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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[x] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (Fee Required)
For the fiscal year ended December 31, 1999
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
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Commission File Number 033-73270
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Commission File Number 033-73270-1
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TRANSTAR HOLDINGS, L.P.
TRANSTAR CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3486874
Delaware 13-3745313
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
345 PARK AVENUE
NEW YORK, NEW YORK 10154
(Address and zip code of principal executive offices)
(212) 935-2626
(Registrant's telephone number, including area code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NONE
----------------------------------------------------------------
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: NONE
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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
--- ---
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 of this Form 10-K or any
amendment to this Form 10-K. [x]
DOCUMENTS INCORPORATED BY REFERENCE: NONE
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TRANSTAR HOLDINGS, L.P.
TRANSTAR CAPITAL CORPORATION
FORM 10-K
TABLE OF CONTENTS
Page
----
PART I
Item 1. Business ..........................................................1
Item 2. Properties ........................................................4
Item 3. Legal Proceedings .................................................7
Item 4. Submission of Matters to a Vote of Security Holders ...............7
PART II
Item 5. Market for Registrant's Common Stock and
Related Stockholder Matters .......................................8
Item 6. Selected Financial Data ...........................................8
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations ........................................10
Item 7A. Quantitative and Qualitative Disclosures about Market Risk .......17
Item 8. Financial Statements and Supplementary Data ......................18
Item 9. Changes In and Disagreements with Accountants on
Accounting and Financial Disclosure ..............................46
PART III
Item 10. Directors and Executive Officers of Registrant ...................47
Item 11. Executive Compensation ...........................................50
Item 12. Security Ownership of Certain Beneficial Owners
and Management ...................................................54
Item 13. Certain Relationships and Related Transactions ...................55
PART IV
Item 14. Exhibits, Financial Statement Schedules,
and Reports on Form 8-K ..........................................58
<PAGE> 3
PART I
ITEM 1. BUSINESS
Transtar Holdings, L.P. is a Delaware limited partnership which was
originally formed in 1988 as Blackstone Transportation Partners L.P. (BTP) for
the sole purpose of holding voting stock and nonvoting stock of Transtar, Inc.
(Transtar or the Company). BTP was renamed Transtar Holdings, L.P. (Holdings) in
November 1993. Holdings has no operations of its own and owns 5,100 shares of
voting stock and 5,100 shares of nonvoting stock of Transtar, representing a 51%
voting and 54% economic interest in Transtar. Transtar Capital Corporation
(TCC), a Delaware corporation, is a wholly owned subsidiary of Holdings. TCC has
nominal assets and does not conduct any operations. TCC was formed in connection
with an offering of 13 3/8% Senior Discount Notes. Separate consolidated
financial statements of Transtar are included in this 10-K because Transtar is a
majority owned subsidiary of Holdings which is not consolidated in the
consolidated financial statements of Holdings. Holdings' earnings are derived
primarily from its 54% economic interest in Transtar. Blackstone Transportation
Company, Inc. (BTC), a Delaware corporation, is Holdings' sole general partner.
THE COMPANY
Transtar is a transportation holding company composed of two business
groups: The Railroad Group and the Marine Group. The Railroad Group is composed
of seven railroads Duluth, Missabe and Iron Range Railway Company (DMIR), Elgin,
Joliet and Eastern Railway Company (EJ&E), Bessemer and Lake Erie Railroad
Company (B&LE), Union Railroad Company (Union), The Lake Terminal Railroad
Company (Lake Terminal), McKeesport Connecting Railroad Company (McKeesport),
Birmingham Southern Railroad Company (Birmingham Southern), one dock
facility-Pittsburgh & Conneaut Dock Company (P&C Dock) and one in-plant rail
operation-Fairfield Southern Company, Inc. The Marine Group is composed of two
shipping operations-Great Lakes Fleet (GLF) and Warrior and Gulf Navigation
Company (WGN) and one salt water/fresh water dock facility-Mobile River Terminal
(MRT). The Railroad Group and Marine Group accounted for approximately 73% and
27% of revenues, respectively, in 1999.
Transtar provides the sole rail access to, as well as the primary water
transport for, nearly all the steel making plants of USX Corporation (USX),
servicing US Steel (USS), USS Mining Co., L.L.C. (USM), and Lorain Tubular,
L.L.C. at Lorain, Ohio. Transtar derived 52% of its revenues in 1999 from
serving the USX facilities. The services are provided under certain
Transportation Services Agreements (See Item 13, Certain Relationships and
Related Transactions for a discussion of these agreements, including their
duration). Transtar serves a Blackstone controlled Republic Technologies
International, L.L.C. (Republic) facility which is also located at Lorain, Ohio.
Other steel-related customers generated an additional 19% of revenues, resulting
in the steel industry accounting for 70% of Transtar's revenues in 1999.
Movements of coal to utilities and other customers accounted for 13% of
Transtar's revenues in 1999, while miscellaneous traffic accounted for the
remaining 17%.
The shareholders of Transtar are Holdings, which owns a 51% voting and
a 54% economic interest, USX, which owns a 49% voting and a 46% economic
interest, and Transtar's management that owns less than a 1% economic interest.
Management's direct interest has been reduced since Transtar's formation due to
repurchases of 950 shares of nonvoting stock from retiring managers. Certain
shares have been allocated to promoted managers in a stock option program.
Including the effect of this program, economic ownership of management would be
2.36%.
OPERATIONS OVERVIEW
The Company's transportation groups service USX and other domestic
steel producers by delivering raw materials, such as iron ore pellets
(taconite), limestone, coal and coke, to steel producing facilities, by moving
materials within certain steel plants and by transporting semi-finished and
finished steel products from such facilities. The Company also hauls coal and
other freight for numerous other customers.
Prior to December 1988, all of Transtar's subsidiaries were wholly
owned by USX. Transtar was formed in December 1988 to purchase these companies
from USX in a leveraged buyout. The Transtar subsidiaries carry a multitude of
raw materials, semi-finished products, and finished goods in Alabama, Illinois,
Indiana, Minnesota, Ohio, Pennsylvania, Wisconsin, and destinations on the Great
Lakes.
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RAILROAD GROUP
Each rail subsidiary is a regional or switching railroad with
individual specialties. Revenues from USX represented approximately 48% of the
Railroad Group's revenues in 1999. The following paragraphs describe Transtar's
major rail subsidiaries and their operations.
DMIR
The DMIR is located in northeastern Minnesota and northwestern
Wisconsin and includes two major storage and shipping facilities at Duluth and
Two Harbors, Minnesota. It is the sole rail carrier serving USX's Minntac
facility and also serves the taconite producing facilities of both EVTAC Mining
and Ispat Inland Mining. The DMIR hauls taconite to its Two Harbors and Duluth
docks where the taconite is loaded into vessels for delivery to USX's Gary Works
and Mon Valley facilities and other lower lake steel plants including the
Republic facility at Lorain, Ohio. The DMIR also hauls taconite for interchange
to long haul railroads.
EJ&E
The EJ&E is a belt railroad that encircles Chicago, Illinois. It is the
sole serving carrier for USX's Gary, Indiana steel facility and transports
inbound coal, coke and scrap and outbound semi-finished and finished steel. The
EJ&E performs certain in-plant switching functions within the Gary Plant. It
also provides rail services to numerous other customers in the Chicago area. The
EJ&E provides trackage rights and haulage for other railroads.
B&LE
The B&LE services western Pennsylvania and northeastern Ohio and
transports coal, ore and limestone. Its principal northbound traffic is steam
coal destined for utility customers. The B&LE also delivers ore pellets via the
Union to USX's Edgar Thomson Works.
UNION
The Union is located in the Mon Valley, approximately 12 miles east of
Pittsburgh, Pennsylvania. It is the sole serving carrier for three USX
facilities: the Clairton Coke Works, the Edgar Thomson Works and the Irvin
Works. The Union transports coal, coke, ore, scrap and finished and
semi-finished steel products. In addition, it provides USX with in-plant
switching services at its Clairton Coke Works and maintenance services on USX's
own rolling stock and track at its Mon Valley plants. The Union also handles
coal for a variety of other customers at its river-to-rail transfer facility at
Duquesne, Pennsylvania.
LAKE TERMINAL
The Lake Terminal is located in Lorain, Ohio and is the sole-serving
rail carrier to both the USX and Republic facilities there. Prior to December
28, 1998, the Lake Terminal also provided these facilities with in-plant
switching services as well as maintenance of track and equipment. The
predecessor owner (USS/Kobe) of these facilities awarded the in-plant switching
and maintenance of track and equipment to a competing company at the end of
1998.
BIRMINGHAM SOUTHERN/FAIRFIELD SOUTHERN
The Birmingham Southern is located in the Birmingham, Alabama area and
is the sole-serving carrier for USX's Fairfield Works. It transports coal, coke,
iron ore, semi-finished and finished steel and other products. Fairfield
Southern, a Birmingham Southern subsidiary, provides all of the in-plant
switching at Fairfield Works.
MARINE GROUP
The Marine Group is comprised of a Great Lakes shipping fleet and an
inland barge operation. Revenues from USX represented approximately 60% of the
Marine Group's revenues in 1999. The following paragraphs describe Transtar's
marine subsidiaries and their operations.
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GLF
The GLF owns ten lake vessels and operates another vessel under a
long-term charter agreement. They operate in a market area throughout the five
Great Lakes, extending from the western end of Lake Superior to the eastern end
of Lake Ontario.
WGN/MRT
WGN, headquartered in Chickasaw, Alabama, operates on the Black
Warrior-Tombigbee waterway and the Tennessee-Tombigbee waterway, utilizing a
fleet of 245 barges (of which 183 are leased) and 20 towboats. MRT, WGN's
subsidiary is a salt water/fresh water transfer facility located at Mobile,
Alabama.
OPERATING REVENUES
Transtar's total operating revenues were $468.3 million in 1999. These
revenues were primarily earned from the transportation of freight. The revenues
incorporate traffic originated, terminated, and switched by rail operations as
well as commodities transported by marine operations. Both the rail and the
marine operations earned dock handling revenues.
Set forth below are freight revenues of Transtar by commodity groups
for the years 1997 through 1999.
Year Ended December 31,
-------------------------------------------
1999 1998 1997
------------ ------------- -------------
$ % of $ % of $ % of
(mil.) total (mil.) total (mil.) total
------ ----- ------ ----- ------ -----
Iron Ore ..................... $177.1 37.8 $200.1 40.2 $219.9 41.8
Coal ........................ 56.3 12.0 61.4 12.3 58.5 11.1
Coke ....................... 36.2 7.7 39.4 7.9 43.6 8.3
Steel & General Merch ....... 138.9 29.7 142.8 28.7 148.1 28.2
Dock Handling ............... 27.5 5.9 26.7 5.4 23.3 4.4
Trucking .................... 0.7 .1 1.3 .3 1.3 .2
All other revenues .......... 31.6 6.8 26.1 5.2 31.4 6.0
------ ----- ------ ----- ------ -----
Total Revenues ........... $468.3 100.0 $497.8 100.0 $526.1 100.0
====== ===== ====== ===== ====== =====
EMPLOYEES
Transtar employed an average of 3,043 employees in 1999, down
approximately 300 individuals from the prior two years. Approximately 86% of
Transtar's employees are covered by collective bargaining agreements.
GOVERNMENTAL REGULATION
The Company's subsidiaries are subject to environmental, safety, health
and other regulations generally applicable to all businesses. In addition, the
Company's rail subsidiaries, like other rail common carriers, are subject to
regulation by the Surface Transportation Board, the Federal Railroad
Administration, state departments of transportation and other state and local
regulatory agencies. Government regulation of the railroad industry is a
significant determinant of the competitiveness and profitability of railroads.
Deregulation of certain rates and services under the Staggers Rail Act of 1980
(the Staggers Act) has substantially increased the flexibility of railroads to
respond to market forces, but has also resulted in highly competitive and
steadily decreasing rates. Various interests have sought and continue to seek
reimposition of government controls on the railroad industry in areas
deregulated in whole or in part by the Staggers Act. The Company's marine
operations are subject to regulation by the U.S. Coast Guard. Additional
regulation, changes in regulation, re-regulation and certain types of
de-regulation of the industry through legislative, administrative, judicial or
other action could materially affect the Company.
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COMPETITION
The Company faces competition from railroads, motor carriers, shipping
companies and inland barge operations depending upon the market served. The
ability to compete for freight traffic is dependent upon rates charged, as well
as the quality and reliability of the services provided.
ITEM 2. PROPERTIES
THE RAILROAD GROUP
Roadway, Yards and Structures
The Railroad Group has approximately 1,600 miles of track in operation,
consisting of approximately 600 miles of first main track (route miles) and
approximately 1,000 miles of additional main track, passing track, way switching
track and yard switching track.
Principal railroad yard facilities owned by the Railroad Group are
located at Two Harbors, Proctor, and Keenan, Minnesota; Joliet, Illinois; Gary,
Indiana; Conneaut, Ohio; and Greenville, Pennsylvania.
The following table summarizes the Railroad Group's track and roadway
activities for the periods indicated:
Year Ended December 31,
------------------------------
1999 1998 1997
---- ---- ----
Track miles of rail laid .... 69 108 79
Ties inserted (thousands).... 99 128 137
Track miles resurfaced ...... 426 509 411
The Railroad Group owns or leases the equipment described in the table
below.
Owned Leased Total
------------- ------------- --------------
Average Average Average
Description Units Age Units Age Units Age
- ----------- ----- --- ----- --- ----- ---
Locomotives:
Road ...................... 110 32 24 17 134 30
Switcher .................. 99 31 4 27 103 31
------ -- ----- -- ------ --
Total Locomotives ....... 209 32 28 18 237 30
====== == ===== == ====== ==
Freight Cars:
Box ....................... 15 25 -- -- 15 25
Gondola ................... 3,467 25 984 19 4,451 23
Hopper .................... 7,687 42 1,013 18 8,700 39
Flat ...................... 499 35 95 30 594 34
------ -- ----- -- ------ --
Total Freight Cars ...... 11,668 37 2,092 19 13,760 34
====== == ===== == ====== ==
4
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Improvement and ongoing maintenance of roadway, structures and
equipment are essential components of the Company's efforts to improve service
and reduce operating costs. The Railroad Group has made the following capital
expenditures in order to maintain and improve train service:
Railroad Capital Expenditures
(dollars in millions)
Year Ended December 31,
----------------------
1999 1998 1997
---- ---- ----
Roadway and structures ..... $12.2 $15.5 $12.7
Railroad equipment:
Locomotives .............. 3.6 1.0 0.7
Freight cars ............. 2.4 5.7 5.8
Other ...................... 4.9 3.3 5.1
----- ----- -----
Total ................. $23.1 $25.5 $24.3
===== ===== =====
Capital expenditures for the Railroad Group for 2000 are expected to be
approximately $28.7 million, of which approximately $13.8 million are
anticipated for roadway and structures and approximately $5.7 million are for
railroad equipment.
The following table shows the Railroad Group's expenses for ongoing
maintenance and repairs of roadway, structures and railroad equipment (including
administrative and inspection costs) for the periods indicated.
Railroad Maintenance Expenditures
(dollars in millions)
Year Ended December 31,
----------------------
1999 1998 1997
---- ---- ----
Roadway and structures ..... $37.1 $37.0 $41.9
Railroad equipment:
Locomotives .............. 20.6 23.4 23.2
Freight cars ............. 17.5 21.9 22.9
Other ...................... 9.8 10.0 8.3
----- ----- -----
Total .................... $85.0 $92.3 $96.3
===== ===== =====
Future maintenance programs will be determined by track, locomotive and
car requirements necessary to provide quality service at projected business
levels. The Railroad Group maintains full service car and locomotive shops in
Proctor, Minnesota; Joliet, Illinois; Gary, Indiana; and Greenville,
Pennsylvania.
THE MARINE GROUP
The GLF owns ten vessels and leases one additional vessel under
long-term charter agreement. All of the vessels are self-unloaders, with a total
cargo capacity of 362,900 gross tons (GT) at mid-summer draft.
Included in this fleet are four large beam vessels, the Roger Blough,
the Edwin H. Gott, the Edgar B. Speer, and the Presque Isle. These vessels are
the maximum size beam permitted through the locks at Sault Ste. Marie. They
range in size from 858 to 1,004 feet in length and are specifically designed for
and dedicated principally to carrying taconite pellets for USX. The Edgar B.
Speer is operated under a long-term charter.
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It also owns four intermediate size self-unloading carriers which are
the John G. Munson, with a forward deck-mounted boom, the Arthur M. Anderson,
the Cason J. Callaway and the Philip R. Clarke.
The remaining vessels are three smaller, self-unloading vessels. These
include the George A. Sloan, the Calcite II and the Myron C. Taylor, which are
the three shortest vessels in the fleet at just over 600 feet in length with a
60-foot beam. These vessels serve some of the smaller volume cargoes in the
Great Lakes trade.
A list of the GLF's active vessels, all of which are dry bulk
self-unloaders, is set forth in the table below.
Seasonal
Length Capacity Year Capacity
Vessel (feet) (GT)(1) Acquired (M-GT) (2)
------ ------ ------- -------- ----------
Ore Fleet
- ---------
Gott ................... 1,004 62,200 1978 2,378
Speer(3) ............... 1,004 62,200 (4) 1980 2,378
Presque Isle ........... 1,000 52,000 1973 1,930
Blough ................. 858 44,000 (4) 1972 1,914
Anderson ............... 767 25,300 1952 1,048
Callaway ............... 767 25,300 1952 1,048
Clarke ................. 767 25,300 1952 1,048
Stone Fleet
- -----------
Munson ................. 768 25,600 1952 1,867
Sloan .................. 620 15,600 1943 1,087
Calcite II ............. 604 12,900 1929 964
Taylor ................. 603 12,500 1929 1,005
------- ------
Total .................. 362,900 16,667
======= ======
(1) Measured in gross tons of iron ore or taconite pellets at mid-summer draft
mark.
(2) Seasonal capacity in thousand gross tons (M-GT) for the ore fleet is for
shipping between Duluth/Two Harbors, Minnesota and Gary, Indiana and for the
stone fleet between Rogers City, Michigan and Gary, Indiana.
(3) Leased vessel.
(4) Can be unloaded only at dedicated port facilities (Conneaut, Gary, and
Indiana Harbor).
WGN owns 20 towboats and 62 barges and operates another 183 barges
utilizing long-term lease arrangements.
Capital expenditures for the Marine Group of $45.1 million were higher
in 1999 due to the acquisition of a tug barge lake vessel (a formerly leased
vessel) and are expected to be approximately $2.6 million in 2000.
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ITEM 3. LEGAL PROCEEDINGS
There have been no legal proceedings involving Holdings since its
formation. Transtar and certain of its operating subsidiaries are defendants in
lawsuits and actions incident to the normal conduct of its business. While the
results of these lawsuits and actions cannot be predicted with certainty,
Transtar believes the ultimate outcomes will not have a material adverse effect
on the operations, liquidity, capital resources and financial position of
Transtar.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders during
1999.
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PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
Holdings is a Delaware limited partnership and as such its partnership
interests are privately held and are not freely transferable.
ITEM 6. SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
Transtar Holdings, L.P.
As of and for the year ended December 31,
----------------------------------------
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
(dollars in millions)
<S> <C> <C> <C> <C> <C>
Statement of Income Data:
Income from equity in earnings of Transtar ....... $ 28.8 $ 31.3 $ 36.3 $ 37.6 $ 31.1
Interest and other financial expense ............. (27.4) (24.1) (21.3) (18.8) (16.6)
Income from continuing operations ................ 3.7 9.6 17.1 19.6 13.8
Balance Sheet Data:
Investment in Transtar ........................... $ 81.3 $ 54.3 $ 23.8 $ 0.5 $ (15.4)
Total assets ..................................... 134.4 105.5 74.1 50.9 14.0
Long-term debt ................................... 218.1 192.7 169.3 148.8 130.7
Partners' equity (deficit) ....................... (85.4) (87.4) (95.4) (98.6) (117.3)
</TABLE>
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<TABLE>
<CAPTION>
Transtar, Inc.
As of and for the year ended December 31,
----------------------------------------
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
(dollars in millions)
<S> <C> <C> <C> <C> <C>
Statement of Income Data:
Operating revenues............................... $468.3 $497.8 $526.1 $509.1 $494.5
Operating expenses (excluding item shown below)(1) 350.1 367.5 376.3 360.4 352.1
Depreciation .................................... 26.1 25.5 26.8 26.4 26.7
------ ------ ------ ------ ------
Operating income............................... 92.1 104.8 123.0 122.3 115.7
Other income..................................... 2.1 2.3 3.9 1.7 1.1
Interest income.................................. 1.1 1.5 1.0 1.0 1.2
Interest and other financial expense............. (9.5) (12.9) (17.4) (21.3) (24.1)
------ ------ ------ ------ ------
Income before income taxes..................... 85.8 95.7 110.5 103.7 93.9
Provision for income taxes....................... 31.6 36.7 42.1 32.8 35.2
------ ------ ------ ------ ------
Income from continuing operations................ $ 54.2 $ 59.0 $ 68.4 $ 70.9 $ 58.7
====== ====== ====== ====== ======
Other Data:
Consolidated Cash Flow(2)........................ $121.2 $138.0 $160.5 $152.5 $148.6
Cash provided by operating activities............ 82.1 91.9 106.0 113.8 94.0
Cash used for investing activities............... (66.0) (21.2) (19.9) (15.8) (16.9)
Cash used for financing activities............... (23.3) (73.6) (86.4) (83.9) (87.0)
Capital expenditures............................. 68.2 26.4 25.6 19.6 20.3
Dividends paid................................... - - 24.1 40.9 55.8
Non-cash interest(3)............................. 0.5 0.6 0.7 0.7 0.8
Consolidated Cash Flow to cash interest.......... 13.5x 11.2x 9.6x 7.4x 6.4x
Fixed charge coverage ratio(4)................... 12.8x 10.7x 9.2x 7.2x 6.2x
Ratio of earnings to fixed charges(5)............ 5.8x 5.6x 5.4x 4.6x 4.1x
Balance Sheet Data:
Cash and cash equivalents........................ $ 14.3 $ 21.4 $ 24.3 $ 24.7 $ 10.6
Total assets..................................... 562.2 502.8 522.0 515.1 513.7
Long-term debt less current portion.............. -- 66.3 128.8 196.4 265.2
</TABLE>
(1) Operating expenses include non-recurring charges (credits) of $0.9 million,
$3.5 million, $7.0 million, and $(1.0) million for the years ended
December 31, 1999, 1998, 1997, and 1996, respectively. These items relate to
non-recurring labor costs and environmental credits.
(2) Consolidated Cash Flow represents earnings before interest expense,
provision for income taxes, extraordinary item, cumulative effect of change
in accounting principle, depreciation, amortization, special charges and
non-cash SFAS 106 expenses related to other post-retirement benefits.
Consolidated Cash Flow is a non-GAAP measure of performance and should not
be considered as an alternative to net income, or any other GAAP measure of
performance, or to cash flows from operating, investing or financing
activities as a measure of liquidity. Consolidated Cash Flow is presented
because it is a defined term in an indenture and because management believes
it provides useful information regarding the Company's ability to service
and/or incur debt.
(3) Non-cash interest represents amortization of debt issuance costs.
(4) Fixed Charge Coverage Ratio is equal to Consolidated Cash Flow to Fixed
Charges. Fixed charges consist of interest expense and amortization of debt
issuance costs.
(5) Earnings used in computing the ratio of earnings to fixed charges consist of
income before income taxes, cumulative effect of change in accounting
principle and extraordinary items, plus fixed charges. Fixed charges consist
of interest expense, amortization of debt issuance costs, and a portion of
operating lease rental expense that is representative of the interest
factor.
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<PAGE> 12
ITEM 7.
TRANSTAR HOLDINGS, L.P.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Management's Discussion and Analysis of Financial Condition and Results
of Operations is presented as an analysis of Transtar Holdings, L.P.'s
(Holdings) equity investment in Transtar, Inc. (Transtar). Holdings' earnings
are derived primarily from its 54% economic interest in Transtar, and interest
expense related to certain Senior Discount Notes issued in 1993. The following
discussion should be read in conjunction with Holdings' Consolidated Financial
Statements and Transtar's Consolidated Financial Statements and the related
notes thereto included in Item 8 of Part II of this 10-K.
1999 VERSUS 1998 AND 1997
OVERALL
Substantially all of the earnings of Holdings consist of Holdings'
share in the earnings of Transtar accounted for by the equity method, and
interest expense related to the Senior Discount Notes. Holdings' equity in
earnings of Transtar was $28.8 million in 1999 compared to $31.3 million in 1998
and $36.3 million in 1997. For a discussion of the results of operations of
Transtar, see "Management's Discussion and Analysis of Financial Condition and
Results of Operations" for Transtar.
In 1999, Holdings' net income totaled $3.7 million, a decrease of $5.9
million from $9.6 million in 1998 and a $13.4 million decrease from the $17.1
million recorded in 1997.
REVENUES AND EXPENSES
Holdings did not produce any revenues in 1999, 1998, or 1997. Holdings'
operating expenses of $0.2 million in 1999 remained virtually unchanged from
expenses incurred in 1998 and 1997. As a result of accrued interest and
accretion of the Senior Discount Notes issued by Holdings in December 1993,
interest and other financial expenses grew from $21.3 million in 1997, to $24.1
million in 1998, and $27.4 million in 1999.
LIQUIDITY AND CAPITAL RESOURCES
On December 7, 1993, Holdings and Transtar Capital Corporation (TCC)
issued $218 million aggregate principal amount of 13 3/8% Series A Senior
Discount Notes due December 15, 2003. In 1994, Holdings and TCC exchanged the
Series A Notes for Series B Notes (Notes). The first cash interest payment on
the Notes is due on June 15, 2000.
Transtar declared no dividends during 1999 or 1998.
On both October 30 and December 19, 1997, Transtar declared cash
dividends in the amount of $625 per share on both its Class A Voting Common
Stock and its Class B Nonvoting Common stock to holders of record of the stock
on October 28 and December 17, 1997, respectively. During 1997, Holdings
received $12.8 million representing its 53% economic interest in the Transtar
dividends. Pursuant to the Indenture relating to the issuance of the Notes (the
Notes Indenture), both dividend payments were deposited into an escrow account.
In February 1998 and 1997, in accordance with the Notes Indenture,
Holdings offered to repurchase a portion of the Notes at a price equal to 101 %
of the accreted value of such Notes on the date of purchase. The offer to
purchase the Notes was made by a notice to holders of the Notes and was held
open for 20 business days. During 1998, in accordance with the Notes Indenture
and an agreement governing the escrow account, Holdings withdrew from the escrow
account $0.7 million to distribute to its partners and $0.2 million to pay
certain administrative expenses.
10
<PAGE> 13
TRANSTAR HOLDINGS, L.P.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS -- (CONTINUED)
Funds in the escrow account are invested in cash equivalents and may
only be released to pay interest and principal on the Notes, make certain
payments permitted under the Notes Indenture, purchase or optionally redeem
Notes or to pay administrative expenses of Holdings. As of December 31, 1999 the
escrow balance is $49.8 million. Cash interest on the Notes began accruing on
December 15, 1999 in accordance with the Notes Indenture. On June 15, 2000, a
cash interest payment will be due for the period commencing December 15, 1999
and ending on June 15, 2000. Cash interest will thereafter be payable
semi-annually in arrears on June 15 and December 15 of each year. Interest
earned on the escrow balance amounted to $2.5 million, $2.6 million, and $2.4
million in 1999, 1998 and 1997, respectively. The first interest payment on the
Notes will be in the approximate amount of $14.6 million. Funds currently in the
escrow account will be sufficient to make the first three semi-annual interest
payments on the Notes. When funds in the escrow account have been expended
Holdings will be required to seek additional sources of funds in order to make
future interest payments on the Notes. Holdings cannot give any assurances that
they will be able to obtain additional funds in order to make such interest
payments.
The only business activity of Holdings is its investment in Transtar.
Holdings does not require any additional liquidity or capital resources, other
than in connection with the payment of the interest on the Notes and for
professional fees and certain other administrative expenses.
In the past Holdings has received dividends from Transtar in respect of
the Common Stock of Transtar held by Holdings. These dividends have been the
source of substantially all of the money currently on deposit in the escrow
account. Future dividends of Transtar are governed by Transtar's bylaws that
require unanimous approval by the Company's directors to declare a dividend or
other distribution (absent a decision by an independent consultant breaking a
deadlocked vote). Holdings and USX each have the right, pursuant to a
Stockholders Agreement dated as of December 28, 1988, as amended (the
Stockholders' Agreement), to designate certain directors to the board of
directors of the Company. As such, Holdings' ability to cause the Company to
declare and pay a dividend or other distribution is dependent upon the
concurrence of USX and no assurances can be given that USX will concur in the
declaration and payment of such dividends or that any such dividends will
actually be declared and paid.
11
<PAGE> 14
TRANSTAR, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Transtar, Inc. (Transtar or the Company) is a holding company
consisting of two business groups, the Railroad Group and the Marine Group.
1999 VERSUS 1998
OVERALL
Transtar's net income totaled $54.2 million in 1999, compared to net
income of $59.0 million in 1998. Transtar's lower financial results in 1999 were
brought about by decreased demand for the raw materials it transports for its
steel producing customers as well as a decrease in coal delivered for export to
Canada and Asia.
OPERATING REVENUES
Operating revenues in 1999 totaled $468.3 million, or $29.5 million
less than in 1998. Revenue decreases of $5.7 million and $23.8 million were
reported by the Railroad Group and Marine Group, respectively. Cutbacks in
production at the taconite pellet plants served by Transtar were the prime
contributors to these decreases. Some of the decreased production was a result
of the steel industry balancing inventories of raw materials with demand for
steel products. The majority of this decreased demand was spurred by the
domestic steel industry's response to an increase of imported foreign steel in
the marketplace. Two of the commodities most affected were iron ore pellets and
coke. This structural change in the marketplace began late in 1997 and continued
into the fourth quarter of 1999. Revenues generated by the transportation and
handling of raw materials used in the steel production process as well as
revenues for outbound steel products showed decreases from 1998. Additionally,
limestone tonnage, which is traditionally delivered by lake carriers for road
construction and other infrastructure projects, declined over one million tons
from 1998 levels. Increased tonnages of salt and gypsum were not enough to
offset this shortfall. Coal for export from Alabama origins decreased
considerably from the previous year, adversely impacting both Railroad and
Marine results. The loss of in-plant switching at the former USS/Kobe's plant at
Lorain, Ohio caused a revenue decline of almost $8.6 million from 1998 levels at
the Lake Terminal Railroad. Rate reductions that were included in the 1998
Transportation Services Agreements with USX produced approximately the same
level of revenue compression in 1999 as was experienced in 1998. This revenue
compression was partially offset by activity in the Rail Group which experienced
increased haulage and classification trains from several of the Class I
railroads that enter the Chicago market. This improved Transtar revenues by
almost $1.7 million from 1998.
OPERATING EXPENSES
Operating expenses decreased $16.8 million from 1998 levels to $376.2
million in 1999. A reduction in volumes handled was the chief reason for much of
the cost decrease. Contributing to the cost decreases were: 1) declines in
employment levels and associated costs that produced a $12.9 million reduction;
2) reductions in repair and maintenance programs driven by the lower operating
volumes that contributed $7.2 million; 3) reductions in casualty and property
insurance amounting to $2.6 million; 4) a $2.1 million reduction in shifting and
towing expense and mobile equipment rentals on the barge companies; and 5) a
decrease of $1.7 million in the amount recorded to recognize pension costs
associated with the curtailment of in-plant operations by the Lake Terminal
Railroad at USS/Kobe on December 28, 1998. Approximately $7.4 million of the
overall decrease in operating costs is related to this curtailment. Offsetting
the improved costs were $2.4 million of reduced car hire earnings (a
contra-cost) for the Railroad Group and $1.7 million of additional fuel expense
across all of Transtar as the average purchase price of fuel increased by almost
$0.09 per gallon when compared with 1998. Property taxes increased $2.2 million
primarily due to favorable adjustments recorded by the Railroad Group in 1998.
12
<PAGE> 15
TRANSTAR, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS -- (CONTINUED)
OTHER INCOME AND EXPENSE
Transtar's net interest expense decreased by $3.0 million in 1999 from
1998. This decrease is primarily attributed to the retirement of term debt
during 1999. Decreased equity income recorded by the Marine Group contributed to
the reduction of $0.2 million in other income.
PROVISION FOR INCOME TAXES
Transtar's provision for income taxes in 1999 was $31.7 million or a
decrease of $5.0 million from 1998. This decrease is primarily related to the
decline in before tax profit in 1999.
