,
every final judgment from which no further appeal may be taken
in excess of $100,000 entered against it or such Subsidiary
within 60 days after entry thereof or after the expiration of
any stay of execution with respect thereto.
(m) Maintenance of Minimum Eliqible Accounts. On each day
when the Borrower's Consolidated Fixed Charge Coverage Ratio for
the period of twelve consecutive months ending on the day before
the first day of the then most recently completed month is less
than or equal to 2.00 to 1, maintain Eligible Accounts which
are, in the aggregate, greater than or equal to the product of
(i) forty percent (.40) times (ii) the sum of all Debt
outstanding on such day under this Agreement.
(n) Environmental Covenant. Notwithstanding the provisions of
Section 5.01(d) hereof, Borrower will, and will cause each of
its Subsidiaries to (i) use and operate all of its facilities
and properties in material compliance with all environmental
Laws (including, but not limited to, those Laws designed to
protect human health and the environment), keep all necessary
permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and
remain in material compliance therewith, and handle all
hazardous substances and materials, toxic materials and all
other materials hazardous to human health or the environment in
material compliance with all applicable environmental Laws;
provided that Borrower shall not be deemed to be in violation of
this Section 5.01(n)(i) as a result of any failure to comply
that would not result in fines, penalties, injunctive relief or
other civil or criminal liabilities which, in the aggregate,
would materially affect the business, operations or financial
condition of Borrower and its Subsidiaries taken as a whole or
the ability of the Borrower to perform its obligations under
this Agreement or any other Loan Document, (ii) immediately
notify the Agent and provide copies upon receipt of all written
claims, complaints, notices or inquiries relating to the
condition of its facilities and properties in connection with
environmental Laws, or compliance with or responsibility under
environmental Laws, that may give rise to liability or
responsibility under applicable environmental Laws, (iii)
promptly respond in an appropriate manner to any such claims,
complaints, notices or inquiries and, additionally, take action
where appropriate to remedy any such alleged condition or
noncompliance with environmental good faith by proper
proceedings; and (iv) provide such information and
certifications which the Agent may reasonably request from time
to time to evidence compliance with this Section 5.01(n).
Section 5.02. Neqative Covenants. Borrower covenants that, so
long as Borrower may borrow hereunder and until payment in full
of the Debt, Borrower will not:
(a) Maintenance of Maximum Ratio of Consolidated Total
Liabilities to Consolidated Tanqible Net Worth. Permit the ratio
of Consolidated Total Liabilities to Consolidated Tangible Net
Worth to exceed 2.0 to 1 at any time.
(b) Indebtedness. Create, incur, assume, guarantee or be or
remain liable for, contingently or otherwise, or suffer to
exist, or permit any Subsidiary to create, incur, assume,
guarantee or be or remain liable for, contingently or otherwise,
or suffer to exist, any Indebtedness (including Guarantees)
other than the following:
(1) Indebtedness in respect of obligations to the Agent and the
Banks hereunder or under the other Loan Documents.
(2) Indebtedness in the ordinary course of business, in respect
of accounts payable, accrued payroll expenses, accrued pensions,
progress billings and, unbilled retentions in excess of related
cost, estimated replacements on sales, deferred income taxes,
liabilities of a character described as accrued liabilities on
the consolidated balance sheet of Foster and its Consolidated
Subsidiaries, other taxes, assessments, governmental charges,
and claims for labor, materials or supplies to the extent that
payment thereof shall not at the time be required to be made in
accordance with the provisions of Section 5.01(b) hereof.
(3) Indebtedness not existing on the date hereof arising in
respect of the purchase of property on which Liens are permitted
under clause (5) of Section 5.02(c) hereof.
(4) Indebtedness (other than Capitalized Leases) existing on
the date hereof and set forth on Schedule 5.02(b) attached
hereto or reflected in the financial statements delivered
pursuant to Section 3.03 hereof.
(5) Indebtedness arising in respect of Capitalized Leases which
in the aggregate do not provide for payments during any fiscal
year in excess of $2,500,000.
(6) Private Placement Debt, which shall be permissible only in
the event of the execution and delivery of an intercreditor
agreement (the "Intercreditor Agreement") between the Agent and
the purchaser of the Private Placement Debt, which agreement
shall contain such terms and conditions as are appropriate and
as are satisfactory to the Agent, including but not limited to
provisions for the pari passu treatment of any collateral and
for the acceleration of any Indebtedness.
(7) Other Indebtedness in an aggregate principal amount not
exceeding $1,500,000 at any time outstanding.
(c) Negative Pledge: Liens. (i) Create, assume, incur, or
suffer to be created, assumed, incurred or to exist, or permit
any Subsidiary to create, incur, assume or suffer to exist, any
Lien upon any of its property or assets of any character whether
now owned or hereafter acquired, or upon the income or profits
therefrom; or (ii) transfer or permit any Subsidiary to transfer
any of such property or assets or the income or profits
therefrom for the purpose of subjecting the same to the payment
of Indebtedness or performance of any other obligation in
priority to payment of its general creditors; or (iii) acquire,
or agree or have an option to acquire, any property or assets
upon conditional sale or other title retention or purchase money
security agreement, device or arrangement, including, without
limitation, Capitalized Leases; or (iv) suffer to exist any
Indebtedness which if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given priority over its general
creditors; or (v) enter, or permit or cause any Subsidiary to
enter into any agreement which purports to restrict in any
manner the ability of the Borrower or any Subsidiary to grant
security interests or liens to the Agent for the benefit of the
Agent and the Banks, in respect of assets either of the Company
or of any Subsidiary, which assets have not theretofore been
encumbered or made subject to the grant of a security interest
in favor of or for the benefit of the Agent and the Banks;
provided, however, that the Borrower and its Subsidiaries may
create or incur or suffer to be created or incurred or to exist:
(1) Liens in favor of the Agent for the benefit of the Agent
and the Banks.
(2) Nonconsensual Liens to secure claims for Indebtedness
permitted by Section 5.02(b)(2) hereof.
(3) Liens existing on the date hereof and Liens securing
Indebtedness permitted by Section 5.02(b) hereof.
(4) Deposits or pledges made in connection with, or to secure
payment of, workers' compensation, unemployment insurance, old
age pensions or other social security obligations.
(5) Purchase money security interests (including mortgages,
conditional sales, and any other title retention or deferred
purchase devices) in personal property of Borrower or a
Subsidiary existing or created at the time of acquisition
thereof, and the renewal, extension and refunding of any such
security interest in an amount not exceeding the amount thereof
remaining unpaid immediately prior to such renewal, extension or
refunding; provided, however, that the principal amount of
Indebtedness secured by each such security interest in each item
of property does not exceed the cost (including all such
Indebtedness secured thereby, whether or not assumed) of the
item subject thereto.
(6) Liens securing taxes, assessments or governmental charges
or levies or the claims or demands of materialmen, mechanics,
carriers, warehousemen, landlords and other like persons,
provided the payment thereof is not at the time required by
Section 5.01(b).
(7) Liens incurred or deposits made in the ordinary course of
business (x) to secure the performance of letters of credit,
bids, tenders, sales contracts, leases, statutory obligations,
surety, appeal and performance bonds and other similar
obligations not incurred in connection with the borrowing of
money, the obtaining of advances or the payment of the deferred
purchase price of property, or payment of the deferred purchase
price of property, or (y) on the proceeds of insurance policies
securing the borrowings to finance the premiums thereon.
(8) Attachment, judgment and other similar Liens arising in
connection with court proceedings, so long as such Liens have
not been in force for the applicable appeal period, execution or
other enforcement has not been levied and thereafter so long as
the execution or other enforcement of such Liens is effectively
stayed, provided the claims secured thereby are being actively
contested in good faith and by appropriate proceedings.
(9) Liens on property of a Subsidiary securing obligations
owing to Borrower or a Wholly-Owned Subsidiary.
(10) Reservations, exceptions, encroachments, easements, rights
of way, covenants, conditions, restrictions, leases and other
similar title exceptions or encumbrances affecting real
property, provided they do not in the aggregate materially
interfere with the ordinary conduct of the business of Borrower
and its Subsidiaries.
(11) Liens or deposits made in connection with contracts with
or made at the request of the United States of America or any
department or agency thereof or resulting from progress payments
or partial payments under any such contracts.
(12) Bailments of property (a) to bailees which have entered
into an agreement with Borrower and the Agent in substantially
the form attached hereto as Exhibit E, with blanks appropriately
filled, as the same may be amended, supplemented or modified
from time to time, provided, however, that Borrower may enter
into an agreement or agreements regarding the bailment of
commingled goods which are not substantially in the form of
Exhibit E so long as the value of commingled goods subject to
such bailments does not exceed $250,000 in the aggregate, or (b)
other bailments of property, including bailments in connection
with Borrower's relay rail activities and consistent with
Borrower's past practices, provided, however, that the value of
such bailments does not exceed $20,000,000 in the aggregate for
all such property.
(13) Liens in favor of one or more of the Banks to secure the
obligations of the Company under one or more Interest Rate Swap
Agreements (as defined in the Security Agreement).
(d) Continqent Liabilities. Become liable or permit any
Subsidiary to become liable in respect of any Guarantees except
(i) Guarantees existing on the date hereof and disclosed on
Schedule 5.02(d) attached hereto, (ii) Guarantees entered into
by Foster for the benefit of one or more Wholly-Owned
Subsidiaries of Foster, (iii) Guarantees which may be required
in order to comply with applicable Law, including but not
limited to ERISA, (iv) Guarantees or obligations arising in
respect of bid or performance bonds, (v) Guarantees in favor of
the Banks, and (vi) other Guarantees which in the aggregate
could not result in payments in excess of $1,000,000.
(e) Mergers, etc. Merge or consolidate with any person or agree
to do so or permit any Subsidiary to do so, or create or acquire
any new Subsidiary, except that, after notice to the Agent and
the Banks, (i) any Subsidiary of Foster may merge with Foster in
a transaction where Foster is the surviving entity, (ii) any
Subsidiary may merge with any other Subsidiary, and (iii) Foster
may create Subsidiaries not existing on the date hereof for the
purpose of effecting transactions permitted under clause (5) of
Section 5.02(g) hereof.
(f) Sales of Assets. etc. Sell, assign, lease or otherwise
dispose of (whether in one transaction or in a series of
transactions) any of its assets (whether now owned or hereafter
acquired) to any person or entity, or permit any Subsidiary to
do so, except (i) sales of assets in the ordinary course of
business, (ii) sales of inventory previously categorized as
obsolete, slow moving or surplusage and sales of machinery,
equipment or other similar operating assets previously
categorized as obsolete or surplusage and not utilized at the
time of such sale in the ordinary course of business of the
selling entity, (iii) sales of artwork, (iv) sales of the stock
of Subsidiaries permitted to be created under Section
5.02(e)(iii) hereof, (v) [intentionally omitted], (vi) after
notice to the Agent and the Banks, sales of properties and
assets following an approval by Foster's board of directors that
such sales are made on commercially reasonable terms at fair
market value and do not exceed $2,500,000 individually or
$5,000,000 in the aggregate during the term of this Agreement, (vii)
a lease or sublease of new machining equipment valued at approximately
$1,500,000 to Rail Products & Fabrications, Inc., based in Seattle,
Washington ("RPF") and (viii) sales of the Borrower's investment in
Dakota, Minnesota & Eastern Railroad Corp. for a price at least equal to
the value of that investment as shown in the then most recent financial
statements of the Borrower provided to the Agent.
(g) Investments. Make or permit any Subsidiary to make Investments
in any individual, firm or corporation except:
(1) direct obligations of or obligations directly guaranteed by the
United States of America, prime commercial paper (rated by Moody's
Investors Service at not less than A-2 and by Standard and Poors
at not less than P-2), and certificates of deposit or repurchase
agreements issued by any commercial bank having capital and
surplus in excess of $100,000,000;
(2) Investments of Borrower and the Subsidiaries in the ordinary
course of business and under usual and customary terms in the
form of advances to the Borrower's and the Subsidiaries'
suppliers and subcontractors;
(3) Investments in Subsidiaries and joint ventures which are in
existence on the date of this Agreement in amounts not to exceed
$1,500,000 in the case of any single Investment or $2,500,000 in
the aggregate during the term of this Agreement;
(4) Deposit accounts (including time and demand) in and bankers'
acceptances of commercial banks referred to in clause (1) of
subsection 5.02(g); and
(3) Liens existing on the date hereof and Liens securing
Indebtedness permitted by Section 5.02(b) hereof.
(4) Deposits or pledges made in connection with, or to secure
payment of, workers' compensation, unemployment insurance, old
age pensions or other social security obligations.
(5) Purchase money security interests (including mortgages,
following a determination by Foster's board of directors that
such Investment is in the best interest of Foster and its
Consolidated Subsidiaries, and (iii) the amount of such Investments
shall not exceed $1,500,000 individually or $2,500,000 in the
aggregate during the term of this Agreement.
(6) Investments existing on the date of this Agreement (including
extensions or renewals thereof);
(7) Advances to RPF under the Loan and Security Agreement, dated
June 8, 1995, between the Borrower and RPF, aggregating not more
than $750,000. If requested by the Agent or the Banks,
the Borrower will cause RPF's repayment obligation to be
evidenced by a promissory note.
provided, however, that Borrower may make Investments which are
not in compliance with this Section 5.02(g) in the aggregate
amount of $500,000 at any one time outstanding.