1998 VERSUS 1997
OVERALL
Transtar reported net income of $59.0 million in 1998, compared to net
income of $68.4 million in 1997. Transtar's results in 1998 were driven by
weakening of the domestic steel industry due to lower priced imported steel and
by revenue concessions granted in the 1998 Transportation Services Agreements
with USX and USS/Kobe.
OPERATING REVENUES
Operating revenues in 1998 totaled $497.8 million, or $28.3 million
less than in 1997. Revenue decreases of $9.0 million and $19.3 million were
reported by the Railroad Group and Marine Group, respectively. The softening of
the domestic steel market due to the increase of imported foreign steel, coupled
with implementation of new Transportation Services Agreements in 1998 severely
impacted revenues. Revenues generated by the transportation and handling of raw
materials used in the steel production process, such as ore and coke, as well as
outbound steel products all showed decreases from 1997 amounting to $34.9
million. Approximately one-third of this change was driven by rate reductions
granted in the new Transportation Services Agreements. Demurrage revenues,
resulting primarily from industry retention of railroad freight cars, increased
$2.3 million. In spite of rate reductions included in the new Transportation
Services Agreements, coal and associated dock handling revenues improved by $7.8
million, due to the increased demand for coal deliveries to Great Lakes
customers and increased shipments from Alabama origins destined for export.
OPERATING EXPENSES
Operating expenses decreased $10.1 million from 1997 levels to $393.0
million in 1998. Contributing to the overall cost decreases were: 1) lower
diesel fuel prices which contributed to a $7.0 million reduction in fuel
expense; 2) favorable property tax adjustments recorded in 1998 which reduced
state and local taxes by $1.2 million; 3) changes in asset lives which resulted
in decreased depreciation expense of $1.3 million; 4) recognition in 1997 of
$7.0 million of expense associated with a limited early retirement program and
an accounting department consolidation; 5) increased recovery in 1998 of
maintenance expenses which are shared with third parties in the amount of $2.7
million; 6) decreases in casualty expense and liability insurance of $2.3
million; 7) a $1.2 million reduction in shifting and towing expense and mobile
equipment rentals on the barge lines; and 8) increased allocation of labor
forces to capital improvement projects which reduced operating expenses by $1.5
million. Partially offsetting these cost decreases were: 1) increased labor
expense of $6.3 million reflecting contractual wage increases, additional hours
worked and higher health insurance costs; 2) additional lease cost of $0.8
million reflecting new leases of freight cars and barges commencing during 1998;
3) reduced net car hire earnings (a contra-cost) of $1.1 million due to the
weakened domestic steel market and fewer off-line loadings for a large portion
of Transtar's gondola freight car fleet; and 4) recognition of $3.5 million of
expense associated with a partial curtailment of services provided by the Lake
Terminal Railroad due to a reduction in business at USS/Kobe, and further
accounting department consolidation.
13
<PAGE> 16
TRANSTAR, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS -- (CONTINUED)
OTHER INCOME AND EXPENSE
Transtar's net interest expense decreased by $4.9 million in 1998 from
1997. This decrease is primarily attributed to the retirement of $72.0 million
of term debt during 1998. Fewer land sales agreements by the Railroad Group in
1998 and decreased equity income recorded by the Marine Group resulted in a
reduction of $1.5 million in other income.
PROVISION FOR INCOME TAXES
Transtar's provision for income taxes in 1998 was $36.7 million or a
decrease of $5.4 million from 1997, and is directly related to the decline in
before tax profit in 1998.
LIQUIDITY AND CAPITAL RESOURCES
LIQUIDITY
Transtar ended 1999 with cash and cash equivalents totaling $14.3
million, which was $7.1 million less than the $21.4 million it had at year-end
1998.
On June 29, 1999, Transtar entered into a Short Term Credit Agreement
(Short Term Credit Facility) which enabled it to borrow $30 million on an
unsecured term basis. The Short Term Credit Facility was used by Transtar to
finance a portion of the purchase price of a tug barge lake vessel which
previously was operated by Transtar under a long-term lease. Also, on June 29,
1999 Transtar borrowed $15 million from its existing revolving credit facility
to finance the remainder of the purchase price of the tug barge. On August 26,
1999, Transtar amended and restated its Credit Agreement dated December 7, 1993
(the original Credit Agreement) to provide for certain lenders to make
additional term loans to Transtar of up to $45 million. The proceeds of these
loans were used to refinance indebtedness of $30 million under the Short Term
Credit Facility, and to repay $15 million of revolving credit loans. The Credit
Agreement as amended and restated provides for Tranche A Term Loans of $85
million (the amount outstanding as of August 26, 1999 under the Original Credit
Agreement) and Tranche B Term Loans of $45 million, all of which are
collateralized by the stock of Transtar's subsidiaries.
During 1999, Transtar retired $59.0 million of its combined term loan
obligations compared to $72.0 million retired during 1998. Of the $59.0 million
repaid in 1999, $1.0 million represented a payment against Tranche B debt. At
December 31, 1999, Transtar had $110.0 million of term loan obligations
remaining, including $66.0 million due under Tranche A and $44.0 million due
under Tranche B. Transtar expects to repay its obligation's from its operating
cash flow and from proceeds acquired through a future refinancing of its Tranche
B debt, or a sale-leaseback transaction involving the tug barge. Transtar paid
no dividends in either 1999 or 1998, compared with the $24.1 million paid to its
shareholders in 1997.
Contractual commitments in the amount of $14.5 million were made in
1999 to acquire components for the assembly of 280 freight cars. The acquisition
of the freight car components began in mid 1999 and was in response to a
commitment under the Transportation Services Agreement with USX that requires
Transtar to spend up to $20.0 million to assure the continuance of in-plant coke
movements at its Gary Works. Transtar is operating the first 26 of these freight
cars under a long-term lease arrangement, and it is anticipated that the
remainder of the fleet will also be leased.
14
<PAGE> 17
TRANSTAR, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS -- (CONTINUED)
Transtar and certain of its operating subsidiaries are defendants in
lawsuits and actions in which claims have been made against the Company. While
the results of these lawsuits and actions cannot be predicted with certainty,
the Company believes the ultimate outcomes will not have a material adverse
effect on the operations, liquidity, capital resources, or financial position of
Transtar.
CAPITAL RESOURCES
Net cash used for investing activities in 1999 was $66.0 million or
$44.7 million more than 1998. This change reflects increased capital spending in
1999 of $41.8 million and a $3.0 million decrease in proceeds from disposition
of assets.
Cash used for financing activities in 1999 decreased by $50.3 million
from 1998. This decrease was influenced by Transtar's new borrowing of $45.0
million to finance the acquisition of a tug barge lake vessel. Cash used for
term loan debt retirements decreased by $13.0 million from 1998. In 1999,
Transtar repaid $59.0 million of its term debt obligations versus the $72.0
million it repaid in 1998 and the $62.0 million it repaid in 1997. In 1999 and
1998, no dividends were paid to stockholders, compared with $24.1 million in
1997
CAPITAL EXPENDITURES
Transtar's capital requirements during 2000 are forecasted to be
approximately $31.3 million. Internally generated funds from operations are
expected to be sufficient to repay Transtar's Tranche A term loan obligations of
$66 million due in 2000. The Tranche B obligations associated with the
acquisition of the tug barge will be refinanced prior to December 31, 2000.
In 1999, capital expenditures of $68.2 million increased by $41.8
million from 1998, primarily as a result of the acquisition of the formerly
leased tug barge. Capital expenditures in 1998 totaled $26.4 million, or $0.8
million more than in 1997. In addition to these capital expenditures, the
Company spent $104.1 million in 1999, $113.2 million in 1998, and $117.6 million
in 1997 for repair and maintenance of its facilities and equipment.
ENVIRONMENTAL MATTERS
Transtar is subject to federal, state, and local laws and regulations
relating to the environment. These laws regulate discharges into the
environment, as well as the handling, storage, transportation, and disposal of
waste and hazardous materials. These laws also require responsible parties to
undertake remediation of hazardous waste disposal sites. Transtar provides for
remediation costs and penalties when the responsibility to remediate is probable
and the amount of associated costs are reasonably determinable. Certain Transtar
operating subsidiaries have been identified as potentially responsible parties
under the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) and are required to share the cost to remediate certain Superfund sites
identified by the Environmental Protection Agency (EPA). In those instances
where the probable costs of cleanup are estimable, Transtar has recorded a
liability. At December 31, 1999 accrued liabilities for remediation totaled $0.2
million. This represents a decrease of $0.2 million from the December 31, 1998
balance. The Company has considered the other potentially responsible parties in
determining this accrual. For the period 1989 through 1999, actual cash payments
associated with environmental expense have totaled $10.5 million.
15
<PAGE> 18
TRANSTAR, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS -- (CONTINUED)
Transtar and USX have entered into an environmental indemnification
agreement, whereby USX has agreed to indemnify Transtar against 75 percent of
certain environmental claims, losses, liabilities, obligations, damages,
deficiencies, costs, and expenses (collectively, Environmental Liabilities) in
excess of $10 million. This environmental indemnification agreement covers
Environmental Liabilities relating to certain assets and properties transferred
by USX to Transtar upon the formation of Transtar, which Environmental
Liabilities existed or occurred prior to such formation. Of the $10.5 million
expended since 1988, $7.9 million is applicable to the $10 million threshold.
Although it is not presently possible to estimate the ultimate amount of all
remediation and compliance costs that might be incurred or the penalties that
may be imposed, management does not believe these potential costs will have a
material adverse effect on the Company.
YEAR 2000
Transtar's management was confident that the plan it had devised to
address the Year 2000 issue would permit an interruption free and seamless
transition from 1999 to 2000. This plan addressed mainframe information systems,
non-information technology systems, as well as, third parties. The mainframe
information systems portion of this plan cost Transtar approximately $5.0
million to implement. With minor exceptions, hardware, system software and
applications software performed without failure as the Year 2000 dawned.
Non-information technology systems, integral parts of Transtar's rail
and marine operations, also performed without interruption during the year
change. During management's preparedness review, several upgrades and
replacements were made to ensure Year 2000 compliance. Including these
non-information technology systems, Transtar spent approximately $6.6 million to
become Year 2000 ready.
While Transtar management knows of no situation where its critical
information and operating systems were not Year 2000 ready, there can be no
guarantee that other Year 2000 problems will not surface.
TRANSPORTATION SERVICES AGREEMENTS WITH USX
On June 30, 1998 Transtar reached agreement in principle with USX on
new Transportation Services Agreements with final agreement reached December 21,
1998. (See Note 13 to Consolidated Financial Statements). The new Agreements
were approved by the lending institutions that participate in Transtar's Credit
Agreement on February 12, 1999. These agreements generally extend through
December 31, 2004, and ensure Transtar's continued presence at all of the US
Steel and US Steel Mining facilities it presently services. Third parties will
be permitted to handle certain volumes of selected commodities. Rate reductions
included in the new Transportation Services Agreements reduced Transtar's
operating revenues and operating income by $14.5 million in 1999 and $14.4
million in 1998 as compared to 1997 levels for both years.
REPUBLIC TECHNOLOGIES / LORAIN TUBULAR
(USS/KOBE STEEL MILLS)
Since 1895, the Lake Terminal Railroad (a Transtar subsidiary) had
performed intra-plant switching of hot metal and other steel products within the
USS/Kobe Steel mill, maintained the rail line that operates inside and around
this facility, and provided maintenance services to USS/Kobe's freight car and
locomotive fleet. In 1998 USS/Kobe elected to terminate the in-plant switching
services provided by the Lake Terminal Railroad on tracks owned by USS/Kobe, as
well as the maintenance services. Effective December 29, 1998 under the terms of
a new Transportation
16
<PAGE> 19
TRANSTAR, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS -- (CONTINUED)
Services Agreement, which extends through December 31, 2008, the Lake Terminal
Railroad only provides interchange service between linehaul carriers and the
in-plant rail provider for this facility. As a result, Transtar experienced a
decrease of approximately $8.6 million in revenues, with a $1.1 million negative
impact on before tax income.
On August 13, 1999, USS/Kobe concluded a transaction whereby Blackstone
Capital Partners II acquired the steelmaking and bar producing assets of
USS/Kobe Steel Company at Lorain, Ohio. These facilities are being operated
under the name of Republic Technologies International, L.L.C. USX, which owned
50 percent of USS/Kobe, now owns approximately 16 percent of Republic. The
remaining portion of the USS/Kobe facilities was renamed Lorain Tubular, L.L.C.
Lorain Tubular owns and operates two seamless tubular mills in Lorain, Ohio. On
December 31, 1999, USS acquired Kobe Steel's 50 percent interest in Lorain
Tubular. Transtar's Transportation Service Agreement with these companies'
predecessor (USS/Kobe) has survived these transactions.
FORWARD-LOOKING STATEMENTS
Statements in this report that are not historical (including, but not
limited to, statements regarding the future impact of the Transportation
Services Agreements) are forward-looking statements subject to risk and
uncertainties that could cause actual results to differ materially. Such risk
and uncertainties include fluctuations in economies worldwide, in general, and
the industries that Transtar serves, in particular, fluctuations in Transtar's
customer demand for transportation and related services, changes in
relationships with key customers (including the loss of certain major
customers), changes in variations in weather and climatic patterns, competitive
pressure from other carriers, changes in governmental regulations, changes in
terms from lenders, ability to retain key management and to reach agreement on
labor issues, or other factors identified in this report.
ITEM 7 A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
17
<PAGE> 20
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
TRANSTAR HOLDINGS, L.P.
Page
----
Report of Independent Accountants ......................................... 19
Consolidated Balance Sheet as of December 31, 1999 and 1998 ............... 20
Consolidated Statement of Income for the Years Ended December 31,
1999, 1998 and 1997 ....................................................... 21
Consolidated Statement of Partners' Equity for the Years Ended
December 31, 1999, 1998 and 1997 .......................................... 21
Consolidated Statement of Cash Flows for the Years Ended December 31,
1999, 1998 and 1997 ....................................................... 22
Notes to Consolidated Financial Statements ................................ 23
TRANSTAR, INC.
Report of Independent Accountants ......................................... 26
Consolidated Balance Sheet as of December 31, 1999 and 1998 ............... 27
Consolidated Statement of Income for the Years Ended December 31,
1999, 1998 and 1997 ....................................................... 28
Consolidated Statement of Retained Earnings for the Years Ended
December 31, 1999, 1998 and 1997 .......................................... 28
Consolidated Statement of Cash Flows for the Years Ended December 31,
1999, 1998 and 1997 ....................................................... 29
Notes to Consolidated Financial Statements ................................ 30
18
<PAGE> 21
REPORT OF INDEPENDENT ACCOUNTANTS
To the Partners of Transtar Holdings, L.P.
In our opinion, the consolidated financial statements of Transtar Holdings,
L.P., as listed in the accompanying index on page 18 of the Annual Report on
Form 10-K, present fairly, in all material respects, the financial position of
Transtar Holdings, L.P. and its subsidiary, Transtar Capital Corporation (TCC),
(together, "Holdings") at December 31, 1999, and 1998, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1999, in conformity with accounting principles generally accepted
in the United States. These financial statements are the responsibility of
Holdings' management; our responsibility is to express an opinion on these
financial statements based on our audits. We conducted our audits of these
statements in accordance with auditing standards generally accepted in the
United States, which 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, assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for the opinion expressed above.
Transtar, Inc. is a significant equity investment of Holdings (as described in
Note 1, page 23); accordingly, the financial statements of Transtar, Inc. should
be read in connection with the consolidated financial statements of Holdings.
PricewaterhouseCoopers LLP
600 Grant Street
Pittsburgh, PA 15219
February 24, 2000
19
<PAGE> 22
TRANSTAR HOLDINGS, L.P.
CONSOLIDATED BALANCE SHEET
December 31,
1999 1998
-------- --------
(dollars in thousands)
ASSETS
Current assets:
Cash and cash equivalents (Note 2)....................... $ 299 $ 286
Other current assets..................................... 10 8
-------- --------
Total current assets................................... 309 294
Restricted cash (Note 4)................................... 49,846 47,328
Investment in Transtar..................................... 81,340 54,258
Other assets .............................................. 2,891 3,629
-------- --------
Total assets........................................... $134,386 $105,509
======== ========
LIABILITIES
Current liabilities:
Accounts payable and other current liabilities........... $ 389 $ 205
Accrued interest 1,296 --
-------- --------
Total current liabilities 1,685 205
Long-term debt (Note 3).................................... 218,080 192,736
-------- --------
Total liabilities...................................... 219,765 192,941
PARTNERS' EQUITY (DEFICIT)............................. (85,379) (87,432)
-------- --------
Total liabilities and partners' equity (deficit)....... $134,386 $105,509
======== ========
The accompanying notes are an integral part of these consolidated
financial statements.
20
<PAGE> 23
TRANSTAR HOLDINGS, L.P.
CONSOLIDATED STATEMENT OF INCOME
<TABLE>
<CAPTION>
For the year ended December 31,
1999 1998 1997
---- ---- ----
(dollars in thousands)
<S> <C> <C> <C>
Revenues............................................. $ -- $ -- $ --
-------- -------- --------
Operating expenses:
Selling, general and administrative expenses..... 182 198 236
-------- -------- --------
Operating (loss)............................. (182) (198) (236)
Interest income...................................... 2,532 2,604 2,369
Interest and other financial expenses................ (27,379) (24,143) (21,301)
-------- -------- --------
(Loss) before equity in earnings of Transtar..... (25,029) (21,737) (19,168)
Equity in earnings of Transtar ...................... 28,754 31,349 36,267
-------- -------- --------
Net income....................................... $ 3,725 $ 9,612 $ 17,099
======== ======== ========
CONSOLIDATED STATEMENT OF PARTNERS' EQUITY
Partners' equity (deficit), beginning of year........ $(87,432) $(95,370) $(98,606)
Distribution to partners (Note 4).................... -- (745) (13,692)
Net income........................................... 3,725 9,612 17,099
Other adjustments to partners' equity (Note 5)....... (1,672) (929) (171)
-------- -------- --------
Partners' equity (deficit), end of year.............. $(85,379) $(87,432) $(95,370)
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
21
<PAGE> 24
TRANSTAR HOLDINGS, L.P.
CONSOLIDATED STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
For the year ended December 31,
------------------------------
1999 1998 1997
------ ------ ------
(dollars in thousands)
<S> <C> <C> <C>
Operating activities:
Net income .................................................... $ 3,725 $ 9,612 $ 17,099
Adjustments to reconcile net income to net cash
used by operating activities:
Amortization ................................................ -- -- 345
Non-cash interest and other financial expenses .............. 27,379 24,143 21,301
Non-cash interest income .................................... (2,519) (2,578) (2,358)
Equity in earnings of Transtar .............................. (28,754) (31,349) (36,267)
Changes in:
Accounts payable .......................................... 184 19 (543)
All other changes - net ................................... (2) (21) (3)
------- ------- -------
Net cash provided by (used for) operating activities .... 13 (174) (426)
------- ------- -------
Investing activities:
Dividends received ............................................ -- -- 12,750
------- ------- -------
Net cash provided by investing activities ............... -- -- 12,750
------- ------- -------
Financing activities:
Restricted cash ............................................... -- -- (12,750)
Distribution to partners ...................................... -- (745) (13,692)
Withdrawal from restricted cash ............................... -- 945 13,992
-------- -------- --------
Net cash provided by (used for) financing activities .... -- 200 (12,450)
-------- -------- --------
Increase (decrease) in cash and cash equivalents ................ 13 26 (126)
Cash and cash equivalents at beginning of period ................ 286 260 386
-------- -------- --------
Cash and cash equivalents at end of period ...................... $ 299 $ 286 $ 260
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
22
<PAGE> 25
TRANSTAR HOLDINGS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1: BACKGROUND AND BASIS OF FINANCIAL STATEMENT PRESENTATION AND RELATED
PARTIES
On December 28, 1988, agreements were executed forming a new holding
company, Transtar, Inc. (Transtar). Transtar, in turn, purchased certain former
directly or indirectly wholly owned subsidiaries (the transportation
subsidiaries) of USX Corporation (USX). As a result of these agreements,
Blackstone Capital Partners L.P. (BCP) and Blackstone Transportation Partners
L.P. (BTP), investment partnerships (collectively, Blackstone) controlled by
their general partner Blackstone Management Associates L.P. (BMA), owned a 51
percent economic and voting interest in Transtar. USX held a 44 percent economic
and 49 percent voting interest, and the remaining 5 percent of Transtar's equity
was held as nonvoting shares by a management stock trust. A Technical Services
Agreement, an Agreement as to Tax Matters between Transtar and USX, and other
ancillary agreements exist as a result of this transaction. Transportation
Services Agreements with USX and other related parties which existed at the time
of the transaction were renegotiated in 1998 (See Note 13 of the Transtar, Inc.
Financial Statements for additional details).
BTP was originally formed in 1988 for the sole purpose of holding
voting stock and nonvoting stock in Transtar. BTP was renamed Transtar Holdings,
L.P. (Holdings) in November 1993. Additionally, in November 1993, BMA withdrew
from its role as general partner of Holdings and substituted Blackstone
Transportation Company, Inc. (BTC) as the general partner of Holdings. Transtar
Capital Corporation, a Delaware corporation and wholly owned subsidiary of
Holdings (TCC), was formed in connection with an Offering of 13 3/8% Series A
Senior Discount Notes. In 1994, Holdings and TCC exchanged the Series A Notes
for Series B Notes (Notes). Holdings and TCC have no operations of their own.
TCC is a shell corporation which has nominal assets and equity and no
liabilities, operations or cash flows. Accordingly, the financial statements of
TCC are not presented because they do not provide material information to
investors. Holdings owns 51.0 percent of the voting shares and 53.5 percent of
the economic interest in the capital stock of Transtar.
The consolidated financial statements presented herein reflect the
ownership by Holdings of the outstanding shares of Transtar capital stock
formerly held by Blackstone. Since Holdings and BCP are under common control,
the contribution of BCP's Transtar shares to Holdings has been accounted for in
a manner similar to a pooling of interests.
NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation -- The consolidated financial statements of
Holdings include the accounts of Holdings and TCC, a wholly owned subsidiary.
The investment in Transtar, over which Holdings has significant influence in
management and control, is accounted for using the equity method and is carried
in the investment account at Holdings' share of net assets plus advances. A
proportionate share of Transtar's income is included as equity in earnings of
Transtar.
Cash and Cash Equivalents -- Cash and cash equivalents includes cash on
hand and time deposits, certificates of deposit, high-grade commercial paper,
and government securities, all purchased with maturities of three months or
less, and all of which are carried at cost which approximates market.
Income Taxes -- No current or deferred United States federal income
taxes or state income taxes have been provided for Holdings since, as a
partnership, Holdings is not subject to such taxes.
Deferred Debt Issue Costs -- Deferred debt issue costs represent the
unamortized portion of capitalized fees and expenses relating to issuance of the
Notes on December 7, 1993. At that time, fees and expenses amounting to $7.0
million were capitalized. During 1994, additional fees amounting to $0.3 million
were capitalized.
23
<PAGE> 26
TRANSTAR HOLDINGS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE 2: (CONTINUED)
Use of Estimates -- Generally accepted accounting principles require
management to make estimates and assumptions that affect the reported amounts of
assets and liabilities, the disclosure of contingent assets and liabilities at
year-end and the reported amounts of revenues and expenses during the year.
NOTE 3: LONG-TERM DEBT
<TABLE>
<CAPTION>
Interest December 31, December 31,
Rate (%) Maturity 1999 1998
-------- -------- -------- --------
(dollars in thousands)
<S> <C> <C> <C> <C>
Series B Senior Discount Notes .......... 13.375 2003 $218,080 $192,736
Less amount due within one year........ -- --
-------- --------
Long-term debt due after one year...... $218,080 $192,736
======== ========
</TABLE>
On December 7, 1993, Holdings and TCC (Issuers) issued $218 million
aggregate principal amount of 13.375 percent Series A Senior Discount Notes due
December 15, 2003. In 1994, Holdings and TCC exchanged the Series A Notes for
Series B Notes (Notes). The Notes are the joint and several obligations of the
Issuers. An original issue discount of $118 million was amortized over a six
year period commencing December 15, 1993 and ending December 15, 1999. Interest
will be payable semi-annually in arrears on June 15 and December 15 commencing
on June 15, 2000. The Notes have a principal at maturity of $218 million. The
carrying value represents the principal at maturity less the unamortized
discount. The fair value of the Notes at December 31, 1999 and 1998 was $223.0
million and $214.8 million, respectively. Fair value of the Notes is based on
quoted market prices. The Notes are not guaranteed by Transtar or any of its
subsidiaries and are subordinated to all existing and future liabilities of the
Issuers' subsidiaries. Interest expense attributable to the Notes was $26.6
million, $23.4 million and $20.6 million in 1999, 1998 and 1997, respectively.
The Issuers will be dependent on sales of, or dividends or
distributions on, Holdings' Transtar stock in order to meet their obligations
under the Notes or new notes as applicable. Except as noted below, Transtar's
December 7, 1993 Credit Agreement (the Credit Agreement) prohibits the payment
of dividends exceeding $1.5 million annually by Transtar until the sixth
anniversary of the issuance of the Notes or new notes, as applicable. Commencing
on the sixth anniversary of the issuance of the Notes or new notes, the Credit
Agreement will permit the payment of dividends sufficient to fund the next cash
interest payment on the Notes or new notes so long as no default with respect to
that Credit Agreement has occurred and is continuing at such time or would
result from the payment of such dividends. Transtar's by-laws require unanimous
approval of Transtar's directors to declare a dividend or other distribution
(absent a decision by an independent consultant breaking a deadlocked vote).
Holdings and USX each have the right, pursuant to a Stockholders Agreement dated
as of December 28, 1988, as amended (the Stockholders Agreement), to designate
certain directors to the board of directors of Transtar. As such, Holdings'
ability to cause Transtar to declare and pay a dividend or other distribution is
dependent upon the concurrence of USX.
On October 9, 1997, Transtar and the lending institutions that are
party to the Credit Agreement approved an amendment that permitted Transtar to
pay dividends during the fiscal year ending December 31, 1997 in an amount not
to exceed $25.0 million. (See Note 4)
24
<PAGE> 27
TRANSTAR HOLDINGS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE 4: RELATED PARTY TRANSACTIONS
On October 27, 1997, Transtar declared a cash dividend in the amount of
$625 per share on both its Class A Voting Common Stock (Voting Stock) and its
Class B Nonvoting Common Stock (Nonvoting Stock) to holders of record of the
stock on October 27, 1997. Holdings received $6.4 million on October 30, 1997,
representing its 53% economic interest in the Transtar dividend. Pursuant to an
Indenture relating to the issuance of the Notes (the Notes Indenture), the
dividend payment was paid into an escrow account. On December 16, 1997, Transtar
declared a cash dividend of $625 per share on both its Voting Stock and its
Nonvoting Stock to holders of record of the stock on December 16, 1997. Holdings
received $6.4 million on December 19, 1997, representing its 53% economic
interest in the Transtar dividend. In accordance with the Notes Indenture, this
dividend was paid into the escrow account.
In February 1998, in accordance with the Notes Indenture, Holdings
offered to repurchase a portion of the Notes at an offer price equal to 101% of
the accreted value of such Notes on the date of purchase. The offer to purchase
the Notes was made by a notice to holders of the Notes and was held open for 20
business days. No Notes were tendered for repurchase.
In February 1997, in accordance with the Notes Indenture and related to
certain dividends paid into the escrow account in 1996, Holdings offered to
repurchase a portion of the Notes at an offer price equal to 101% of the
accreted value of such Notes on the date of purchase. The offer to purchase the
Notes was made by a notice to holders of the Notes and was held open for 20
business days. No Notes were tendered for repurchase.
Funds in the escrow account are invested in cash equivalents and may
only be released to pay interest and principal on the Notes, make certain
payments permitted under the Notes Indenture, purchase or optionally redeem
Notes or to pay administrative expenses of Holdings. In 1998 and 1997, in
accordance with the Notes Indenture and an agreement governing the escrow
account, Holdings withdrew from the escrow account $0.7 million and $13.7
million, respectively, to distribute to its partners, and withdrew $0.2 million
and $0.3 million, respectively, to pay certain administrative expenses. No funds
were withdrawn from the escrow account in 1999. Interest earned on the escrow
balance amounted to $2.5 million, $2.6 million and $2.4 million in 1999, 1998
and 1997, respectively.
NOTE 5: PARTNERS' EQUITY
In 1999, 1998 and 1997, Holdings recorded adjustments to Partners
Equity of $(1.7) million, $(0.9) million and $(0.2) million, respectively. These
adjustments were recorded as a result of changes in ownership related to
Transtar repurchases of treasury stock from its Management Stock Trust.
25
<PAGE> 28
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of
Transtar, Inc.
In our opinion, the consolidated financial statements of Transtar, Inc., as
listed in the accompanying index on page 18 of this Annual Report on Form 10-K,
present fairly, in all material respects, the financial position of Transtar,
Inc., and its subsidiaries (the Company) at December 31, 1999 and 1998, and the
results of their operations and their cash flows for each of the three years in
the period ended December 31, 1999, in conformity with accounting principles
generally accepted in the United States. These financial statements are the
responsibility of the Company's management; our responsibility is to express an
opinion on these financial statements based on our audits. We conducted our
audits of these statements in accordance with auditing standards generally
accepted in the United States, which 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, assessing
the accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for the opinion expressed above.
PricewaterhouseCoopers LLP
600 Grant Street
Pittsburgh, PA 15219
February 24, 2000
26
<PAGE> 29
TRANSTAR, INC.
CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
December 31,
-----------------------------
1999 1998
--------- ---------
(dollars in thousands)
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents (Note 2) ............... $ 14,274 $ 21,428
Accounts receivable from related parties (Note 13) 20,921 14,499
Accounts receivable from trade customers ......... 62,017 46,778
Other current assets (Note 6) .................... 11,049 10,181
-------- --------
Total current assets ........................... 108,261 92,886
Property, plant, and equipment
less accumulated depreciation (Note 7) ........... 417,902 379,287
Operating parts and supplies ....................... 14,344 14,930
Other assets (Note 8) .............................. 21,690 15,701
-------- --------
Total assets ................................... $562,197 $502,804
======== ========
LIABILITIES
Current liabilities:
Accounts payable ................................. $ 75,047 $ 64,560
Payroll and benefits payable ..................... 39,059 38,614
Accrued taxes .................................... 13,447 6,215
Accrued interest ................................. 1,299 1,146
Current portion of long-term debt (Note 9) ....... 110,000 57,700
Other current liabilities ........................ 1,560 1,498
-------- --------
Total current liabilities ...................... 240,412 169,733
Long-term debt less current portion (Note 9) ....... -- 66,300
Postretirement benefits other than pensions (Note 3) 112,589 110,425
Deferred credits and other liabilities (Note 11) ... 57,281 53,704
-------- --------
Total liabilities .............................. 410,282 400,162
STOCKHOLDERS' EQUITY
Common stock (Note 12) ............................. 1,000 1,000
Paid-in capital (Note 12) .......................... 28,601 23,417
Retained earnings .................................. 139,742 85,577
Treasury stock (Note 12) ........................... (17,428) (7,352)
-------- --------
Total stockholders' equity ..................... 151,915 102,642
-------- --------
Total liabilities and stockholders' equity ..... $562,197 $502,804
======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
27
<PAGE> 30
TRANSTAR, INC.