(h) Restrictions on Distributions. Directly or indirectly, or
through any of its Subsidiaries, declare, pay, make or incur any
liability to make any Distribution, except for (i) Distributions
made by any Subsidiary to Borrower, (ii) Distributions made in
the form of Dividends in respect of the common stock of Foster
at any time on or after January 1, 1995, in an aggregate
cumulative amount not exceeding the sum of $1,300,000 plus 25%
of any Consolidated Net Income (determined for the period from
January 1, 1995, to and including such time) and (iii)
Distributions permitted under Section 5.02(j) hereof.
(i) Transactions with Controlling Persons. Pay, directly or
indirectly, any funds to or for the account of, make any
Investment in, or enter into a Guarantee in respect of the
Indebtedness of, or lease, sell, transfer or otherwise dispose
of any assets, tangible or intangible, other than in the
ordinary and usual conduct of business and upon fair and
reasonable terms no less favorable to Borrower than those it
would obtain in a comparable arm's length transaction with one
not affiliated with Borrower, to any Controlling Person, or
permit any of its Subsidiaries to do so; provided, however, that
notwithstanding the provisions of this Section 5.02(i) Borrower
or its Subsidiaries may pay to its officers and directors
salaries and fees for services rendered in such capacities and
usual and ordinary business expenses and advances for travel
expenses, incentive compensation pursuant to plans of Borrower
and its Subsidiaries existing on the date hereof and plans
hereafter adopted by the board of directors of Borrower, may
make payments pursuant to existing contractual relationships
between Borrower or its Subsidiaries and officers and employees
thereof and contractual employment relationships approved by the
board of directors of Borrower between Borrower or its
Subsidiaries and employees thereof, may provide and make
available to eligible employees fringe and other usual benefits
in accordance with past practices, and may, pursuant to an
agreement approved by the board of directors of Borrower, pay
fees for services and advice (in an amount which bears a
reasonable relationship to the amount and type of such services
and advice) to directors.
(j) Debt Retirement, Purchases and Redemptions. (i) Voluntarily
purchase, prepay, redeem or otherwise retire except at its
stated redemption date or maturity any preferred or preference
stock, subordinated debentures, sinking fund debentures,
promissory notes or other securities (except pursuant to clause
(ii) of this Section 5.02(j) hereof) issued by Borrower or any
Subsidiary, or agree to the rescheduling to shorten scheduled
maturities or principal payments of or to increase the rate of
interest payable on outstanding indebtedness under any agreement
or instrument evidencing an obligation for borrowed money of
Borrower or any Subsidiary, or permit any of its Subsidiaries to
do so, or (ii) purchase, redeem, acquire, or otherwise retire,
directly or indirectly, any shares of common stock of Foster, or
permit any of its Subsidiaries to do so, unless such purchase or
acquisition is necessary to the continuation of a Plan existing
on the, date hereof.
(k) Consolidated Capital Expenditures. Make or permit any
Subsidiary to make Consolidated Capital Expenditures in the
aggregate in excess of (i) $4,000,000 in any one fiscal year
plus (ii) a maximum of $2,000,000 of Consolidated Capital
Expenditures not utilized pursuant to clause (i) of this
paragraph in the immediately preceding fiscal year; provided,
however, that, independent of this limitation, Foster may make
during 1995 capital expenditures up to an aggregate maximum
amount of $2,900,000 in a joint venture with Newport Steel Corp.
for the installation and operation of pipe coating and rolling
equipment.
(l) Operating Leases. Enter into or become subject to, or
permit any of its Subsidiaries to enter into or become subject
to, Operating Leases which in the aggregate provide for payments
during any fiscal year in excess of $6,000,000.
Section 5.03. Reporting Requirements. Borrower covenants that,
so long as it may borrow hereunder and until payment in full of
all Notes issued hereunder and interest due thereon and all
other amounts due hereunder and under any other Loan Document,
Borrower will furnish to each Bank:
(a) Financial Statements. (i) Within 15 calendar days after the
due date of filing with the Securities and Exchange Commission
copies of forms 8-K, 10-Q and 10-K (or if any of such forms are
discontinued, substantially equivalent reports) accompanied, (A)
in the case of each form 10-Q, by a certification of a
Responsible Officer of Foster of all financial statements set
forth therein and (B) in the case of each form 10-K, by a report
on the financial statements set forth therein of independent
public accountants of recognized standing selected by Borrower
which report or opinion shall not contain any qualification or
exception not reasonably acceptable to the Agent or, if Foster
is no longer required to file such reports with the Securities
and Exchange Commission, Borrower shall furnish:
(1) within 60 days after the end of the first three quarters of
each fiscal year, consolidated statements of profit and loss and
changes in cash flow of Foster and its Consolidated Subsidiaries
for such fiscal quarter, for the period between the end of the
preceding fiscal year and the end of the most recent fiscal
quarter and for the corresponding periods of the preceding
fiscal year, and a balance sheet of Foster and its Consolidated
Subsidiaries at the end of such quarter and at the end of the
preceding fiscal year, all in reasonable detail, subject,
however, to year-end audit adjustments, and certified by a
Responsible Officer of Borrower;
(2) within 90 days after the end of each fiscal year, a
consolidated statement of profit and loss and changes in cash
flow and changes in shareholders' equity of Foster and its
Consolidated Subsidiaries for such year and a consolidated
balance sheet of Foster and its Consolidated Subsidiaries as of
the end of such year, setting forth in each of such statements
and balance sheets in comparative form (or, if comparative form
is not required by regulations of the Securities and Exchange
Commission applicable to companies with securities registered
under the Securities Act of 1933, in the form required by such
regulations) the corresponding statements for the preceding
fiscal year, all in reasonable detail and reported on by
independent public accountants of recognized standing selected
by Borrower, whose report or opinion accompanying such financial
statements shall not contain any qualification or exception not
reasonably acceptable to the Agent;
and (ii) as soon as practicable and in any event within twenty
(20) days after the close of each month of each fiscal year of
Borrower, unaudited consolidated statements of income and
changes in cash flow of Foster and its Consolidated Subsidiaries
for such month and for the period from the beginning of such
fiscal year to the end of such month, and an unaudited
consolidated balance sheet of Foster and its Consolidated
Subsidiaries as of the close of such month, all in reasonable
detail.
(b) Accounts Receivable-Inventory Reports; Officer's
Certificates. At the time the statements and balance sheets
required by the preceding clause (a) are furnished, (i) an
updated Accounts Receivable - Inventory Report in detail and
form satisfactory to the Banks and signed by a Responsible
Officer of the Borrower, and (ii) a certificate of a Responsible
Officer setting forth in reasonable detail the data and
computations necessary to indicate compliance with the
provisions of Sections 2.05, 5.01(h), 5.01(i), 5.01(j), 5.02(a),
and 5.02(k) hereof. In addition to the requirements set forth in
this paragraph, the Borrower shall from time to time upon the
reasonable requests of the Banks provide to the Banks update
Accounts Receivable Inventory Reports.
(c) Proxy/Registration Statements. Promptly upon the sending,
making available or filing of the same, a copy of each financial
statement, report and proxy statement sent by Foster to its
stockholders, of each registration statement or information
statement that shall have become effective and of each regular
or periodic report filed by Foster or any Consolidated
Subsidiary with the Securities and Exchange Commission or any
governmental authority succeeding to the functions thereof.
(d) ERISA Notifications. (i) Notice (or cause each Plan
Employer with respect to its Plans to notify the Agent and each
of the Banks prior to taking final corporate action) (A) of the
Plan Employer's intention to adopt any new Plan, and (B) of the
Plan Employer's intention to terminate for purposes of Title IV
of ERISA any singleemployer Plan or to withdraw from or cease
making timely contributions to any multi-employer Plan, (ii)
copies of (or cause each Plan Employer with respect to its Plans
to deliver to the Agent and each of the Banks copies of
contemporaneously with the filing with or receipt from the
applicable governmental agency or Plan) (A) IRS Form 5310
relating to a Plan termination or transfer of Plan assets, (B)
of any 30-day Notice to the PBGC of a reportable event as
described in Section 4043 of ERISA, (C) of any IRS Form 5500,
including all schedules, for any Plan which, on the date on
which such IRS Form 5500 is filed, has unfunded vested
liabilities in excess of $100,000, (D) of any writing from the
PBGC to the effect that it may or will take action to terminate
any Plan under Title IV of ERISA or from any multi-employer Plan
that it may and will take action to assert withdrawal liability
against the Plan, (E) of any notice filed with the PBGC pursuant
to Section 4041 of ERISA and (F) of any notice from the
Secretary of the Treasury to the effect that a Plan has lost its
qualified status under Section 401 of the Code or has been
terminated within the meaning of Section 411(d)(3) of the Code,
and (iii) within thirty (30) days of the filing or receipt of
each such document other than IRS Form 5500, a certificate of a
Responsible Officer of Borrower certifying as to what further
action has been taken by the Plan Employer in connection
therewith and whether the matter referred to in such document is
likely to cause the Plan Employer to incur liability to the PBGC
or multi-employer Plan in an amount in excess of $100,000. For
all purposes of this paragraph, Borrower shall be deemed to have
all knowledge of all facts attributable to any Plan
administrator or any other Plan Employer, or with respect to a
multiemployer Plan on notice of withdrawal liability from any
multiemployer Plan.
(e) Notices of Default. As soon as possible, and in any event
within five days after the occurrence of each Event of Default
or Potential Event of Default a statement of a Responsible
Officer of Borrower setting forth details of such Event of
Default or Potential Event of Default and the action which
Borrower proposes to take with respect thereto.
(f) Notices of Material Litiqation. Promptly upon becoming
aware thereof, notice of the commencement, existence or threat
of any proceeding against or affecting Borrower or any
Subsidiary (i) which, if adversely decided, could have a
material adverse effect on the business, operations or financial
condition of the Borrower or any Subsidiary or on the ability of
Borrower to perform its obligations under this Agreement or any
other Loan Document or (ii) arising under any federal, state or
local Law, regulating (A) the discharge of materials into or the
protection of the environment, (B) the management, handling or
disposal of hazardous waste or toxic substances or (C) the
public health.
(g) Notices of Adverse Judgments. Promptly after the
institution thereof, notice of all adverse judgments in excess
or $250,000 or which involve any substantial risk of any
material adverse effect on the business, operations or condition
(financial or otherwise) of Borrower or any Subsidiary entered
by an Official Body against Borrower or any Subsidiary, said
notice to include the exact Dollar amount of any such adverse
judgment as well as any other estimated adverse economic impact
on the Borrower or its Subsidiaries.
(h) Material Adverse Changes. Promptly after the occurrence
thereof, notice and a reasonably detailed description of all
events, conditions, acts, facts and omissions (except general
economic conditions in the United States which are a matter of
public knowledge) which would constitute a material adverse
change in or which involve any substantial risk of any material
adverse effect on the business, operations or condition
(financial or otherwise) of Borrower.
(i) Copies of Reports, Filings, etc. Promptly after the sending
or filing thereof, copies of all proxy statements, financial
statements and reports which Borrower or any Subsidiary sends to
its stockholders, and copies of all regular, periodic and
special reports and all registration statements which Borrower
or any Subsidiary may file with the Securities and Exchange
Commission or any governmental authority which may be
substituted therefor, or with any national securities exchange.
(j) Returns, etc. Promptly after the occurrence thereof, and if
material individually or in the aggregate, notice of (i) all
returns, rejections, repossessions or losses of or damage to
property incurred by an account and (ii) any requests for audit
or adjustment, or any dispute, relating to an account.
(k) Other Information. Such information and documents relating
and to Borrower's financial condition, business, assets or
liabilities, at such times and in such form and detail as the
Agent or any Bank may request, including, without limitation,
(i) all invoices, documents, contracts, chattel paper,
instruments and other writings pertaining to Borrower's
contracts or the performance thereof, (ii) evidence of
Borrower's accounts and statements showing the aging,
identification, reconciliation and collection thereof, (iii)
reports as to the Borrower's inventory and sales, shipment,
damage or loss thereof, and (iv) a list of all of the locations
where any of Borrower's Eligible Inventory is kept or stored,
such list to be updated and revised, if necessary, on a
quarterly basis and provided to the Agent and the Banks at the
time financial statements are submitted pursuant to Section
5.03(a) hereof or as requested by any Bank, all of the foregoing
to be certified by authorized officers or other employees of
Borrower, and such other information respecting the business,
the properties or the condition or operations, financial or
otherwise, of Borrower or any of the Subsidiaries as the Agent
or any Bank may from time to time reasonably request.