CONSOLIDATED STATEMENT OF INCOME
<TABLE>
<CAPTION>
For the year ended December 31,
-----------------------------------------------
1999 1998 1997
--------- --------- ---------
(dollars in thousands)
<S> <C> <C> <C>
Revenues from related parties (Note 13) ...................... $241,506 $278,546 $307,037
Revenues from others ......................................... 226,779 219,271 219,078
-------- -------- --------
Total revenues ............................................. 468,285 497,817 526,115
-------- -------- --------
Operating expenses (excluding items shown below) ............. 332,654 355,146 363,784
Selling, general, and administrative expenses ................ 17,447 12,370 12,558
Depreciation ................................................. 26,121 25,519 26,820
-------- -------- --------
Total operating expenses ................................... 376,222 393,035 403,162
-------- -------- --------
Operating income ......................................... 92,063 104,782 122,953
Other income ................................................. 2,190 2,380 3,899
Interest income .............................................. 1,093 1,537 1,085
Interest and other financial expenses ........................ (9,516) (12,942) (17,358)
-------- -------- --------
Income before income taxes ................................. 85,830 95,757 110,579
Less provision for income taxes (Note 5) ..................... 31,665 36,718 42,134
-------- -------- --------
Net income ................................................. $ 54,165 $ 59,039 $ 68,445
======== ======== ========
CONSOLIDATED STATEMENT OF RETAINED EARNINGS
Retained earnings (deficit), beginning of period ............. $ 85,577 $ 26,538 $(17,822)
Dividends paid (Note 12) ..................................... -- -- (24,085)
Net income ................................................... 54,165 59,039 68,445
-------- -------- --------
Retained earnings, end of period ............................. $139,742 $ 85,577 $ 26,538
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
28
<PAGE> 31
TRANSTAR, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
For the year ended December 31,
--------------------------------
1999 1998 1997
-------- -------- --------
(dollars in thousands)
<S> <C> <C> <C>
Operating activities:
Net income ................................................ $ 54,165 $ 59,039 $ 68,445
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation ............................................ 26,121 25,519 26,820
Non cash interest expense ............................... 504 554 652
Deferred taxes .......................................... 2,450 5,740 5,879
Gain on sale of assets .................................. (527) (1,141) (2,676)
Non cash postretirement benefits expense ................ 2,060 4,253 3,781
Changes in:
Accounts receivable ................................... (21,661) 9,866 (7,787)
Accounts payable ...................................... 10,487 (9,103) 7,633
Deferred credits ...................................... 925 2,195 (183)
All other changes - net ............................... 7,573 (5,017) 3,387
-------- -------- --------
Net cash provided by operating activities ............. 82,097 91,905 105,951
-------- -------- --------
Investing activities:
Capital expenditures .................................... (68,173) (26,414) (25,644)
Proceeds from the sale of assets ........................ 2,196 5,178 5,730
-------- -------- --------
Net cash used for investing activities ................ (65,977) (21,236) (19,914)
-------- -------- --------
Financing activities:
New long-term debt borrowings ........................... 45,000 -- --
Repayment of long-term borrowings ....................... (59,000) (72,000) (62,002)
Dividends paid .......................................... -- -- (24,085)
Payments to acquire treasury stock ...................... (9,274) (1,557) (325)
-------- -------- --------
Net cash used for financing activities ................ (23,274) (73,557) (86,412)
-------- -------- --------
Decrease in cash and cash equivalents ..................... (7,154) (2,888) (375)
Cash and cash equivalents at beginning of period .......... 21,428 24,316 24,691
-------- -------- --------
Cash and cash equivalents at end of period ................ $ 14,274 $ 21,428 $ 24,316
======== ======== ========
Supplemental information:
Income taxes paid ....................................... $ 21,662 $ 36,006 $ 35,537
Interest paid ........................................... $ 8,761 $ 13,242 $ 17,394
Noncash investing and financing activities:
Long-term borrowings - capital leases ................... $ -- $ (1,230) $ 1,230
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
29
<PAGE> 32
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1: FORMATION OF HOLDING COMPANY AND RELATED PARTIES
On December 28, 1988, agreements were executed to form a new holding
company, Transtar, Inc. (Transtar). Transtar, in turn, purchased certain former
directly or indirectly wholly owned subsidiaries (the transportation
subsidiaries) of USX Corporation (USX). As a result of these agreements,
Blackstone Capital Partners, L.P. and Blackstone Transportation Partners, L.P.
(BTP), investment partnerships (collectively, Blackstone) controlled by their
general partner Blackstone Management Associates, L.P. (BMA), owned a 51 percent
economic and voting interest in Transtar. USX held a 44 percent economic and 49
percent voting interest, and the remaining 5 percent of Transtar's equity was
held as nonvoting shares by a management stock trust. A Technical Services
Agreement, an Agreement as to Tax Matters between Transtar and USX, and other
ancillary agreements exist as a result of this transaction. Transportation
Services Agreements with USX and other related parties which existed at the time
of the transaction were renegotiated in 1998. A significant part of Transtar's
operations are with related parties (See Note 13). Transtar's operations are
conducted in two business segments -- railroad operations and marine operations.
BTP was originally formed in 1988 for the sole purpose of holding
voting stock and nonvoting stock in Transtar. In November 1993, BTP was renamed
Transtar Holdings, L.P., a Delaware limited partnership (Holdings), which
assumed ownership of BTP's then 51.8 percent economic interest and 51 percent
voting interest in the capital stock of Transtar. Holdings has no operations of
its own.
Since its formation, Transtar has repurchased certain shares of
nonvoting stock from its management stock trusts and has recorded these shares
as Treasury Stock. As of December 31, 1999 and 1998, Holdings owned 53.5 percent
and 52.9 percent, respectively, of economic interest and 51 percent voting
interest in the capital stock of Transtar; USX owned 46.2 percent and 45.6
percent, respectively, of economic interest and 49 percent voting interest; and
the management stock trust held the remaining 0.3 percent and 1.5 percent,
respectively, of economic interest.
The Transtar transaction was accounted for as a purchase transaction
prescribed by Accounting Principles Board Opinion (APB) No. 16 as modified by
the Financial Accounting Standards Board's Emerging Issues Task Force Consensus
No. 86-16, "Carryover of Predecessor Cost in Leveraged Buyout Transactions"
(EITF 86-16). EITF 88-16, "Basis in Leveraged Buyout Transactions," subsequently
superseded EITF 86-16. However, this transaction was completed prior to the
effective date of EITF 88-16.
NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation -- The consolidated financial statements of
Transtar include the accounts of Transtar and its subsidiaries. All significant
intercompany transactions and balances have been eliminated from the
consolidated financial statements.
Cash and Cash Equivalents -- Cash and cash equivalents include cash on
hand and time deposits, certificates of deposit (CD), high-grade commercial
paper, or government securities, all purchased with maturities of 3 months or
less, and all of which are carried at cost which approximates market.
Operating Parts and Supplies -- Operating parts and supplies consist
primarily of repair and replacement materials for railroad and marine equipment
and facilities, and are carried at the lower of average cost or market, defined
as replacement cost.
30
<PAGE> 33
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 2: (CONTINUED)
Fuel Oil Hedging -- Transtar from time to time enters into agreements
to hedge exposure to price fluctuations in connection with the purchase of fuels
for propulsion. Such transactions are accounted for as part of the commodity
being hedged and are settled on a monthly basis. (See additional information in
Note 10.)
Property, Plant, and Equipment -- Properties acquired by Transtar at
December 28, 1988 are stated at a combination of historical cost and fair value
as a result of the accounting for the purchase transaction prescribed by APB 16,
as modified by EITF 86-16. Subsequent property acquisitions are recorded at
cost. Depreciation is generally computed on the straight-line method, utilizing
a composite or grouped asset approach, based on estimated lives of the assets,
which are generally from 3 to 50 years. Proceeds from the sale of those
facilities depreciated on a group basis are credited to the depreciation
reserve, which is subject to periodic adjustments through depreciation studies
performed on a scheduled basis.
When facilities depreciated on an individual basis are sold, the
difference between the selling price and the remaining undepreciated value is
reflected in income. When nondepreciable assets are sold, any gain or loss is
reflected in income.
Ordinary maintenance and repairs are charged to expense as incurred.
Deferred Dry Dock Costs -- USS Great Lakes Fleet, Inc. (a Transtar
subsidiary) is required by the U.S. Coast Guard to inspect and perform certain
maintenance on each of its lake-going vessels every 5 years, unless a one-year
waiver has been granted. Costs to perform this operation (dry dock costs) are
deferred and amortized on a straight-line basis over periods of 60 or 72 months
from the time each vessel is dry docked.
Deferred Lump-Sum Compensation -- Certain Transtar labor contracts
contain provisions for compensation in the form of lump-sum payments. Lump-sum
compensation that is determined to benefit future periods is deferred and
amortized over the period of the contract in accordance with the provisions of
EITF 88-23, "Lump-Sum Payments Under Union Contracts."
Acquisition Debit -- The Transtar transaction was accounted for as a
business combination following the requirements of APB 16, as modified by EITF
86-16. These principles were used to determine the cost basis of Transtar. The
difference between the purchase price and the new cost basis of Transtar
resulted in the recognition of a $17.4 million acquisition debit in retained
earnings in the consolidated financial statements.
Revenue Recognition -- Revenues are generally recognized upon
completion of a service, usually a transportation movement.
Pension and Other Postretirement Benefits Costs -- Substantially all
hourly and salary employees of Transtar are covered by qualified pension plans.
Pension expense is based on a number of factors, including years of service,
career earnings, and actuarial assumptions that are applied to plan assets and
liabilities. Transtar accounts for pension costs in accordance with Statement of
Financial Accounting Standards (SFAS) No. 87, "Employers' Accounting for
Pensions." Transtar provides certain health care and life insurance benefits for
retirees. Substantially all employees may become eligible for these benefits
upon retirement. Transtar accounts for costs related to these benefits in
accordance with SFAS No. 106, "Employers' Accounting for Postretirement Benefits
Other than Pensions."
Insurance -- Transtar insures its rail, marine, property, and casualty
exposures. Certain self-insured retentions are maintained. Catastrophic coverage
is also carried. Costs resulting from noninsured losses are charged against
income upon occurrence.
31
<PAGE> 34
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 2: (CONTINUED)
Postemployment Benefits -- Transtar provides certain benefits to former
or inactive employees after employment but before retirement. Substantially all
employees may become eligible for these benefits. Transtar accounts for costs
related to these benefits in accordance with SFAS No. 112, "Employers'
Accounting for Postemployment Benefits."
Use of estimates -- Generally accepted accounting principles require
management to make estimates and assumptions that affect the reported amounts of
assets and liabilities, the disclosure of contingent assets and liabilities at
year end and the reported amounts of revenues and expenses during the year.
New Accounting Standard -- In June 1998, the Financial Accounting
Standards Board issued Statement of Financial Accounting Standards No. 133,
"Accounting for Derivative Instruments and Hedging Activities" (SFAS No. 133).
This new Standard requires recognition of all derivatives as either assets or
liabilities at fair value. Transtar does not believe the adoption of this
Standard will have a material effect on its financial position or results of
operations; however, the company is currently unable to reasonably estimate this
effect, if any. Transtar plans to adopt the Standard effective January 1, 2001.
Reclassifications -- Certain reclassifications of prior years' data
have been made to conform to 1999 classifications.
NOTE 3: PENSIONS AND OTHER POSTRETIREMENT BENEFITS
Effective January 1, 1989, Transtar adopted a noncontributory defined
benefit plan covering substantially all employees and a defined benefit plan
covering salary employees. Both plans recognize service and earnings as accrued
under the predecessor USX plans, but contain offset provisions for the amount of
pension benefits accrued as of December 28, 1988, the liability for which was
retained by USX. Pension benefits for employees that retired prior to Transtar's
formation on December 28, 1988 are the responsibility of USX. Assets of the
plans generally consist of corporate debt and equity securities and government
obligations.
Transtar provides certain medical and life insurance benefits to
eligible retired employees and their dependents under defined benefit plans. The
majority of benefits under provisions of these plans have not been prefunded.
Medical and life insurance benefits for employees retired prior to Transtar's
formation are obligations of USX. Assets of the plan generally consist of high
quality corporate and government obligations.
32
<PAGE> 35
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 3: (CONTINUED)
The following provides a reconciliation of benefit obligations, plan
assets and funded status of the plans.
<TABLE>
<CAPTION>
Other
Pension Benefits Postretirement Benefits
-------------------- -----------------------
1999 1998 1999 1998
-------- -------- -------- -------
(dollars in thousands)
<S> <C> <C> <C> <C>
Change in benefit obligation:
Benefit obligation at January 1 ..... $152,718 $137,125 $ 96,615 $91,849
Service cost ........................ 7,902 7,377 1,817 1,771
Interest cost ....................... 10,517 9,858 6,265 6,406
Amendments .......................... 4,118 1,439 40 --
Curtailments ........................ 736 2,007 -- --
Actuarial (gain) loss ............... (15,280) 5,847 3,762 (168)
Benefits paid from plan assets ...... (11,369) (10,935) -- --
Benefits paid by company ............ (214) -- (5,365) (3,243)
-------- -------- -------- -------
Benefit obligation at December 31 ... $149,128 $152,718 $103,134 $96,615
======== ======== ======== =======
</TABLE>
<TABLE>
<CAPTION>
Other
Pension Benefits Postretirement Benefits
-------------------- -----------------------
1999 1998 1999 1998
-------- -------- -------- -------
(dollars in thousands)
<S> <C> <C> <C> <C>
Change in plan assets:
Fair value of plan assets at
January 1 ..................... $114,958 $ 97,551 $264 $214
Actual return on plan assets ... 6,914 15,032 16 13
Company contributions .......... 7,830 13,310 40 40
Benefits paid from plan assets (11,369) (10,935) -- --
Administrative payments ........ -- -- (3) (3)
-------- -------- ---- ----
Fair value of plan assets at
December 31 .................. $118,333 $114,958 $317 $264
======== ======== ==== ====
</TABLE>
33
<PAGE> 36
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 3: (CONTINUED)
<TABLE>
<CAPTION>
Other
Pension Benefits (a) Postretirement Benefits
---------------------- ------------------------
1999 1998 1999 1998
-------- -------- --------- ---------
(dollars in thousands)
<S> <C> <C> <C> <C>
Funded status of the plans at December 31 ......... $(30,795) $(37,760) $(102,817) $ (96,351)
Unrecognized prior service cost ................... 5,534 3,188 539 746
Unrecognized net actuarial (gain) loss ............ 21,586 33,156 (14,442) (19,056)
Unrecognized net transition obligation ............ 2,630 3,287 -- --
-------- -------- --------- ---------
Prepaid (accrued) benefit cost .................. $ (1,045) $ 1,871 $(116,720) $(114,661)
======== ======== ========= =========
(a) Includes a plan that has an accumulated benefit obligation in excess of plan assets:
Accumulated benefit obligation ................. $ (2,525) $ (1,899)
Projected benefit obligation ................... $ (2,531) $ (2,119)
Plan assets .................................... -- --
</TABLE>
<TABLE>
<CAPTION>
Other
Pension Postretirement
Benefits Benefits
------------ --------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Weighted average actuarial assumptions
at December 31:
Discount rate .............................. 7.5% 6.75% 7.5% 6.75%
Expected return on plan assets ............. 11.0% 11.0% 6.0% 6.0%
Rate of compensation increase .............. 3.6% 3.6% 4.0% 4.0%
Assumed health care cost trend rate ........ -- -- 5.0% 5.0%
The assumed health care cost trend rate in 2000 and thereafter is 5%
Net periodic pension and other postretirement benefit costs include the
following components:
</TABLE>
<TABLE>
<CAPTION>
Other
Pension Benefits Postretirement Benefits
------------------------------- -----------------------------
1999 1998 1997 1999 1998 1997
-------- -------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
Service cost ........................... $ 7,902 $ 7,377 $ 6,508 $ 1,817 $ 1,771 $ 1,777
Interest cost .......................... 10,517 9,858 8,826 6,265 6,406 6,639
Expected return on plan assets ......... (12,791) (11,171) (9,310) (18) (14) (12)
Amortization - net transition obligation 657 657 657 -- -- --
- prior service costs ..... 1,771 1,751 1,299 247 247 247
- actuarial (gains) losses 2,768 1,644 1,286 (846) (914) (866)
-------- -------- ------- ------- ------- -------
Net periodic benefit cost ............ $ 10,824 $ 10,116 $ 9,266 $ 7,465 $ 7,496 $ 7,785
======== ======== ======= ======= ======= =======
</TABLE>
34
<PAGE> 37
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 3: (CONTINUED)
Pension
As a result of a reduction in business at The Lake Terminal Railroad (a
Transtar subsidiary) Transtar, in addition to the benefit cost shown above,
recognized a curtailment loss of $0.9 million in 1999 and $2.6 million in 1998.
Also in addition to the benefits cost shown above, programs for early
retirements and separations caused recognition of a curtailment loss of $4.0
million in 1997.
Transtar participates in certain defined benefit multi-employer plans
of maritime unions. No expenses were incurred for these plans in 1999. Expenses
related to these plans amounted to $0.2 million, and $1.0 million in 1998 and
1997, respectively. The company also sponsors certain defined contribution
pension plans. Participation in these plans is available to substantially all
salaried employees and to certain groups of hourly employees. Company
contributions to the salary plan are based on matching of employee contributions
up to certain limits specified by the provisions of the plan. The cost of this
plan was $1.6 million, $1.5 million and $1.5 million in 1999, 1998 and 1997,
respectively.
Other Postretirement Benefits
A one percentage point change in assumed health care cost trend rates
would have the following effects:
1% increase 1% decrease
----------- -----------
(in thousands)
Effect on total of service and
interest cost components ...... $1,329 $(1,079)
Effect on postretirement benefit
obligation .................... $8,603 $(6,937)
NOTE 4: OPERATING SEGMENTS
Transtar consists of two reportable segments: Railroad Group and Marine
Group. The two reportable segments provide different services, have different
methods of distributing their services and operate in different regulatory
environments.
Railroad Group -- This segment is composed of nine business units which
are primarily railroad companies. The Railroad Group provides rail transport and
material handling services for steel related customers, utilities, and
miscellaneous other customers in the midwest, south and eastern United States.
Marine Group -- This segment is composed of two shipping operations and
one fresh water/saltwater dock facility that provide primary water transport for
essentially the same steel related facilities as the rail group, as well as
utilities and miscellaneous other customers.
35
<PAGE> 38
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 4: (CONTINUED)
The accounting policies of the reportable segments are the same as
those disclosed in Note 2. Transtar evaluates the performance of its operating
segments based on the operating income of the respective business units.
Summarized financial information concerning reportable segments is shown on the
following table. The "Other" column includes non-allocated corporate related
items and the elimination of inter-business unit transactions.
<TABLE>
<CAPTION>
Railroad Marine
Group Group Other Total
----- ----- ----- -----
<S> <C> <C> <C> <C>
1999
- ----
Revenues - external customers ...... $343,870 $124,415 $ -- $468,285
Operating income ................... 80,266 11,586 211 92,063
Depreciation ....................... 20,870 5,251 -- 26,121
Interest and other financial expense 6,586 3,312 (382) 9,516
Income tax expense ................. 28,250 3,389 26 31,665
Total assets ....................... 423,634 163,754 (25,191) 562,197
Capital expenditures ............... 23,110 45,063 -- 68,173
1998
- ----
Revenues - external customers ...... $349,618 $148,199 $ -- $497,817
Operating income ................... 77,863 26,899 20 104,782
Depreciation ....................... 19,895 5,624 -- 25,519
Interest and other financial expense 10,532 2,739 (329) 12,942
Income tax expense ................. 27,366 9,326 26 36,718
Total assets ....................... 405,212 119,191 (21,599) 502,804
Capital expenditures ............... 25,522 892 -- 26,414
1997
- ----
Revenues - external customers ...... $358,597 $167,518 $ -- $526,115
Operating income ................... 86,893 36,313 (253) 122,953
Depreciation ....................... 20,070 6,750 -- 26,820
Interest and other financial expense 13,904 3,684 (230) 17,358
Income tax expense ................. 29,936 12,230 (32) 42,134
Total assets ....................... 414,443 122,855 (15,306) 521,992
Capital expenditures ............... 24,387 1,257 -- 25,644
</TABLE>
The majority of revenues earned are attributed to customers located in
the United States and all assets are located in the United States. See Note 13
regarding information about major customers.
36
<PAGE> 39
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 5: INCOME TAXES
Components of income tax expense are as follows:
<TABLE>
<CAPTION>
1999 1998 1997
------- ------- -------
(dollars in thousands)
<S> <C> <C> <C>
Current federal ...................... $24,962 $27,239 $32,307
Current state, local, and foreign .... 4,253 3,739 3,948
Deferred taxes ....................... 2,450 5,740 5,879
------- ------- -------
Total ................................ $31,665 $36,718 $42,134
======= ======= =======
</TABLE>
The reconciliation of the U.S. statutory income tax rate to the total
provision is as follows:
<TABLE>
<CAPTION>
1999 1998 1997
---------------- --------------- ---------------
(dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
Statutory rate applied to income
Before tax ......................................... $30,041 35.00% $33,515 35.00% $38,703 35.00%
State income tax after federal income
tax impact ......................................... 3,002 3.50 3,021 3.15 3,259 2.95
Revision of prior years tax provision
estimates ........................................... (1,500) (1.75) -- -- -- --
Other, net ........................................... 122 .14 182 .19 172 .15
------- ----- ------- ----- ------- -----
Total ................................................ $31,665 36.89% $36,718 38.34% $42,134 38.10%
======= ===== ======= ===== ======= =====
</TABLE>
Deferred tax assets and liabilities are composed of the following:
<TABLE>
<CAPTION>
December 31, 1999 December 31, 1998
------------------- -------------------
Assets Liabilities Assets Liabilities
------ ----------- ------ -----------
(dollars in thousands)
<S> <C> <C> <C> <C>
Accrual differences ... $ 5,132 $ -- $ 3,662 $ --
Postretirement benefits 45,338 -- 45,831 --
PP&E basis differences -- 81,444 -- 75,638
------- ------- ------- -------
Total ................. $50,963 $81,444 $49,000 $75,638
======= ======= ======= =======
Net balance ........... $30,481 $26,638
======= =======
</TABLE>
37
<PAGE> 40
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 6: OTHER CURRENT ASSETS
<TABLE>
<CAPTION>
December 31,
------------------------
1999 1998
------- -------
(dollars in thousands)
<S> <C> <C>
Deferred tax asset ................ $ 5,994 $ 4,661
Supplies - current ................ 2,319 1,670
Prepaid insurance ................. 1,355 1,151
Employee homes acquired ........... 426 1,341
Deferred compensation ............. 522 271
Deferred lease costs - current .... -- 587
Other current assets .............. 433 500
------- -------
Total ............................. $11,049 $10,181
======= =======
</TABLE>
NOTE 7: PROPERTY, PLANT, AND EQUIPMENT
<TABLE>
<CAPTION>
December 31,
------------------------
1999 1998
--------- ---------
(dollars in thousands)
<S> <C> <C>
Railroad equipment ......................... $ 420,721 $ 413,264
Lake vessels and related equipment ......... 133,936 88,918
Barges, tows, and related equipment ........ 35,968 36,112
Buildings .................................. 32,620 32,192
Other ...................................... 6,526 3,971
--------- ---------
Subtotal - depreciable property .......... 629,771 574,457
Less - accumulated depreciation .......... (258,735) (242,492)
--------- ---------
Net depreciable property ................... 371,036 331,965
Land ....................................... 46,866 47,322
--------- ---------
Property, plant, and equipment,
less accumulated depreciation .............. $ 417,902 $ 379,287
========= =========
</TABLE>
Transtar leases a variety of facilities and equipment, including marine
vessels, railroad equipment, barges, office equipment, and office space. Some of
these leases contain purchase and renewal options and a residual value guarantee
at the end of their lease term. Rent expense for operating leases was $26.9
million, $26.9 million, and $26.8 million for 1999, 1998, and 1997,
respectively.
38
<PAGE> 41
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 7: (CONTINUED)
Total commitments under operating leases are as follows: (dollars in
thousands)
Year
----
2000 ......................... $ 23,155
2001 ......................... 20,082
2002 ......................... 18,527
2003 ......................... 17,365
2004 ......................... 15,357
Later years .................. 72,944
--------
Total minimum lease payments $167,430
========
NOTE 8: OTHER ASSETS
<TABLE>
<CAPTION>
December 31,
------------------------
1999 1998
------- -------
(dollars in thousands)
<S> <C> <C>
Long-term receivables and other
investments ............................... $ 9,209 $ 5,429
Deferred lease costs ...................... 4,141 4,188
Deferred dry dock costs ................... 4,927 3,123
Deferred debt issue costs ................. 571 398
Other deferred charges .................... 2,842 2,563
------- -------
Total ................................... $21,690 $15,701
======= =======
</TABLE>
Deferred debt issue costs represent the unamortized portion of
capitalized fees and expenses relating to a term loan and revolving credit
facility obtained in connection with a Credit Agreement dated December 7, 1993
and an amendment and restatement of that Credit Agreement dated August 26, 1999.
Fees and expenses amounting to $0.7 million and $4.2 million were capitalized in
1999 and 1993, respectively, and are being amortized over the life of the term
loan.
39
<PAGE> 42
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 9: LONG-TERM DEBT
<TABLE>
<CAPTION>
December 31
Interest ---------------
Rates (%) Maturity 1999 1998
--------- -------- ---- ----
(dollars in thousands)
<S> <C> <C> <C> <C>
Long-term debt (a) ................... (b) 2000 $110,000 $124,000
Less amount due within 1 year ...... 110,000 (57,700)
-------- --------
Long-term debt due after 1 year .... $ -- $ 66,300
======== ========
</TABLE>
(a) A Credit Agreement with a group of lending institutions dated December 7,
1993 (the Original Credit Agreement) provided for a series of short-term
variable rate loans over a 7-year life, which were collateralized by the
stock of the Transtar subsidiaries. Principal payments were scheduled
semi-annually on June 30 and December 31 in installments ranging from $20
million to $42 million. The first scheduled payment was due on June 30,
1994, and the last scheduled payment was due on December 31, 2000. Interest
accrued at variable rates based on either an alternate base rate, an
adjusted CD rate, or an adjusted London Interbank Offered Rate. Transtar
periodically selected from these debt instruments to determine the variable
rates of the loan. Interest rates were available in multiples of $1 million
of borrowings in durations ranging from 1 day to 6 months.
On June 29, 1999 Transtar entered into a Short Term Credit Agreement (Short
Term Credit Facility) with a bank which enabled Transtar to borrow, on an
unsecured term basis, an aggregate principal amount of $30 million. The
Short Term Credit Facility was used by Transtar to finance a portion of the
purchase price of a lake vessel, which previously was operated by Transtar
under a long-term lease. Interest accrued at variable rates based on either
an alternate base rate or an adjusted London Interbank Offered Rate. The
effective interest rate for this facility was 7.0 percent. Transtar
periodically selected from these debt instruments to determine the variable
rates of the loan. Interest rates were available in multiples of $1 million
in durations ranging from 1 day to 6 months. This Short Term Credit Facility
included certain restrictions on capital spending, levels of new
indebtedness, and the payment of dividends, as well as certain financial
covenant requirements. On June 29, 1999, Transtar borrowed $15 million from
its existing revolving credit facility (see below) to finance the remainder
of the purchase price of the lake vessel.
On August 26, 1999, Transtar amended and restated the Original Credit
Agreement to provide for certain lenders to make additional term loans to
Transtar in an amount not to exceed $45 million, the proceeds of which were
used to refinance indebtedness in the aggregate principal amount of
$30 million of loans outstanding under the Short Term Credit Facility, and
to repay $15 million of revolving credit loans. The Credit Agreement as
amended and restated (the Restated Credit Agreement) provides for Tranche A
Term Loans in the aggregate principal amount of $85 million (the aggregate
principal amount outstanding as of August 26, 1999 under the Original Credit
Agreement) from lenders committed in the Original Credit Agreement, and
Tranche B Term Loans in the aggregate principal amount of $45 million, all
of which are collateralized by the stock of the Transtar subsidiaries.
Tranche A principal payments are scheduled for June 30, 2000 ($26.1 million)
and December 31, 2000 ($39.9 million). Tranche B principal payments are
scheduled for June 30, 2000 ($2.0 million) and December 31, 2000 ($42.0
million). Interest accrues at variable rates based on either an alternate
base rate, an adjusted CD rate, or an adjusted London Interbank Offered
Rate. Transtar periodically selects from these debt instruments to determine
the variable rates of the loans. Interest rates are available in multiples
of $1.0 million of borrowings in durations ranging from 1 day to 6 months.
40
<PAGE> 43
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 9: (CONTINUED)
In 1999, voluntary or asset sales prepayments of $59 million were applied to
payments scheduled by these agreements for June 30, 1999, December 31, 1999
and June 30, 2000. In 1998, voluntary or asset sales prepayments of
$72 million were applied to payments scheduled by the Original Credit
Agreement for June 30, 1998, December 31, 1998, and June 30, 1999.
(b) Transtar's debt interest expense in 1999, 1998, and 1997 was $6.9 million,
$11.9 million, and $16.3 million, respectively. The average effective rates
for the comparable periods were 6.8 percent, 7.2 percent, and 7.2 percent,
respectively.
Transtar has a revolving credit agreement with a consortium of banks.
This loan facility of up to $25 million is available for working capital and
letter of credit purposes through December 31, 2000. Interest accrues at the
same variable rates as the term debt. There is an annual commitment fee of 1/2
of 1 percent of the unused portion of the loan facility. Outstanding letters of
credit are $1.1 million and $0.9 million at December 31, 1999 and 1998,
respectively. In addition to the $15.0 million borrowed on June 29, 1999 and
repaid as part of the Restated Credit Agreement, Transtar periodically borrowed
funds from this facility in 1999 and repaid them in full. Transtar did not
borrow from this facility in 1998.
The above debt agreements contain certain restrictions on capital
spending, levels of new indebtedness, and the payment of dividends, as well as
certain financial covenant requirements.
NOTE 10: FAIR VALUE OF FINANCIAL INSTRUMENTS
The estimated fair value of financial instruments has been determined
by Transtar using the best available market information and appropriate
valuation methodologies. However, considerable judgment was necessary in
interpreting market data to develop the estimates of fair value. Accordingly,
the estimates presented are not necessarily indicative of the amounts that
Transtar could realize in a current market exchange or the value that ultimately
will be realized upon maturity or disposition. Additionally, because of the
variety of valuation techniques permitted under SFAS No. 107, "Disclosures about
Fair Values of Financial Instruments," comparability of fair values among
entities may not be meaningful. The use of different market assumptions and/or
estimation methodologies may have a material effect on the estimated fair value
amounts.
<TABLE>
<CAPTION>
December 31,
-----------------------------------------
1999 1998
------------------ -----------------
Estimated Estimated
Carrying Fair Carrying Fair
Amount Value Amount Value
------ ----- ------ -----
(dollars in thousands)
<S> <C> <C> <C> <C>
Assets:
Cash and cash equivalents ................ $ 14,274 $ 14,274 $21,428 $ 21,428
Noncurrent receivables ................... 5,363 5,363 2,236 2,236
Liabilities:
Current maturities of long-term debt ..... 110,000 110,000 57,700 57,700
Long-term debt ........................... -- -- 66,300 66,300
Off-balance-sheet financial instruments:
Fuel oil hedges .......................... -- -- -- (228)
</TABLE>
41
<PAGE> 44
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 10: (CONTINUED)
The following methods and assumptions were used to estimate the fair
value of those financial instruments for which it was practicable to estimate
that value.
Cash and cash equivalents -The carrying amount for cash and cash
equivalents approximates fair value.
Noncurrent receivables - The carrying amount for noncurrent receivables
approximates fair value.
Current debt and long-term debt - The carrying amount of Transtar's
borrowings under its credit facilities approximates fair value, because most of
Transtar's borrowings have variable rates of interest matching terms which exist
in the market.
Fuel oil hedges - The fair value of fuel oil hedges is based on the
futures index for NYMEX No. 2. Transtar had no fuel oil hedging agreements in
place at December 31, 1999 and one fuel oil hedging agreement in place for 1.0
million gallons per month at December 31, 1998. Transtar generated expense of
$0.2 million in 1999, $0.3 million in 1998 and no income or expense in 1997 as a
result of fuel oil hedges.
NOTE 11: DEFERRED CREDITS AND OTHER LIABILITIES
December 31,
------------------------
1999 1998
------- -------
(dollars in thousands)
Deferred taxes ............... $36,475 $31,299
Personal injuries ............ 16,972 16,827
Deferred credits - leases .... 2,343 2,083
Other ........................ 1,491 3,495
------- -------
Total ................... $57,281 $53,704
======= =======
NOTE 12: EQUITY
As of December 31, 1999 and 1998, Transtar had authorized and issued
10,000 shares of Class A Voting Common Stock (Voting Stock) with no par value
and 10,000 shares of Class B Nonvoting Common Stock (Nonvoting Stock) with no
par value. Holdings owns 5,100 shares of the Voting Stock and 5,100 shares of
the Nonvoting Stock and USX owns 4,900 shares of the Voting Stock and 3,900
shares of the Nonvoting Stock. As of December 31, 1999 and 1998, 50 shares and
296 shares, respectively, of the Nonvoting Stock were held by management stock
trusts and an additional 950 shares and 704 shares, respectively, of the
Nonvoting Stock, previously repurchased from the management stock trusts were
being held as Treasury Stock at cost.
On October 27, 1997, Transtar declared a cash dividend of $625 per
share on both its Voting Stock and its Nonvoting Stock to holders of record of
the stock on October 27, 1997. The dividend of $12.0 million was paid on October
30, 1997. On December 16, 1997 Transtar declared a cash dividend of $625 per
share on its Voting Stock and its Nonvoting Stock to holders of record of the
stock on December 16, 1997. The dividend of $12.0 million was paid on December
19, 1997.
During 1994, Transtar implemented a stock option plan to promote the
interests of Transtar and its stockholders by attracting and retaining key
management employees. The total number of options granted in 1994 was 750, all
of which were subject to a five-year vesting schedule commencing December 28,
1993, unless vesting was
42
<PAGE> 45
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 12: (CONTINUED)
waived by Transtar's Compensation Committee. All options granted in 1994 have an
exercise price of $8,364.05, which was the estimated fair market value of the
Company's common stock at the date of grant. The options became exercisable up
to 20 percent per year and do not have an expiration date. Shares exercised were
304, and 103 in 1999 and 1998, respectively. As of December 31, 1999, there were
295 options vested and exercisable under the 1994 grant. Compensation expense
related to the options was $3.0 million, $0.1 million and $0.1 million in 1999,
1998 and 1997, respectively.
In 1996, Transtar adopted SFAS No. 123, "Accounting for Stock-Based
Compensation." The statement defines a fair-value-based method of accounting for
employee stock options, but allows companies to continue to record compensation
cost using currently accepted recognition principles. Companies electing to
continue using currently accepted recognition principles must make proforma
disclosures of net income as if the fair-value-based method of accounting had
been applied to options granted in fiscal years beginning after December 15,
1994. Transtar adopted the disclosure-only options under SFAS No. 123. In 1998,
105 options were granted under the plan, all of which are subject to a five-year
vesting schedule commencing December 28, 1997. All options granted in 1998 have
an exercise price of $24,687.80 which was the estimated fair market value of the
Company's common stock at the date of grant. These options become exercisable up
to 20 percent per year and do not have an expiration date. The effect on net
income that would have been reflected in the income statement if the
fair-value-based method of accounting had been used to account for the issuance
of these options is immaterial. There were no options granted in 1999 and during
the years 1995 through 1997.
NOTE 13: RELATED-PARTY TRANSACTIONS
The Transportation Services Agreements which existed from the formation
of Transtar through July 1, 1998 provided Transtar with certain rights
including: (i) sole serving rail carrier status at USX's Minntac, Gary,
Fairfield and Mon Valley facilities as well as the former USS/Kobe Steel
Company's Lorain facility (USS/Kobe)(see below); (ii) sole rights to perform
specified USX in-plant switching services; (iii) primary Great Lakes Fleet bulk
commodity carrier status for USX, including the former USS/Kobe; and (iv)
primary inland barge operator status for the water transport of USX's
commodities originating at or destined for Birmingham, Alabama. With respect to
the services referred to in clause (i) above, the Transportation Services
Agreements provided that such services would continue indefinitely as long as a
non-Transtar rail carrier had not obtained access to the USX facility being
served; with respect to the services referred to in clause (ii) above, the
agreements provided that such services would continue indefinitely so long as
USX had not purchased from Transtar or otherwise obtained the Transtar track on
which such services were provided.
In August 1999, USX and Kobe Steel, Ltd. completed a transaction that
combined the steelmaking and bar producing assets of the former USS/Kobe with
companies controlled by Blackstone Capital Partners II. The combined entity was
named Republic Technologies International, L.L.C (Republic). USX owns 16 percent
and Blackstone owns 47 percent of Republic. The seamless pipe business of the
former USS/Kobe was excluded from this transaction. That business, now known as
Lorain Tubular Company L.L.C (Lorain Tubular), became a wholly owned subsidiary
of USX at the close of business on December 31, 1999.
With respect to the services referred to in clause (ii) above, the
former USS/Kobe elected to terminate in-plant switching services provided by the
Lake Terminal Railroad (a Transtar subsidiary) effective December 29, 1998. The
former USS/Kobe had not purchased or otherwise obtained any Transtar track at
this facility. In-plant switching services provided by parties other than
Transtar are being performed on tracks currently owned by Republic and Lorain
Tubular. The impact on Transtar was a revenue reduction of approximately $8.6
million in 1999, with a $1.1 million negative impact on before tax income.
43
<PAGE> 46
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 13: (CONTINUED)
In December 1998, Transtar, USX and the former USS/Kobe (for the former
USS/Kobe Great Lakes Fleet bulk commodity carrier service only) executed new
Transportation Services Agreements which, among other things, extend the time
and exclusivity periods of the original agreements. The new agreements were
approved on February 12, 1999 by the lending institutions who participate in
Transtar's Credit Agreement. Effective August 13, 1999, the Transportation
Services Agreement related to the former USS/Kobe which includes bulk commodity
carrier services provided by the Great Lakes Fleet was assigned to Republic. All
the agreements were retroactively effective July 1, 1998 and will extend through
December 31, 2004 for the services referred to in clauses (i), (ii) and (iv)
above, with the exception of rail and rail related services at Republic and
Lorain Tubular (see below), and will extend through March 15, 2005 for the
services referred to in clause (iii) above. With respect to the services
referred to in clause (i) above, the new Transportation Services Agreements
provide that such services will continue indefinitely as long as a non-Transtar
rail carrier has not obtained access to the USX facility being served; with
respect to the services referred to in clause (ii) above, the agreements are
exclusive through 2004 and provide that such services will continue indefinitely
so long as USX has not purchased from Transtar or otherwise obtained the
Transtar track on which such services are provided. The new agreements cover all
of the services provided by Transtar under the previous Transportation Service
Agreements, except that a third party may provide transportation services for:
with respect to the services referred to in clause (i) above, a maximum per year
of forty percent of blast furnace burden tonnage destined for USX's Edgar
Thomson facility in the Mon Valley; with respect to the services referred to in
clause (iii) above, a maximum per year of ten percent of tonnage via the Great
Lakes from March 16, 1999 through March 15, 2003 and a maximum per year of
fifteen percent of tonnage via the Great Lakes from March 16, 2003 through March
15, 2005; and with respect to the services referred to in clause (iv) above, a
maximum per year of ten percent of imported iron ore and coke tonnage destined
for USX's Fairfield, Alabama facility, a maximum per year of ten percent of
export coal tonnage originating at US Steel's Concord Preparation Plant and a
maximum per year of ten percent of domestic coal tonnage via barge originating
at US Steel's Concord Preparation Plant. The agreements provide that USX shall
not, at any time, take any action (a) which would in any way, either directly or
indirectly, encourage any non-Transtar rail carrier to attempt to obtain access
to any of the USX plants for which Transtar is the sole serving rail carrier or
(b) which would in any way assist in and/or support any such rail carrier in any
efforts to obtain such access; provided that USX may, after December 31, 2004,
request that an independent arbitrator or mediator determine whether it is
reasonable and equitable under the facts, circumstances and the regulatory and
competitive conditions in effect at that time, at one or more facilities, for
USX to seek access for a non-Transtar rail carrier. Transtar is required to
acquire certain coke rail cars, not to exceed a maximum expenditure of $20
million. The agreements also provide for certain price concessions and market
based price changes. USX was paid a refund of approximately $6.3 million (with
an equal reduction in Transtar's operating income which was recognized in June
1998) for services provided during the first half of 1998. Including this
refund, total price concessions for 1998 reduced Transtar's revenue and
operating income by $14.4 million. Price concessions reduced Transtar's 1999
revenue and operating income by $14.5 million as compared to 1997 levels.
On December 29, 1998, Transtar and the former USS/Kobe executed a new
Transportation Services Agreement for sole service carrier work including
absorbed switching, equipment rentals and other related transportation services.
The agreement was approved on February 12, 1999 by the lending institutions who
participate in Transtar's Credit Agreement. Effective August 13, 1999, this
agreement was assigned to Republic for services provided to Republic. The new
agreement was effective December 29, 1998 and extends through December 31, 2008
for the sole service carrier work. The agreement provides that Republic and
Lorain Tubular shall not, during the term of the agreement, take any action (a)
which would in any way, either directly or indirectly, encourage any
non-Transtar rail carrier to attempt to obtain access to their respective
facilities or (b) which would in any way assist in and/or support any such rail
carrier in any efforts to obtain such access. The agreement provides for market
based price changes and no price concessions. In-plant scrap handling via rubber
tire vehicles is under separate agreement (also assigned to Republic) until July
31, 2000.
44
<PAGE> 47
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 13: (CONTINUED)
Transtar earns a significant portion of its revenues from
transportation and related services provided to USX. For 1999, 1998, and 1997,
transactions with USX represented 52 percent, 56 percent, and 58 percent of
total revenues, respectively. Receivables from USX as of December 31, 1999 and
1998 represented 25 percent and 23 percent of total receivables, respectively.
Terms of these transactions are similar to those of nonrelated customers.
In 1999 Transtar earned revenues of $1.9 million from Republic.
Transtar provides maintenance services to USX. Proceeds from services
provided amounted to $4.0 million, $5.8 million, and $6.4 million for 1999,
1998, and 1997, respectively.
USX provided several corporate services associated with ongoing
business activities of Transtar. Total expenses for these services were $ 0.8
million, $0.8 million, and $0.6 million for 1999, 1998, and 1997, respectively.
Transtar purchased materials from USX amounting to $0.9 million, 0.6
million, and $1.1 million in 1999, 1998, and 1997, respectively. USX purchased
materials from Transtar amounting to $0.5 million and $0.7 million in 1998 and
1997, respectively. No materials were purchased by USX in 1999.
Pursuant to an Asset Purchase Agreement related to the formation of
Transtar in December 1988, Transtar reimbursed USX $0.8 million, $1.0 million,
and $1.1 million for certain benefits paid to Transtar retirees by USX in 1999,
1998, and 1997, respectively.
Transtar pays, to USX and a Blackstone affiliate, a monitoring fee of
0.15 percent of consolidated revenue. Total monitoring fees (0.3 percent of
revenue) paid and accrued were $1.4 million, $1.5 million, and $1.6 million in
1999, 1998, and 1997, respectively. These fees were accounted for as operating
expense.
NOTE 14: COMMITMENTS AND OTHER CONTINGENCIES
Transtar is subject to federal, state, local, and foreign laws and
regulations relating to the environment. These laws generally provide for
control of pollutants released into the environment and require responsible
parties to undertake remediation of hazardous waste disposal sites. Penalties
may be imposed for noncompliance. Transtar provides for remediation costs and
penalties when the responsibility to remediate is probable and the amount of
associated costs is reasonably determinable. At December 31, 1999 and 1998,
accrued liabilities for remediation totaled $0.2 million and $0.4 million,
respectively. For the period 1989 through 1999 actual cash payments associated
with environmental expense have totaled $10.5 million.
Transtar and USX have entered into an environmental indemnification
agreement, whereby USX has agreed to indemnify Transtar against 75 percent of
certain environmental claims, losses, liabilities, obligations, damages,
deficiencies, costs, and expenses (collectively, Environmental Liabilities) in
excess of $10 million. This environmental indemnification agreement covers
Environmental Liabilities relating to certain assets and properties transferred
by USX to Transtar upon the formation of Transtar, which Environmental
Liabilities existed or occurred prior to such formation. Of the $10.5 million
expended since 1988, $7.9 million is applicable to the $10 million threshold. It
is not presently possible to estimate the ultimate amount of all remediation
costs that might be incurred or the penalties that may be imposed.
Contractual commitments in the amount of $14.5 million were made in
1999 to acquire components for the assembly of 280 freight cars. The acquisition
of the freight car components began in mid 1999 and was in response to a
commitment under the Transportation Services Agreement with USX that requires
Transtar to spend up to $20.0 million to assure the continuance of in-plant coke
movements at its Gary Works. In November 1999, a Transtar
45
<PAGE> 48
TRANSTAR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 14: (CONTINUED)
subsidiary entered into an agreement to purchase 9.5 million net gallons of fuel
oil per shipping season for the shipping seasons of 2000, 2001 and 2002. The
purchase price for the fuel oil will be based upon market prices subject to
certain minimum price provisions.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
46
<PAGE> 49
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Set forth below is certain information about each of BTC's (Holdings'
sole general partner) and TCC's executive officers and directors. Unless
otherwise indicated, positions listed are for both BTC and TCC. Each executive
officer holds office until his successor shall have been appointed or until his
death, resignation or removal. The directors and executive officers of BTC and
TCC receive no compensation.
<TABLE>
<CAPTION>
Name Age, Business Experience and Other Directorships
---- ------------------------------------------------
<S> <C>
James J. Mossman age 41, Director since November 1993 and President since November 1993; a Member of Blackstone
President and Director Group Holdings (BGH) L.L.C.; a General Partner of BGH L.P. from 1990 to February 1996;
Vice President of The Blackstone Group L.P. (The Blackstone Group) from 1987 to 1989.
Mr. Mossman is a director of Collins & Aikman Corporation and Transtar.
Peter G. Peterson age 73, Director since November 1993; Co-Founding Member of BGH L.L.C.; Co-Founding Partner
Director of BGH L.P. from 1985 to February 1996; and, Chairman of The Blackstone Group since 1985.
Mr. Peterson is a director of Sony Corporation and Transtar, and he is the Chairman of the
Federal Reserve Bank of New York. He is also Chairman of the Council on Foreign Relations,
Chairman of the Institute for International Economics, and Co-Founding President of The
Concord Coalition.
Stephen A. Schwarzman age 53, Director since November 1993; Co-Founding Member of BGH L.L.C.; Co-Founding Partner
Director of BGH L.P. from 1985 to February 1996; and President & Chief Executive Officer of The
Blackstone Group since 1985. Mr. Schwarzman is a director of Transtar.
Howard A. Lipson age 36, Treasurer since November 1993; Mr. Lipson joined The Blackstone Group in 1988
Treasurer and is a member of BGH L.L.C. Mr. Lipson is a director of Rose Hills, Inc., Prime Succession
Holdings, Inc., AMF Group Inc., Graham Packaging, Allied Waste Industries, Volume Service,
Inc., and Ritvik Holdings, Inc.
</TABLE>
The following table sets forth certain information concerning the
officers of Transtar.
NAME Age POSITION
---- --- --------
Robert S. Rosati ........ 61 President and Chief Executive Officer
Frank J. Habic .......... 60 Vice President-Operations, retired
effective 3/31/99
Peter D. Stephenson ..... 55 Vice President-Operations
Joseph W. Schulte ....... 58 Vice President-Finance and Chief
Financial Officer
James P. Bobich ......... 55 Vice President-Administration
Rade Vignovic ........... 65 Vice President-Marketing, retired effective
8/31/99
John C. Pranaitis ....... 54 Vice President-Marketing
Robert N. Gentile ....... 48 Vice President-Law, General Counsel and
Secretary
47
<PAGE> 50
Mr. Rosati is President and Chief Executive Officer, a position he has
held since January 1, 1994. Mr. Rosati had been Vice President-Finance and Chief
Financial Officer of Transtar and its subsidiaries. Mr. Rosati had also been
Comptroller of B&LE until December 1, 1988, when he was elected Vice
President-Finance of the Railroads. His railroad experience of 34 years includes
positions as Manager-Audit Division, Manager of Marketing, and Dock
Superintendent with DM&IR, and Superintendent in the Transportation Department
with EJ&E. Prior experience with the firm of Ernst & Ernst, Pittsburgh, Pa.,
1960-1965. Mr. Rosati is a Director of the Transtar subsidiaries and is a member
of the Pennsylvania Institute of Certified Public Accountants. He is a graduate
of the University of Pittsburgh, BBA-1961 and attended the Graduate Business
Program at the University of Minnesota-Duluth, 1976-1979.
Mr. Habic was elected Vice President-Operations of Transtar on July 1,
1993. He is responsible for the operations of all Transtar subsidiaries. His
railroad experience encompasses 34 years. He held a succession of
increasingly-responsible Operating Department positions within the Railroad
Group. He was appointed General Superintendent of Transportation of the EJ&E in
1978. He was appointed General Superintendent of The Pittsburgh & Conneaut Dock
in 1983. In 1984, he was appointed General Manager of the B&LE and several
shortline railroads. Mr. Habic is also a Director of the Transtar subsidiaries.
He holds a B.S. from the U.S. Military Academy at West Point and an M.B.A. from
Northwestern University. Mr. Habic retired effective March 31, 1999.
Mr. Stephenson was elected to his present position of Vice
President-Operations of Transtar, Inc. on April 1, 1999. Mr. Stephenson has
operating responsibility for all Transtar subsidiaries, including both the
Railroad and Marine Groups. His railroad career extends over 30 years and began
in the Audit Department of the Duluth, Missabe and Iron Range Railway. He was
appointed Systems Engineer in the Transportation Department in 1970 and held
various positions of increasing importance in the Transportation Department
until his appointment in 1984 as Superintendent. On April 1, 1991, Mr.
Stephenson was appointed Transportation Superintendent of the Elgin, Joliet and
Eastern Railway Company. In 1993, he returned to the DM&IR as General Manager,
and in 1995 was appointed Assistant Vice President-Operations. In 1997, he
joined the Bessemer and Lake Erie Railroad in a similar role, a position he held
until his election to his current position. Mr. Stephenson is a Director of the
Transtar subsidiaries and is a graduate with a BA from the University of
Minnesota-Duluth.
Mr. Schulte is Vice President-Finance of Transtar and CFO. Mr. Schulte
had previously been Comptroller of Transtar and its subsidiaries. Mr. Schulte
had also been Comptroller of the Railroad Group beginning January, 1989. Since
joining the Union Railroad in 1966, he progressed through various accounting
positions on the Railroads. He was appointed Treasurer for the Railroads in
1981, Director of Internal Audit in 1983, and Comptroller of the DM&IR and EJ&E
Railroads in 1985. Mr. Schulte is a Director of the Transtar subsidiaries and is
a member of the American and Pennsylvania Institutes of Certified Public
Accountants. He holds a B.S. in Accounting from The Pennsylvania State
University.
Mr. Bobich was elected Vice President-Administration of Transtar on
March 1, 1998. He began his career on the Bessemer and Lake Erie Railroad in the
Information Systems Department and since then has held positions of increasing
responsibility in Accounting and Information Systems. In 1986, Mr. Bobich was
named Treasurer of the Railroad subsidiaries and in 1989 was named Treasurer of
Transtar, Inc. On July 1, 1997, he was appointed Assistant to President. He is a
Director of the Transtar subsidiaries and is a 1966 graduate of Ohio University
with a BBA in Accounting.
Mr. Vignovic is Vice President-Marketing of Transtar. Mr. Vignovic
began his railroad career on the B&LE as a Cost Analyst in 1964. From 1967 on,
Mr. Vignovic held a series of marketing positions within the Railroads. He was
appointed Vice President-Marketing of all of the Railroads in 1994. Mr. Vignovic
is a Director of all of the Transtar subsidiaries and is a member of the
National Freight Traffic Association and the Traffic Clubs of Chicago and
Pittsburgh. He holds a B.S. from Carnegie Mellon University and an MBA from the
University of Chicago. Mr. Vignovic retired effective August 31, 1999.
48
<PAGE> 51
Mr. Pranaitis is Vice President-Marketing for Transtar, Inc. He began
his railroad career on the Bessemer and Lake Erie Railroad in Management
Information Systems. His railroad experience is in excess of 30 years. In 1979,
Mr. Pranaitis began a series of increasingly-responsible assignments at various
Transtar operating subsidiaries within the Railroad Group, including the
assignment as Director Equipment Utilization for the Bessemer and Lake Erie
Railroad, the Union Railroad, and the McKeesport Connecting Railroad. In 1994,
Mr. Pranaitis was appointed Superintendent of the Duluth, Missabe and Iron Range
Railway, and in 1995 he assumed duties as Assistant Vice President-Marketing for
Transtar. He returned to the DM&IR as General Manager in 1997 and returned to
Transtar's Marketing Department in 1999 where he served until his election as
Vice President-Marketing on September 1, 1999. Mr. Pranaitis is a Director of
all of the Transtar subsidiaries. He is a graduate of St. Vincent College with a
BA degree in Economics and attended the Graduate Business program at American
University.
Mr. Gentile is General Counsel and Secretary of Transtar, and all of
its subsidiaries, a position he has held since December 28, 1988. He is also
Vice President-Law of Transtar, a position he has held since May 1, 1995. Mr.
Gentile began his career with the Railroad Group in March 1979, holding
positions of increasing importance within the Legal Department. He was appointed
General Claim Agent in 1984 and named Senior General Claim Agent in 1986. Mr.
Gentile is a Director of all of the Transtar subsidiaries. Prior to joining the
Railroad Group, Mr. Gentile was in private practice as a trial lawyer. Mr.
Gentile is a member of the American, Pennsylvania and Allegheny County Bar
Associations and American Corporate Counsel Association. He is a graduate of the
University of Pittsburgh, BA-1973 (summa cum laude, Phi Beta Kappa), University
of Pittsburgh, JD-1976, LaRoche College, MS-1984, University of Pittsburgh, MBA
(Beta Sigma Gamma)-1989.
49
<PAGE> 52
ITEM 11. EXECUTIVE COMPENSATION
The directors and executive officers of BTC (Holdings' sole general
partner) and TCC receive no compensation but are reimbursed for travel and
out-of-pocket expenses incurred in connection with their duties as directors and
executive officers.
The following table provides certain summary information concerning the
compensation paid or accrued by the Company on behalf of the Company's Chief
Executive Officer and the four other most highly-compensated executive officers
of the Company for the years ended December 31, 1999, December 31, 1998, and
December 31, 1997:
TRANSTAR, INC.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG TERM COMPENSATION
---------------------------
ANNUAL COMPENSATION AWARDS PAYOUTS
-------------------- ----------------- -------
ALL OTHER
SALARY & RESTRICTED LTIP COMPEN-
NAME AND BONUS OTHER ($) STOCK OPTIONS PAYOUTS SATION($)
PRINCIPAL POSITION YEAR SALARY ($) BONUS ($) TOTAL ($) (1) AWARDS ($) (#) ($) (2)
------------------ ---- --------- --------- --------- ------ ---------- --- --- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
R. S. Rosati ........... 1999 275,000 250,000 525,000 12,347 0 0 0 29,215
President & Chief .... 1998 275,000 350,000 625,000 13,544 0 0 0 29,628
Executive Officer .... 1997 275,000 300,000 575,000 8,763 0 0 0 31,445
J. W. Schulte .......... 1999 187,000 120,000 307,000 10,954 0 0 0 17,325
Vice President- ....... 1998 182,000 124,000 306,000 7,505 0 0 0 18,019
Finance and Chief ..... 1997 170,000 124,000 294,000 4,452 0 0 0 17,654
Financial Officer
R. N. Gentile .......... 1999 169,000 108,000 277,000 1,220 0 0 0 13,704
Vice President-Law, ... 1998 165,000 112,000 277,000 5,655 0 0 0 13,880
General Counsel and ... 1997 157,000 115,000 272,000 5,346 0 0 0 14,186
Secretary
P. D. Stephenson ....... 1999 151,000 101,000 252,000 4,945 0 0 0 13,346
Vice President- ...... 1998 147,000 87,000 234,000 4,441 0 0 0 12,811
Operations .......... 1997 141,000 90,000 231,000 48,528 0 0 0 13,408
J. P. Bobich ........... 1999 140,000 90,000 230,000 6,543 0 0 0 13,537
Vice President- ...... 1998 128,340 87,000 215,340 3,308 0 0 0 13,122
Administration ...... 1997 116,700 42,000 158,700 1,020 0 0 0 13,630
</TABLE>
- -------------------
(1) Includes health additive; executive tax assistance and financial planning;
imputed income for automobiles, and income associated with relocation
reimbursement.
(2) This column includes amounts contributed or accrued in 1999 under the
Transtar Salaried Savings Fund Plan and the related Supplemental Savings
Plans ($15,263, $9,483, $8,471, $7,550, and $7,000 for Messrs. Rosati,
Schulte, Gentile, Stephenson, and Bobich respectively); annual imputed
income associated with executive life insurance policies in 1999 ($1,708,
$827, $309, $1,090, and $335 for Messrs. Rosati, Schulte, Gentile,
Stephenson, and Bobich respectively); and annual amounts attributable to
split-dollar life insurance provided by Transtar in 1999 ($12,244, $7,015,
$4,924, $4,706, and $6,202, for Messrs. Rosati, Schulte, Gentile,
Stephenson, and Bobich respectively).
50
<PAGE> 53
STOCK OPTION PLAN
During 1994, Transtar implemented a stock option plan to promote the
interests of Transtar and its stockholders by attracting and retaining key
management employees. The total number of options granted was 750, all of which
are subject to a 5-year vesting schedule commencing December 28, 1993. These
options generally become exercisable at the vesting date and do not have an
expiration date. The option price per share is $8,364.05, and each exercised
option will be repurchased by the Company at a price calculated using a formula
set forth in the stock option plan.
AGGREGATED 1999 OPTION EXERCISES
AND DECEMBER 31, 1999 OPTION VALUES
<TABLE>
<CAPTION>
VALUE OF EXERCISABLE
NO. OF NO. OF EXERCISABLE IN-THE-MONEY
SHARES VALUE OPTIONS AT OPTIONS AT
NAME EXERCISED REALIZED ($) DECEMBER 31, 1999 DECEMBER 31, 1999($)
---- --------- ------------ ----------------- --------------------
<S> <C> <C> <C> <C>
R. S. Rosati ....... 200 2,928,456 0 0
F. J. Habic (a) .... 100 1,464,228 0 0
J. W. Schulte ...... 0 0 100 531,253
R. Vignovic (b) .... 100 1,464,228 0 0
R. N. Gentile ...... 0 0 50 265,627
</TABLE>
(a) retired effective 3/31/99
(b) retired effective 8/31/99
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The directors and executive officers of BTC (Holdings' sole general
partner) and TCC receive no compensation. See 'Management--Compensation of
Directors and Executive Officers.'
James J. Mossman, Peter G. Peterson and Stephen A. Schwarzman serve as
directors of BTC (Holdings' sole general partner) and TCC. Transtar pays a
monitoring fee of 0.15% of its consolidated revenue to Blackstone Management
Partners L.P. James J. Mossman, Peter G. Peterson and Stephen A. Schwarzman are
partners of Blackstone Management Partners L.P. Monitoring fees paid were
approximately $702,000 for 1999, $747,000 for 1998, and $789,000 for 1997.
PENSION BENEFITS
Transtar pension benefits are comprised of two defined benefits: the
first, based on final earnings and the second, on career earnings. The following
table shows the annual final earnings pension benefits for retirement at age 62
(or earlier under certain circumstances), for various levels of eligible
earnings which would be payable to employees retiring with representative years
of service based on a formula of a specified percentage (dependent on years of
service) of average annual eligible earnings in the five consecutive years of
the ten years prior to retirement in which such earnings were highest. Eligible
earnings are base earnings and exclude any bonuses paid. As of December 31,
1999, Messrs. Rosati, Stephenson, Schulte, Bobich and Gentile have 34, 32, 33,
33, and 20 credited years of service, respectively.
51
<PAGE> 54
TABLE OF PENSION BENEFITS
FINAL EARNINGS PENSION BENEFITS
<TABLE>
<CAPTION>
AVERAGE ANNUAL ELIGIBLE
EARNINGS FOR HIGHEST
FIVE CONSECUTIVE YEARS
IN TEN-YEAR PERIOD
PRECEDING RETIREMENT ANNUAL BENEFITS FOR YEARS OF SERVICE
- -------------------- ------------------------------------------------------------------------------------------------
15 YRS. 20 YRS. 25 YRS. 30 YRS. 35 YRS. 40 YRS.
------ ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
$125,000 $21,656 $ 28,875 $ 36,094 $ 43,313 $ 51,188 $ 59,063
150,000 25,988 34,650 43,313 51,975 61,425 70,875
175,000 30,319 40,425 50,531 60,638 71,663 82,688
200,000 34,650 46,200 57,750 69,300 81,900 94,500
225,000 38,981 51,975 64,969 77,963 92,138 106,313
250,000 43,313 57,750 72,188 86,625 102,375 118,125
300,000 51,975 69,300 86,625 103,950 122,850 141,750
350,000 60,638 80,850 101,063 121,275 143,325 165,375
400,000 69,300 92,400 115,500 138,600 163,800 189,000
450,000 77,963 103,950 129,938 155,925 184,275 212,625
500,000 86,625 115,500 144,375 173,250 204,750 236,250
</TABLE>
Annual career earnings pension benefits are equal to 1% of total career
eligible earnings plus a 30% supplement. The estimated annual career earnings
benefits payable at normal retirement age 65, assuming no increase in annual
earnings, will be $56,400 for Mr. Rosati, $45,360 for Mr. Stephenson, $45,680
for Mr. Schulte, $40,730 for Mr. Bobich and $61,300 for Mr. Gentile. Benefits
from the final earnings and the career earnings reflected above are not subject
to any reduction or offset for Social Security entitlements. Benefits from the
final earnings reflected above are subject to a reduction or offset for a
portion of Railroad Retirement entitlements. Benefits may be paid as an
actuarially determined lump sum in lieu of monthly pensions under both the final
earnings and career earnings provisions of the Plan.
In addition to the pension benefit described above, R. S. Rosati is
entitled to the benefits shown in the table below based on bonuses paid under
the Annual Incentive Compensation Plan upon retirement after age 60.
SUPPLEMENTAL PENSION BENEFITS
<TABLE>
<CAPTION>
AVERAGE ANNUAL BONUS
EARNINGS FOR THREE
HIGHEST YEARS IN
TEN-YEAR PERIOD
PRECEDING RETIREMENT ANNUAL BENEFITS FOR YEARS OF SERVICE
- -------------------- ------------------------------------------------------------------------------------------------
15 YRS. 20 YRS. 25 YRS. 30 YRS. 35 YRS. 40 YRS.
------- ------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
$100,000 $23,100 $30,800 $ 38,500 $ 46,200 $ 53,900 $ 61,600
200,000 46,200 61,600 77,000 92,400 107,800 123,200
300,000 69,300 92,400 115,500 138,600 161,700 184,800
</TABLE>
52
<PAGE> 55
EQUITY PARTICIPATION PLAN
Key management employees of Transtar and its subsidiaries are eligible
to participate in Transtar's Equity Participation Plan. Under the Equity
Participation Plan, Transtar's Board of Directors appoints a compensation
committee with full power to administer the plan. Participants in the plan
receive awards of restricted common stock of Transtar as determined in the
discretion of the compensation committee.
CERTAIN TRANSACTIONS
Transtar pays to each of USX and Blackstone Management Partners L.P. a
monitoring fee of 0.15% of Transtar's consolidated revenue. Total monitoring
fees paid were approximately $1.4 million for 1999, $1.5 million for 1998 and
$1.6 million for 1997.
On October 27, 1997, Transtar declared a cash dividend in the amount of
$625 per share on both its Class A Voting Common Stock (Voting Stock) and its
Class B Nonvoting Common Stock (Nonvoting Stock) to holders of record of the
stock on October 27, 1997. Holdings received $6.4 million on October 30, 1997,
representing its 53% economic interest in the Transtar dividend. Pursuant to an
Indenture relating to the issuance of the Notes (the Notes Indenture), the
dividend payment was paid into an escrow account. On December 16, 1997 Transtar
declared a cash dividend of $625 per share on both its Voting Stock and its
Nonvoting Stock to holders of record of the stock on December 16, 1997. Holdings
received $6.4 million on December 19, 1997, representing its 53% economic
interest in the Transtar dividend. In accordance with the Notes Indenture, this
dividend was paid into the escrow account.
In February 1998, in accordance with the Notes Indenture, Holdings
offered to repurchase a portion of the Notes at an offer price equal to 101% of
the accreted value of such Notes on the date of purchase. The offer to purchase
the Notes was made by a notice to holders of the Notes and was held open for 20
business days. No Notes were tendered for repurchase.
In February 1997, in accordance with the Notes Indenture and related to
certain dividends paid into the escrow account in 1996, Holdings offered to
repurchase a portion of the Notes at an offer price equal to 101% of the
accreted value of such Notes on the date of purchase. The offer to purchase the
Notes was made by a notice to holders of the Notes and was held open for 20
business days. No Notes were tendered for repurchase.
Funds in the escrow account are invested in cash equivalents and may
only be released to pay interest and principal on the Notes, make certain
payments permitted under the Notes Indenture, purchase or optionally redeem
Notes or to pay administrative expenses of Holdings. In 1998 and 1997, in
accordance with the Notes Indenture and an agreement governing the escrow
account, Holdings withdrew from the escrow account $0.7 million and $13.7
million, respectively, to distribute to its partners, and withdrew $0.2 million
and $0.3 million, respectively, to pay certain administrative expenses. No funds
were withdrawn from the escrow account in 1999. As of December 31, 1999 the
escrow balance is $49.8 million. Interest earned on the escrow balance amounted
to $2.5 million, $2.6 million and $2.4 million in 1999, 1998 and 1997,
respectively.
53
<PAGE> 56
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
THE ISSUERS
The following table and accompanying footnotes set forth the beneficial
ownership of partnership interests of Holdings. TCC is a wholly owned subsidiary
of Holdings.