ARTICLE VI
DEFAULT
Section 6.01. Events of Default. If any one or more of the
following described Events of Default shall occur and be
continuing or exist, the Banks and the Agent shall have the
rights and remedies, in addition to all other rights and
remedies available to the Banks and the Agent, set forth in
Sections 6.02 and 6.03 of this Agreement:
(a) Borrower shall fail to pay interest, principal or any other
amount due hereunder within two Business Days of the date when
due; or
(b) Borrower shall default (i) in any payment of principal of
or interest on any other obligation for borrowed money beyond
any period of grace provided with respect thereto, or (ii) in
the performance of any other agreement, term or condition
contained in any agreement under which any such obligation is
created and as a result of such default such obligation has
become due prior to its stated maturity and the result of an
event specified in clause (ii) is to accelerate or permit the
acceleration of any such obligation in excess of $500,000; or
(c) Any representation or warranty herein made by Borrower, or
any certificate or financial statement furnished pursuant to the
provisions hereof, shall prove to have been false or misleading
in any material respect as of the time made or furnished and
Borrower shall not have taken corrective measures satisfactory
to the Agent and the Banks with respect thereto within 30 days
after a written notice is sent to Borrower by the Agent; or
(d) A Default shall occur under either Section 5.01(h),
5.01(i), 5.01(j), 5.02(a), 5.02(e), 5.02(h), 5.02(i), 5.02(j) or
5.02(k) hereof or an Event of Default shall occur under the
Security Agreement, the Allegheny Security Agreement, the Pledge
Agreement, or the Guaranty and Suretyship Agreements; or
(e) A Default shall occur under either Section 5.01(m),
5.01(n), 5.02(b), 5.02(c), 5.02(d), 5.02(f), or 5.02(g) hereof
and such Default shall not have been cured within 30 days of the
occurrence of such Default; or
(f) Borrower shall default in the performance of any other
covenant, condition or provisions hereof and Borrower shall not
have taken corrective measures satisfactory to the Agent and the
Banks with respect thereto within 30 days after a written notice
is sent to Borrower by the Agent; or
(g) Both the following events shall occur: (i) a Reportable
Event, the occurrence of which would have a material adverse
effect on the Plan Employer and which could cause the imposition
of a lien under Section 4068 of ERISA, shall have occurred with
respect to any Plan or Plans and be continuing 30 days after
written notice of such event shall have been given to Borrower
by the Agent; and (ii) the aggregate amount of the then current
value of benefit commitments under such Plan or Plans guaranteed
under Title IV of ERISA (and determined using the PBGC actuarial
assumptions for determining asset sufficiency) exceeds the then
current value of the assets allocable to such benefit
commitments by more than $1,000,000 at such time; or
(h) A proceeding shall have been instituted in a court having
jurisdiction in the premises seeking a decree or order for
relief in respect of Borrower or any Subsidiary in an
involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or for the
appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of Borrower or any
Subsidiary or for any substantial part of its property, or for
the winding-up or liquidation of its affairs, and such
proceeding shall remain undismissed or unstayed and in effect
for a period of 60 consecutive days or such court shall enter a
decree or order granting the relief sought in such proceeding; or
(i) Borrower or any Subsidiary shall commence a voluntary case
under any applicable bankruptcy, insolvency 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 of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of Borrower or Subsidiary or for any
substantial part of its property, or shall make a general
assignment for the benefit of creditors, or shall fail generally
to pay its debts as they become due, or shall take any corporate
action in furtherance of any of the foregoing.
Section 6.02. Consequences of Event of Default.
(a) If an Event of Default specified under paragraphs (a)
through (g) of Section 6.01 shall occur, the Banks shall be
under no further obligation to make Loans hereunder and the
Agent shall be under no further obligation to issue Letters of
Credit hereunder; and the Agent, upon instructions from the
Required Banks, may by written notice to Borrower declare the
unpaid balance of all Loans then outstanding and interest
accrued thereon, and all other liabilities of Borrower hereunder
and thereunder to be forthwith due and payable, and the same
shall thereupon become and be immediately due and payable,
without presentment, demand or protest of any kind, all of which
are hereby expressly waived.
(b) If an Event of Default, specified under paragraphs (h) or
(i) of Section 6.01 shall occur, the Banks shall be under no
further obligation to make Loans hereunder and the Agent shall
be under no further obligation to issue Letters of Credit
hereunder; and the unpaid balance of all Loans then outstanding
and interest accrued thereon and all other Debt shall be
immediately due and payable, without presentment, demand,
protest or notice of any kind, all of which are hereby expressly
waived.
Section 6.03. Rights of Set-Off. In case an Event of Default
shall occur and be continuing or shall exist, the Agent and each
Bank shall have the right, in addition to all other rights and
remedies available to it, without notice to the Borrower, to
set-off against and to appropriate and apply to the unpaid
balance of the Debt all the Notes and all other obligations of
Borrower hereunder any debt owing to, and any other funds held
in any manner for the account of Borrower by such holder,
including, without limitation, all funds in all deposit accounts
(whether general or special, time or demand, provisionally
credited or finally credited, or otherwise) now or hereafter
maintained by Borrower for its own account with such holder, and
the Agent and each Bank is hereby granted a security interest in
and lien on all such debts (including all such deposit accounts)
for such purpose; provided, however, that, except for operating
expenses due the Agent from the Borrower, obligations of the
Borrower to the Banks arising in connection with the Loans shall
be satisfied first with the proceeds of any exercise of the
right of set-off before any other obligations of the Borrower to
any of the Banks shall be paid. Such right shall exist whether
or not any such holder or the Agent or any Bank shall have made
any demand under this Agreement or any Note and whether or not
the Notes and such other obligations are matured or unmatured.
Borrower hereby confirms each such holder's and the Agent's and
each Bank's right of banker's lien and set-off and nothing in
this Agreement shall be deemed any waiver or prohibition of any
such holder's or of the Agent's and each Bank's right of
banker's lien and set-off; provided, however, that the Agent and
the Banks hereby waive said rights of banker's lien, set-off,
counterclaim or right to withhold payment with respect to a
deposit account to be established with the Agent in an amount of
up to $1,500,000 for the exclusive purpose of environmental
remediation, the number of said account to be provided to the
Agent by the Borrower promptly upon the opening of said account.
ARTICLE VII
THE AGENT
Section 7.01. Appointment. The Banks hereby appoint Mellon
Bank, N.A. to act as Agent as herein specified for the Banks
hereunder and under the Loan Documents. Each of the Banks does
hereby accept and agree to all the terms and conditions of the
Loan Documents. Each of the Banks hereby irrevocably authorizes,
and each holder of any Note by the acceptance of a Note shall be
deemed irrevocably to authorize, the Agent to take such action
on its behalf under the provisions of this Agreement and the
Loan Documents and any other instruments and agreements referred
to herein, and to exercise such powers and to perform such
duties hereunder and thereunder, as are specifically delegated
to or required of the Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto.
Mellon Bank, N.A. agrees to act as the Agent on behalf of the
Banks to the extent provided in this Agreement and the Loan
Documents. The Banks hereby appoint the law firm of Reed Smith
Shaw & McClay to act as counsel to the Agent and each of the
Banks as to all matters arising in connection with this
Agreement or the other Loan Documents.
Section 7.02. Delegation of Duties. The Agent may perform any
of its duties hereunder or under the Loan Documents by or
through agents or employees and shall be entitled to advice of
counsel concerning all matters pertaining to its duties
hereunder.
Section 7.03. Nature of Duties: Independent Credit
Investiqation. The Agent shall have no duties or
responsibilities except those expressly set forth in this
Agreement and the Loan Documents. The duties of the Agent shall
be mechanical and administrative in nature; the Agent shall not
have by reason of this Agreement or any Loan Document a
fiduciary relationship in respect of any Bank; and nothing in
this Agreement or any Loan Document, expressed or implied, is
intended to or shall be so construed as to impose upon the Agent
any obligations in respect of this Agreement or any Loan
Document, except as expressly set forth herein or therein. Each
Bank expressly acknowledges (a) that the Agent has not made any
representations or warranties to it and that no act by the Agent
hereafter taken, including any review of the affairs of Borrower
or any of its Subsidiaries, shall be deemed to constitute any
representation or warranty by the Agent to any Bank; (b) that it
has made and will make its own independent investigation of the
financial condition and affairs and its own appraisal of the
creditworthiness of Borrower in connection with the making and
continuance of the Loans hereunder; (c) that it has made its own
independent investigation of the legal matters relating to this
Agreement, the other Loan Documents and the Notes to be issued
to it pursuant to the terms hereof; and (d) that the Agent shall
have no duty or responsibility, either initially or on a
continuing basis, to provide any Bank with any credit or other
information with respect thereto, whether coming into its
possession before the making of a Loan or at any time or times
thereafter.
Section 7.04. Actions in Discretion of Agent; Instructions from
the Banks. The Agent agrees, upon the written instructions of
all the Banks to take any action of the type specified as being
within the Agent's rights, powers or discretion herein. In the
absence of instructions by all he Banks the Agent shall have
authority, in its sole discretion, to take or not to take any
such action, unless this Agreement or a Loan Document
specifically requires the consent of all the Banks. Any action
taken pursuant to such instructions or discretion shall be
binding on all the Banks and on all holders of Notes. No Bank
shall have any right of action whatsoever against the Agent as a
result of the Agent acting or refraining from acting hereunder
or under the other Loan Documents in accordance with the
instructions of all Banks, or in the absence of such
instructions, in the absolute discretion of the Agent, subject
to the provisions of Section 7.06 hereof.
Section 7.05. Exculpatory Provisions. Neither the Agent nor any
of its directors, officers, employees or agents shall be liable
to any Bank for any action taken or omitted to be taken by it or
them hereunder or under the other Loan Documents, or in
connection herewith or therewith, unless caused by its or their
own gross negligence or willful misconduct. In performing its
functions and duties hereunder on behalf of the Banks, the Agent
shall exercise the same care which it would exercise in dealing
with loans for its own account, but it shall not (a) be
responsible in any manner to any of the Banks for the
effectiveness, enforceability, genuineness, validity or the due
execution of this Agreement, any Loan Document or any of the
Notes, or for any recital, representation, warranty, document,
certificate, report or statement herein or made or furnished
under or in connection with this Agreement or any Loan Document,
or (b) be under any obligation to any of the Banks to ascertain
or to inquire as to the performance or observance of any of the
terms, covenants or conditions hereof or thereof on the part of
the Borrower, or the financial condition of the Borrower, or the
existence or possible existence of any Event of Default or
Potential Event of Default.
Section 7.06. Reimbursement and Indemnification. Each Bank
agrees to reimburse and indemnify the Agent (to the extent not
reimbursed by Borrower) ratably, in proportion to its
Commitment, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted
against the Agent, in its capacity as such, in any way relating
to or arising out of this Agreement, the Loan Documents, the
Letters of Credit or the Notes or any action taken or omitted by
the Agent hereunder or thereunder, provided that no Bank shall
be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements (a) if the same results from the
Agent's gross negligence or willful misconduct, or (b) if such
Bank was not given notice of the subject claim and the
opportunity to participate in the defense thereof, at its
expense, or (c) if the same results from a compromise and
settlement agreement entered into without the consent of such
Bank. Without limitation of the foregoing, each Bank agrees to
reimburse the Agent promptly upon demand for its ratable share
of any out-of-pocket expenses (including attorney's fees)
incurred by the Agent in connection with the preparation,
execution, administration or enforcement of, or the preservation
of any rights under, this Agreement and the other Loan Documents
to the extent that the Agent is not reimbursed for such expenses
by Borrower.
Section 7.07. Reliance by Aqent. The Agent shall be entitled to
rely upon any writing, telegram, telecopy, telex or teletype
message, resolution, notice, consent, certificate, letter,
cablegram, statement, or order or other document or conversation
by telephone or otherwise believed by it to be genuine and
correct and to have been signed, sent or made by the proper
person, firm or corporation, and upon opinions of counsel and
other professional advisers selected by the Agent. The Agent
shall be fully justified in failing or refusing to take any
action hereunder or under any Loan Document unless it shall
first be indemnified to its satisfaction by the Banks against
any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action.
Section 7.08. Agent in its Individual Capacity. With respect to
its Commitments, the Loans made by it and any Note held by it,
the Agent shall have the same rights and powers hereunder as any
other Bank and may exercise the same as though it were not the
Agent, and the terms "Banks" or "holders of the Notes" shall,
unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent and its affiliates may, without
liability to account, make loans to, accept deposits from, act
as trustee under indentures of, and generally engage in any kind
of banking or trust business with, Borrower and its Subsidiaries
and affiliates as though it were not acting as Agent hereunder.
Section 7.09. 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 legal entity 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.
Section 7.10. Equalization of Banks. The Banks agree among
themselves that, with respect to all amounts received by any
Bank for application on any obligation hereunder or on the
Notes, after the earlier of an exercise of any Bank's rights of
set-off pursuant to the provisions of Section 6.03 or the
acceleration of maturity of any of the Notes pursuant to the
provisions of Section 6.02, equitable adjustment will be made in
the manner stated in the next succeeding sentence so that, in
effect, all such amounts will be shared ratably among the Banks,
in proportion to the sum of the amounts then outstanding under
the Notes, plus all other Indebtedness of Borrower to them,
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 cross action or any other non-pro rata
source. Any Bank receiving any such amount shall purchase for
cash from the other Banks an interest in their Notes, Borrower's
Indebtedness to the Banks, and all other obligations of Borrower
to the Banks, if any, in such amount as shall result in a
ratable participation by each of the Banks in the aggregate
unpaid amount of all outstanding Notes then held by all of the
Banks, all Indebtedness of Borrower to the Banks, and all other
obligations of Borrower to the Banks, provided that if all or
any portion of such excess amount is thereafter recovered from
such Bank, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery but without
interest.