<TABLE>
<CAPTION>
Percentage Economic
Name of Beneficial Owners Type of Interest of Class Interest (1)
------------------------- ---------------- ---------- ------------
<S> <C> <C> <C>
BTC(2) General Partnership 100.000% 1.000%
Blackstone entities(3) Limited Partnership 91.574% 90.658%
Tyler Capital Fund L.P. 8.426% 8.342%
("Tyler")(4) Limited Partnership
James J. Mossman(5) General and Limited Partnership 0 0
Peter G. Peterson(5) General and Limited Partnership 0 0
Stephen A. Schwarzman(5) General and Limited Partnership 0 0
Howard A. Lipson(5) General and Limited Partnership 0 0
All executive officers and directors
as a group (4 persons)(5) General and Limited Partnership 0 0
</TABLE>
(1) Represents percentage of total partnership interests (including general and
limited partnership interests) in Holdings.
(2) BTC holds the sole general partnership interest in Holdings. The address of
BTC is 345 Park Avenue, New York, New York 10154.
(3) The following Blackstone entities own 91.574% of the limited partnership
interests in Holdings, which represents the following economic interests in
Holdings: Blackstone Transportation Capital Partners L.P., 34.493%;
Blackstone Domestic Capital Partners L.P., 33.880%; Blackstone Offshore
Capital Partners L.P., 14.943%; Blackstone Family Investment Partnership I
L.P., 5.987%; Blackstone Advisory Directors Partnership L.P., 0.843%; and
Blackstone Management Associates L.P., 0.512%. The address of the Blackstone
entities is 345 Park Avenue, New York, New York 10154.
(4) The address of Tyler is c/o Bain Venture Capital, 2 Copley Plaza, Boston,
Massachusetts 02116.
(5) Messrs. Mossman, Peterson, Schwarzman and Lipson are affiliated with
Blackstone in the capacities described under "Directors and Executive
Officers of the Registrant". Partnership interests data for these
individuals does not include any of the interests included in the above
table beneficially owned by Blackstone.
THE COMPANY
The authorized and outstanding capital stock of the Company consists of 10,000
shares of Class A Voting Stock (Voting Stock), without par value, and 10,000
shares of Class B Nonvoting Stock (Nonvoting Stock), without par value. All of
the voting and nonvoting stock of Transtar represents an equivalent economic
interest in the Company. The following table sets forth the ownership of
Transtar as of December 31, 1999:
<TABLE>
<CAPTION>
Voting Stock % of Voting Nonvoting % of Non- % of Total
Shareholder Owned Shares Stock Owned voting Shares Shares
----------- ------ ------ ----------- ------------- -----
<S> <C> <C> <C> <C> <C>
Transtar Holdings,
L.P. ............. 5,100 51.0% 5,100 56.4% 53.5%
USX Corporation .. 4,900 49.0 3,900 43.1 46.2
Management ....... -- -- 50 0.5 0.3
------ ----- ----- ----- -----
Total ........ 10,000 100.0% 9,050 100.0% 100.0%
====== ===== ===== ===== =====
</TABLE>
54
<PAGE> 57
Management's direct interest has been reduced since Transtar's
formation due to repurchases of 950 shares of nonvoting stock from retiring
managers. Certain shares have been allocated to promoted managers in a stock
option program. Including the effect of this program, total economic ownership
of management would be 2.36 percent.
The Board of Directors of Transtar consists of five members, three of
which are designated by Blackstone and two by USX pursuant to a Stockholders'
Agreement.
As of December 31, 1999, all of the subsidiaries of Transtar were
wholly owned, directly or indirectly, by Transtar.
The Company's by-laws provide that certain matters presented to the
Board require unanimous approval of the directors, including, among other
things: (a) any proposal which, if approved, (i) would require any stockholder
entitled to vote (a "voting stockholder") to subscribe for additional shares of
capital stock of the Company or contribute additional capital to the Company or
would result in a diminution of any voting stockholder's proportionate voting
power among stockholders if such voting stockholder failed to contribute
additional capital voluntarily; (ii) would otherwise result in a diminution of a
voting stockholder's proportionate voting power among stockholders; or (iii)
results in the Company's subsidiaries being unable to perform adequately their
obligations under any of the Transportation Services Agreements; (b)
authorization or issuance of any shares of any equity security of the Company or
any option, warrant, right or instrument convertible into any equity security of
the Company or convertible or exchangeable into any option, warrant or right to
receive any such equity security; (c) redemption of any stock of the Company;
(d) any new borrowing by the Company or any subsidiary thereof (other than
borrowings to finance specific capital expenditures approved in the annual
capital budget), or the grant of any new lien, encumbrance or security interest
in connection therewith on any material assets of the Company or such subsidiary
not previously encumbered except in certain circumstances; (e) any merger,
consolidation, liquidation or dissolution of the Company or sale of
substantially all the assets thereof or sale of stock of any of the Company's
subsidiaries; (f) the sale or merger of any direct or indirect subsidiary of the
Company, or the sale of assets or discontinuance of operations of any direct or
indirect subsidiary of the Company which in either case results in such
subsidiary being unable to perform adequately its obligations under any of the
Transportation Services Agreements, except for certain subsidiaries; (g) any
amendment of any of the Transportation Services Agreements; (h) any expenditure
or commitment in excess of $5,000,000 for the acquisition by the Company or any
direct or indirect subsidiary thereof of any capital stock or other equity or
ownership or proprietary interest in any other corporation, partnership,
association, trust, joint venture or other entity, or of any debt obligation of
any thereof; (i) any lease of real or personal property or any renewal thereof
except for certain circumstances; (j) any sale and lease-back or any refinancing
thereof; (k) any filing by the Company or any direct or indirect subsidiary
thereof of a petition for protection under Federal bankruptcy statutes; (1)
declaration of any dividend or other distribution to stockholders; and (m)
selection of an independent consultant (the "Consultant").
In the event the members of the Board of Directors fail to agree
unanimously on any matter for which unanimous approval is required, the by-laws
provide that the Consultant shall render a decision on such matter which shall
be binding, provided that the Consultant shall have no authority to render a
decision on any of the matters covered by clauses (a), (b), (d), (e), (f) and
(m) described above. If the Board of Directors fails to agree unanimously on any
of the matters covered by clauses (a), (b), (d), (e), (f) and (m), the Company's
by-laws do not specify how deadlocks are to be resolved. Therefore, the Board of
Directors could remain deadlocked and would be unable to take any action on
matters requiring unanimous approval.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
DEPENDENCE UPON USX
For the year 1999, approximately 52% of Transtar's revenues were
derived from the provision of services to USX and its affiliates. Transtar's
operating relationship with USX is governed by certain Transportation Services
Agreements. These agreements, along with Transtar's exclusive rail access to
virtually all USX's steel facilities and its integration within these
facilities, provide some stability to Transtar's cash flows. The Transportation
Services Agreements which existed from the formation of Transtar through July 1,
1998 provided Transtar with certain rights including: (i) sole serving rail
carrier status at USX's Minntac, Gary, Fairfield and Mon Valley facilities as
well as the former USS/Kobe Steel Company's Lorain facility (USS/Kobe)(see
below); (ii) sole rights to perform specified USX
55
<PAGE> 58
in-plant switching services; (iii) primary Great Lakes Fleet bulk commodity
carrier status for USX, including the former USS/Kobe; and (iv) primary inland
barge operator status for the water transport of USX's commodities originating
at or destined for Birmingham, Alabama. With respect to the services referred to
in clause (i) above, the Transportation Services Agreements provided that such
services would continue indefinitely as long as a non-Transtar rail carrier had
not obtained access to the USX facility being served; with respect to the
services referred to in clause (ii) above, the agreements provided that such
services would continue indefinitely so long as USX had not purchased from
Transtar or otherwise obtained the Transtar track on which such services were
provided.
In August 1999, USX and Kobe Steel, Ltd. completed a transaction that
combined the steelmaking and bar producing assets of the former USS/Kobe with
companies controlled by Blackstone Capital Partners II. The combined entity was
named Republic Technologies International, L.L.C. (Republic). USX owns 16% and
Blackstone owns 47% of Republic. The seamless pipe business of the former
USS/Kobe was excluded from this transaction. That business, now known as Lorain
Tubular Company L.L.C. (Lorain Tubular), became a wholly owned subsidiary of USX
at the close of business on December 31, 1999.
With respect to the services referred to in clause (ii) above, the
former USS/Kobe elected to terminate in-plant switching services provided by the
Lake Terminal Railroad (a Transtar subsidiary) effective December 29, 1998. The
former USS/Kobe had not purchased or otherwise obtained any Transtar track at
this facility. In-plant switching services provided by parties other than
Transtar are being performed on tracks currently owned by Republic and Lorain
Tubular. The impact on Transtar was a revenue reduction of approximately $8.6
million in 1999, with a $1.1 million negative impact on before tax income.
In December 1998, Transtar, USX and the former USS/Kobe (for the former
USS/Kobe Great Lakes Fleet bulk commodity carrier service only) executed new
Transportation Services Agreements which, among other things, extend the time
and exclusivity periods of the original agreements. The new agreements were
approved on February 12, 1999 by the lending institutions who participate in
Transtar's Credit Agreement. Effective August 13, 1999, the Transportation
Services Agreement related to the former USS/Kobe which includes bulk commodity
carrier services provided by the Great Lakes Fleet was assigned to Republic. All
the agreements were retroactively effective July 1, 1998 and will extend through
December 31, 2004 for the services referred to in clauses (i), (ii) and (iv)
above, with the exception of rail and rail related services at Republic and
Lorain Tubular (see below), and will extend through March 15, 2005 for the
services referred to in clause (iii) above. With respect to the services
referred to in clause (i) above, the new Transportation Services Agreements
provide that such services will continue indefinitely as long as a non-Transtar
rail carrier has not obtained access to the USX facility being served; with
respect to the services referred to in clause (ii) above, the agreements are
exclusive through 2004 and provide that such services will continue indefinitely
so long as USX has not purchased from Transtar or otherwise obtained the
Transtar track on which such services are provided. The new agreements cover all
of the services provided by Transtar under the previous Transportation Service
Agreements, except that a third party may provide transportation services for:
with respect to the services referred to in clause (i) above, a maximum per year
of forty percent of blast furnace burden tonnage destined for USX's Edgar
Thomson facility in the Mon Valley; with respect to the services referred to in
clause (iii) above, a maximum per year of ten percent of tonnage via the Great
Lakes from March 16, 1999 through March 15, 2003 and a maximum per year of
fifteen percent of tonnage via the Great Lakes from March 16, 2003 through March
15, 2005; and with respect to the services referred to in clause (iv) above, a
maximum per year of ten percent of imported iron ore and coke tonnage destined
for USX's Fairfield, Alabama facility, a maximum per year of ten percent of
export coal tonnage originating at US Steel's Concord Preparation Plant and a
maximum per year of ten percent of domestic coal tonnage via barge originating
at US Steel's Concord Preparation Plant. The agreements provide that USX shall
not, at any time, take any action (a) which would in any way, either directly or
indirectly, encourage any non-Transtar rail carrier to attempt to obtain access
to any of the USX plants for which Transtar is the sole serving rail carrier or
(b) which would in any way assist in and/or support any such rail carrier in any
efforts to obtain such access; provided that USX may, after December 31, 2004,
request that an independent arbitrator or mediator determine whether it is
reasonable and equitable under the facts, circumstances and the regulatory and
competitive conditions in effect at that time, at one or more facilities, for
USX to seek access for a non-Transtar rail carrier. Transtar is required to
acquire certain coke rail cars, not to exceed a maximum expenditure of $20
million. The agreements also provide for certain price concessions and market
based price changes. USX was paid a refund of approximately $6.3 million (with
an equal reduction in Transtar's operating income which was recognized in June
1998) for services provided during the first half of 1998.
56
<PAGE> 59
Including this refund, total price concessions for 1998 reduced Transtar's
revenue and operating income by $14.4 million. Price concessions reduced
Transtar's 1999 revenue and operating income by $14.5 million as compared to
1997 levels.
On December 29, 1998, Transtar and the former USS/Kobe executed a new
Transportation Services Agreement for sole service carrier work including
absorbed switching, equipment rentals and other related transportation services.
The agreement was approved on February 12, 1999 by the lending institutions who
participate in Transtar's Credit Agreement. Effective August 13, 1999, this
agreement was assigned to Republic for services provided to Republic. The new
agreement was effective December 29, 1998 and extends through December 31, 2008
for the sole service carrier work. The agreement provides that Republic and
Lorain Tubular shall not, during the term of the agreement, take any action (a)
which would in any way, either directly or indirectly, encourage any
non-Transtar rail carrier to attempt to obtain access to their respective
facilities or (b) which would in any way assist in and/or support any such rail
carrier in any efforts to obtain such access. The agreement provides for market
based price changes and no price concessions. In-plant scrap handling via rubber
tire vehicles is under separate agreement (also assigned to Republic) until July
31, 2000.
57
<PAGE> 60
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(A)(1). FINANCIAL STATEMENTS
Financial Statements filed as part of this report are listed on the
Index to Consolidated Financial Statements on page 18.
(A)(2). FINANCIAL STATEMENT SCHEDULES
Schedules are omitted because of the absence of the conditions under
which they are required or because the information required by such
omitted schedules is set forth in the financial statements or the notes
thereto.
(A)(3). EXHIBITS
<TABLE>
<CAPTION>
Footnote Exhibit
Ref. No Description
---- -- -----------
<S> <C> <C>
(a) 3.1 Certificate of Incorporation of Transtar Capital Corporation, filed with the Secretary of State of
the State of Delaware on November 23, 1993.
(a) 3.2 By-laws of Transtar Capital Corporation.
(a) 3.3 Certificate of Incorporation of Blackstone Transportation Company, Inc., the controlling general
partner of Transtar Holdings, L.P. (Holdings), filed with the Secretary of State of the State of
Delaware on November 23, 1993.
(a) 3.4 By-laws of Blackstone Transportation Company, Inc., the controlling general partner of Transtar
Holdings, L.P.
(a) 3.5 Second Amended and Restated Agreement of Limited Partnership of Transtar Holdings, L.P.
(a) 3.6 Amended and Restated Certificate of Limited Partnership of Holdings
(a) 3.7 By-laws of Transtar, Inc.
(a) 4.2 Specimen Certificate of 13 3/8% Series B Senior Discount Notes due 2003 (the Notes) (included in
Exhibit 4.3 hereto).
(a) 4.3 Indenture, dated as of December 7, 1993, among Holdings, TCC and the United States Trust Company of
New York, as trustee, pursuant to which the Notes were issued.
(a) 10.3 Credit Agreement, dated as of December 7, 1993, among Transtar, Inc. and Chemical Bank as Agent
and Issuing Bank thereunder.
(d) 10.3.1 Second amendment dated as of September 15, 1995 to the Credit Agreement dated as of December 7,
1993 among Transtar, Inc. and Chemical Bank as Agent and Issuing Bank thereunder.
(g) 10.3.2 Amendment and Waiver dated as of March 12, 1997 to the Credit Agreement dated as of December 7,
1993 among Transtar, Inc. and the Chase Manhattan Bank as Agent and Issuing Bank thereunder.
(g) 10.3.3 Third Amendment and Waiver dated as of October 9, 1997 to the Credit Agreement dated as of
December 7, 1993 among Transtar, Inc. and the Chase Manhattan Bank as Agent and Issuing Bank
thereunder.
10.3.4 Credit Agreement, dated as of December 7, 1993 as amended and restated as of August 26, 1999,
among Transtar, Inc. and Chase Manhattan Bank, as Agent and Issuing Bank.
(a) 10.4 Stockholders Agreement, dated as of December 28, 1988, by and among Blackstone Capital Partners
L.P., Blackstone Transportation Partners L.P., USX Corporation and Transtar, Inc.
10.5 (Reserved)
(h) 10.5.1 Transportation Services Agreement, dated July 1, 1998, between Transtar, Inc. and USX Corporation.
(h) 10.5.2 Transportation Services Agreement, dated December 29, 1998, between Transtar, Inc. and USS/Kobe
Steel Company.
10.6 (Reserved)
</TABLE>
58
<PAGE> 61
<TABLE>
<CAPTION>
Footnote Exhibit
Ref. No Description
---- -- -----------
<S> <C> <C>
(h) 10.6.1 Transportation Services Agreement, dated July 1, 1998 between USS Great Lakes Fleet, Inc. and USX
Corporation and USS/Kobe Steel Company.
10.6.2 USS/Kobe-RTI Opco Consents and Notices Regarding Transtar, Inc. and Lake Terminal Railroad.
10.7 (Reserved)
(h) 10.7.1 Transportation Services Agreement, dated July 1, 1998, between Transtar, Inc. and U.S. Steel
Mining Co., L.L.C..
(a) 10.8 Management Stock Trust Agreement, dated December 28, 1988, between Transtar, Inc. and Pittsburgh
National Bank.
(a) 10.10 Transtar, Inc. Equity Participation Plan, dated December 28, 1988, as amended.
(e) 10.13 Transtar, Inc. Savings Plan for Salaried Employees, effective January 1, 1989 as amended through
January 1, 1996.
10.13.1 Sixth Amendment to the Transtar, Inc. Savings Plan for Salaried Employees, effective January 1, 2000.
10.13.2 Seventh Amendment to the Transtar, Inc. Savings Plan for Salaried Employees, effective January 1, 2000.
(a) 10.14 Transtar, Inc. Flexible Compensation Plan for Non-Represented Employees of Transtar, Inc. and
Subsidiary Companies, effective January 1, 1989.
(e) 10.14.1 Transtar, Inc. Split Dollar Life Insurance Plan, effective July 1, 1994.
10.14.2 Employment Agreement, dated November 1, 1999, between Transtar, Inc. and Robert S. Rosati.
(a) 10.15 Layoff Unemployment Benefit Program for Non-Union Salaried Employees as amended January 1, 1989.
(e) 10.16 Transtar, Inc. Salaried Retirement Plan, effective January 1, 1989 as amended through January 1,
1996.
(g) 10.16.1 Second Amendment to the Transtar, Inc. Salaried Retirement Plan, effective January 1, 1997.
(g) 10.16.2 Fifth Amendment to the Transtar, Inc. Salaried Retirement Plan, effective January 1, 1998.
(h) 10.16.3 Sixth Amendment to the Transtar, Inc. Salaried Retirement Plan, effective January 1, 1999.
10.16.4 Seventh Amendment to the Transtar, Inc. Salaried Retirement Plan, effective January 1, 2000.
(g) 10.17 Transtar, Inc. Non Tax-Qualified Pension Plan, effective January 1, 1994.
(g) 10.18 Transtar, Inc. Supplemental Thrift Program, effective January 1, 1994.
(g) 10.19 Transtar, Inc. Supplemental Pension Program, effective January 1, 1994.
(a) 10.20 Amendment No. 1 to Bareboat Charter, dated as of September 29, 1989, between PNC Leasing Corp and
Transtar, Inc.
(a) 10.21 Bareboat Charter, dated as of June 1, 1990, between PNC Leasing Corp and Transtar, Inc.
(a) 10.22 Bareboat Charter Party, dated as of September 30, 1991, between Joy Finance Company and Transtar, Inc.
(a) 10.23 Lease Agreement, dated as of May 1, 1980, between GATX Leasing Corporation, successor to Gould
Leasing Services, Inc., and Bessemer and Lake Erie Railroad Company.
(a) 10.24 Equipment Lease, dated as of May 30, 1980, between the Bessemer and Lake Erie Railroad Company and
State Street Bank as Trustee.
(a) 10.25 Master Railcar Lease Agreement, dated as of April 30, 1993, between The CIT Group/Equipment
Financing, Inc. and Elgin, Joliet and Eastern Railway Company.
(a) 10.26 Railroad Equipment Lease, dated as of November 15, 1989, between Elgin, Joliet & Eastern Railway
Company and Mellon Financial Services Corporation #3.
(a) 10.27 Bareboat Charter, dated as of June 1, 1989, between PNC Leasing Corp and Transtar, Inc.
(a) 10.28 Amendment No. 1 to Indenture of Trust and First Preferred Ship Mortgage, dated March 19, 1982,
between The Connecticut Bank and Trust Company, as Owner Trustee, and Mercantile-Safe Deposit and
Trust Company, as Indenture Trustee.
(a) 10.29 Note Purchase Agreement, dated as of May 26, 1983.
(a) 10.30 Charter, dated as of September 1, 1980, between The Connecticut Bank and Trust Company and United
States Steel Corporation.
</TABLE>
59
<PAGE> 62
<TABLE>
<CAPTION>
Footnote Exhibit
Ref. No Description
---- -- -----------
<S> <C> <C>
(a) 10.31 Assignment Agreement and Supplement No. 2 to First Preferred Fleet Mortgage, dated as of
December 3, 1987.
10.32 (Reserved)
10.33 (Reserved)
10.34 (Reserved)
(a) 10.35 Consent, dated as of December 21, 1988, from Xerox Corporation to USX Corporation.
10.36 (Reserved)
10.37 (Reserved)
10.38 (Reserved)
10.40 (Reserved)
10.41 (Reserved)
(a) 10.42 Environmental Indemnification Agreement, dated as of December 28, 1988, among USX Corporation,
Transtar and certain subsidiaries of Transtar.
(b) 10.43 Settlement Agreement among Transtar, Inc., Bessemer and Lake Erie Railroad Company and USX
Corporation dated October 6, 1994.
(f) 10.44.1 Transtar, Inc. Amended Stock Option Plan.
(c) 10.45 Equipment Lease Agreement dated as of July 15, 1994 between GATX Third Aircraft Corporation and
Elgin, Joliet and Eastern Railway Company.
(c) 10.46 Bareboat Charter dated as of June 30, 1994 between GATX Third Aircraft Corporation and Transtar,
Inc.
(e) 10.47 Master Equipment Lease Agreement dated as of December 28, 1995 between Birmingham Southern
Railroad company and Nationsbanc Leasing Corporation of North Carolina.
(e) 10.48 Master Equipment Lease Agreement dated as of December 28, 1995 between Duluth, Missabe and Iron
Range Railway company and Heller Financial Leasing, Inc.
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges.
(a) 21.1 Significant Subsidiaries of Transtar Holdings, L.P.
27 Financial Data Schedule.
</TABLE>
- ----------------------------
(a) Previously filed with Registration Statement No. 33-73270 under
corresponding Exhibit number.
(b) Previously filed with Form 8-K on October 7, 1994.
(c) Previously filed with Form 10-K on March 24, 1995.
(d) Previously filed with Form 10-Q on November 1, 1995.
(e) Previously filed with Form 10-K on March 22, 1996.
(f) Previously filed with Form 10-K on March 21, 1997.
(g) Previously filed with Form 10-K on March 27, 1998.
(h) Previously filed with Form 10-K on March 25, 1999.
(b). REPORTS ON 8-K
On December 13, 1999, Holdings and TCC filed a report on Form 8K which
announced that Robert S. Rosati, the President and Chief Executive
Officer of Transtar, Inc., who had previously announced his retirement
has agreed to remain in his positions with the company for a period of
time after his previously announced retirement date. Pursuant to an
Employment Agreement, Mr. Rosati has committed to remain in the office
of the President and Chief Executive Office of Transtar for a term
commencing on November 1, 1999 and ending on or before June 30, 2000.
60
<PAGE> 63
(c). EXHIBITS
See Exhibits to this Form 10-K under separate cover.
SUPPLEMENTAL INFORMATION TO BE FURNISHED WITH REPORTS FILED PURSUANT TO SECTION
15(d) OF THE ACT BY REGISTRANTS WHICH HAVE NOT REGISTERED SECURITIES PURSUANT TO
SECTION 12 OF THE ACT.
Holdings and TCC have not sent an annual report or proxy material to
their security holders. The only annual report to be sent to Holdings and TCC's
securities holders will be a copy of this Form 10-K.
61
<PAGE> 64
SIGNATURES
Pursuant to the requirements of Section 15(a) of the Securities Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized, on the 29th of March, 2000.
TRANSTAR HOLDINGS, L.P.
By Blackstone Transportation Company, Inc.
its controlling general partner
By /s/ Howard A. Lipson
-----------------------------------------
Name: Howard A. Lipson
Title: Treasurer
TRANSTAR CAPITAL CORPORATION
By /s/ Howard A. Lipson
-----------------------------------------
Name: Howard A. Lipson
Title: Treasurer
Pursuant to the requirements of the Securities Act of 1934, this report
has been signed below by the following persons in the capacities indicated on
March 29, 2000.
SIGNATURES TITLE
---------- -----
/s/ James J. Mossman Director and President (Principal Executive
- --------------------- Officer) of BTC and TCC
James J. Mossman
/s/ Howard A. Lipson Treasurer (Principal Financial Officer and
- --------------------- Principal Accounting Officer) of BTC and TCC
Howard A. Lipson
/s/ Stephen A. Schwarzman Director of BTC and TCC
- --------------------------
Stephen A. Schwarzman
/s/ Peter G. Peterson Director of BTC and TCC
- ----------------------
Peter G. Peterson
62
<PAGE> 65
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
- --------------------------------------------------------------------------------
EXHIBITS
filed with
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1998
- --------------------------------------------------------------------------------
TRANSTAR HOLDINGS, L.P.
TRANSTAR CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
6719
6719
(Primary Standard Industrial
Classification Code Number)
- --------------------------------------------------------------------------------
<PAGE> 66
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
FOOTNOTE EXHIBIT
REF. NO DESCRIPTION
- -------- ------- -----------
<S> <C> <C>
(a) 3.1 Certificate of Incorporation of Transtar Capital Corporation, filed with the Secretary of State of
the State of Delaware on November 23, 1993.
(a) 3.2 By-laws of Transtar Capital Corporation.
(a) 3.3 Certificate of Incorporation of Blackstone Transportation Company, Inc., the controlling general
partner of Transtar Holdings, L.P. (Holdings), filed with the Secretary of State of the State of
Delaware on November 23, 1993.
(a) 3.4 By-laws of Blackstone Transportation Company, Inc., the controlling general partner of Transtar
Holdings, L.P.
(a) 3.5 Second Amended and Restated Agreement of Limited Partnership of Transtar Holdings, L.P.
(a) 3.6 Amended and Restated Certificate of Limited Partnership of Holdings
(a) 3.7 By-laws of Transtar, Inc.
(a) 4.2 Specimen Certificate of 13 3/8% Series B Senior Discount Notes due 2003 (the Notes) (included in
Exhibit 4.3 hereto).
(a) 4.3 Indenture, dated as of December 7, 1993, among Holdings, TCC and the United States Trust Company of New
York, as trustee, pursuant to which the Notes were issued.
(a) 10.3 Credit Agreement, dated as of December 7, 1993, among Transtar, Inc. and Chemical Bank as Agent
and Issuing Bank thereunder.
(d) 10.3.1 Second amendment dated as of September 15, 1995 to the Credit Agreement dated as of December 7,
1993 among Transtar, Inc. and Chemical Bank as Agent and Issuing Bank thereunder.
(g) 10.3.2 Amendment and Waiver dated as of March 12, 1997 to the Credit Agreement dated as of December 7,
1993 among Transtar, Inc. and the Chase Manhattan Bank as Agent and Issuing Bank thereunder.
(g) 10.3.3 Third Amendment and Waiver dated as of October 9, 1997 to the Credit Agreement dated as of
December 7, 1993 among Transtar, Inc. and the Chase Manhattan Bank as Agent and Issuing Bank
thereunder.
10.3.4 Credit Agreement, dated as of December 7, 1993 as amended and restated as of August 26, 1999,
among Transtar, Inc. and Chase Manhattan Bank, as Agent and Issuing Bank.
(a) 10.4 Stockholders Agreement, dated as of December 28, 1988, by and among Blackstone Capital Partners
L.P., Blackstone Transportation Partners L.P., USX Corporation and Transtar, Inc.
10.5 (Reserved)
(h) 10.5.1 Transportation Services Agreement, dated July 1, 1998, between Transtar, Inc. and USX Corporation.
(h) 10.5.2 Transportation Services Agreement, dated December 29, 1998, between Transtar, Inc. and USS/Kobe
Steel Company.
10.6 (Reserved)
(h) 10.6.1 Transportation Services Agreement, dated July 1, 1998 between USS Great Lakes Fleet, Inc. and USX
Corporation and USS/Kobe Steel Company.
10.6.2 USS/Kobe-RTI Opco Consents and Notices Regarding Transtar, Inc. and Lake Terminal Railroad.
10.7 (Reserved)
(h) 10.7.1 Transportation Services Agreement, dated July 1, 1998, between Transtar, Inc. and U.S. Steel
Mining Co., L.L.C..
(a) 10.8 Management Stock Trust Agreement, dated December 28, 1988, between Transtar, Inc. and Pittsburgh
National Bank.
(a) 10.10 Transtar, Inc. Equity Participation Plan, dated December 28, 1988, as amended.
</TABLE>
<PAGE> 67
<TABLE>
<CAPTION>
FOOTNOTE EXHIBIT
REF. NO DESCRIPTION
- -------- ------- -----------
<S> <C> <C>
(e) 10.13 Transtar, Inc. Savings Plan for Salaried Employees, effective January 1, 1989 as amended through
January 1, 1996.
10.13.1 Sixth Amendment to the Transtar, Inc. Savings Plan for Salaried Employees effective January 1, 2000.
10.13.2 Seventh Amendment to the Transtar, Inc. Savings Plan for Salaried Employees, effective January 1, 2000.
(a) 10.14 Transtar, Inc. Flexible Compensation Plan for Non-Represented Employees of Transtar, Inc. and
Subsidiary Companies, effective January 1, 1989.
(e) 10.14.1 Transtar, Inc. Split Dollar Life Insurance Plan, effective July 1, 1994.
10.14.2 Employment Agreement, dated November 1, 1999, between Transtar, Inc. and Robert S. Rosati.
(a) 10.15 Layoff Unemployment Benefit Program for Non-Union Salaried Employees as amended January 1, 1989.
(e) 10.16 Transtar, Inc. Salaried Retirement Plan, effective January 1, 1989 as amended through January 1, 1996.
(g) 10.16.1 Second Amendment to the Transtar, Inc. Salaried Retirement Plan, effective January 1, 1997.
(g) 10.16.2 Fifth Amendment to the Transtar, Inc. Salaried Retirement Plan, effective January 1, 1998.
(h) 10.16.3 Sixth Amendment to the Transtar, Inc. Salaried Retirement Plan, effective January 1, 1999.
10.16.4 Seventh Amendment to the Transtar, Inc. Salaried Retirement Plan, effective January 1, 2000.
(g) 10.17 Transtar, Inc. Non Tax-Qualified Pension Plan, effective January 1, 1994.
(g) 10.18 Transtar, Inc. Supplemental Thrift Program, effective January 1, 1994.
(g) 10.19 Transtar, Inc. Supplemental Pension Program, effective January 1, 1994.
(a) 10.20 Amendment No. 1 to Bareboat Charter, dated as of September 29, 1989, between PNC Leasing Corp and
Transtar, Inc.
(a) 10.21 Bareboat Charter, dated as of June 1, 1990, between PNC Leasing Corp and Transtar, Inc.
(a) 10.22 Bareboat Charter Party, dated as of September 30, 1991, between Joy Finance Company and Transtar, Inc.
(a) 10.23 Lease Agreement, dated as of May 1, 1980, between GATX Leasing Corporation, successor to Gould
Leasing Services, Inc., and Bessemer and Lake Erie Railroad Company.
(a) 10.24 Equipment Lease, dated as of May 30, 1980, between the Bessemer and Lake Erie Railroad Company and
State Street Bank as Trustee.
(a) 10.25 Master Railcar Lease Agreement, dated as of April 30, 1993, between The CIT Group/Equipment
Financing, Inc. and Elgin, Joliet and Eastern Railway Company.
(a) 10.26 Railroad Equipment Lease, dated as of November 15, 1989, between Elgin, Joliet & Eastern Railway
Company and Mellon Financial Services Corporation #3.
(a) 10.27 Bareboat Charter, dated as of June 1, 1989, between PNC Leasing Corp and Transtar, Inc.
(a) 10.28 Amendment No. 1 to Indenture of Trust and First Preferred Ship Mortgage, dated March 19, 1982,
between The Connecticut Bank and Trust Company, as Owner Trustee, and Mercantile-Safe Deposit and
Trust Company, as Indenture Trustee.
(a) 10.29 Note Purchase Agreement, dated as of May 26, 1983.
(a) 10.30 Charter, dated as of September 1, 1980, between The Connecticut Bank and Trust Company and United
States Steel Corporation.
(a) 10.31 Assignment Agreement and Supplement No. 2 to First Preferred Fleet Mortgage, dated as of December 3, 1987.
10.32 (Reserved)
10.33 (Reserved)
10.34 (Reserved)
</TABLE>
<PAGE> 68
<TABLE>
<CAPTION>
FOOTNOTE EXHIBIT
REF. NO DESCRIPTION
- -------- ------- -----------
<S> <C> <C>
(a) 10.35 Consent, dated as of December 21, 1988, from Xerox Corporation to USX Corporation.
10.36 (Reserved)
10.37 (Reserved)
10.38 (Reserved)
10.40 (Reserved)
10.41 (Reserved)
(a) 10.42 Environmental Indemnification Agreement, dated as of December 28, 1988, among USX Corporation,
Transtar and certain subsidiaries of Transtar.
(b) 10.43 Settlement Agreement among Transtar, Inc., Bessemer and Lake Erie Railroad Company and
USX Corporation dated October 6, 1994.
(f) 10.44.1 Transtar, Inc. Amended Stock Option Plan.
(c) 10.45 Equipment Lease Agreement dated as of July 15, 1994 between GATX Third Aircraft Corporation and
Elgin, Joliet and Eastern Railway Company.
(c) 10.46 Bareboat Charter dated as of June 30, 1994 between GATX Third Aircraft Corporation and Transtar,
Inc.
(e) 10.47 Master Equipment Lease Agreement dated as of December 28, 1995 between Birmingham Southern
Railroad company and Nationsbanc Leasing Corporation of North Carolina.
(e) 10.48 Master Equipment Lease Agreement dated as of December 28, 1995 between Duluth, Missabe and Iron
Range Railway company and Heller Financial Leasing, Inc.
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges.
(a) 21.1 Significant Subsidiaries of Transtar Holdings, L.P.
27 Financial Data Schedule.
</TABLE>
- ----------
(a) Previously filed with Registration Statement No. 33-73270 under
corresponding Exhibit number.
(b) Previously filed with Form 8-K on October 7, 1994.
(c) Previously filed with Form 10-K on March 24, 1995.
(d) Previously filed with Form 10-Q on November 1, 1995.
(e) Previously filed with Form 10-K on March 22, 1996.
(f) Previously filed with Form 10-K on March 21, 1997.
(g) Previously filed with Form 10-K on March 27, 1998.
(h) Previously filed with Form 10-K on March 25, 1999.
<PAGE> 1
EXHIBIT 10.3.4
CONFORMED COPY
================================================================================
CREDIT AGREEMENT
Dated as of
December 7, 1993,
as amended and restated as of
August 26, 1999
Among
TRANSTAR, INC.
THE LENDERS NAMED HEREIN
And
THE CHASE MANHATTAN BANK,
as Agent and as Issuing Bank
----------
CHASE SECURITIES INC.
as
Lead Arranger and Sole Book Manager
================================================================================
<PAGE> 2
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms....................................................7
SECTION 1.02. Terms Generally.................................................36
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments....................................................37
SECTION 2.02. Loans..........................................................38
SECTION 2.03. Notice of Borrowings...........................................39
SECTION 2.04. Notes; Repayment of Loans......................................40
SECTION 2.05. Fees...........................................................41
SECTION 2.06. Interest on Loans..............................................42
SECTION 2.07. Default Interest...............................................43
SECTION 2.08. Alternate Rate of Interest.....................................44
SECTION 2.09. Termination and Reduction of
Commitments....................................................45
SECTION 2.10. Conversion and Continuation of
Borrowings.....................................................45
SECTION 2.11. Repayment of Term Borrowings...................................48
SECTION 2.12. Prepayment.....................................................50
SECTION 2.13. Reserve Requirements; Change in
Circumstances..................................................54
SECTION 2.14. Change in Legality.............................................57
SECTION 2.15. Indemnity......................................................58
SECTION 2.16. Pro Rata Treatment.............................................60
SECTION 2.17. Sharing of Setoffs.............................................60
SECTION 2.18. Taxes..........................................................61
SECTION 2.19. Payments.......................................................68
ARTICLE III
LETTERS OF CREDIT
SECTION 3.01. Issuance of Letters of Credit..................................69
SECTION 3.02. Participations; Unconditional
Obligations....................................................70
SECTION 3.03. Letter of Credit Fee...........................................70
<PAGE> 3
2
SECTION 3.04. Agreement To Repay Letter of Credit
Disbursements..................................................71
SECTION 3.05. Letter of Credit Operations....................................73
SECTION 3.06. Cash Collateralization.........................................73
SECTION 3.07. Termination of Letter of Credit
Commitment Period..............................................74
SECTION 3.08. Resignation or Removal of Issuing Bank.........................75
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Organization; Powers...........................................76
SECTION 4.02. Authorization..................................................77
SECTION 4.03. Enforceability.................................................78
SECTION 4.04. Governmental Approvals.........................................78
SECTION 4.05. Financial Statements...........................................78
SECTION 4.06. No Material Adverse Change.....................................79
SECTION 4.07. Title to Properties; Possession Under
Leases; Accounts...............................................79
SECTION 4.08. Identity of Subsidiaries.......................................80
SECTION 4.09. Litigation; Compliance with Laws...............................80
SECTION 4.10. Agreements.....................................................81
SECTION 4.11. Federal Reserve Regulations....................................81
SECTION 4.12. Investment Company Act: Public Utility
Holding Company Act............................................81
SECTION 4.13. Use of Proceeds; Letters of Credit.............................81
SECTION 4.14. Tax Returns....................................................82
SECTION 4.15. Information Memoranda..........................................82
SECTION 4.16. Employee Benefit Plans.........................................82
SECTION 4.17. Labor Matters..................................................83
SECTION 4.18. Environmental Matters..........................................83
SECTION 4.19. Solvency.......................................................84
SECTION 4.20. Capitalization.................................................85
SECTION 4.21. Security Interests.............................................86
SECTION 4.22. Year 2000 Matters..............................................86
ARTICLE V
CONDITIONS
SECTION 5.01. All Borrowings.................................................87
SECTION 5.02. Restatement Closing Date.......................................88
<PAGE> 4
3
ARTICLE VI
AFFIRMATIVE COVENANTS
SECTION 6.01. Existence; Businesses and
Properties.....................................................91
SECTION 6.02. Insurance......................................................92
SECTION 6.03. Obligations and Taxes..........................................92
SECTION 6.04. Financial Statements, Reports, etc.............................93
SECTION 6.05. Litigation and Other Notices...................................95
SECTION 6.06. ERISA..........................................................95
SECTION 6.07. Maintaining Records: Access to
Properties and Inspections.....................................96
SECTION 6.08. Use of Proceeds; Letters of Credit.............................97
SECTION 6.09. Further Assurances.............................................97
SECTION 6.10. Fiscal Year....................................................97
SECTION 6.11. Environmental Compliance.......................................97
SECTION 6.12. New Subsidiaries...............................................98
ARTICLE VII
NEGATIVE COVENANTS
SECTION 7.01. Indebtedness...................................................98
SECTION 7.02. Negative Pledge...............................................100
SECTION 7.03. Sale and Lease-Back Transactions..............................102
SECTION 7.04. Investments, Loans and Advances...............................102
SECTION 7.05. Transactions with Affiliates..................................104
SECTION 7.06. Business of Borrower and Subsidiaries;
Credit Standards..............................................104
SECTION 7.07. Mergers, Consolidations and Sales.............................105
SECTION 7.08. Dividends, etc................................................106
SECTION 7.09. Amendment of Constituent Documents............................107
SECTION 7.10. Transportation Services Agreements............................107
SECTION 7.11. Capital Stock.................................................107
SECTION 7.12. Capital Expenditures..........................................107
SECTION 7.13. Debt Service Coverage Ratio...................................108
SECTION 7.14. Interest Expense Coverage Ratio...............................109
SECTION 7.15. Leverage Ratio................................................109
<PAGE> 5
4
ARTICLE VIII
EVENTS OF DEFAULT.............................................109
ARTICLE IX
THE AGENT AND THE ISSUING BANK................................114
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices......................................................119
SECTION 10.02. Survival of Agreement........................................120
SECTION 10.03. Binding Effect...............................................120
SECTION 10.04. Successors and Assigns.......................................120
SECTION 10.05. Expenses: Indemnity..........................................126
SECTION 10.06. Right of Setoff..............................................128
SECTION 10.07. Applicable Law...............................................128
SECTION 10.08. Waivers; Amendment...........................................128
SECTION 10.09. Interest Rate Limitation.....................................130
SECTION 10.10. Entire Agreement.............................................131
SECTION 10.11. Severability.................................................131
SECTION 10.12. Confidentiality..............................................131
SECTION 10.13. Counterparts.................................................132
SECTION 10.14. Headings.....................................................132
SECTION 10.15. Jurisdiction; Consent to Service of
Process......................................................132
SECTION 10.16. Original Credit Agreement;
Effectiveness of the Amendment and
Restatement..................................................133
EXHIBITS
Exhibit A-1 Form of Revolving Credit Note
Exhibit A-2 Form of Tranche A Term Note
Exhibit A-3 Form of Tranche B Term Note
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Administrative Questionnaire
Exhibit D Form of Guarantee Agreement
Exhibit E Form of Pledge Agreement
Exhibit F Form of Security Agreement
Exhibit G Form of Opinion of White & Case LLP
<PAGE> 6
5
SCHEDULES
Schedule 2.01 Commitments
Schedule 4.08 Subsidiaries
Schedule 4.09 Litigation
Schedule 4.21 Security Filings
Schedule 7.01 Indebtedness
Schedule 7.02 Liens
Schedule 7.04 Investments
Schedule 7.05 Affiliate Agreements
<PAGE> 7
6
CREDIT AGREEMENT DATED AS OF DECEMBER 7, 1993, AS AMENDED AND
RESTATED AS OF AUGUST 26, 1999 (THE "AGREEMENT"), AMONG
TRANSTAR, INC., A DELAWARE CORPORATION (THE "BORROWER"), THE
LENDERS LISTED IN SECTION 2.01 (THE "LENDERS") AND THE CHASE
MANHATTAN BANK, A NEW YORK BANKING CORPORATION ("CHASE"), AS
AGENT FOR THE LENDERS (IN SUCH CAPACITY, THE "AGENT") AND AS
ISSUING BANK (SUCH TERM, AND THE OTHER CAPITALIZED TERMS USED
BUT NOT DEFINED IN THIS PRELIMINARY STATEMENT, BEING USED AS
DEFINED IN SECTION 1.01 HEREOF).
The Borrower, certain Lenders, the Agent and the Issuing Bank are
parties to a Credit Agreement dated as of December 7, 1993, as amended and in
effect prior to the Restatement Closing Date (the "Original Credit Agreement"),
pursuant to which such Lenders (a) made loans on a term basis in an aggregate
principal amount of $445,000,000 on the Original Closing Date and (b) on a
revolving basis committed to make loans in an aggregate principal amount at any
time outstanding not in excess of $25,000,000 at any time and from time to time
prior to the Maturity Date. The Borrower also requested the Issuing Bank to
issue letters of credit for the account of the Borrower.
The proceeds of Term Borrowings under the Original Credit Agreement
were used by the Borrower (i) to refinance the Borrower's indebtedness, in an
aggregate amount of $255,000,000, in respect of term loans outstanding under the
Existing Credit Agreement, (ii) to redeem at par $179,090,472.48 principal
amount of Subordinated Notes and to pay, in cash, interest accrued on the
outstanding Subordinated Notes for the period from July 1, 1993 through the
Original Closing Date and (iii) to pay a portion of the fees and expenses in
connection with the transactions contemplated thereby with the balance of the
proceeds of such Term Borrowings. The proceeds of Revolving Credit Borrowings
have been and shall continue to be used to provide working capital for the
Borrower and the Subsidiaries.
The Borrower has requested that the Original Credit Agreement be
amended and restated by this Agreement in order to provide for certain Lenders
to make additional Term Loans to the Borrower in an amount not in excess of
$45,000,000, the proceeds of which will be used (i) to refinance indebtedness in
an aggregate principal amount of $30,000,000, in respect of loans outstanding
under the Short Term Credit Agreement and (ii) to repay Revolving Credit Loans.
The Lenders, the Agent and the Issuing Bank are willing to amend and
restate the Original Credit Agreement with this
<PAGE> 8
7
Agreement for purposes described in the immediately proceeding paragraph, the
Lenders and the Issuing Bank are willing to extend such credit to the Borrower,
and the Issuing Bank is willing to issue letters of credit for the account of
the Borrower, on the terms and conditions set forth herein. Accordingly, the
Borrower, the Lenders, the Issuing Bank and the Agent agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following
words and terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan or ABR Revolving Loan.
"ABR Revolving Loan" shall mean any Revolving Credit Loan bearing
interest at a rate determined by reference to the Alternate Base Rate in
accordance with the provisions of Article II.
"ABR Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Account Debtor" shall mean any person who is obligated to the Borrower
or any Subsidiary under, with respect to, or on account of, an Account.
"Accounts" shall mean any and all rights of the Borrower or any
Subsidiary to payment for goods and services sold, leased or subject to railroad
interchange, including any such right evidenced by chattel paper, whether due or
to become due, whether it has been earned by performance, and whether now or
<PAGE> 9
8
hereafter acquired or arising in the future, including accounts receivable from
Affiliates.
"Additional Management Equity Plan" shall mean any plan for the
compensation of management of the Borrower and/or its Subsidiaries, or any
arrangement for the benefit of the management of the Borrower and/or its
Subsidiaries which provides for equity and/or equity-like investments,
including, without limitation, the issuance of common stock of the Borrower,
and/or warrants, options, contractual rights based on the equity value of the
common stock of the Borrower or other rights to acquire common stock of the
Borrower, provided that such investments shall, when combined with the Transtar,
Inc. Equity Participation Plan, not result in the management of the Borrower
and/or its Subsidiaries holding common stock of the Borrower, or the right to
acquire common stock of the Borrower, which in the aggregate exceeds 5% of the
fully-diluted number of shares of common stock of the Borrower outstanding at
any time.
"Adjusted CD Rate" shall mean, with respect to any CD Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/100 of 1%) equal to the sum of (a) a rate per annum equal to the
product of (i) the Fixed CD Rate in effect for such Interest Period and (ii)
Statutory Reserves, plus (b) the Assessment Rate. For purposes hereof, the term
"Fixed CD Rate" shall mean the arithmetic average (rounded upwards, if
necessary, to the next 1 / 100 of 1 %) determined by the Agent of the arithmetic
average of the prevailing rates per annum determined by each Reference Lender
bid at or about 10:00 a.m., New York City time, to such Reference Lender on the
first Business Day of the Interest Period applicable to such CD Borrowing by
three New York City negotiable certificate of deposit dealers of recognized
standing selected by such Reference Lender for the purchase at face value of
negotiable certificates of deposit of major United States money center banks in
a principal amount approximately equal to such Reference Lender's portion of
such CD Borrowing and with a maturity comparable to such Interest Period.
<PAGE> 10
9
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves. For purposes
hereof, the term "LIBO Rate" shall mean the arithmetic average (rounded upwards,
if necessary, to the next 1/16 of 1%) determined by the Agent of the rate
determined by each Reference Lender at which dollar deposits approximately equal
in principal amount to such Reference Lender's portion of such Eurodollar
Borrowing and for a maturity comparable to such Interest Period are offered to
the principal London office of such Reference Lender in immediately available
funds in the London Interbank Market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Administrative Questionnaire" shall mean an administrative
questionnaire in the form of Exhibit C, which each Lender shall complete and
return to the Agent.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
controls 10% or more of the total voting power of the outstanding shares of
capital stock of such specified person having the right to vote for the election
of directors of such specified person under ordinary circumstances and any
person controlling, controlled by or under common control with such specified
person or such other person. For purposes of the foregoing, the term "control"
(including the terms "controlling", "controlled by" and "under common control
with") shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a person, whether
through the ownership of voting securities, by contract or otherwise. For the
purposes of Section 7.05, the Borrower shall not be deemed to be an Affiliate of
any wholly owned Subsidiary and any wholly owned Subsidiary shall not be deemed
to be an Affiliate of the Borrower or any other wholly owned Subsidiary.
"Agency Fee" shall have the meaning assigned to such term in Section
2.05(c).
<PAGE> 11
10
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the Agent as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective on the date such change is publicly announced. "Base CD Rate"
shall mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate
and (ii) Statutory Reserves and (b) the Assessment Rate. "Three-Month Secondary
CD Rate" shall mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if such day
shall not be a Business Day, the next preceding Business Day) by the Board
through the public information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day shall not be a Business Day, on the next preceding Business Day) by the
Agent from three New York City negotiable certificate of deposit dealers of
recognized standing selected by it. "Federal Funds Effective Rate" shall mean,
for any day, the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average quotations for the day of such transactions
received by the Agent from three Federal funds brokers of recognized standing
selected by it. If for any reason the Agent shall have determined (which
determination shall be conclusive absent
<PAGE> 12
11
manifest error) that it is unable to ascertain the Base CD Rate or the Federal
Funds Effective Rate or both for any reason, including the inability or failure
of the Agent to obtain sufficient quotations in accordance with the terms
thereof, the Alternate Base Rate shall be determined without regard to clause
(b) or (c), or both, of the first sentence of this definition, as appropriate,
until the circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate, the
Three-month Secondary CD Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin" shall mean, at any time, (i) with respect to ABR
Loans, 3/4 of 1%, (ii) with respect to CD Loans, 1-7/8%, and (iii) with respect
to Eurodollar Loans, 1-3/4%; in the case of (i), (ii) and (iii) above plus the
Margin Adjustment (if any) in effect at such time.
"Applicable Percentage" of any Participating Lender shall mean the
percentage of the aggregate Revolving Credit Commitments represented by such
Participating Lender's Revolving Credit Commitment.
"Approved Fund" shall mean, with respect to any Lender that is a fund
that invests in bank loans in the ordinary course of its business, any other
fund or trust or entity (a) that invests in bank loans in the ordinary course of
its business and (b) with respect to which the same investment advisor as that
of such Lender (or an Affiliate of such investment advisor) acts as the sole
investment advisor or manager.
"Assessment Rate" shall mean for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Agent as the then current net annual assessment rate that will be employed in
determining amounts payable by the Agent to the Federal Deposit Insurance
Corporation (or any successor) for insurance by such Corporation (or such
successor) of time deposits made in dollars at the Agent's domestic offices.
<PAGE> 13
12
"Asset Sale Prepayment Event" shall have the meaning assigned to such
term in Section 2.11(b)(i).
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Agent, in the form
of Exhibit B.
"Blackstone" shall mean Blackstone Transportation Capital Partners
L.P., Blackstone Offshore Capital Partners L.P., Blackstone Domestic Capital
Partners L.P., Blackstone Family Investment Partnership II L.P., Blackstone
Advisory Directors Partnership L.P., BMA, BTC and any Related Party of any of
the foregoing entities.
"BMA" shall mean Blackstone Management Associates, L.P., a Delaware
limited partnership.
"BTC" shall mean Blackstone Transportation Company, Inc., a Delaware
corporation.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and having a single Interest Period.
"Business Acquisition" shall mean the acquisition by the Borrower or
any wholly owned Subsidiary of all or substantially all of the assets of, or all
of the capital stock of, any other person.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or a day on which banks in The City of New York are authorized
or required by law to be closed); provided, however, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London Interbank Market.
<PAGE> 14
13
"Capital Expenditures" shall mean, for any person in any period, the
aggregate amount of all capital expenditures of such person during such period,
including Business Acquisitions and cash investments in Permitted Joint
Ventures. For the purposes of this Agreement, the amount of any Capital
Expenditure shall not include an amount equal to the amount of proceeds received
upon any sale of assets or properties which are applied to the purchase of
replacement assets or properties within 12 months of the receipt thereof.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP consistently applied.
"Cash Interest Expense" shall mean Interest Expense which has been paid
in cash or is an accrual of an Interest Expense which is to be paid in cash.
"CD Borrowing" shall mean a Borrowing comprised of CD Loans.
"CD Loan" shall mean any CD Term Loan or CD Revolving Loan.
"CD Revolving Loan" shall mean any Revolving Credit Loan bearing
interest at a rate determined by reference to the Adjusted CD Rate in accordance
with the provisions of Article II.
"CD Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Adjusted CD Rate in accordance with the
provisions of Article II.
<PAGE> 15
14
"Change of Control" shall mean and occur when (a) Blackstone and/or USX
shall not beneficially own, directly or indirectly, or Blackstone and/or USX
shall not have the sole power, directly or indirectly, to direct the voting of,
a majority of the outstanding shares of Voting Stock at the time; (b) USX shall
own, beneficially and of record, less than, or fail to have the sole power to
direct the voting of at least, 25% of the outstanding shares of Voting Stock at
the time; (c) Blackstone shall beneficially own, directly or indirectly, less
than, or fail to have the sole power, directly or indirectly, to direct the
voting of at least, 30% of the outstanding shares of Voting Stock at the time
(other than due solely to the transfer of Voting Stock by Blackstone to USX);
(d) Blackstone shall beneficially own, directly or indirectly, less than 30% of
the aggregate number of outstanding shares of Voting Stock and Non-Voting Stock
at the time (other than due solely to the transfer of Voting Stock or Non-Voting
Stock by Blackstone to USX); (e) USX shall own, beneficially and of record, less
than 20% of the aggregate number of outstanding shares of Voting Stock and
Non-Voting Stock at the time; (f) both (i) any Person or group (within the
meaning of Rule 13d-5 of the Securities and Exchange Act of 1934, as in effect
on the date hereof), other than Blackstone and/or USX, shall own, directly or
indirectly, 25% or more of the aggregate number of outstanding shares of Voting
Stock at the time and (ii) Blackstone and/or USX shall not beneficially own,
directly or indirectly, or Blackstone and/or USX shall not have the sole power,
directly or indirectly, to direct the voting of, a majority of the outstanding
shares of Voting Stock at the time; or (g) a majority of seats (other than
vacant seats) on the Board of Directors of the Borrower shall at any time be
occupied by individuals who were not nominated by Blackstone or USX or appointed
by directors nominated by Blackstone or USX; provided that in determining
whether a Change of Control has occurred under any of the foregoing clauses
(a)-(e) (but not for purposes of clause (f)), any shares of Voting Stock or
Non-Voting Stock issued by the Borrower in a public offering shall be deemed not
to be outstanding.
"Code" shall mean the Internal Revenue Code of 1986 or any successor
statute, as the same may be amended from time to time.
<PAGE> 16
15
"Collateral Agent" shall mean the collateral agent specified in any of
the Security Documents.
"Commitment" shall mean, with respect to any Lender, such Lender's
Tranche B Term Loan Commitment, Tranche A Term Loan Commitment and Revolving
Credit Commitment (if any).
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Debt Service Coverage Ratio" shall mean, with respect to the Borrower
as of the end of any fiscal quarter, the ratio of (A) Operating Cash Flow for
such fiscal quarter and the three immediately preceding fiscal quarters (treated
as a single accounting period), to (B) Required Payments for such period.
"dollars" or "$" shall mean lawful money of the United States of
America.
"EBITD&A" shall mean, with respect to the Borrower for any period, the
sum of (a) Net Income for such period, (b) Interest Expense for such period, (c)
Federal, state and local income and franchise taxes deducted from revenue in
determining such Net Income, (d) depreciation and amortization deducted from
revenue in determining such Net Income and (e) expenses deducted from revenue in
determining such Net Income as a result of SFAS 106.
"Eligible Assignee" shall mean any Lender and any Affiliate of the
assigning Lender and an Approved Fund.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
or any successor statute, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) which is a member of a group of which the Borrower is a member and
which is under common control within the meaning of Section 414 of the Code.
<PAGE> 17
16
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Eurodollar Term Loan or Eurodollar
Revolving Loan.
"Eurodollar Revolving Loan" shall mean any Revolving Credit Loan
bearing interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VIII.
"Excess Cash Flow" shall mean, with respect to the Borrower and the
Subsidiaries on a consolidated basis for any period, without duplication, (I)
the sum of (a) Net Income for such period and all cash non-recurring and
extraordinary gains during such period (whether or not accrued in such period),
(b) depreciation deducted from revenue in determining such Net Income, (c)
amortization deducted from revenue in determining such Net Income, (d) Interest
Expense (other than Cash Interest Expense) and other non-cash items deducted
from revenue in determining such Net Income, and (e) non-cash expenses deducted
from revenue in determining such Net Income as a result of SFAS 106, minus (II)
the sum of (a) non-cash items added back in a previous period pursuant to clause
(I)(d) above to the extent any such item has become a cash item in the current
period, (b) dividends, distributions, redemptions and repurchases paid or made
during such period pursuant to Section 7.08(a), (b) or (d), (c) the cash funding
of special charges and non-recurring and extraordinary losses during such period
(whether or not accrued in such period or in a prior period), (d) prepayments
and repayments of the principal of Revolving Credit Loans, but only to the
extent of the Revolving Credit Commitments that are permanently terminated at
the time of such repayment or
<PAGE> 18
17
prepayment, (e) scheduled payments of the principal of the Term Loans pursuant
to Section 2.11 made during such period and voluntary prepayments of the
principal of the Term Loans made during such period, (f) prepayments of the
principal of Term Loans during such period with the Net Proceeds of any
Prepayment Event (but only to the extent of the amount of such Net Proceeds
included in clause (I)(a) above), (g) the aggregate amount of Capital
Expenditures made by the Borrower and the Subsidiaries during such period (net
of the amount of Capital Lease Obligations and Purchase Money Indebtedness
incurred by the Borrower or any Subsidiary to finance any such Capital
Expenditures), (h) repayments during such period of Capital Lease Obligations of
the Borrower or any Subsidiary (other than any portion thereof allocable to
Interest Expense) and repayments during such period of the principal of Purchase
Money Indebtedness of the Borrower or any Subsidiary and (i) cash payments
associated with the termination of interest rate protection agreements in such
period.
"Existing Credit Agreement" shall mean the Credit Agreement dated as of
October 19, 1990, as amended, among the Borrower, the banks named therein,
Chemical Bank, as agent, and Bank of Montreal as letter of credit issuing bank.
"Fees" shall mean the Agency Fee, the Fronting Fee, the Commitment Fee,
the Letter of Credit Fee and the fees referred to in Section 2.05(b).
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Comptroller (or any duly
authorized Vice President with similar responsibilities) of such corporation.
"Fleet" shall mean USS Great Lakes Fleet, Inc., a Delaware corporation.
"Fronting Fee" shall have the meaning assigned to such term in Section
2.05(c).
"GAAP" shall mean generally accepted accounting principles in the
United States.
<PAGE> 19
18
"Governmental Authority" shall mean any Federal, state or other court
or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase property, securities or services for the purpose
of assuring the owner of such Indebtedness of the payment of such Indebtedness
or (c) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that the term Guarantee
shall not include endorsements for collection or deposit, in either case in the
ordinary course of business.
"Guarantee Agreement" shall mean the Guarantee Agreement entered into
in connection with the Original Credit Agreement, attached hereto as Exhibit D,
between each Subsidiary and the Agent.
"Holdings" shall mean Transtar Holdings, L.P., a Delaware limited
partnership.
"Holdings Notes" shall mean the senior notes issued by Holdings and
TCC.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid (including zero coupon
instruments), (d) all obligations of
<PAGE> 20
19
such person under conditional sale or other title retention agreements relating
to property purchased by such person, (e) all obligations of such person issued
or assumed as the deferred purchase price of property or services (excluding
trade accounts payable arising in the ordinary course of business and paid when
due), (f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (g) all Guarantees by such person
of Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person in respect of interest rate protection agreements
(valued at the termination value thereof) and (j) all obligations of such person
as an account party in respect of letters of credit and bankers' acceptances.
The Indebtedness of any person shall include the Indebtedness of any partnership
in which such person is a general partner, other than to the extent that the
instrument or agreement evidencing such Indebtedness expressly limits the
liability of such person in respect thereof. Notwithstanding anything to the
contrary contained above, Indebtedness referred to in Section 7.01(i) shall not
be deemed to be Indebtedness for the purposes of calculating any financial tests
herein.
"Interest Expense" shall mean, with respect to the Borrower for any
period, the gross interest expense of the Borrower for such period determined on
a consolidated basis in accordance with GAAP consistently applied, including (a)
the amortization of debt discounts, (b) the amortization of all fees (including
fees with respect to interest rate protection agreements) payable in connection
with the incurrence of Indebtedness to the extent included in interest expense
(but excluding the amount of fees and expenses capitalized in connection with
the Existing Credit Agreement and expensed during such period as a result of the
prepayment of Indebtedness thereunder on the Original Closing Date) and (c) the
portion of any payments or accruals with respect to Capital Lease Obligations
allocable to interest expense. For purposes of the foregoing, gross interest
expense shall be determined after giving effect to any net payments made or
received by the
<PAGE> 21
20
Borrower with respect to interest rate protection agreements entered into as a
hedge against interest rate exposure, but without giving effect to the write-off
of expenses associated with the termination of interest rate protection
agreements.
"Interest Expense Coverage Ratio" shall mean, with respect to the
Borrower as of the end of any fiscal quarter, the ratio of (a) EBITD&A for such
fiscal quarter and the three immediately preceding fiscal quarters (treated as a
single accounting period), to (b) Interest Expense for such period.
"Interest Payment Date" shall mean, with respect to any Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration or a CD Borrowing with an Interest Period of more
than 90 days' duration, each day that would have been an Interest Payment Date
had successive Interest Periods of three months or 90 days, as the case may be,
been applicable to such Borrowing, and, in addition, the date of any refinancing
or conversion of such Borrowing with or to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 (or, subject to agreement by all
the Lenders, 12) months thereafter, as the Borrower may elect, (b) as to any CD
Borrowing, a period of 30, 60, 90 or 180 (or, subject to agreement by all the
Lenders, 360 days' duration, as the Borrower may elect, commencing on the date
of such Borrowing and (c) as to any ABR Borrowing, the period commencing on the
date of such Borrowing and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the Maturity Date, and
(iii) the date such Borrowing is converted to a Borrowing of a different Type in
accordance with Section 2.10 or repaid or prepaid in accordance with Section
2.11 or 2.12; provided, however, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to
<PAGE> 22
21
the next succeeding Business Day unless, in the case of a Eurodollar Borrowing
only, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Issuing Bank" shall mean Chase, in its capacity as the issuer of
Letters of Credit. From and including the Restatement Closing Date, the Issuing
Bank may arrange for one or more Letters of Credit to be issued by Affiliates of
the Issuing Bank, in which case the term "Issuing Bank" shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.
"Letter of Credit" shall mean any letter of credit issued by the
Issuing Bank pursuant to Section 3.01(a).
"Letter of Credit Commitment" shall mean $25,000,000, as the same may
be reduced from time to time pursuant to Section 3.07. The Letter of Credit
Commitment shall automatically and permanently terminate on the Maturity Date.
"Letter of Credit Disbursement" shall mean a payment or disbursement
made by the Issuing Bank pursuant to a Letter of Credit.
"Letter of Credit Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all Outstanding Letters of Credit and (b) the
aggregate amount of all Letter of Credit Disbursements not yet reimbursed by the
Borrower as provided in Section 3.04(a).
"Letter of Credit Fee" shall have the meaning assigned to such term in
Section 3.03.
"Leverage Ratio" shall mean, with respect to the Borrower on any date,
the ratio of (a) the aggregate principal amount of Indebtedness of the Borrower
and the Subsidiaries as of such date to (b) EBITD&A for the most recently
completed fiscal
<PAGE> 23
22
quarter and the three immediately preceding fiscal quarters (treated as a single
accounting period).
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Notes, the Letters of
Credit (and any instrument or document executed by the Borrower relating to any
Letter of Credit), the Guarantee Agreement and the Security Documents.
"Loans" shall mean the Revolving Credit Loans and the Term Loans.
"Margin Adjustment" shall mean a percentage which initially shall be 0%
and which shall be adjusted from time to time as follows: (i) the Margin
Adjustment shall be reduced by 1/4 of 1% on the first day (the "Margin Reduction
Date") on which both (A) the sum of the aggregate outstanding Term Loans plus
the Revolving Credit Commitments is equal to or less than $395,000,000 and (B)
the Interest Expense Coverage Ratio as of the end of the most recently completed
fiscal quarter shall be at least 4.75: 1.00 and (ii) after the Margin Reduction
Date, the reduction in the Margin Adjustment pursuant to clause (i) above will
be rescinded (resulting in an increase in the Margin Adjustment by 1/4 of 1%)
during any period that the Interest Expense Coverage Ratio as of the end of the
most recent fiscal quarter (for such fiscal quarter and the three immediately
preceding fiscal quarters treated as a single accounting period) shall be less
than 4.75:1.00. After the Margin Reduction Date, any reduction to the Margin
Adjustment rescinded pursuant to clause (ii) of the preceding sentence shall be
subject to reinstatement (resulting in a 1/4 of 1% reduction in the Margin
Adjustment) during any period that the Interest Expense Coverage Ratio as of the
end of the most
<PAGE> 24
23
recent fiscal quarter (for such fiscal quarter and the three immediately
preceding fiscal quarters treated as a single accounting period) shall be at
least 4.75: 1.00. Any such rescission or reinstatement of the reduction in the
Margin Adjustment pursuant hereto shall be effective at the time of delivery to
the Agent of financial statements pursuant to Section 6.04 demonstrating the
Interest Expense Coverage Ratio at that time. If such reduction pursuant to
clause (i) shall be in effect and the Borrower shall fail to deliver the
financial statements in the time period required by Section 6.04, such reduction
shall be rescinded until the time of delivery to the Agent of such financial
statements demonstrating that the Interest Expense Coverage Ratio has been
achieved. The parties hereto acknowledge that the Margin Reduction Date occurred
prior to the Restatement Closing Date and the Margin Adjustment is in effect on
the Restatement Closing Date.