Section 7.11. Successor Agent. The Agent may resign at any time
by giving written notice thereof to the Banks and Borrower. Upon
any such resignation, the Required Banks (with the consent of
Borrower, which consent shall not be unreasonably withheld)
shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed, and shall have
accepted such appointment within 30 days after the retiring
Agent's giving of notice of resignation, then the retiring Agent
may, on behalf of the Banks, appoint a successor Agent which
shall be a commercial bank organized under the laws of the
United States of America or any State thereof and having a
combined capital and surplus of at least $100,000,000. Upon the
acceptance by a successor Agent of its appointment as Agent
hereunder, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be
discharged from its duties under this Agreement. After any
retiring Agent's resignation hereunder as Agent, the provisions
of this Article VII shall inure to its benefit as to any actions
taken or omitted by it while it was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Modifications, Amendments or Waivers. With the
written consent of the Required Banks, the Agent, acting on
behalf of all the Banks, and Borrower may from time to time
enter into agreements amending or changing any provision of this
Agreement or the rights of the Banks or Borrower hereunder, or
the Agent, with the written consent of the Required Banks, may
grant waivers or consents to a departure from the due
performance of the obligations of Borrower hereunder, any such
agreement, waiver or consent made with such written consent
being effective to bind all the Banks; provided, that no such
agreement, waiver or consent may be made which will:
(a) Reduce or increase the amount or alter the term of the
Commitment of any Bank hereunder, or alter the provisions
relating to the Facility Fees payable to any Bank hereunder, or
amend Section 2.07 hereof without the written consent of all the
Banks; or
(b) Extend the time for payment of principal or interest on any
Note, or reduce the principal amount of or the rate of interest
borne by any Note, or otherwise affect the terms of payment of
the principal of or interest on any Note, without the written
consent of the holder of such Note; or
(c) Amend Sections 2.05(d) or 2.08 hereof without the written
consent of all of the Banks;
(d) Change the percentages specified in the definition herein
of "Required Banks", or amend this Section 8.01 without the
written consent of all the Banks;
(e) Amend Section 5.02(c) hereof without the written consent of
all the Banks;
(f) Amend the definitions of "Eligible Accounts" or "Eligible
Inventory" set forth in Section 1.01 hereof, such that the
standards of eligibility are more restrictive, without the
written consent of the Required Banks, or amend these
definitions, such that the standards of eligibility are more
permissive, without the written consent of all the Banks; or
(g) Release the security interest in the Collateral granted in
any of the Loan Documents without the written consent of all of
the Banks.
Section 8.02. No Implied Walvers: Cumulative Remedies: Writinq
Required. No delay or failure of the Agent, any Bank or holder
of any Note in exercising any right, power or remedy hereunder
or under any Loan Document shall affect 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 or remedy preclude any further exercise thereof or of any
other right, power or remedy. The rights and remedies hereunder
and under the other Loan Documents of the Agent, an Bank, and
holders of the Notes are cumulative and not exclusive of any
rights or remedies (including, without limitation, the right of
specific performance) which they or any of them would otherwise
have. Any waiver, permit, consent or approval of any kind or
character on the part of the Agent, any Bank or the holder of
any Note of any breach or default under this Agreement, any
other Loan Document or any Note or any such waiver of any
provision or condition hereof or thereof must be in writing and
shall be effective only to the extent in such writing
specifically set forth.
Section 8.03. Reimbursement of Expenses: Taxes. Borrower agrees
upon demand to pay or cause to be paid or to reimburse the Agent
and save the Agent harmless against liability for the payment of
all reasonable out-of-pocket expenses, including without
limitation reasonable fees and reasonable expenses of Messrs.
Reed Smith Shaw & McClay, special counsel for the Agent and the
Banks, and all other reasonable fees and expenses (including
counsel fees and the costs and expenses incurred by the Agent's
asset-based lending division or credit recovery group) incurred
by the Agent (a) arising in connection with the development,
preparation, execution, performance, administration and
interpretation of this Agreement, all of the other Loan
Documents, and other instruments and documents to be delivered
hereunder, (b) relating to any amendments, waivers or consents
pursuant to the provisions hereof or thereof, (c) arising in
connection with the enforcement of this Agreement, or the other
Loan Documents, collection of the Notes, or the proof and
allowability of any claim arising under this Agreement or the
other Loan Documents, whether in any bankruptcy or receivership
proceeding or otherwise, and (d) arising in connection with any
litigation or preparation for litigation related to the
collection of amounts owed under this Agreement, or the other
Loan Documents. Borrower agrees upon demand to pay or cause to
be paid or to reimburse each Bank and save each Bank harmless
against liability for the payment of all reasonable
out-of-pocket expenses (including fees and expenses of their
respective counsel) incurred by such Bank in connection with the
collection of the Notes or the proof and allowability of any
claim arising under this Agreement or the other Loan Documents,
whether in any bankruptcy or receivership proceeding or
otherwise. The Borrower agrees to pay and to indemnify and save
the Banks harmless from any and all liability for any stamp or
other taxes, fees or similar impositions which may be payable in
connection with this Agreement, the Notes or the other Loan
Documents, or the performance of any transactions contemplated
hereby or thereby.
Section 8.04. Indemnity. Borrower agrees to indemnify each of
the Agent and the Banks, their directors, officers and employees
and each legal entity, if any, who controls the Agent and each
of the Banks and to hold the Agent and each of the Banks
harmless from and against any and all claims, damages,
liabilities and expenses (including, without limitation, all
reasonable fees of counsel with whom the Agent and each Bank may
consult and all expenses of litigation or preparation thereon
which any of the Agent or the Banks may incur or which may be
asserted by a third party against the Agent or any of the Banks
in connection with or arising out of the matters referred to
herein or in the other Loan Documents. The indemnity agreement
contained in this Section 8.04 shall survive the termination of
this Agreement. Promptly and upon receipt by any indemnified
party hereunder of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is
to be made against Borrower hereunder, notify the Borrower in
writing of the commencement thereof. Borrower may participate at
its expense in the defense of any such action or claim.
Section 8.05. Holidays. Whenever any payment or action to be
made or taken hereunder shall be stated to be due on a day which
is not a Business Day, such payment or action shall be made or
taken on the next following Business Day, and such extension of
time shall be included in computing interest or fees, if any, in
connection with such payment or action.
Section 8.06. Notices. All notices and other communications
given to or made upon any party hereto in connection with this
Agreement shall, except as otherwise expressly herein provided,
be in writing (including telexed, telecopied or telegraphic
communication) and mailed, telexed, telecopied, telegraphed or
delivered to the respective parties, as follows:
Borrower:
L.B. Foster Company
415 Holiday Drive
Pittsburgh, Pennsylvania 15220
Attn: Chief Financial Officer
Telephone: (412) 928-3400
Telecopier: (412) 928-3486
Telex: (710) 664-4325
Answerback: Foster Hqs
The Agent:
Mellon Bank, N.A.
One Mellon Bank Center
45th Floor
Pittsburgh, Pennsylvania 15258-0001
Attention: Charles H. Staub
Telephone: (412) 234-1068
Telecopier: (412) 236-1914
Telex: 812-367
Answerback: Mel Bnk PGH
With a copy to:
Mellon Bank, N. A.
Loan Administration
Three Mellon Bank Center
Pittsburgh, Pennsylvania 15259
Attn: Agented Credits
The Banks:
Their respective names and
addresses set forth in
Section 2.01 hereof
or in accordance with any subsequent written direction from any
party to the others. All such notices and other communications
shall, except as otherwise expressly herein provided, be
effective when deposited in the mail, postage prepaid; in the
case of telex or telecopier, when received; or in the case of
telegraph, when delivered to the telegraph company, charges
prepaid.
Section 8.07. Survival. All representations, warranties,
covenants and agreements of Borrower contained herein or in any
other Loan Document or made in writing in connection herewith
shall survive the execution and delivery hereof and thereof and
the making of Loans hereunder and the issuance of Letters of
Credit hereunder, and shall continue in full force and effect so
long as Borrower may borrow hereunder and until payment in full
of the Debt.
Section 8.08. Governing Law. This Agreement and the other Loan
Documents, and the rights and obligations of the parties hereto
and thereto, shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania,
excluding its rules relating to the conflict of laws.
Section 8.09. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Agent, the
Banks, Borrower and their respective successors and assigns,
except that Borrower may not assign or transfer any of its
rights or obligations hereunder or any interest herein. Any Bank
may from time to time sell, assign or grant one or more
participations in all or any part of its Commitment or any Loan
made by it or which may be made by it, or of its right, title
and interest therein or thereto or in or to this Agreement
(collectively, "Interests"), to another lending office, bank,
financial institution, or other entity ("Transferees"),
provided, (a) that no Transferee shall be entitled to receive
any greater payment under Sections 2.05(d) and 2.08 than the
Bank making such transfer would have been entitled to receive
with respect to the rights transferred; (b) that any Transferee
(unless otherwise provided in the instrument of transfer) may
exercise any and all rights of banker's lien, set-off and
counterclaim with respect to its Interest as fully as if such
Transferee were the holder of a Loan in the amount of its
Interest; and (c) that, unless
(i) Borrower consents in writing to the absolute assignment to
a Transferee by a Bank hereunder, which consent shall not be
unreasonably withheld,
(ii) the transferring Lender shall have paid to the Agent the
then standard fee in connection with the registration of such
transfer, and
(iii) such Transferee shall have executed and delivered to
Borrower and the Agent an agreement satisfactory in form and
substance to counsel for the Agent by which such Transferee
agrees to become a party hereto and to be bound by all of the
terms, conditions and provisions hereof,
any agreement pursuant to which any Bank may grant a
participation in its rights with respect to any particular Loan
or Loans shall provide that, with respect to such Loan or Loans,
insofar as Borrower is concerned, such Bank shall retain the
sole right and responsibility to exercise (or refrain from
exercising) the rights of such Bank and enforce the obligations
of Borrower or any other person relating to such Loan or Loans
including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this
Agreement and the right to take action to have the Notes
declared due and payable pursuant to Section 6.02 hereof; but
the foregoing provision shall not restrict the right of any Bank
to agree with any Transferee concerning the circumstances under
which such Bank will exercise or refrain from exercising any
rights so retained, including without limitation an agreement
that such Bank will not, without the participant's prior written
consent, exercise any such rights which would (i) reduce the
principal amount of or the rate of interest on any Note, or (ii)
extend the time for payment of principal or interest on any
Note; and provided further, that, unless Borrower otherwise
consents in writing, which consent shall not be unreasonably
withheld, no such grant of a participation shall be deemed to
relieve any Bank of its obligation to lend under this Agreement
or constitute a waiver of any rights of Borrower or the Agent
hereunder against any Bank. The Banks may furnish any
information concerning the Borrower in the possession of the
Agent or the Banks from time to time to assignees and
participants, including prospectise assignees or participants.
Each Bank represents to Borrower that it will acquire the Notes
in connection with the making of loans in the ordinary course of
its normal commercial banking business. Except to the extent
otherwise required by its context, the word "Bank" where used in
this Agreement shall mean and include the holder of any Note
originally issued to such Bank, and the holder of such Note
shall be bound by and have the benefits of this Agreement the
same as if such holder had been a signatory hereto. Nothing in
this Section 8.09 shall limit or impair any Bank's rights under
Section 2.09 hereof.
Section 8.10. Severability. The provisions of this Agreement and
of the other Loan Documents are severable, and if any clause or
provision of this Agreement or of any Loan Document shall be
held invalid or unenforceable in whole or in part in any
jurisdiction, then such clause or provision shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or
enforceability of such clause or provision in any other
jurisdiction or the remaining provisions hereof and of the other
Loan Documents in any jurisdiction.
Section 8.11. Nature of Liabilities. Any and all obligations
and liabilities in respect of this Agreement (including, without
limitation, the Notes and the other Loan Documents) on the part
of Borrower and its Subsidiaries shall be joint and several. Any
and all obligations and liabilities in respect of this Agreement
(including, without limitation, the Notes and the other Loan
Documents) on the part of one or more of the Agent and the Banks
shall be several and not joint.
Section 8.12. Marshalling: Payments Set Aside. Neither the
Agent nor any of the Banks shall be under any obligation to
marshal any assets in favor of Borrower or any other person or
against or in payment of any or all of the Debt. To the extent
that Borrower makes a payment or payments to the Agent or any
Bank or the Agent or any of the Banks exercises its rights of
setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set
aside, recovered from, disgorged by or are required to be
refunded, repaid or otherwise restored to either Borrower, a
trustee, receiver or any other person under any Law, including
without limitation any bankruptcy Law, state or federal Law,
common Law or equitable cause, then to the extent of any such
restoration, the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement
or setoff had not occurred.
Section 8.13. Prior Understandings. This Agreement supersedes
all prior understandings and agreements, whether written or
oral, among the parties hereto relating to the transactions
provided for herein.
Section 8.14. Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto on
separate counterparts, each of which, when so executed and
delivered, shall be an original, but all such counterparts shall
together constitute one and the same instrument.
Section 8.15. Section Headings. The underlined section headings
herein are for convenience of reference only and shall not in
any way affect the interpretation or construction hereof.
Section 8.16. Waiver Of Riqht To Trial By Jury. BORROWER HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OR ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS
AGREEMENT OR ANY OTHER DOCUMENT OR INSTRUMENT ATTACHED HERETO,
REFERRED TO HEREIN OR DELIVERED IN CONNECTION HEREWITH, OR (2)
IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF BORROWER WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
DOCUMENT OR INSTRUMENT ATTACHED HERETO, REFERRED TO HEREIN OR
DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED
HERETO OR THERETO, IN EACH CASE WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND BORROWER HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF BORROWER HERETO TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
<PAGE>
IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed this Agreement as of
the day and year first above written.
Attest: L. B. FOSTER COMPANY
/s/David L. Voltz By:/s/Lee B. Foster II
Title: Secretary Title: President & CEO
[CORPORATE SEAL]
MELLON BANK, N A.
By:/s/Charles H. Staub
Title: Vice President
NBD BANK
By:/s/W. T. Huebner
Title: Vice President
CORESTATES BANK, N.A.
By:/s/Michael Schmittlein
Title: Vice President
<PAGE>
EXHIBIT A
L.B. FOSTER COMPANY
THIRD AMENDED AND RESTATED REVOLVING CREDIT NOTE
$ Pittsburgh, Pennsylvania
, 199x
FOR VALUE RECEIVED, the undersigned, L.B. FOSTER COMPANY, a
Delaware corporation, (herein called the "Borrower"), hereby
promises to pay on or before 2:00 o'clock p.m., Pittsburgh time,
July 1, 1999, to the order of (the "Bank") the principal sum of
Dollars ($ ) or the aggregate unpaid principal amount
of all Loans made by the Bank to Borrower pursuant to Section
2.01 of that certain Amended and Restated Loan Agreement dated
as of , 1995 (the "Loan Agreement"), among Borrower, the
Banks named therein, and Mellon Bank, N.A., as Agent, whichever
is less, together with interest on the unpaid principal balance
hereof from time to time outstanding from the date hereof until
maturity at the rate or rates per annum determined pursuant to
Section 2.04 of, or as otherwise provided in, the Loan
Agreement, payable on the dates set forth in Section 2.07 of, or
as otherwise provided in, the Loan Agreement.
If any payment of principal or interest on this Note shall
become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and such
extension of time shall in such case be included in computing
interest in connection with such payment.
Subject to the provisions of the Loan Agreement, payments of
both principal and interest shall be made at the Office of the
Agent at Three Mellon Bank Center, Pittsburgh, Pennsylvania
15259, in lawful money of the United States of America and in
funds immediately available at such office.
Borrower hereby authorizes the Bank to endorse on the Schedule
annexed to this Note, or on a continuation of such Schedule
attached thereto and made a part hereof, all Loans made to
Borrower and all payments of principal amounts in respect of
such Loans, which endorsement shall, in the absence of manifest
error, be conclusive as the outstanding principal amount of all
such Loans; provided, however, that the failure of the Bank to
make any such notation shall not limit or otherwise affect the
obligations of Borrower under the Loan Agreement or this Note.
This Note is one of the Notes referred to in, and is entitled
to the benefits of, the Loan Agreement, which Loan Agreement,
among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and
also for prepayments, in certain circumstances, on account of
the principal hereof prior to maturity upon the terms and
conditions therein specified.
Except as otherwise expressly provided in the Loan Agreement,
Borrower waives presentment, demand, notice, protest and all
other demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this Note and
the Loan Agreement. In any action on this Note, the Bank or its
assignee need not produce or file the original of this Note, but
need only produce or file a photocopy of this Note certified by
the Bank or such assignee to be a true and correct copy of this
Note.
This Note evidences a continuing, pre-existing debt. It is not
intended as a novation of such debt and neither delivery of this
Note to the Bank nor the Bank's surrender or cancellation of any
prior note evidencing such debt shall constitute a payment or
discharge of such debt.
This Note shall be governed by, and construed and enforced in
accordance with, the Laws of the Commonwealth of Pennsylvania,
excluding its rules relating to the conflict of laws.
BORROWER HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OR
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER
THIS NOTE OR ANY OTHER DOCUMENT OR INSTRUMENT ATTACHED HERETO,
REFERRED TO HEREIN OR DELIVERED IN CONNECTION HEREWITH, OR (2)
IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF BORROWER WITH RESPECT TO THIS NOTE OR ANY OTHER
DOCUMENT OR INSTRUMENT ATTACHED HERETO, REFERRED TO HEREIN OR
DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED
HERETO OR THERETO, IN EACH CASE WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND BORROWER HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS NOTE WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF BORROWER HERETO TO
THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
All capitalized terms used herein shall, unless otherwise
defined herein, have the same meanings assigned to such terms in
the Loan Agreement.
Attest: L.B. FOSTER COMPANY
By:
Title: Title:
<PAGE>
Letter of Credit Agreement
Mellon Bank
Trade Banking Operations
8 Mellon Bank Center, Room 2329
Pittsburgh, PA 15259-0001
TO: Mellon Bank N.A. ("Mellon")
In consideration of Mellon's issuing, for the account of
Applicant (as defined below), one or more letters of credit
(each, a "Credit") or one or more amendments to a Credit (each,
an "Amendment"), Applicant agrees with Mellon, intending to be
legally bound, that the following terms and conditions shall
apply to each Credit and Amendment issued by Mellon:
A. General Terms and Conditions Applicable to all Credits and
Amendments
1. Application for the issuance of Credits; Amendments
(a) Applicant shall request the issuance of a Credit or an
Amendment by completing Mellon's then current form for such
purpose or by any other means permitted by Mellon's then current
procedures (each such request, an "Application"). Each
Application shall constitute a certification by Applicant that
any representation, warranty or commitment made by Applicant in
this Letter of Credit Agreement (together with any future
modifications or extensions, this "Agreement") is true and
correct as of the date of such Application. Upon Mellon's
receipt of an Application, Mellon may elect but shall not be
required to issue a Credit (or an Amendment, as the case may be)
in response thereto. Applicant agrees that if Applicant desires
to make an Application by other means, such as microcomputer
transmission, it may be necessary for Applicant to execute one
or more additional agreements and any such agreement shall
become part of this Agreement.
(b) Applicant may, from time to time, request that Mellon issue
a Credit for one or more of Applicant's subsidiaries or
affiliates (each, an "Additional Applicant"). In connection with
any such request, Applicant agrees to furnish Mellon with such
information as Mellon may require concerning such Additional
Applicant and to execute and cause to be executed such
additional documents or agreements as Mellon may require.
Applicant agrees that it shall be jointly an severally liable
with Additional Applicant for all obligations and liabilities
under this Agreement and any Credit issued for the account of
such Additional Applicant.
2. Applicant's Payment Obligations
(a) Applicant agrees to pay Mellon on demand and in same day
funds at Mellon's principal office in Pittsburgh, Pennsylvania
(or at such other place as Mellon may designate).
(i) the U.S. Dollar Equivalent of each payment made by Mellon
under any Credit; and
(ii) a commission for each Credit issued by Mellon at such rate
as Applicant and Mellon mutually agree, and any and all
expenses, obligations or charges paid or incurred by Mellon (or
any other financial institution with which Mellon deals with
respect to a Credit) in connection with any Credit and this
Agreement.
(b) All payments to which Mellon is entitled pursuant to this
Section 2 shall be made to Mellon free and clear of
and without deduction for any present or future taxes (except
taxes on Mellon's net income), exchange regulation charges or
other levies, deductions or withholdings of any kind.
(c) All payments to which Mellon is entitled pursuant to this
Agreement shall be made by Applicant in United States currency,
unless Applicant and Mellon otherwise mutually agree in advance.
(d) If any amounts payable to Mellon pursuant to this Agreement
are not paid when due, such amounts shall bear interest at the
rate Mellon then charges for delinquent payments. Mellon shall
have the right to demand payment reasonably in advance of any
draw or payment demand under a Credit, and such payment shall be
due on demand.
3. Examination of Credits, Instruments and Documents;
Discrepancies
(a) Applicant will promptly examine a copy of each Credit and
any Amendment sent to Applicant by Mellon and Applicant will,
within one Business Day of Applicant's receipt thereof, notify
Mellon by telecommunication of any discrepancy, irregularity or
claim of non-compliance with Applicant's instructions, as set
forth in the appropriate Application. Applicant will be
conclusively deemed to have waived any such claim against Mellon
in connection with any Credit or Amendment unless Applicant
notifies Mellon in accordance with the preceding sentence.
(b) In the event Mellon notifies Applicant of any discrepancy
between any instrument or document presented under any Credit
and the requirements of such Credit and, in the exercise of
Mellon's sole discretion, asks Applicant whether it will accept
such discrepancy, Applicant will, within one Business Day after
Applicant's receipt of such notice (or such shorter interval as
circumstances may require and Mellon shall advise Applicant),
notify Mellon by telecommunication whether or not Applicant
accepts the same. Applicant will be conclusively deemed to have
waived any claim of improper honor or dishonor of any Credit
unless Applicant notifies Mellon in accordance with the
preceding sentence.
4. General Instructions
Except as written instructions expressly to the contrary have
been given to Mellon by Applicant in any Application that has
been accepted by Mellon, Applicant agrees that (i) any advice of
the issuance of a Credit or an Amendment may, at the drawer's
option, be drawn "without recourse"; (iii) Mellon may accept or
pay, as complying with the terms of any Credit, any draft,
payment demand or other document otherwise in order that is
signed or issued by the purported administrator, executor,
trustee in bankruptcy, debtor in possession, assignee for the
benefit of a creditor, liquidator, receiver, successor, legal
representative or other party that Mellon reasonably determines
in the de facto or de jure successor to the powers, rights or
privileges of the party who is authorized under the Credit to
draw or issue such draft, payment demand or other document; and
(iv) Mellon and any other financial institution with which
Mellon deals with respect to a Credit may accept documents of
any character that comply with the provisions of the Uniform
Customs and Practice for Documentary Credits (1993 Revision,
International Chamber of Commerce Publication No. 500, and any
subsequent revisions thereof (the "UCP"). In addition, Applicant
agrees that Mellon may, in its sole discretion, give notice, in
accordance with the terms of the Credit, of non-renewal or
termination to any Beneficiary of a Credit that contains an
automatic renewal provision.
5. Responsibilities and Limitations Thereon
(a) Applicant agrees that Mellon shall not be responsible for,
and Applicant's obligation to pay or reimburse Mellon shall not
be affected by (i) acts or omissions of any other financial
institution with which Mellon deals with respect to a Credit, or
any Beneficiary or transferee of any Credit; (ii) the validity,
sufficiency, genuineness or collectibility of any documents or
instruments, or of any endorsements thereon; (iii) any breach of
contract between Applicant and any Beneficiary or any other
party, or the use which may be made of any Credit or funds
obtained thereunder; (iv) the consequences of compliance with
laws, orders or regulations in effect in places of negotiation
or payment of any Credit: or (v) any failure of drafts or other
payment demands to bear reference or adequate reference to, any
Credit; of documents to accompany drafts at negotiation or, if
so required by any Credit, to forward documents separately from
any drafts or payment demand; of negotiating or paying banks to
comply with Mellon's directions; of any party to surrender or
take up any Credit; or of any act or omission not done or
omitted in bad faith. (b) Mellon shall have no duty to inquire
into (i) the existence of any disputes or controversies between
Applicant and any Beneficiary or any other person, or (ii) the
truth, accuracy or occurrence of any fact or event reference to
in any certificate, document or instrument presented under or in
connection with any Credit. Mellon's sole obligation shall be
limited to honoring requests for payment made under and in
compliance with any Credit notwithstanding: (A) any assistance
which Mellon may have rendered in connection with the
preparation of the wording of the Credit or any certificate,
document or Instrument required to be presented thereunder, or
(B) any awareness or knowledge Mellon may have concerning any
transaction relating to any Credit. Mellon shall have no duty to
determine or control or otherwise monitor the distribution or
beneficial use of the proceeds of any draw on any Credit, or to
take any action with respect to the Beneficiary for any breach
of warranty claim.
6. Representations and Warranties; Covenants
(a) Representations and Warranties. Applicant represents and
warrants to Mellon as of the effective date of this Agreement
and as of the date of each Application, that:
(i) Applicant is an entity of the type set forth next to its
signature, duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and duly
qualified to do business in those jurisdictions in which its
ownership of property or the nature of its business activities
makes such qualification necessary.
(ii) Applicant has the requisite power and authority to execute
and deliver this Agreement and to perform its obligations
hereunder, and all such action has been duly authorized by all
necessary proceedings on Applicant's part.
(iii) Applicant has furnished to Mellon copies of Applicant's
most recent financial statements, which fairly represent
Applicant's financial position as of the date of such statements
and the results of its operations and cash flows for its fiscal
period then ended, in conformity with generally accepted
accounting principles. Since the date of such financial
statements, (A) there has been no material adverse change in
Applicant's financial condition or business; and (B) except as
set forth in said financial statements, there is no litigation
or governmental proceeding by or against Applicant pending or,
to Applicant's knowledge, threatened, that is likely to have a
material adverse effect on Applicant's financial condition or
business.