"Margin Stock" shall have the meaning assigned to such term under
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on
the business, assets, operations, or condition, financial or otherwise, of the
Borrower and the Subsidiaries, taken as a whole, or (b)(i) a material impairment
of the ability of the Borrower or any Subsidiary to perform any of its
obligations under any Loan Document to which it is or will be a party, which
materially impairs the ability of the Borrower and the Subsidiaries to perform
their obligations under the Loan Documents, taken as a whole, or (ii) a material
impairment of the rights or benefits of the Lenders under any Loan Document,
which materially impairs the rights or benefits of the Lenders under the Loan
Documents, taken as a whole.
"Maturity Date" shall mean December 31, 2000.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001 (a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
<PAGE> 25
24
"Net Income" shall mean, with respect to the Borrower for any period,
the aggregate net income (or net deficit) of the Borrower for such period
determined on a consolidated basis in accordance with GAAP consistently applied,
which shall be equal to net revenues and other proper income less the aggregate
for such period of, without duplication, (a) cost of goods sold, (b) interest
expense, (c) operating expenses, (d) selling, general and administrative
expenses, (e) taxes, (f) depreciation, depletion and amortization of properties
and (g) any other items that are treated as expenses under GAAP, but excluding
from the definition of Net Income (x) any special charges and any extraordinary
or non-recurring gains or losses (including the amount of fees and expenses
capitalized in connection with the Existing Credit Agreement and expensed as a
result of the prepayment of Indebtedness thereunder on the Original Closing
Date, to the extent deducted in determining such Net Income) and (y) the
write-off of expenses associated with the termination of interest rate
protection agreements, to the extent deducted in determining such Net Income,
all computed on a consolidated basis in accordance with GAAP consistently
applied.
"Net Proceeds" shall mean with respect to any Prepayment Event (a) the
gross amount of consideration or other amounts (including insurance settlements)
paid to or received by the Borrower or any Subsidiary in respect of such
Prepayment Event, less (b) the amount, if any, of all taxes (other than income
taxes) and the Borrower's good faith best estimate of all income taxes, and
reasonable and customary fees, commissions, costs and other expenses (other than
those payable to the Borrower, any Affiliate of the Borrower or any Subsidiary)
which are incurred in connection with such Prepayment Event and are payable by
the seller or the transferor of the assets or property or issuer of the
securities, as the case may be, to which such Prepayment Event relates, but only
to the extent not already deducted in arriving at the amount referred to in
clause (a). Notwithstanding the foregoing, with respect to any Prepayment Event
described in the proviso to the second sentence of the definition thereof, the
term "Net Proceeds" shall mean the excess of the Net Proceeds paid to or
received
<PAGE> 26
25
by the Borrower or any Subsidiary upon any destruction or sale, lease, transfer
or other disposition described in such sentence over the amount, if any, of cash
payable in respect of the replacement by the Borrower or any Subsidiary at the
time such replacement is obtained.
"Non-Voting Stock" shall mean the Class B Non-Voting Common Stock,
without par value, of the Borrower.
"Notes" shall mean the Term Notes and the Revolving Credit Notes.
"Obligations" shall have the meaning assigned to such term in the
Guarantee Agreement.
"Operating Cash Flow" shall mean, with respect to the Borrower for any
period, without duplication, Net Income for such period plus (a) the aggregate
amounts deducted in determining such Net Income in respect of (i) depreciation,
amortization, deferred taxes, expenses deducted as a result of SFAS 106 and
other non-cash charges and (ii) Interest Expense, plus (b) the net proceeds of
Asset Sale Prepayment Events received during such period, to the extent that
such net proceeds exceed the amount of any gains in respect thereof included in
determining such Net Income (up to a maximum amount pursuant to this clause (b)
of $5,000,000 for each fiscal year of the Borrower) minus (c) the aggregate
amount of Capital Expenditures made by the Borrower and the Subsidiaries during
such period (net of the amount of Capital Lease Obligations and Purchase Money
Indebtedness, which were incurred by the Borrower or any Subsidiary to finance
any such Capital Expenditures (up to the amount of the related Capital
Expenditures)), all determined in accordance with GAAP consistently applied. For
purposes of clause (c) above, the Indebtedness incurred under the Short Term
Credit Agreement and the Revolving Credit Loans incurred in connection therewith
to finance the acquisition of the Ship (as defined in the Short Term Credit
Agreement) shall be deemed to be Purchase Money Indebtedness incurred to finance
Capital Expenditures.
<PAGE> 27
26
"Operating Leases" shall mean operating leases with an initial term of
not less than five years. The amount of any Operating Lease shall be the amount
which, if such Operating Lease had given rise to a Capital Lease Obligation,
would be the amount of the Capital Lease Obligation.
"Original Closing Date" shall mean the date of the first Borrowing
under the Original Credit Agreement.
"Original Credit Agreement" shall have the meaning assigned to such
term in the preamble of this Agreement.
"Outstanding Letters of Credit" shall mean the Letters of Credit at the
time outstanding.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor thereto.
"Participating Lender" shall mean, at any time any Lender with a
Revolving Credit Commitment at such time.
"Permitted Investments" shall mean:
(a) marketable direct obligations issued or unconditionally guaranteed
by the United States of America or issued by any agency thereof and backed by
the full faith and credit of the United States of America, in each case maturing
within one year from the date of acquisition thereof;
(b) marketable general obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof maturing within six months from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
generally obtainable from either Standard & Poor's Corporation or Moody's
Investors Service, Inc.; or
(c) commercial paper maturing no more than six months from the date of
creation thereof and, at the time of acquisition, having a rating of A-1 or
higher from Standard & Poor's Corporation or P-1 or higher from Moody's
Investors Service, Inc.;
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27
(d) domestic and Eurodollar certificates of deposit, time or demand
deposits or bankers' acceptances maturing within six months after the date of
acquisition issued by (x) any Lender or any commercial bank organized under the
laws of the United States of America or any state thereof or the District of
Columbia having combined capital, surplus and undivided profits (less any
undivided losses) of not less than $250,000,000 or (y) any branch of any Lender
or any commercial bank organized under the laws of the United Kingdom, Canada or
Japan having combined capital, surplus and undivided profits (less any undivided
losses) of not less than $250,000,000;
(e) fully collateralized repurchase agreements with a term of not more
than 30 days for underlying securities of the type described in clauses (a) and
(b) above entered into with any institution meeting the qualifications specified
in clause (d) above;
(f) participations in loans made to a borrower with a debt rating of
A-1 or higher from Standard & Poor's Corporation or P-1 or higher from Moody's
Investors Service, Inc., provided that such loans mature within six months from
the date such participation is purchased; and
(g) investments in short-term asset management accounts offered by any
Lender for the purpose of investing in loans to any corporation other than an
Affiliate of the Borrower organized under the laws of any state of the United
States or of the District of Columbia and rated at least A-1 by Standard &
Poor's Corporation or P-1 by Moody's Investors Service, Inc.
"Permitted Joint Ventures" shall mean a joint venture, in the form of a
corporation, business trust, joint venture, association, company or partnership,
entered into by the Borrower or any Subsidiary which (a) is engaged in a line of
business related to those engaged in by the Borrower and its Subsidiaries and
(b) is formed or organized in a manner that limits the exposure of the Borrower
and its Subsidiaries for the liabilities thereof to (i) the investments of the
Borrower
<PAGE> 29
28
and its Subsidiaries therein permitted under Section 7.04(i) and (ii) any
Indebtedness of any Permitted Joint Venture or any Guarantees by the Borrower or
any Subsidiary of such Indebtedness, which Indebtedness or Guarantees are
permitted at the time under Section 7.01.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or Governmental Authority.
"Plan" shall mean any pension plan (other than a Multiemployer Plan)
which is subject to the provisions of Title IV of ERISA and which is maintained
for employees of the Borrower or any ERISA Affiliate.
"Pledge Agreement" shall mean the Pledge Agreement entered into in
connection with the Original Credit Agreement, attached hereto as Exhibit E,
among the Borrower, each Subsidiary listed therein and the Agent.
"Pledged Securities" shall have the meaning assigned to such term in
the Pledge Agreement.
"Potential Event of Default" shall mean any event, condition or
circumstance which upon notice, lapse of time or both would constitute an Event
of Default.
"Prepayment Event" shall mean (a) any sale, lease, transfer,
assignment, destruction or other disposition (other than sales, leases,
assignments, transfers and other dispositions of inventory and equipment in the
ordinary course of business) of assets (including patents, trademarks and other
intangibles), business units, individual business assets or property of the
Borrower or any of the Subsidiaries (including the sale, transfer or disposition
of any capital stock) or (b) the issuance or sale by the Borrower or any of the
Subsidiaries of any securities (other than (i) shares of capital stock of the
Borrower and (ii) debt securities that are permitted to be incurred or issued
pursuant to Section 7.01), or any obligations convertible into or exchangeable
for, or giving any person or entity any right, option or warrant to acquire from
<PAGE> 30
29
the Borrower or any of the Subsidiaries any of such securities or any such
convertible or exchangeable obligations. Notwithstanding the foregoing, the term
"Prepayment Event" shall not include any destruction or sale, lease, transfer or
other disposition of equipment if the Borrower agrees in writing with the
Lenders in a form reasonably acceptable to the Agent that it will replace such
equipment (or cause such equipment to be replaced) with equipment used for
substantially the same purpose, or enter into binding written agreements for the
replacement of such equipment, as soon as practicable after any such destruction
or sale, lease, transfer or other disposition and in any event not later than
one year after any such destruction or sale, lease, transfer or other
disposition; provided, however, that the acquisition of any such replacement, or
the failure to obtain such replacement within such one year period or within one
year following the required delivery date specified in any such written
agreement, shall be deemed to be a "Prepayment Event" described in clause (a)
above. For purposes of the foregoing, "destruction " shall include, with respect
to any property, total destruction, damage beyond repair, loss of use for a
period of more than 120 consecutive days, condemnation, confiscation, seizure of
title or requisition.
"Purchase Money Indebtedness" shall mean Indebtedness of the Borrower
or any Subsidiary incurred for the purpose of financing all or any part of the
purchase price or cost of construction or improvement of property used in the
business of the Borrower or such Subsidiary; provided that such Indebtedness is
incurred within one year after such property is acquired or, in the case of
improvements, constructed.
"Purpose Credit" shall have the meaning assigned to such term in
Regulation U.
"Reference Lender" shall mean the Agent.
"Register" shall have the meaning assigned to such term in Section
10.04(d).
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30
"Regulation T" shall mean Regulation T of the Board, as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board, as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board, as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Related Party" shall mean (i) with respect to Blackstone (other than
BMA or BTC), any trust, corporation, partnership or other entity of which BMA or
BTC, for so long as BMA or BTC continues to be controlled by at least two
Persons who were general partners of BMA on the Original Closing Date, or a
Related Party of BMA or BTC, is the controlling general partner (in the case of
a partnership) or beneficially holds a controlling interest and 75% or more of
the equity interests thereof (in the case of a trust, corporation or other
entity) and (ii) with respect to BMA or BTC, (a) at least two Persons who were
general partners of BMA on the Original Closing Date or (b) any trust,
corporation, partnership or other entity of which two or more of the Persons who
were general partners of BMA on the Original Closing Date beneficially hold a
controlling interest and 75% or more of the equity interests thereof.
"Repayment Date" shall have the meaning assigned to such term in
Section 2.11(a)(ii).
"Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations thereunder.
"Required Lenders" shall mean, at any time, Lenders holding Loans and
Lenders having Letter of Credit Exposure and unutilized Revolving Credit
Commitments representing in the aggregate more than 50% of the aggregate
principal amount of the Loans outstanding, the Letter of Credit Exposure and the
unutilized Revolving Credit Commitments.
<PAGE> 32
31
"Required Payments" shall mean, with respect to the Borrower for any
period, without duplication, (a) the aggregate consolidated Cash Interest
Expense for such period, (b) the aggregate redemption price (excluding any
amount payable in respect of accrued dividends) of preferred stock, if any, of
the Borrower or any Subsidiary required to be redeemed by its terms during such
period and (c) the aggregate principal amount of Term Loans becoming due during
such period pursuant to Section 2.11 and the aggregate principal amount of
scheduled payments or scheduled prepayments becoming due during such period in
respect of all other Indebtedness (other than any Indebtedness, to the extent
such Indebtedness is refinanced during such period (or prior to the date
financial statements as of the end of such period are required to be delivered
pursuant to Section 6.04) with other Indebtedness permitted hereunder) of the
Borrower or any Subsidiary, including the portion of Capital Lease Obligations
of the Borrower or any Subsidiary not allocable to Interest Expense payable or
by its terms becoming due during such period.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Restatement Closing Date" shall mean the date on which the conditions
set forth in Section 5.02 are satisfied, or waived by the Required Lenders and
each Lender with a Tranche B Term Loan Commitment, and the Tranche B Term Loans
are borrowed hereunder.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Credit Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Credit Loans hereunder as set
forth in Section 2.01(b), as the same may be reduced from time to time pursuant
to Section 2.09. The aggregate amount of Revolving Credit Commitments of all the
Lenders is $25,000,000 on the Restatement Closing Date.
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"Revolving Credit Loans" shall mean the revolving credit loans made by
the Lenders to the Borrower pursuant to Section 2.01(b). Each Revolving Credit
Loan shall he a Eurodollar Revolving Loan, a CD Revolving Loan or an ABR
Revolving Loan.
"Revolving Credit Note" shall mean a promissory note of the Borrower,
substantially in the form of Exhibit A-1, evidencing Revolving Credit Loans.
"Security Agreement" shall mean the Security Agreement entered into in
connection with the Original Credit Agreement, attached hereto as Exhibit F,
among the Borrower, each Subsidiary and the Agent.
"Security Documents" shall mean the Pledge Agreement and the Security
Agreement.
"Short Term Credit Agreement" shall mean the Credit Agreement dated as
of June 29, 1999, among the Borrower, the lenders named therein and Chase, as
agent.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority to which the Agent is
subject (a) with respect to the Adjusted CD Rate or the Base CD Rate (as such
term is used in the definition of "Alternate Base Rate"), for new negotiable
nonpersonal time deposits in dollars of over $100,000 with maturities
approximately equal to (i) the applicable Interest Period, in the case of the
Adjusted CD Rate, and (ii) three months, in the case of the Base CD Rate, and
(b) with respect to the Adjusted LIBO Rate, for Eurocurrency Liabilities (as
defined in Regulation D of the Board). Such reserve percentages shall include
those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute Eurocurrency Liabilities and to be subject to such reserve
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requirements without benefit of or credit for proration, exceptions or offsets
which may be available from time to time to any Lender under such Regulation D.
Statutory Reserves shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"Stockholders Agreement" shall mean the Stockholders' Agreement dated
as of December 28, 1988, by and among Blackstone Capital Partners L.P.,
Blackstone Transportation Partners L.P., USX and the Borrower.
"Subordinated Note Agreement" shall mean the Junior Subordinated Note
Agreement dated as of December 28, 1988, between the Borrower and USX, pursuant
to which the Subordinated Notes were issued, as amended by the amendment thereto
dated October 18, 1990.
"Subordinated Notes" shall mean the 13-3/4% Junior Subordinated
Pay-in-Kind Notes Due 2003 of the Borrower issued pursuant to the Subordinated
Note Agreement.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, association or other business entity of which
more than 50% of the securities or other ownership interests having ordinary
voting power is, or with respect to which rights to control management (pursuant
to any contract or other agreement or otherwise) are, at the time as of which
any determination is being made, owned, controlled or held by the parent or one
or more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent.
"Subsidiary" shall mean any subsidiary of the Borrower; provided that
(a) neither Southern International Service Company Inc. nor Mobile Bay Wood Chip
Center shall be considered to be a Subsidiary of the Borrower solely by reason
of the contractual rights to control the management thereof existing on the
Original Closing Date and (b) neither Sisco Stevedoring LLC, Sisco II nor
Southeast Wood Fiber LLC shall be considered to be a Subsidiary of the Borrower
solely by reason of the contractual rights to control the management thereof
existing on the Restatement Closing Date.
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"Substitute Lender" shall have the meaning assigned to such term in
Section 2.13(d).
"TCC" shall mean Transtar Capital Corporation, a Delaware corporation.
"Term Borrowing" shall mean a Borrowing comprised of Term Loans.
"Term Loans" shall mean Tranche A Term Loans and Tranche B Term Loans.
"Term Notes" shall mean Tranche A Term Notes and Tranche B Term Notes.
"Tranche A Repayment Date" shall have the meaning assigned to such term
in Section 2.11(a)(i).
"Tranche A Term Borrowing" shall mean a Borrowing comprised of Tranche
A Term Loans.
"Tranche A Term Loan Commitment" shall mean, with respect to each
Lender, the commitment of such Lender to make term loans pursuant to clause (a)
of Section 2.01 of the Original Credit Agreement.
"Tranche A Term Loans" shall mean the term loans made by certain
Lenders to the Borrower on the Original Closing Date pursuant to clause (a) of
Section 2.01 of the Original Credit Agreement. Each Tranche A Term Loan is a
Eurodollar Term Loan, a CD Term Loan or an ABR Term Loan. The aggregate
principal amount of the Tranche A Term Loans outstanding on the Restatement
Closing Date is $85,000,000.
"Tranche A Term Note" shall mean a promissory note of the Borrower,
substantially in the form of Exhibit A-2, evidencing Term Loans.
"Tranche B Repayment Date" shall have the meaning assigned to such term
in Section 2.11(a)(ii).
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"Tranche B Term Borrowing" shall mean a Borrowing comprised of Tranche
B Term Loans.
"Tranche B Term Loan Commitment" shall mean, with respect to each
Lender, the commitment of such Lender to make Tranche B Term Loans hereunder as
set forth in Section 2.01(a). The aggregate amount of the Tranche B Term Loan
Commitments of all the Lenders is $45,000,000.
"Tranche B Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to Section 2.01(a). Each Tranche B Term Loan shall be a
Eurodollar Term Loan, a CD Term Loan or an ABR Term Loan.
"Tranche B Term Note" shall mean a promissory note of the Borrower,
substantially in the form of Exhibit A-3, evidencing Tranche B Term Loans.
"Transactions" shall have the meaning assigned to such term in Section
4.02.
"Transportation Services Agreements" shall mean (a) the transportation
services agreement dated as of July 1, 1998, between the Borrower and U.S. Steel
Mining Co., Inc., (b) the transportation services agreement dated as of July 1,
1998, between the Borrower and USX, (c) the transportation services agreement
effective as of July 1, 1998, between Fleet and USX and (d) the transportation
services agreement dated as of December 29, 1998, between the Borrower and
USS/Kobe Steel Company.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined.
"USS" shall mean USX (in relation to its USS Division) or any
subsidiary of USX succeeding to its USS Division.
"USX" shall mean USX Corporation, a Delaware corporation.
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"Voting Stock" shall mean the Class A Voting Common Stock, without par
value, of the Borrower.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided,
however, that, for purposes of determining compliance with any covenant set
forth in Article VII, such term shall be construed in accordance with GAAP as in
effect on the date of this Agreement applied on a basis consistent with the
application used in the audited financial statements referred to in Section
4.05.
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ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. (a) Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make a single Tranche B Term Loan to the
Borrower on the Restatement Closing Date in a principal amount not to exceed the
Tranche B Term Loan Commitment set forth opposite its name in Schedule 2.01.
Amounts paid or prepaid in respect of Term Loans may not be reborrowed.
(b) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender named below agrees,
severally and not jointly, to make Revolving Credit Loans to the Borrower, at
any time and from time to time on or after the Restatement Closing Date and
until the earlier of the Maturity Date and the termination of the Revolving
Credit Commitment of such Lender in accordance with the terms hereof, in an
aggregate principal amount at any time outstanding not to exceed (after giving
effect to all Revolving Credit Loans repaid, and all reimbursements of Letter of
Credit Disbursements made, concurrently with the making of any Revolving Credit
Loans) (i) the Revolving Credit Commitment set forth opposite its name in
Schedule 2.01, as the same may be reduced from time to time pursuant to Section
2.09, minus (ii) such Lender's Applicable Percentage of the Letter of Credit
Exposure at the time. Within the limits set forth in the preceding sentence, the
Borrower may borrow, pay or prepay and reborrow Revolving Credit Loans on or
after the Original Closing Date and prior to the Maturity Date, subject to the
terms, conditions and limitations set forth herein.
(c) All Tranche A Term Loans, Revolving Credit Loans and Outstanding
Letters of Credit under the Original Credit Agreement on the Restatement Closing
Date shall remain outstanding hereunder on the terms set forth herein.
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SECTION 2.02. Loans. (a) Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
respective Tranche B Term Loan Commitments or Revolving Credit Commitments, as
the case may be; provided, however, that the failure of any Lender to make any
Loan shall not in itself relieve any other Lender of its obligation to lend
hereunder (it being understood, however, that no Lender shall be responsible for
the failure of any other Lender to make any Loan required to be made by such
other Lender). The Loans comprising each Borrowing shall be in an aggregate
principal amount which is an integral multiple of $1,000,000 and not less than
$1,000,000 (or, if less, an aggregate principal amount equal to the remaining
balance of the applicable Commitments), in the case of an ABR Borrowing, and
$5,000,000, in the case of a Eurodollar Borrowing or CD Borrowing.
(b) Each Borrowing shall be comprised of ABR Loans, CD Loans or
Eurodollar Loans, as the Borrower may request pursuant to Section 2.03. Each
Lender may at its option fulfill its Commitment with respect to any Eurodollar
Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that (i) any exercise of such option shall not cause
such Lender to incur any increased costs in respect of which the Borrower is
required to reimburse such Lender pursuant to Section 2.13 and (ii) any exercise
of such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement and the applicable Note.
Borrowings of more than one Type may be outstanding at the same time; provided,
however, that the Borrower may not request any Borrowing which, if made, would
result in an aggregate of more than eight separate CD Loans or Eurodollar Loans
of any Lender being outstanding hereunder at any one time. For purposes of the
foregoing, Loans having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Loans.
(c) Each Lender shall make a Loan in the amount of its pro rata
portion, as determined under Section 2.16, of each Borrowing hereunder on the
proposed date thereof by wire transfer of immediately available funds to the
Agent in New York, New York, not later than 1:00 p.m., New York City time,
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and the Agent shall by 2:00 p.m., New York City time, credit the amounts so
received to the general deposit account of the Borrower with the Agent or, if a
Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, promptly return the amounts so received to
the respective Lenders in like funds.
(d) Notwithstanding any other provision of this Agreement, the Borrower
may not request any Revolving Credit Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.
(e) If the Agent has not received from the Borrower the payment
required by Section 3.04(a) by 11:00 a.m., New York City time, on the date on
which the Issuing Bank has notified the Borrower that payment of a draft
presented under any Letter of Credit will be made, as provided in Section
3.04(a), the Agent will promptly notify the Issuing Bank and each Participating
Lender of the Letter of Credit Disbursement and, in the case of each
Participating Lender, its Applicable Percentage of such Letter of Credit
Disbursement. Each Participating Lender will pay to the Agent not later than
2:00 p.m., New York City time, on such date such Participating Lender's
Applicable Percentage of such Letter of Credit Disbursement, which the Agent
will promptly pay to the Issuing Bank. The Agent will promptly remit to each
Participating Lender its Applicable Percentage of any amounts subsequently
received by the Agent from the Borrower in respect of such Letter of Credit
Disbursement.
SECTION 2.03. Notice of Borrowings. (a) The Borrower shall give the
Agent written or telex notice (or telephone notice promptly confirmed in writing
or by telex) (a) in the case of a Eurodollar Borrowing, not later than 10:00
a.m., New York City time, three Business Days before a proposed Borrowing, (b)
in the case of a CD Borrowing, not later than 10:00 a.m., New York City time,
two Business Days before a proposed Borrowing and (c) in the case of an ABR
Borrowing, not later than 12:00 (noon), New York City time, one Business Day
before a proposed Borrowing. Such notice shall be irrevocable and shall in each
case refer to this Agreement and
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specify (i) whether the Borrowing then being requested is to be a Tranche B Term
Borrowing or a Revolving Credit Borrowing, and whether such Borrowing is to be a
Eurodollar Borrowing, a CD Borrowing or an ABR Borrowing; (ii) the date of such
Borrowing (which shall be a Business Day) and the amount thereof; and (iii) if
such Borrowing is to be a Eurodollar Borrowing or CD Borrowing, the Interest
Period with respect thereto. If no election as to the type of Borrowing is
specified in any such notice, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any Eurodollar Borrowing or CD
Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration, in the case of a
Eurodollar Borrowing, or 30 days' duration, in the case of a CD Borrowing.
(b) The Agent shall promptly and on the same Business Day, if
practicable, advise the Lenders of any notice given pursuant to this Section
2.03 and of each Lender's portion of the requested Borrowing.
SECTION 2.04. Notes; Repayment of Loans. The Revolving Credit Loans
made prior to the Restatement Closing Date and Tranche A Term Loans made by each
Lender have been evidenced by Revolving Credit Notes and Tranche A Term Notes,
respectively, duly executed on behalf of the Borrower, dated the Original
Closing Date in substantially the form attached hereto as Exhibit A-1 or A-2,
respectively. The Tranche B Term Loans made by each Lender shall be evidenced by
a Tranche B Term Note duly executed on behalf of the Borrower, dated the
Restatement Closing Date in substantially the form attached hereto as Exhibit
A-3 with the blanks appropriately filled, payable to the order of such Lender in
a principal amount equal to such Lender's Tranche B Term Loan Commitment. The
outstanding principal balance of each Loan, as evidenced by such a Note, shall
be payable (a) in the case of a Revolving Credit Loan, on the Maturity Date and
(b) in the case of a Term Loan, as provided in Section 2.11. Each Note shall
bear interest from the date of the first Borrowing hereunder in respect of such
Note on the outstanding principal balance thereof as set forth in Section 2.06.
Each Lender shall, and is hereby authorized by the Borrower to,
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endorse on the schedule attached to each Note delivered to such Lender (or on a
continuation of such schedule attached to such Note and made a part thereof), or
otherwise to record in such Lender's internal records, an appropriate notation
evidencing the date and amount of each Loan from such Lender, each payment and
prepayment of principal of any such Loan, each payment of interest on any such
Loan and the other information provided for on such schedule, such notations
being rebuttable presumptive evidence of the information recorded thereby;
provided, however, that the failure of any Lender to make such a notation or any
error therein shall not affect the obligation of the Borrower to repay the Loans
made by such Lender in accordance with the terms of this Agreement and the
applicable Notes. Upon written request to the Borrower by a Lender, which
request shall be made through the Agent, the Borrower shall issue to such Lender
a new promissory note in exchange for such Lender's existing Revolving Credit
Note or Term Note, as applicable, which new promissory note shall constitute a
"Note" for all purposes of this Agreement and the other Loan Documents
(evidencing the same Loans) and shall be identical to such existing Note, except
as follows: (a) the phrase in such Note "to the order of" shall be deleted, (b)
the phrase "or registered assigns" shall be inserted immediately before the
phrase "(the "Lender")" in such Note and (c) there shall be inserted in such
Note, as a new paragraph immediately preceding the penultimate paragraph of such
Note, the following two sentences: "This Note is issuable only in registered
form. The holder hereof, by its acceptance of this Note, shall be deemed to have
agreed to transfer this Note only on the terms provided in the Agreement." No
promissory note issued pursuant to the immediately preceding sentence of this
Section 2.04 may be exchanged for a promissory note in a form other than that
provided for in such immediately preceding sentence. Notes that are replaced
with any promissory notes issued pursuant to the second preceding sentence of
this Section 2.04 shall be returned to the Borrower.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each
Participating Lender, through the Agent, on the last day of March, June,
September and December in each year, commencing December 31, 1993, and on the
date on which
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the Revolving Credit Commitment of such Participating Lender shall be terminated
as provided herein, a commitment fee (a "Commitment Fee") of 1/2 of 1% per annum
on the average daily unused amount of the Revolving Credit Commitment of such
Participating Lender during the preceding quarter (or shorter period commencing
with the Original Closing Date or ending with the Maturity Date or the date on
which the Revolving Credit Commitment of such Participating Lender shall be
terminated). All Commitment Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days. The Commitment Fee due to each
Participating Lender hereunder shall commence to accrue on the Original Closing
Date and shall cease to accrue on the date on which the Revolving Credit
Commitment of such Participating Lender shall be terminated as provided herein.
(b) The Borrower agrees to pay to the Agent, for its own account and
payment to other Lenders (to the extent applicable), on the Restatement Closing
Date, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Agent.
(c) The Borrower agrees to pay to the Agent, for its own account, in
arrears, on the last day of March, June, September and December in each year,
commencing December 31, 1993, an administration fee (the "Agency Fee") in the
amount specified in the letter dated October 28, 1993, between Chase (as
successor to Chemical Bank) and the Borrower. The Borrower agrees to pay to the
Issuing Bank, for its own account, a fronting fee (the "Fronting Fee") in the
amount separately agreed to by the Issuing Bank and the Borrower.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Agent for prompt distribution, if and as appropriate, among the
Lenders. Once paid, none of the Fees shall be refundable under any
circumstances, absent manifest error.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, each ABR Loan shall bear interest (computed on the basis of the
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actual number of days elapsed over a year of 360 days or, in the event the
Alternate Base Rate is based on the Prime Rate, 365 or 366 days, as the case may
be) at a rate per annum equal to the Alternate Base Rate plus the Applicable
Margin in effect from time to time.
(b) Subject to the provisions of Section 2.07, each CD Loan shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 360 days) at a rate per annum, equal to the Adjusted CD Rate for the Interest
Period in effect for such Borrowing plus the Applicable Margin in effect from
time to time.
(c) Subject to the provisions of Section 2.07, each Eurodollar Loan
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal to the Adjusted LIBO Rate for
the Interest Period in effect for such Borrowing plus the Applicable Margin in
effect from time to time.
(d) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate, Adjusted CD Rate or Adjusted LIBO Rate for
each Interest Period shall be determined by the Agent on the basis of the
information provided to the Agent as provided herein, and such determination
shall be conclusive absent manifest error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder (including any amount due under Section 3.04(a)), by acceleration
or otherwise, the Borrower shall on demand from time to time pay interest, to
the extent permitted by law, on such defaulted amount from the date of such
default up to (but not including) the date of actual payment (after as well as
before judgment) at a rate per annum (computed on the basis of the actual number
of days elapsed over a year of 360 days or, in the event the Alternate Base Rate
is based on the Prime Rate, 365 or 366 days, as the case may be) equal to the
Alternate Base Rate plus the Applicable Margin in respect of ABR Loans plus 2%.
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SECTION 2.08. Alternate Rate of Interest. (a) In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing, the Agent shall have determined that
dollar deposits in the principal amounts of the Loans comprising such Borrowing
are not generally available in the London Interbank Market, or that the rates at
which such dollar deposits are being offered will not adequately and fairly
reflect the cost to any Lender of making or maintaining its Eurodollar Loan
during such Interest Period, or that reasonable means do not exist for
ascertaining the Adjusted LIBO Rate, the Agent shall, as soon as practicable
thereafter, give written or telex notice of such determination to the Borrower
and the Lenders. In the event of any such determination, any request by the
Borrower for a Eurodollar Borrowing pursuant to Section 2.03 or Section 2.10
shall, until the Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, be deemed to be a
request for an ABR Borrowing. Each determination by the Agent hereunder shall be
conclusive absent manifest error.
(b) In the event, and on each occasion, that on or before the day on
which the Adjusted CD Rate for a CD Borrowing is to be determined, the Agent
shall have determined that such Adjusted CD Rate cannot be determined for any
reason, including the inability of the Agent to obtain sufficient bids in
accordance with the terms of the definition of Fixed CD Rate, or the Agent shall
determine that the Adjusted CD Rate for such CD Borrowing will not adequately
and fairly reflect the cost to any Lender of making or maintaining its CD Loan
during such Interest Period, the Agent shall, as soon as practicable thereafter,
give written or telex notice of such determination to the Borrower and the
Lenders. In the event of any such determination, any request by the Borrower for
a CD Borrowing pursuant to Section 2.03 or 2.10 shall, until the Agent shall
have advised the Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, be deemed to be a request for an ABR Borrowing.