(iv) The execution and delivery of this Agreement, the
consummation of the transactions herein contemplated and
compliance with the terms and provisions hereof will not
conflict with or result in a breach of any of the terms of any
law or agreement or instrument to which Applicant is a party or
by which Applicant is bound, or constitute a default thereunder.
No authorization, consent or other action by, and no
registration or filing with, any official body is or will be
necessary or advisable performance of this Agreement.
(v) This Agreement has been duly and validly executed and
delivered by Applicant and constitutes Applicant's legal, valid
and binding obligation, enforceable in accordance with its terms
except, as to the enforcement of remedies, for limitations
imposed by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors'
rights generally or by laws limiting the right of specific
performance.
(b) Covenants. Applicant covenants to Mellon as follows:
(i) Promptly upon its becoming available to Applicant, Applicant
will deliver to Mellon all financial and other information
Mellon may request.
(ii) Applicant will: (A) maintain its existence and rights in
full force and effect; (B) preserve, renew and keep in full
force and effect the franchises, licenses and rights necessary
for the conduct of its business; and (C) qualify and remain
qualified to do business in each jurisdiction in which failure
to have or retain such qualification would have a material
adverse effect on its financial condition or business.
(iii) Applicant will comply with all applicable laws,
regulations and orders.
7. Set Off and Right to Demand Collateral
(a) Applicant's obligations and liability to Mellon and Mellon's
claims of every nature against Applicant arising under this
Agreement or any Credit, whether now or hereafter existing, are
hereafter called Applicant's Obligations.
(b) Applicant grants Mellon a continuing lien and security
interest for the amount of Applicant's Obligations upon any and
all property in which Applicant has an interest that is now or
hereafter in Mellon's actual or constructive possession.
Applicant also grants Mellon a continuing lien and right of
setoff for the amount of Applicant's Obligations on Applicant's
deposits (general or special) and credits with, and Applicant's
claims against, Mellon at any time. In addition, Applicant
agrees that, at any time and from time to time upon Mellon's
demand, Applicant shall deliver and transfer to Mellon such
collateral or additional collateral as Mellon may require to
secure Applicant's Obligations to Mellon, and shall execute and
deliver such documents and instruments, and do such other
things, as may be required in order for Mellon to have a valid
first priority security interest in such collateral.
8. Default
If Applicant fails to perform any of Applicant's Obligations, or
as required under any other agreement with Mellon, or if any of
the following shall occur (each such failure or occurrence, a
"Default"): any final unappealable judgment in a material amount
shall be entered against Applicant; Applicant shall default
(beyond any grace or cure period) in the performance of any
material obligation to another party; any proceeding, suit or
action for reorganization, dissolution or liquidation shall be
commenced by or against Applicant; Applicant's usual business
activity shall be suspended voluntarily or involuntarily, or
Applicant's business shall be liquidated; Applicant shall become
insolvent as defined under any applicable law; a petition under
any of the provisions of any applicable bankruptcy or insolvency
law shall be filed by or against Applicant; Applicant shall make
any material misrepresentation to Mellon; or Applicant's
condition or affairs shall so change that Mellon deems its
security to be impaired, credit risk increased, or otherwise
deems itself to be insecure; then, in any such event, all of
Applicant's Obligations, even if not yet due, shall, without
notice or demand, become and be immediately due and payable
without notice of any kind, notwithstanding any notice or grace
period otherwise allowed under any instrument evidencing
Applicant's Obligations.
9. Indemnity
Applicant agrees to indemnify and hold Mellon harmless from and
against any and all claims, losses, liabilities and expenses
(including reasonable attorneys' fees, which may include
internal time charges of counsel employed by Mellon) resulting
from or incurred in connection with this Agreement or any Credit
and not involving Mellon's bad faith.
10. Increased Costs
If any law, regulation or order, any change in any of the same
or any interpretation thereof by any court or administrative or
governmental authority, or any change in generally accepted
accounting principles applicable to Mellon shall, with respect
to this Agreement, and Credit or related document" (i) impose,
modify or make applicable any reserve, capital, special deposit
or similar requirement, (ii) impose on Mellon any other
condition: or (iii) subject Mellon to any tax, charge, fee,
deduction or withholding of any kind whatsoever, and the result
of any such event or any similar measure shall be to increase
the cost to Mellon of issuing or maintaining any Credit or
reduce the amount of principal of, interest on, or any fee or
compensation receivable by Mellon, then Applicant shall promptly
pay to Mellon, on demand, all additional amounts necessary to
compensate Mellon for such increased costs. Mellon's calculation
of such increased costs shall show the manner of calculation and
shall be conclusive (absent manifest error) as to the amount
thereof.
11. Miscellaneous
(a) Applicant shall furnish Mellon with a list of persons
authorized to act for Applicant in connection with this
Agreement and any Application, Credit or Amendment, Mellon shall
be authorized and entitled to rely on any Application and any
other communication, message or conversation, received or
purporting to be received from any such persons or any other
person reasonably believed by Mellon to be duly authorized to
act for Applicant.
(b) Applicant will not assign any of its rights or obligations
under this Agreement without Mellon's prior written consent.
(c) This Agreement shall continue in full force and effect as to
all Credits which Mellon may issue for Applicant's account. This
Agreement is not a commitment to issue any one or more Credits,
and notwithstanding anything to the contrary herein, Mellon
shall be entitled to refuse to issue any Credit in Mellon's
complete discretion.
(d) No reasonable delay on Mellon's part in exercising any power
or right hereunder shall operate as a waiver of any power or
right, and no single or partial exercise of any power or right
hereunder shall preclude any other or further exercise thereof
or the exercise of any other power or right. The rights and
remedies expressed herein are cumulative and not exclusive of
(e) Notice given by one party to the other in connection with
this Agreement or any Credit shall be in writing and be
effective when received by the party intended to receive such
notice at, in the case of the Applicant, the address set forth
under its signature hereto, and, in the case of Mellon, the
address set forth at the head of this Agreement. Either party
may change its address for notice by a notice given in
accordance herewith.
(f) Except and to the extent inconsistent with the specific
provisions hereof, this Agreement, each Credit hereunder and all
transactions in connection herewith and therewith shall be
interpreted, construed and enforced according to (i) the UCP,
and, (ii) to the extent not inconsistent, the laws of the
Commonwealth of Pennsylvania, including, without limitation, the
Uniform Commercial Code.
(g) Applicant irrevocable submits in any legal proceeding
relating to this Agreement or any Application or Credit to the
non-exclusive in personae jurisdiction of any court sitting in
the Commonwealth of Pennsylvania and agrees to suit being
brought in any such court and waives any objection to the venue
of any proceeding in any such court. Applicant further consents
to being joined in any legal proceeding brought against Mellon
concerning any Credit issued for Applicant's account and .......
12. Certain Definitions and Construction
(a) The term "Applicant" shall be deemed to refer to the
undersigned, and the term "Mellon" shall be deemed to refer to
Mellon Bank, N.A. its successors and assigns.
(b) Unless the context requires otherwise, the term "Credit"
shall be deemed to include any Amendments thereto.
(c) Each Application accepted by Mellon shall merge into and
become a part of this Agreement.
(d) "Business Day" shall mean any day on which banks are not
authorized or required to be closed for business in Pittsburgh,
Pennsylvania.
(e) "U.S. Dollar Equivalent" shall mean, with respect to an
amount in any currency other than U.S. dollars, as of any date,
the amount of U.S. dollars into which such amount in such
currency may be converted at the spot rate at which U.S. Dollars
are offered by Mellon in Pittsburgh for such currency at
approximately 11:00 A.M., Pittsburgh time, on such date.
B. Trade Credits
Applicant agrees that, in addition to the foregoing, the
following terms and conditions shall apply to any Credit issued
by Mellon and designated by Mellon as a Trade or Commercial
Credit(each, a "Trade Credit")
1. Insurance
Applicant will keep all property shipped in connection with any
Trade Credit insured in amounts, against risks and with insurers
satisfactory to Mellon and, at Mellon's option, assign the
policies or certificates of such insurance to Mellon or make
loss payable to Mellon, and furnish Mellon on request with
evidence of compliance with the foregoing. If Mellon at any time
and in connection with any Trade Credit deems such insurance
inadequate, Mellon may procure additional insurance at
Applicant's expense.
2. Compliance with Legal Requirements
Applicant will procure all licenses and comply with all
formalities necessary for the import, export and shipping of any
property, and shall comply with all applicable domestic and
foreign laws, regulations and orders (including those relating
to currency exchange) in connection with any Trade Credit; and,
upon Mellon's request, Applicant will promptly furnish Mellon
with such evidence of compliance as Mellon may require.
Applicant hereby certifies and warrants to Mellon that
transactions with respect to any property shipped in connection
with any Credit are not prohibited under any United States or
foreign law, regulation or order and that any shipment covered
by any Credit or any documents required thereunder shall fully
conform to all existing United States and foreign laws,
regulations and orders.
3. Security
Applicant hereby grants Mellon a security interest in and
recognizes and admits Mellon's unqualified right to the
possession and disposition of any and all property shipped under
or pursuant to or in connection with any Trade Credit or in any
way relative thereto, and in and to all shipping documents,
warehouse receipts, policies or certificates of insurance and
other documents or instruments accompanying or relative to
drafts or payment demands and in and to the proceeds to each of
the foregoing, all to be held by Mellon subject to the terms of
this Agreement as collateral security for the prompt and
unconditional payment of any and every of Applicant's
Obligations.
4. Deliveries Under Trust Receipts
In addition to, and not in limitation of, the provisions of
Section 3 of this part B: (a) If Mellon, at Applicant's request
and Mellon's discretion, delivers to Applicant or Applicant's
agent all or some of the goods or documents referred to in or
shipped in connection with any Trade Credit before full payment
of all Applicant's Obligations with respect thereto, Applicant
agrees to hold any goods so received in trust for Mellon,
readily identifiable and stored separately and intact under
separate accounting, as Mellon's property, and to execute and
deliver to Mellon such trust receipts, security or other
agreements and financing statements, and to carry such insurance
covering such goods or documents (and to furnish such evidence
of the same), as Mellon may request, and to pay all costs and
expenses incurred by Mellon (including reasonable attorneys'
fees) in connection with the same. Mellon's rights specified
herein shall be in addition to Mellon's rights under any
applicable law or other agreement.
(b) If Mellon, at Applicant's request and in Mellon's
discretion, delivers to Applicant or Applicant's agent all or
some of the goods or documents referred to in or shipped in
connection with any Trade Credit before Mellon accepts, pays or
incurs a deferred payment obligation with respect to any of the
related drafts(s) or demands(s) for payment, or if Mellon agrees
to expedite the delivery of goods prior to the arrival of the
pertinent documents, Applicant authorizes Mellon to accept and
pay such draft(s) or demand(s) notwithstanding any discrepancies
that may arise in relation thereto.
5.
(a) Partial shipments may be made under any Trade Credit and
Mellon may honor the related draft or payment demand without
inquiry, regardless of any apparent disproportion between the
quantity shipped and the amount of the related draft or payment
demand, and the total amount of the Credit and total quantity to
be shipped under the Credit.
(b) Mellon and any other financial institution with which Mellon
deals with respect to a Credit may receive and accept as a
transport document under any Trade Credit any document issued or
purporting to be issued by or on behalf of any carrier which
accept as a transport document under any Trade Credit any
document issued or purporting to be issued by or on behalf of
any carrier which acknowledges receipt of property for
transportation, whatever the specific provisions of such
document.
(c) Neither Mellon nor any other financial institution with
which Mellon deals with respect to a Credit shall be responsible
for, and Applicant's obligation to pay or reimburse Mellon shall
not be affected by: (i) the existence, character, nature,
quality, quantity, condition, packing, value or delivery of
goods purporting to be represented by documents, or any
difference of goods from that expressed in documents; (ii) any
irregularity in connection with shipment, including, without
limitation, any actual or alleged default or fraud by the
shipper or others, the time, place, manner or order of shipment,
non-shipment of goods or partial or incomplete shipments,
failure to arrive or delay in arrival of goods or documents, or
failure to give notice of shipment or arrival of goods or
documents; or (iii) consequences of compliance with laws,
regulations, orders or customs requirements in effect in places
of negotiation or payment of any Trade Credit.
IN WITNESS WHEREOF, Applicant has duly executed this Agreement
as of the date below.
(Correspondent Bank Name) (Customer Name)
BY: BY:
(Signature) (Signature)
Name: Name:
Title: Title:
Effective Date:
Type of Entity and Jurisdiction
of Organization
Address for Notice: Address for Notice:
<PAGE>
EXHIBIT E
AGREEMENT REGARDING BAILMENTS
This Agreement ("Agreement") made this day of 19_,
among ("Bailor"), located at , ("Bailee"),
located at , and Mellon Bank, N.A., in its capacity as
agent for itself and certain other financial institutions (the
"Banks") (in such capacity, the "Agent"), located at One Mellon
Bank Center, Pittsburgh, PA 15258-0001.
WITNESSETH:
WHEREAS, Bailee either (a) is engaged in the business of
processing rail, tubular and/or construction products
(individually of collectively, "Products") and from time to time
processes certain Products for Bailor or (b) has agreed with
Bailor to hold in storage certain Products owned by Bailor;
WHEREAS, Bailor may, from time to time, deliver certain
Products, to Bailee for processing or storage by Bailee; and
WHEREAS, the Banks have extended certain loans and other
financial accommodations to Bailor pursuant to a certain Amended
and Restated Loan Agreement among Bailor, the Banks and the
Agent (the "Loan Agreement");
NOW THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the parties hereto agree as
follows:
1. When used herein, the following term shall have the following
meaning:
(a) "Materials" shall mean any and all goods, merchandise and
other property now owned or hereafter acquired by Bailor and
delivered by Bailor at any time or times heretofore, now or
hereafter to Bailee for storage or for use in processing
Products pursuant to the specifications of Bailor. The term
"Materials" shall include, without limitation, any Products and
other personal property owned by Bailor in the possession of
Bailee as finished inventory, raw materials, work in processt
supplies or materials used or to be consumed in the processing
or reprocessing and any products produced therefrom.
2. BAILMENT RELATIONSHIP: TITLE TO MATERIALS
2.1 Bailee acknowledges and agrees that (i) Bailee holds the
Materials as a bailment for the sole and express purpose of
storing the Materials or using the Materials pursuant to
Bailor's specifications, (ii) title to the Materials shall at
all times remain in Bailor, and (iii) Bailez shall not acquire
any interest in the Materials, other than as a Bailee.
2.2 Bailee represents that it has not, and covenants that it
shall not, at any time (i) use the Materials or any part thereof
for any purpose other than the purpose described in paragraph
2.1 above, (ii) represent itself to any third party or parties
as the owner of the Materials or (iii) grant a security interest
in, pledge, assign, mortgage, sell, offer to sell, create or
permit a lien or encumbrance upon any of the Materials or any
item produced therefrom, or permit any levy, attachment or
restraint to be made affecting the Materials.
3. SEGREGATION OF MATERIALS; INSPECTION
3.1 Bailee agrees that upon its receipt of any Materials,
Bailee will cause all such Materials to be stored or stockpiled
on its premises at the above address of Bailee, separate and
apart from all other inventory and supplies belonging to Bailee
or any third parties by use of a unique identification number.
Upon request by Bailor or Agent, Bailee agrees to (i) post signs
or other reasonable means of notification, identifying the
Materials as the property of Bailor and/or (ii) execute and
deliver to Bailor or Agent as the case may be, such financing
statements as Bailor or Agent may reasonably request to give
notice to third parties of the bailment relationship between the
parties hereto, and to protect Bailor's title to the Materials.
3.2 Bailee shall maintain complete and accurate records of all
Materials delivered to Bailee, and of each item of the Materials
as it is removed from the aforementioned stockpile area into
Bailee's manufacturing process (if applicable) or for such other
purposes as Bailor may request. Bailee shall permit Sailor,
Agent or any of their respective agents to inspect and examine
such records and the stockpile area during reasonable business
hours at any time or times hereafter.
4. REMOVAL OF MATERIALS: COMPLETION OF WORK IN PROCESS
4.1 Bailor may do any one or more of the following, all of
which are hereby authorized by Bailee;
(a) Require Bailee, in a manner acceptable to Bailor, to return
the Materials to Bailor or deliver them to any other party
designated by Bailor;
(b) Enter any premises, with or without breach of the peace,
take possession of the Materials and remove the same therefrom;
or
(c) Exercise any or all other rights available to it at law or
in equity.
5. MISCELLANEOUS
5.1 Whenever in this Agreement these is a reference to any of
the parties hereto, such reference shall be deemed to include a
reference to the successors and assigns of said party. The
provisions of this Agreement shall be binding upon and inure to
the benefit of the successors and assigns of Bailor, Bailee and
Agent. Bailee shall not and cannot, unless otherwise consented
to in writing by Bailor and Agent assign this Agreement or any
part of Bailee's performance hereunder, and any such attempted
assignment shall be void.
5.2 This Agreement has been delivered in (city, state) and
shall be construed in all respects in accordance with and
governed by the laws and decisions of the State of . Wherever
possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity,
without invalidating the remained of such provisions of this
Agreement.
5.3 This Agreement may not be altered or amended except by an
agreement in writing signed by the parties hereto.
5.4 This Agreement may be executed by one or more of the
parties hereto in any manner of separate counterparts and all
such counterparts taken together shall be deems to constitute
one and the same Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed as of
the day and year first above written.
(BAILOR)
By:
Title:
(BAILEE)
By:
Title:
MELLON BANK, N.A., as Agent
By:
Title:
<PAGE>
EXHIBIT F
MELLON BANK, N.A.
L.B. Foster Company Eligibilty Report
at September 30, 1995
Accts.
Rec. Invent. Total
1. Collateral Base as of 8/31/95
2. Add: Gross Sales 9/01/95 thru 9/30/95
3. Total Additions
4. Less: (a) Collections from 9/1/95
thru 9/30/95
(b) Credits, Discounts, & other
adjustments
5. Total Deductions
6. Total Collateral as of 9/30/95
7. Less: (a) Ineligible Accounts Receivable
(b) Bonding
8. Gross Total Eligible Accounts Receivable
and Inventory
9. Net Eligible Accounts Receivable (75%)
and Inventory (45%)
10. Percentages of Net Eligible
10a. Net Eligible Accounts Receivable as a
percentage of total debt (line 16).
(Accounts Receivable must be equal to or
greater than 40% of Total Liabilities
(line 16)).
Loan Activity
11. Loan Balance (line 14 previous report)
12. Less: Loan Reductions
13. Add: Loan Requests
14. New Loan Balance (line 11 - line 12 + line 13)
15. Add: Letters of Credit and/or Other Debt
16. Total Debt
Requirements Position
17. Total Eligible Accounts Receivable & Inventory (line 9)
18. Eligible in Excess of Outstanding Liabilities (line 17 - line 16)
19. Eligible in Excess of Commitment (line 17 - $45MM)
<PAGE>
EXHIBIT F
OFFICERS CERTIFICATE
The undersigned, , a Responsible Officer of the Borrower
under the Amended and Restated Loan Agreement, Dated November
, 1995 by and among L. B. Foster Company, as Borrower and Mellon
Bank, N.A., NBD Bank N.A. and Corestates Bank, N.A., (the
"Banks"), and Mellon Bank, N.A., as Agent for the Banks, hereby
certifies on behalf of the Borrower as follows:
1. No Event of Default and No Potential Event of Default has
occurred and is continuing or exists.
2. Borrowers are in compliance with the provisions of Sections 2.05,
5.01(h), 5.0l(i), 5.01(j), 5.02(a) and 5.02(k) of the Loan
Agreement, as demonstrated by the data and computations set forth
in Exhibit A hereto.
Except as defined otherwise herein, capitalized terms shall have
the meaning set forth in the Loan Agreement.
EXECUTED this TH day, , 1995
RESPONSIBLE OFFICER
L. B. FOSTER COMPANY
<PAGE>
SCHEDULES 3.04 AND 3.13
The Company has undertaken to remediate certain contamination
at its former Winslow, Indiana tie facility. Since recent tests
have revealed potential groundwater contamination, it is
possible, although not certain, that the Company may have to
undertake additional remediation activities.
<PAGE>
Schedule 3.11
ERISA Plans
October 31, 1995
3.11 L.B. FOSTER COMPANY ERISA PLANS
1. L.B. Foster Company Flexible Benefit Plan (previously known
as L.B. Foster Company Tax Free Premium Payment Plan)
2. Optional Colonial Products
3. Group Travel Accident Insurance Policy
4. L.B. Foster Company Group Insurance Plan
5. L.B. Foster Group Disability Income Insurance Plan
6. L.B. Foster Company Retirement P1an 008
7. L.B. Foster Company Retirement Plan 002
8. L.B. Foster Company Voluntary Investment Plan
9. L.B. Foster Company Retirement Savings Plan for Hourly Employees
<PAGE>
Schedule 5.02 (b)
L. B. Foster Company
Existing Indebtedness
NONE
SCHEDULE 5.02 (d)
L. B. FOSTER COMPANY
Existing Guarantees
NONE
<PAGE>
L. B. FOSTER COMPANY
1996 INCENTIVE COMPENSATION PLAN
I. PURPOSE
To provide incentives and rewards to salaried employees based
upon overall corporate profitability and the performance of
individual operating units.
II. CERTAIN DEFINITIONS
The terms below shall be defined as follows for the purposes of
the L. B. Foster Company 1996 Incentive Compensation Plan. The
definitions of accounting terms shall be subject to such
adjustments as are approved by the Corporation's Chief Executive
Officer.
2.1 "Average Unit Income" shall mean for each Operating Unit
the sum of such Operating Unit's "Operating Unit Income" for the
years 1993, 1994 and 1995 divided by three, subject to such
adjustments as may be made by the Chief Executive Officer.
2.2 "Base Compensation" shall mean the total base salary,
rounded to the nearest whole dollar, actually paid to a
Participant during 1996, excluding payment of overtime,
incentive compensation, commissions, severance, reimbursement of
expenses incurred for the Participant's benefit, or any other
payments not deemed part of a Participant's base salary;
provided, however, that the Participant's contributions to the
Corporation's Voluntary Investment Plan shall be included in
Base Compensation. Base Compensation for employees who die,
retire or are terminated shall include only such compensation
paid to such employee during 1996 with respect to the period
prior to death, retirement or termination.
2.3 "Base Fund" shall mean the aggregate amount of all payments
to be made pursuant to this Plan, which amount shall be
determined pursuant to Section 3.1 hereof.
2.4 "Committee" shall mean the Personnel and Compensation
Committee of the Board of Directors and any successors thereto.
2.5 "Corporation" shall mean L. B. Foster Company and those
subsidiaries thereof in which L. B. Foster Company owns 100% of
the outstanding common stock.
2.6 "Cost of Capital" shall mean a charge imposed on an
Operating Unit based upon the assets employed by such Operating
Unit, as determined by the Chief Executive Officer.
2.7 "Fund" shall mean the aggregate amount of all payments made
to Plan Participants under this Plan, after deducting all
discretionary payments made pursuant to Section 3.3 hereof.
2.8 "Individual Incentive Award" shall mean the amount paid to
a Participant pursuant to this Plan, which amount shall be
determined pursuant to Section 3.5 hereof and which award shall
not exceed the lower of: (i) twice the amount of a
Participant's Target Award; or (ii) the Participant's Target
Award multiplied by a percentage equal to twice the percentage
of Target Award paid to Participants in the General Pool;
subject, however, to the provisions of Article VII of this Plan.
The limitations herein shall not affect amounts distributed
under Sections 3.3 or 5.2.
2.9 "Operating Unit" shall mean each unit or division reported
in the Company's internal financial statements: Foster Coated
Pipe, Threaded Products, Fosterweld Tested, Allegheny Rail
Products, New Rail, Relay Rail, Transit Products, Pomeroy,
Piling, Equipment and Fabricated Products, subject to such
adjustments as may be made by the Chief Executive Officer.
2.10 "Operating Unit Income" shall mean an Operating Unit's
1996 gross profit at actual plus (minus) other income (expense)
less allocated and direct sales expense and direct
administrative expense and Cost of Capital, subject to such
adjustments as may be made by the Chief Executive Officer.
2.11 "Participant" shall mean a salaried employee of the
Corporation who satisfies all of the eligibility requirements
set forth in Article IV hereof.
2.12 "Plan" shall mean the L. B. Foster Company 1996 Incentive
Compensation Plan, which Plan shall be in effect only with
respect to the fiscal year ending December 31, 1996.
2.13 "Pool" shall mean the Product Pool and/or General Pool, as
calculated pursuant to Section 3.4 hereof, subject to such
adjustments as are approved by the Chief Executive Officer.
2.14 "Pre-Incentive Income" shall mean the audited pre-tax
income of the Corporation for the fiscal year ending December
31, 1996 determined in accordance with generally-accepted
accounting principles, excluding (i) benefits payable under this
Plan; and (ii) any portion of gains or losses arising from
transactions not in the ordinary course of business which the
Committee, in its sole discretion, determines to exclude.
2.15 "Target Award" shall mean the product of a Participant's
Base Compensation multiplied by said Participant's Target
Percentage.
2.16 "Target Percentage" shall mean those percentages assigned
to Participants pursuant to Section 3.2 hereof.
III. PLAN DESCRIPTION
3.1 Base Fund. The amount of the Base Fund shall be calculated
by multiplying the Corporation's Pre-Incentive Income by
specified percentages, as follows:
Pre-Incentive Income Percentage Base Fund
$0 - $2,999,999 0 0
$3,000,000 - $3,499,999 10 $300,000 - $349,999
$3,500,000 - $3,999,999 11 $385,000 - $439,999
$4,000,000 - $4,499,999 12 $480,000 - $539,999
$4,500,000 - $4,999,999 13 $585,000 - $649,999
$5,000,000 - $5,999,999 14 $700,000 - $839,000
$6,000,000 - $6,999,999 15 $900,000 - $1,049,994
$7,000,000 - $7,999,999 16 $1,120,000 - $1,279,999
$8,000,000 - $8,999,999 17 $1,360,000 - $1,529,999
$9,000,000 - $9,999,999 18 $1,620,000 - $1,799,999
$10,000,000 - $10,999,999 19 $1,900,000 - $2,089,999
$11,000,000 and Over 20 $2,200,000 and Over
3.2 Target Percentages. Each Participant shall have a Target
Percentage based upon the grade level of such Participant,
unless determined otherwise by the Chief Executive Officer, on
July 1, 1996, as follows:
Result: % Of Base
Grade Levels Compensation
Grade 10, Plant Managers 12.5
Grade 10, Product Managers 12.5
Grade 11, Plant Managers 15.0
Grade 11, Product Managers 15.0
Grade 6, Sales Positions 15.0
Grade 8, Sales Positions 20.0
Grade 9, Sales Positions 21.0
Grade 10, Sales Positions 22.0
Grade 11, Sales Positions 23.0
Grade 12, Sales or Management Positions 25.0
Grade 13, Sales or Management Positions 27.0
Grade 14, Sales or Management Positions 30.0
Grade 15, Sales or Management Positions 32.0
Grade 16, Sales or Management Positions 36.0
Grade 17, Sales or Management Positions 38.0
Grade 18, Sales or Management Positions 39.0
Grade 19, Sales or Management Positions 40.0
Grade 20, Sales or Management Positions 50.0
Grade 21, Sales or Management Positions 52.0
Grade 22, Sales or Management Positions 54.0
Grade 23 and Above 60.0
Other Employees selected, in writing, by L. B. Foster Company's
Chairman of the Board and Chief Executive Officer may also be
made Participants in the Plan on such terms as may be approved
by the Chairman of the Board and Chief Executive Officer.
Those Participants who have retired or died prior to July 1,
1996 shall have a Target Percentage based upon their grade level
at death or retirement.
3.3 Discretionary Payments. Ten percent (10%) of the Base
Fund, plus amounts reallocated pursuant to Section 5.1, shall be
reserved for discretionary payments to employees. The
recipients of all such awards and the amounts of any such awards
initially shall be selected by the Chief Executive Officer,
subject to final approval by the Committee. If any amounts are
not paid from the amount herein reserved, such remaining amount
shall be allocated to the Fund for distribution among the Pools.
3.4 Calculation of Pools. Each Participant and all or any
portion of each Participant's Target Award shall be assigned to
a Pool or Pools by the Chief Executive Officer of the Company.
The dollar amount of each Pool will be determined by dividing
the portion of the Target Awards assigned to the Pool by the
total Target Awards of all Participants and then multiplying
such amount by the Fund.
EXAMPLE 1:
THE CORPORATION'S PRE-INCENTIVE INCOME IS $5,100,000. THE TOTAL
OF ALL TARGET AWARDS FOR ALL PLAN PARTICIPANTS IS $1,900,000,
WITH $805,000 ALLOCATED TO THE GENERAL POOL AND $1,095,000
ALLOCATED TO THE PRODUCT POOL. THE DOLLAR AMOUNT OF EACH POOL
WOULD BE CALCULATED AS FOLLOWS:
(a) Determine Base Fund
$5,100,000 x 14% = $714,000
(b) Calculate Fund By Deducting 10% For "Discretionary Awards"
$714,000 x 90% = $642,600
(c) Determine Amount of Each Pool
1. General Pool
$ 805,000
--------------- x $642,600 = $272,260
$1,900,000
2. Product Pool
$1,095,000
--------------- x $642,600 = $370,340
$1,900,000
3.5 Calculation of Individual Incentive Awards. The
calculation of an Individual Incentive Award shall be determined
based on the Pool(s) to which a Participant is assigned.
3.5A General Pool Individual Incentive Awards. A General Pool
Participant's Individual Incentive Award shall be calculated,
subject to the limitations in Section 2.8, as follows:
(a) Divide Participant's Target Award allocated to General Pool
by the sum of all Target Awards allocated to General Pool;
(b) Multiply (a) by amount of General Pool.
EXAMPLE 2:
THE GENERAL POOL IS $272,260. THE SUM OF ALL GENERAL POOL
PARTICIPANTS' TARGET AWARDS IS $805,000. MANAGER JONES HAS A
TARGET AWARD OF $19,200:
$ 19,200
------------- x $272,260 = $6,494 (Individual Incentive Award)
$805,000
3.5B Product Pool Individual Incentive Awards. The Product
Pool shall be divided based upon the relative improvement in the
Operating Units' "Operating Unit Income" and the Operating
Units' respective shares of all Units' "Operating Unit Income".
All Participants in the Product Pool shall be assigned to one or
more Operating Unit(s) and their respective Target Awards shall
be allocated among one or more Operating Unit(s), all as
determined by the Chief Executive Officer. Individual awards
shall be calculated, subject to the limitations in Section 2.8,
as follows:
(a) Add together: (i) all Operating Units' "Operating Unit
Income" (disregarding any annual loss which an Operating Unit
may have sustained); and (ii) the total improvement in all
Units' "Operating Unit Income" over all Units' "Average Unit
Income" (disregarding any Unit that did not improve and, for
purposes of calculating improvement, counting only a reduced
percentage of such improvement [as determined by the Chief
Executive Officer but in no event greater than 50%] which
represents a reduction from negative "Average Unit Income" to
zero).
(b) Divide (a) into the sum of all Operating Units' Operating
Unit Income (calculated in the same manner as in (a) above) and
multiply the resulting quotient by the amount in the Product
Pool (the "Product Operating Income Subpool").
(c) Divide (a) into the sum of all improvement in all Units'
Operating Unit Income over such Units' respective Average Unit
Incomes (calculated in the same manner as in (a) above) and
multiply the resulting quotient by the amount in the Product
Pool (the "Product Improvement Subpool").
(d) To determine an Operating Unit's share of the Product
Operating Income Subpool, multiply the amount in the Product
Operating Income Subpool by a fraction, the numerator of which
is the Operating Unit's Operating Income and the denominator
is the sum of all Units' Operating Income (calculated in the
same manner as in (a) above).
(e) To determine an Operating Unit's share of the Product
Improvement Subpool, multiply the amount of the Product
Improvement Subpool by a fraction, the numerator of which is the
Operating Unit's improvement (calculated in the same manner as
in (a) above) and the denominator of which is the sum of all
Operating Units' improvement (calculated in the same manner as
in (a) above).
(f) To determine a Participant's share of the Product Operating
Income Subpool, multiply the amount calculated in (d) above by a
fraction, the numerator of which is the Participants' Target
Bonus allocated to the Operating Unit and the denominator of
which is the sum of all Target Bonuses allocated to the
Operating Unit.
(g) To determine a Participant's share of the Product
Improvement Subpool, multiply the amount calculated in (e) above
by a fraction, the numerator of which is the Participants'
Target Bonus allocated to the Operating Unit and the denominator
of which is the sum of all Target Bonuses allocated to the
Operating Unit.
EXAMPLE 3:
THE PRODUCT POOL IS $370,340. RELAY RAIL'S OPERATING UNIT
INCOME IS $900,000 WHILE ITS AVERAGE UNIT INCOME IS A LOSS OF
$100,000. THE SUM OF ALL OPERATING UNITS' "OPERATING UNIT
INCOME" IS $6,000,000 AND THE SUM OF ALL OPERATING UNITS'
IMPROVEMENT OVER THE SUM OF THEIR "AVERAGE UNIT INCOMES" IS
$4,300,000. PRODUCT MANAGER SMITH HAS A TARGET AWARD OF $20,000
AND THE SUM OF ALL TARGET AWARDS ALLOCATED TO RELAY RAIL IS
$120,000. TWENTY-FIVE PERCENT (25%) OF SMITH'S TARGET AWARD IS
ALLOCATED TO THE GENERAL POOL, TEN PERCENT (10%) IS ALLOCATED TO
POMEROY AND SIXTY-FIVE PERCENT (65%) IS ALLOCATED TO RELAY RAIL.
IT HAS BEEN DETERMINED THAT FIFTY PERCENT (50%) OF IMPROVEMENT
FOR REDUCTION OF LOSSES SHALL BE COUNTED. THE PORTION OF
SMITH'S INDIVIDUAL INCENTIVE AWARD ATTRIBUTABLE TO RELAY RAIL IS
CALCULATED AS FOLLOWS:
(a) Determine Allocation Between Product Operating Income
Subpool and Product Improvement Subpool:
1. $6,000,000 + $ 4,300,000 = $10,300,000
2. $6,000,000 / $10,300,000 = 58.25%
3. $4,300,000 / $10,300,000 = 41.75%
4. $370,340 x 58.25% = $215,723
("Product Operating Income Subpool")
5. $370,340 x 41.75% = $154,617
("Product Improvement Subpool")
(b) Determine Relay Rail's share of Product Operating Income
Subpool and Product Improvement Subpool:
1. $ 900,000
--------------- x $215,723 = $32,358
$6,000,000 (Relay Rail's Share of Product
Operating Income Subpool)
2. $ 900,000 + ($100,000 X 50%)
------------- x $154,617 = $34,160
$4,300,000 (Relay Rail's Share of Product
Improvement Subpool)
(c) Determine Smith's Individual Award from Relay Rail:
1. $ 20,000 x 65% = $13,000 (Smith's Target Award
Allocable to Relay Rail)
2. $ 13,000
------------ x $32,358 = $ 3,505
$120,000 (Smith's Share of Product
Operating Income Subpool)
3. $ 13,000
------------- x $34,160 = $ 3,701
$120,000 (Smith's Share of Product
Improvement Income Subpool)
Smith would also be able to receive an additional award based
upon Pomeroy's performance.
IV. ELIGIBILITY
Unless changed or amended by the Committee, an employee shall
be deemed a Participant in the Plan only if all of the following
requirements are satisfied:
A. A Participant must be a salaried employee of the
Corporation, at a grade level set forth in Section 3.2 or as
otherwise approved by L. B. Foster Company's Chairman of the
Board and Chief Executive Officer for at least six (6) months of
the entire fiscal year, unless deceased or retired.
B. A Participant must not have been terminated for cause, or
voluntarily have resigned (other than due to retirement with the
Company's consent) prior to the date Individual Incentive Awards
are paid.
As used herein, "cause" to terminate employment shall exist
upon (i) the failure of an employee to substantially perform his
duties with the Corporation; (ii) the engaging by an employee in
any criminal act or in other conduct injurious to the
Corporation; or (iii) the failure of an employee to follow the
reasonable directives of the employee's superior(s).
V. REALLOCATIONS
5.1 In the event an employee has satisfied the eligibility
criteria set forth in Article IV(A), but has not satisfied the
eligibility criteria set forth in Article IV(B), the portion of
the Individual Incentive Awards allocable to the Product Pool
shall be calculated as though such employee was a Participant
and any amounts which would have been payable to such employee
from the Product Pool shall be used for discretionary payments
under Section 3.3.
5.2 Any portion of the Fund not otherwise distributed ("Excess
Funds") shall be awarded to each Participant in an amount
calculated by multiplying the amount of the Excess Funds by a
fraction, the numerator of which shall be the Participant's
Target Bonus and the denominator of which shall be the sum of
all Participants' Target Bonuses.
VI. PAYMENT OF AWARDS
Payment of Individual Incentive Awards will be made on or
before March 15, 1997.
VII. LIMITATIONS ON AWARDS
Notwithstanding any other provision of this Plan, Individual
Incentive Awards shall normally be limited to twice the amount
of a Participant's Target Award.
VIII. ADMINISTRATION AND INTERPRETATION OF THE PLAN
A determination by the Committee in carrying out, administering
or interpreting this Plan shall be final and binding for all
purposes and upon all interested persons and their heirs,
successors and personal representatives.
The Committee may, from time to time, amend the Plan; provided,
however, that the Committee may not amend, terminate or suspend
the Plan so as to reduce the Base Fund payable under the Plan.
The Chief Executive Officer may delegate any of his duties
herein.
The Corporation's independent public accountants will review
and verify the Corporation's determination of Pre-Incentive
Income.
<PAGE>
Consent of Independent Auditors
We consent to incorporation by reference in the Registration
Statements (Form S-8 Nos. 33-17073, 33-35152, and 33-79450)
pertaining to the 1995 Long-Term Incentive Plan of L. B. Foster
Company, as amended and restated, of our report dated January
24, 1996, with respect to the consolidated financial statements
and schedule of L. B. Foster Company included in the Form 10-K
for the year ended December 31, 1995.
/s/ Ernst & Young LLP
Pittsburgh, Pennsylvania
March 25, 1996
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<CASH> 1325
<SECURITIES> 0
<RECEIVABLES> 48277
<ALLOWANCES> 1800
<INVENTORY> 40304
<CURRENT-ASSETS> 92727
<PP&E> 61465
<DEPRECIATION> 33330
<TOTAL-ASSETS> 124423
<CURRENT-LIABILITIES> 34868
<BONDS> 25034
0
0
<COMMON> 102
<OTHER-SE> 63628
<TOTAL-LIABILITY-AND-EQUITY> 124423
<SALES> 264985
<TOTAL-REVENUES> 264985
<CGS> 235770
<TOTAL-COSTS> 235770
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2840
<INCOME-PRETAX> 4706
<INCOME-TAX> (337)
<INCOME-CONTINUING> 5043
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> (219)
<NET-INCOME> 4824
<EPS-PRIMARY> 0.49
<EPS-DILUTED> 0.49
</TABLE>