Each
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determination by the Agent hereunder shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The
Revolving Credit Commitments and the Letter of Credit Commitment shall be
automatically terminated on the Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written or
telex notice to the Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Revolving Credit
Commitments; provided, however, that (i) each partial reduction thereof shall be
in an integral multiple of $1,000,000 and in a minimum principal amount of
$1,000,000 and (ii) the aggregate Revolving Credit Commitments may not be
reduced to an amount which is less than the Letter of Credit Commitment at the
time.
(c) In the event and on each occasion that a prepayment of Term
Borrowings would be required under Section 2.12(c), (d) or (e) after the Term
Borrowings shall have been fully repaid, then the Revolving Credit Commitments
shall be automatically and permanently reduced at the time and in the amount of
the prepayment that would have been required.
(d) Each reduction in the Revolving Credit Commitments hereunder shall
be made ratably among the Participating Lenders in accordance with their
respective Revolving Credit Commitments. The Borrower shall pay to the Agent for
the account of the Participating Lenders, on the date of each termination or
reduction in the Revolving Credit Commitments, the Commitment Fees on the amount
of the Revolving Credit Commitments so terminated or reduced accrued through the
date of such termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the Agent (i)
not later than 12:00 (noon), New York City time, one Business Day prior to
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conversion, to convert any Eurodollar Borrowing or CD Borrowing into an ABR
Borrowing, (ii) not later than 10:00 a.m., New York City time, two Business Days
prior to conversion or continuation, to convert any Eurodollar Borrowing or ABR
Borrowing into a CD Borrowing or to continue any CD Borrowing as a CD Borrowing
for an additional Interest Period, (ii) not later than 10:00 a.m., New York City
time, three Business Days prior to conversion or continuation, to convert any
ABR Borrowing or CD Borrowing into a Eurodollar Borrowing or to continue any
Eurodollar Borrowing as a Eurodollar Borrowing for an additional Interest
Period, (iv) not later than 10:00 a.m., New York City time, three Business Days
prior to conversion, to convert the Interest Period with respect to any
Eurodollar Borrowing to another permissible Interest Period, and (v) not later
than 10:00 a.m., New York City time, two Business Days prior to conversion, to
convert the Interest Period with respect to any CD Borrowing to another
permissible Interest Period, subject in each case to the following:
(a) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of their Loans
comprising the converted or continued Borrowing;
(b) if less than all the outstanding principal amount of any Borrowing
shall be converted or continued, the aggregate principal amount of such
Borrowing converted or continued shall be an integral multiple of $1,000,000 and
not less than $1,000,000, in the case of ABR Borrowings, and $5,000,000, in the
case of Eurodollar Borrowings or CD Borrowings;
(c) each conversion shall be effected by each Lender by applying the
proceeds of the new Loan of such Lender resulting from such conversion to the
Loan (or portion thereon of such Lender being converted; accrued interest on a
Loan (or portion thereof) being converted shall be paid by the Borrower at the
time of conversion;
(d) if any Eurodollar Borrowing or CD Borrowing is converted at a time
other than the end of the Interest Period applicable thereto, the Borrower shall
pay, upon demand, any amounts due to the Lenders pursuant to Section 2.15;
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47
(e) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a Eurodollar
Borrowing;
(f) any portion of a Borrowing maturing or required to be repaid in
less than 30 days may not be converted into or continued as a CD Borrowing;
(g) any portion of a Eurodollar Borrowing or CD Borrowing which cannot
be converted into or continued as a Eurodollar Borrowing or a CD Borrowing by
reason of clause (e) or (f) above shall be automatically converted at the end of
the Interest Period in effect for such Borrowing into an ABR Borrowing; and
(h) no Interest Period may be selected for any Eurodollar Term
Borrowing or CD Term Borrowing that would end later than a Repayment Date
occurring on or after the first day of such Interest Period if, after giving
effect to such selection, the aggregate outstanding amount of (i) the Eurodollar
Term Borrowings and CD Term Borrowings with Interest Periods ending on or prior
to such Repayment Date and (ii) the ABR Term Borrowings, would not be at least
equal to the principal amount of Term Borrowings of the same class to be paid on
such Repayment Date.
Each notice pursuant to this Section shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted to or continued as a Eurodollar Borrowing, a CD
Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such
Borrowing is to be converted to or continued as a Eurodollar Borrowing or CD
Borrowing, the Interest Period with respect thereto. If no Interest Period is
specified in any such notice with respect to any conversion to or continuation
as a Eurodollar Borrowing or CD Borrowing, the Borrower shall be deemed to have
selected an Interest Period of
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one month's duration, in the case of a Eurodollar Borrowing, or 30 days'
duration, in the case of a CD Borrowing. The Agent shall promptly advise the
other Lenders of any notice given pursuant to this Section and of each Lender's
portion of any converted or continued Borrowing. If the Borrower shall not have
given notice in accordance with this Section to continue any Borrowing into a
subsequent Interest Period (and shall not otherwise have given notice in
accordance with this Section to convert such Borrowing), such Borrowing shall,
at the end of the Interest Period applicable thereto (unless repaid pursuant to
the terms hereof), automatically be continued into a new Interest Period as an
ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a)(i) The Tranche A Term
Borrowings shall be payable as to principal in 14 consecutive installments
payable on the last day of June and December of each year set forth below,
commencing June 30, 1994 (each such date being called a "Tranche A Repayment
Date"), each such installment on any such date to be in an amount equal to 40%
of the amount set forth below opposite the year during which such date occurs,
in the case of any payment due in June, or 60% of such amount, in the case of
any payment due in December, as such amounts may be reduced from time to time
pursuant to Section 2.11(b):
Year Amount
- ---- ------
1994 $50,000,000
1995 $60,000,000
1996 $65,000,000
1997 $70,000,000
1998 $70,000,000
1999 $62,500,000
2000 $67,500,000
(a)(ii) The Tranche B Term Borrowings shall be payable as to principal
in three consecutive installments payable on each date set forth below (each
such date being called a "Tranche B Repayment Date" and, together with the
Tranche A Repayment Dates, the "Repayment Dates") in the amount set forth
opposite
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49
such date, as such amounts may be reduced from time to time pursuant to
Section 2.11(b):
Date Amount
- ---- ------
December 31, 1999 $1,000,000
June 30, 2000 $2,000,000
December 31, 2000 $42,000,000
(b) (i) Each prepayment of principal of the Term Borrowings of either
class pursuant to Section 2.12(a), Section 2.12(c) (with respect to prepayments
made pursuant to any event described in clause (a) of the definition of
"Prepayment Event" (an "Asset Sale Prepayment Event"), but only up to the
principal amount of $5,000,000 in any fiscal year), or Section 2.12(d) shall be
applied to reduce scheduled payments of principal of such Borrowings due under
this Section 2.11 after the date of such prepayment in the order of maturity;
provided, however, that an aggregate amount equal to the first $5,000,000 of
principal of the Term Borrowings prepaid pursuant to Section 2.12(d) shall be
applied to reduce scheduled payments of principal of such Borrowings due under
this Section 2.11 after the date of such prepayment in the inverse order of
maturity.
(ii) Each prepayment of principal of the Term Borrowings of either
class pursuant to Section 7.01(g), Section 7.03(b), Section 2.12(c) (except to
the extent prepayments pursuant to Section 2.12(c) are to be applied pursuant to
Section 2.11(b)(i) above), or Section 2.12(e) shall be applied to reduce
scheduled payments of principal of such Borrowings due under this Section 2.11
after the date of such prepayment ratably.
(iii) The foregoing amortization schedule in clause (a)(i) of this
Section does not reflect any adjustments for prepayments of Tranche A Term
Borrowings made prior to the Restatement Closing Date. It is hereby acknowledged
that all reductions of scheduled principal payments in respect of Tranche A Term
Borrowings that are attributable to prepayments made prior to the Restatement
Closing Date shall be and remain in full force and effect on and after the
Restatement Closing Date.
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(c) To the extent not previously paid, all Term Borrowings shall be due
and payable on the Maturity Date. Each payment of Term Borrowings pursuant to
this Section shall be accompanied by accrued interest on the principal amount
paid to but excluding the date of payment.
SECTION 2.12. Prepayment. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, subject
to the applicable requirements of this Section; provided, however, that each
partial prepayment shall be in an amount which is an integral multiple of
$1,000,000 and not less than $1,000,000. The parties hereto acknowledge that for
purposes of this paragraph (a), the amount of each partial prepayment shall be
determined prior to any allocation of such prepayment.
(b) On the date of any termination or reduction of the Revolving Credit
Commitments pursuant to Section 2.09, the Borrower shall pay or prepay so much
of the Revolving Credit Borrowings as shall be necessary in order that the
aggregate principal amount of the Revolving Credit Loans outstanding will not
exceed (i) the aggregate Revolving Credit Commitments, after giving effect to
such termination or reduction, minus (ii) the Letter of Credit Exposure at the
time.
(c) (i) In the event and on each occasion after the Original Closing
Date that a Prepayment Event (other than an Asset Sale Prepayment Event
described in paragraph (c)(ii) below) occurs, the Borrower shall, substantially
simultaneously with (and in any event not later than the Business Day next
following) the occurrence of such Prepayment Event, subject to the provisions of
paragraph (c)(iii) below, apply 100% of the amount of Net Proceeds of such
Prepayment Event to prepay the principal of Term Borrowings as set forth in
paragraph (c)(iii).
(ii) In the event and on each occasion after the Original Closing Date
that (x) a Prepayment Event which is an Asset Sale Prepayment Event occurs the
Net Proceeds in respect of which
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51
are less than $1,000,000, and (y) the aggregate amount of the Net Proceeds of
such Prepayment Event and all other such Prepayments Events occurring since the
last prepayment pursuant to this clause is at least $1,000,000, the Borrower
shall, substantially simultaneously with (and in any event not later than the
Business Day next following) receipt by or on behalf of the Borrower or any
Subsidiary thereof of the Net Proceeds in cash from such Prepayment Event,
subject to the provisions of paragraph (c)(iii) below, apply 100% of the
aggregate amount of Net Proceeds of all such Prepayment Events to prepay the
principal of Term Borrowings as set forth in paragraph (c)(iii).
(iii) Each mandatory prepayment of Term Borrowings after the
Restatement Closing Date pursuant to paragraph (c)(i) or (c)(ii) above or
(c)(iv) below shall be allocated between the Tranche A Term Borrowings and
Tranche B Term Borrowings as provided in Section 2.12(g) below. The Net Proceeds
to be applied to prepay Term Borrowings of either class in accordance with
paragraph (c)(i) or (c)(ii) above (and amounts to be applied to prepay Term
Borrowings of either class in accordance with paragraph (c)(iv) below) shall
first be applied to prepay any outstanding ABR Term Borrowings of such class.
Net Proceeds (or such other amounts) remaining to be applied to the prepayment
of such Term Borrowings shall, at the option of the Borrower, be applied to
prepay Term Borrowings of such class immediately or be deposited in the
Prepayment Account established by the Agent. The Agent shall apply the cash
deposited in the Prepayment Account to prepay Eurodollar Term Borrowings or CD
Term Borrowings of the applicable class on the last day of their respective
Interest Periods (or, at the direction of the Borrower, so long as no Event of
Default has occurred and is continuing, on any earlier date) until all
outstanding Term Borrowings of the applicable class have been prepaid or until
all of the cash on deposit has been exhausted. For purposes of this Agreement,
"Prepayment Account" shall mean an account established by the Borrower with the
Agent and over which the Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, except that (unless an Event of
Default has occurred and is continuing) the Borrower shall have the exclusive
right to direct the Agent as
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52
to the investment of such deposits in the Prepayment Account in Permitted
Investments maturing prior to the last day of the applicable Interest Periods of
the Term Borrowings to be prepaid; provided, however, that the Agent shall not
be required to make any investment that, in its sole judgment, would require or
cause the Agent to be, or would result, in any violation of any law, statute,
rule or regulation. The Borrower shall indemnify the Agent for any losses
relating to the investments so that the amount available to prepay Term
Borrowings of the applicable class on the last day of the applicable Interest
Periods is not less than the amount which would have been available had no
investments been made pursuant thereto. Other than any interest earned on such
investments, the Prepayment Account shall not bear interest. Interest or
profits, if any, on such investments shall be payable to the Borrower in arrears
or credited against interest obligations of the Borrower hereunder, at the
option of the Borrower, within five Business Days after the cash on deposit has
been fully applied to prepay such Term Borrowings. If the maturity of the Loans
has been accelerated pursuant to Article VIII, the Agent may, in its sole
discretion, apply all amounts on deposit in the Prepayment Account to satisfy
any of the Obligations.
(iv) In the event that the calculation of the Net Proceeds relating to
any Prepayment Event included an estimate for income taxes which was at least
$25,000 greater than the income taxes actually payable in respect thereof, the
Borrower shall, promptly after determining the amount of income taxes actually
payable, subject to paragraph (c)(iii) above, apply the amount by which such
estimate exceeded the amount of taxes actually payable to prepay the principal
of Term Borrowings.
(d) Not later than 90 days after the end of each fiscal year of the
Borrower, commencing with the fiscal year ending December 31, 1994, the Borrower
shall calculate Excess Cash Flow for such fiscal year and apply an amount equal
to 100% of Excess Cash Flow for such fiscal year to prepay the principal of any
outstanding Term Borrowings. Each mandatory prepayment of Term Borrowings after
the Restatement Closing Date pursuant to this paragraph (d) shall be allocated
between the Tranche A Term Borrowings and Tranche B Term Borrowings as provided
in
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53
Section 2.12(g) below. Not later than the date on which the Borrower is required
to deliver to the Agent financial statements with respect to the end of each
fiscal year pursuant to Section 6.04(a), the Borrower will deliver to the Agent
a certificate signed by any Financial Officer of the Borrower setting forth the
amount, if any, of Excess Cash Flow for such fiscal year and the calculation
thereof in reasonable detail.
(e) Any amount received by the Agent or any of the Lenders pursuant to
the subordination provisions of any Indebtedness of the Borrower or any
Subsidiary which is subordinate in any respect to the Loans or the Notes shall
(after the application thereof to pay all costs and expenses of the Agent in
connection with the collection thereof) be immediately applied to prepay the
principal of any outstanding Term Borrowings and, if the maturity of the Loans
shall have been accelerated, Revolving Credit Borrowings, ratably.
(f) Except as expressly provided in this Section, payments with respect
to any paragraph of this Section are in addition to payments made or required to
be made under any other paragraph of this Section.
(g) Not later than three Business Days (other than in the case of
paragraph (e) of this Section) prior to any prepayment pursuant to this Section,
whether voluntary or otherwise, the Borrower shall give the Agent written or
telex notice (or telephone notice promptly confirmed by written or telex notice)
of such prepayment. The Agent shall promptly and on the same Business Day, if
practicable, advise the Lenders of any notice received by it from the Borrower
pursuant to this Section 2.12. Each notice of prepayment shall specify the
prepayment date and the principal amount of each Borrowing (or portion thereof)
to be prepaid, shall be irrevocable and shall commit the Borrower to prepay such
Borrowing (or portion thereof) by the amount stated therein on the date stated
therein. Each prepayment of Term Borrowings pursuant to this Section after the
Restatement Closing Date shall be allocated (i) in the case of any voluntary
prepayment pursuant to paragraph (a) of this Section, between the Tranche A Term
Borrowings and Tranche B Term Borrowings pro rata based on the remaining
scheduled
<PAGE> 55
54
principal payments of such Term Borrowings that will be reduced as a result of
such prepayment pursuant to Section 2.11(b) provided, however, if any prepayment
allocated pursuant to this clause (i) would result in the allocation of less
than $1,000,000 to either Tranche A Term Borrowings or Tranche B Term Borrowings
then the entire amount of such prepayment shall be allocated to the tranche that
would have received the larger allocation, determined in the absence of the
application of this proviso, of such prepayment, or (ii) in the case of all
other prepayments of Term Borrowings, pro rata based on the aggregate
outstanding principal amount of Tranche A Term Borrowings and Tranche B Term
Borrowings, respectively. Each notice of prepayment of Term Borrowings shall
specify the Borrowings to be repaid in accordance with the preceding sentence.
All prepayments under this Section shall be subject to Section 2.15 but
otherwise shall be without premium or penalty. All prepayments under this
Section shall be accompanied by accrued interest on the principal amount being
prepaid to but excluding the date of payment. All prepayments of Term Borrowings
under this Section shall be applied to reduce scheduled payments of principal of
such Term Borrowings due under Section 2.11(a) as provided in Section 2.11(b).
SECTION 2.13. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after December 7, 1993 any change
in applicable law or regulation or in the interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) shall change the
basis of taxation of payments to any Lender or the Issuing Bank in respect of
any Letter of Credit or of the principal of or interest on any Eurodollar Loan
or CD Loan made by such Lender or any fees or other amounts payable hereunder
(other than taxes imposed on or measured by the overall net income of such
Lender by the jurisdiction in which such Lender has its principal office (or
lending office) or by any political subdivision or taxing authority therein), or
shall impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of or credit
<PAGE> 56
55
extended by such Lender (except any such reserve requirement which is reflected
in the Adjusted LIBO Rate or the Adjusted CD Rate) or the Issuing Bank or shall
impose on such Lender or the Issuing Bank or the London Interbank Market any
other condition affecting this Agreement or any Letter of Credit or the Letter
of Credit Exposure or Eurodollar Loans or CD Loans made by such Lender, and the
result of any of the foregoing shall be to increase the cost to such Lender or
the Issuing Bank of making or maintaining the Letter of Credit Exposure, any
Eurodollar Loan or CD Loan (or, in the case of the Issuing Bank, of making any
payment or maintaining the Letter of Credit Commitment) or to reduce the amount
of any sum received or receivable by such Lender or the Issuing Bank hereunder
(whether of principal, interest or otherwise) in respect thereof by an amount
deemed by such Lender or the Issuing Bank to be material, then the Borrower will
pay to such Lender or the Issuing Bank such additional amount or amounts as will
compensate such Lender or the Issuing Bank for such additional costs incurred or
reduction suffered. Each Lender will use all reasonable efforts to designate a
lending office (or a different lending office), so long as such designation is
not adverse to such Lender in such Lender's sole judgment, if such designation
would avoid the need to, or reduce the amount which would otherwise be required
to, compensate such Lender for any additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
applicability of any law, rule, regulation or guideline adopted pursuant to or
arising out of the July 1988 report of the Basic Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards", or the adoption after December 7,
1993, of any other law, rule, regulation or guideline regarding capital
adequacy, or any change in any of the foregoing or in the interpretation or
administration of any of the foregoing by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any lending office of such Lender) or
the Issuing Bank or any Lender's or the Issuing Bank's holding company with any
request or directive regarding capital adequacy (whether or not having
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56
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender's or the
Issuing Bank's capital or on the capital of such Lender's or the Issuing Bank's
holding company, if any, as a consequence of its obligations hereunder to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company could have achieved but for such adoption, change
or compliance (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding company
with respect to capital adequacy) by an amount deemed by such Lender or the
Issuing Bank to be material, then from time to time the Borrower shall pay to
such Lender or the Issuing Bank such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of each Lender or the Issuing Bank setting forth such
amount or amounts as shall be necessary to compensate such Lender or the Issuing
Bank or its holding company as specified in paragraph (a) or (b) above, as the
case may be, shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay each Lender or the Issuing Bank the
amount shown as due on any such certificate delivered by it within 10 Business
Days after its receipt of the same.
(d) In the event any Lender or the Issuing Bank delivers a certificate
pursuant to paragraph (c) above, the Borrower may require, at its expense, such
Lender or the Issuing Bank to assign, at par, without recourse (in accordance
with Section 10.04) all its interests, rights and obligations hereunder
(including, in the case of a Lender, all of its Commitment and the Loans at the
time owing to it and the Notes and participations in Letters of Credit held by
it) to a financial institution specified by the Borrower (a "Substitute
Lender"), provided that (i) such assignment shall not conflict with or violate
any law, rule or regulation or order of any court or other Governmental
Authority, (ii) the Borrower shall have received the written consent of the
Agent and the Issuing Bank
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(other than in the case of an assignment by the Issuing Bank), which consent
shall not unreasonably be withheld, to such assignment and (iii) the Borrower
shall have paid to the assigning Lender or the Issuing Bank, as applicable, all
monies accrued and owing hereunder to it (including pursuant to this Section).
(e) Promptly after any Lender or the Issuing Bank becomes aware of any
circumstance which will, in its sole judgment, result in a request for increased
compensation pursuant to this Section, such Lender or the Issuing Bank shall
notify the Borrower thereof. Failure on the part of any Lender or the Issuing
Bank so to notify the Borrower or to demand compensation for any increased costs
or reduction in amounts received or receivable or reduction in return on capital
with respect to any period shall not constitute a waiver of such Lender's or the
Issuing Bank's right to demand compensation with respect to such period or any
other period. The protection of this Section shall be available to each Lender
and the Issuing Bank regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, guideline or other change or
condition which shall have occurred or been imposed.
SECTION 2.14. Change in Legality. (a) Notwithstanding any other
provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrower and to the Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made
by such Lender hereunder, whereupon any request by the Borrower for a
Eurodollar Borrowing shall, as to such Lender only, be deemed a request
for an ABR Loan unless such declaration is subsequently withdrawn; and
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(ii) require that all outstanding Eurodollar Loans made by it
be converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically converted to ABR Loans as of the effective date
of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section, a notice to the Borrower by any
Lender shall be effective, if lawful, on the last day of the then current
Interest Period; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
(c) In the event any Lender gives a notice pursuant to paragraph (a)
above, the Borrower may require, at its expense, such Lender to assign, at par,
without recourse (in accordance with Section 10.04) all its interests, rights
and obligations hereunder (including all of its Commitment and the Loans at the
time owing to it and the Notes and participations in Letters of Credit held by
it) to a Substitute Lender, provided that (i) such assignment shall not conflict
with or violate any law, rule or regulation or order of any court or other
Governmental Authority, (ii) the Borrower shall have received the written
consent of the Agent and the Issuing Bank, which consent shall not unreasonably
be withheld, to such assignment and (iii) the Borrower shall have paid to the
assigning Lender all monies accrued and owing hereunder to it.
SECTION 2.15. Indemnity. The Borrower shall indemnify each Lender
against any loss or reasonable expense which such Lender may sustain or incur as
a consequence of (a) any failure by the Borrower to fulfill on the date of any
borrowing hereunder the applicable conditions set forth in Article V, so long as
any such failure is not solely due to the failure of the Agent or any Lender to
comply
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with its obligations hereunder in all material respects, (b) any failure by the
Borrower to borrow or to refinance, convert or continue any Loan hereunder after
irrevocable notice of such borrowing, refinancing, conversion or continuation
has been given pursuant to Section 2.03 or 2.10, so long as any such failure is
not solely due to the failure of the Agent or any Lender to comply with its
obligations hereunder in all material respects, (c) any payment, prepayment or
conversion of a Eurodollar Loan or CD Loan, whether voluntary or involuntary,
pursuant to any other provision of this Agreement (including pursuant to Section
2.13(d), 2.14(c) or 2.18(e)) or otherwise made on a date other than the last day
of the Interest Period applicable thereto, so long as any such payment,
prepayment or conversion is not solely due to the failure of the Agent or any
Lender to comply with its obligations hereunder in all material respects, (d)
any default in payment or prepayment of the principal amount of any Loan or any
part thereof or interest accrued thereon, as and when due and payable (at the
due date thereof, by irrevocable notice of prepayment or otherwise) or (e) the
occurrence of any Event of Default, including, in each such case, any loss or
reasonable expense sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to effect or
maintain such Loan or any part thereof as a Eurodollar Loan or CD Loan. Such
loss or reasonable expense shall include an amount equal to the excess, if any,
as reasonably determined by such Lender, of (i) its cost of obtaining the funds
for the Loan being paid, prepaid, converted or not borrowed (based on the
Adjusted LIBO Rate or Adjusted CD Rate applicable thereto), for the period from
the date of such payment, prepayment, conversion or failure to borrow, convert
or continue to the last day of the Interest Period for such Loan (or, in the
case of a failure to borrow, the Interest Period for such Loan which would have
commenced on the date of such failure to borrow, convert or continue) over (ii)
the amount of interest (as reasonably determined by such Lender) that would be
realized by such Lender in reemploying the funds so paid, prepaid, converted or
not borrowed, converted or continued for such period or Interest Period, as the
case may be. A certificate of any Lender setting forth any amount or amounts
which such Lender is entitled to receive pursuant to this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error.
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SECTION 2.16. Pro Rata Treatment. Except as required under Section
2.14, each Borrowing, each payment or prepayment of principal of any Borrowing,
each payment of interest on the Loans, each payment of the Commitment Fee and
the Letter of Credit Fee, each reduction of the Revolving Credit Commitments and
each continuation or conversion of any Borrowing shall be allocated pro rata
among the Lenders in accordance with their respective applicable Commitments
(or, if such Commitments shall have expired or been terminated, in accordance
with the respective principal amounts of their applicable Loans outstanding).
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made hereunder, the Agent may, in its discretion, round each Lender's
percentage of such Borrowing, computed in accordance with Section 2.01, to the
next higher or lower whole dollar amount.
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or any Letter of
Credit Disbursement as a result of which the unpaid principal portion of its
Loans and the unpaid amount of its Letter of Credit participations shall be
proportionately less than the unpaid principal portion of the Loans and unpaid
amount of the Letter of Credit participations of any other Lender, it shall
simultaneously purchase from such other Lender at face value a participation in
the Loans or Letter of Credit participations of such other Lender, so that the
aggregate unpaid principal amount of the Loans and participations in Loans and
the unpaid amount of Letter of Credit participations and participations in
Letter of Credit participations held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all
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Loans then outstanding and the aggregate unpaid amount of all Letter of
Credit Disbursements as the principal amount of its Loans and the unpaid amount
of its Letter of Credit participations prior to such exercise of banker's lien,
setoff or counterclaim or other event was to the principal amount of all Loans
outstanding and the aggregate unpaid amount of all Letter of Credit
Disbursements prior to such exercise of banker's lien, setoff or counterclaim or
other event; provided, however, that, if any such purchase or purchases or
adjustments shall be made pursuant to this Section and the payment giving rise
thereto shall thereafter be recovered, such purchase or purchases or adjustments
shall be rescinded to the extent of such recovery and the purchase price or
prices or adjustment restored without interest. The Borrower expressly consents
to the foregoing arrangements and agrees that any Lender holding a participation
in a Loan or Letter of Credit participation deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower to such Lender by reason
thereof as fully as if such Lender had made a Loan directly to the Borrower in
the amount of such participation or as if such Lender had made a Letter of
Credit Disbursement in the amount of such participation.
SECTION 2.18. Taxes. (a) Except as otherwise required by law, any and
all payments by the Borrower hereunder shall be made, in accordance with Section
2.19, free and clear of and without deduction or withholding for any and all
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding:
(i) in the case of the Agent or the Issuing Bank, taxes
imposed on its income or net worth, and franchise taxes imposed on it,
by the jurisdiction under the laws of which it is organized or any
political subdivision thereof, and
(ii) in the case of each Lender, taxes imposed on its income
or net worth, and franchise taxes imposed on it, by the jurisdiction of
its principal office or lending office
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or any political subdivision thereof, and withholding taxes payable
with respect to payments to such Lender at its principal office or
lending office under laws (including any treaty, ruling, determination
or regulation) in effect on the date hereof, but not any increase in
withholding tax resulting from any subsequent change in such laws,
(all such nonexcluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender, the Agent or the Issuing Bank, (i) the sum payable
shall be increased by the amount necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) such Lender, the Agent or the Issuing Bank (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law. Each Lender will use all
reasonable efforts to designate a lending office (or a different lending
office), so long as such designation is not adverse to such Lender in such
Lender's sole judgment, if such designation would avoid the need to, or reduce
the amount which would otherwise be required to, increase the amounts by which
the sums payable hereunder shall be increased pursuant to this paragraph.
Notwithstanding the foregoing, the Borrower shall not be liable for any
Taxes due in the following circumstances:
(x) if a Lender that is not a U.S. person shall have delivered Internal
Revenue Service Form W-8ECI (or any successor form) to the Borrower pursuant to
Section 2.18(b) and either (i) such Lender ceases to be exempt from deduction or
withholding of Tax imposed by the United States ("United States Tax") in respect
of payments to it hereunder for a reason that is not related to a change in
United States federal income tax law, regulation or official interpretation
occurring after the
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date hereof (a "Relevant Change in Law") and such Lender has not timely provided
to the Borrower a valid and complete, signed copy of either (x) Internal Revenue
Service Form W-8BEN (with respect to the benefits of any income tax treaty) (or
any successor form) indicating its exemption from or entitlement to a reduced
rate of withholding pursuant to an income tax treaty or (y) Internal Revenue
Service Form W-8BEN (with respect to the portfolio exemption) and a Section
2.18(b) Certificate (as defined in Section 2.18(b) hereof) indicating its
exemption from withholding taxes or (ii) if, as the result of a Relevant Change
in Law regarding withholding vis-a-vis effectively connected income, such Lender
is taxed on payments made pursuant to this Agreement on both a net income basis
and by way of deduction or withholding and the amounts withheld or deducted with
respect to such payments are fully creditable against such net income tax
assessed with respect to such payments;
(y) if a Lender that is not a U.S. person shall have delivered Internal
Revenue Service Form W-8BEN (with respect to a complete exemption under an
income tax treaty) (or any successor form) to the Borrower pursuant to Section
2.18(b) and such Lender becomes subject to Tax at an increased rate in respect
of payments to it hereunder for a reason that is not related to a Relevant
Change in Law, or to an amendment, modification or revocation of an applicable
tax treaty or a change in official position regarding the application or
interpretation thereof, in each case occurring after the date hereof (a
"Relevant Change in Tax Treaty") and such Lender has not timely provided to the
Borrower a valid and complete, signed copy of either (x) Internal Revenue
Service Form W-8ECI (or any successor form) indicating its exemption from
withholding taxes or (y) Internal Revenue Service Form W-8BEN (with respect to
the portfolio exemption) and a Section 2.18(b) Certificate (as defined in
Section 2.18(b) hereof) indicating its exemption from withholding taxes;
(yy) if a Lender that is not a U.S. Person shall have delivered
Internal Revenue Service Form W-8BEN (with respect to the portfolio exemption)
and a Section 2.18(b) Certificate (as defined in Section 2.18(b) hereof) (or any
successor forms) to
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the Borrower pursuant to Section 2.18(b) and such Lender becomes subject to tax
at an increased rate in respect of payments to it hereunder for a reason that is
not related to a Relevant Change in Law and such Lender has not timely provided
to Borrower a valid and complete, signed copy of Internal Revenue Service Form
W-8BEN (with respect to the benefits of any income tax treaty) (or any successor
form) indicating its exemption or entitlement to a reduced rate of withholding
pursuant to an income tax treaty or Internal Revenue Service Form W-8ECI (or any
successor form) indicating its exemption from withholding taxes; or
(z) if a Lender that is not a U.S. person shall fail to comply with its
obligations, if any, under Section 2.18(b).
For purposes of Section 2.18(a)(x)(i), Section 2.18(a)(y) and Section
2.18(a)(yy), the fact that a Lender ceases to be exempt from deduction or
withholding of United States Tax will be related to a Relevant Change in Law or
Relevant Change in Tax Treaty if and only if such Lender would not have ceased
to be so exempt but for such Relevant Change in Law or Relevant Change in Tax
Treaty.
If a Lender provides a Form W-8BEN (with respect to the benefits of any
income tax treaty) indicating that it is entitled to a reduction in the rate of,
but not a complete exemption from, U.S. withholding tax, the Borrower shall
withhold at such reduced rate and shall have no indemnity or other obligation to
such Lender pursuant to this Section with respect to United States Taxes imposed
at the current rate of U.S. withholding tax applicable to such Lender pursuant
to U.S. tax laws and the applicable tax treaty (the "Current Rate").
If any Lender that is not a U.S. person is not, as of the Restatement
Closing Date or as of the effective date of the Assignment and Acceptance in the
case of an assignee Lender, legally eligible to provide a valid and complete
signed copy of Internal Revenue Service Form W-8BEN (with respect to a complete
exemption under an income tax treaty), Internal Revenue Service Form W-8ECI or
Internal Revenue Service Form W-8BEN (with respect to the portfolio exemption)
and a Section
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2.18(b) Certificate (as defined in Section 2.18(b) hereof) with respect to
payments to be made hereunder, the Borrower shall withhold from payments to such
Lender the appropriate amount of U.S. withholding taxes and shall have no
indemnity or other obligations to such Lender pursuant to this Section with
respect to U.S. Taxes imposed at the Current Rate applicable to such Lender.
(b) Each Lender that is not a U.S. person and that is legally able to
do so severally covenants and agrees to deliver to the Borrower, on or before
the date of the signing of this Agreement (or on or before the effective date of
the Assignment and Acceptance relating to an assignee Lender) and (i) within 30
days prior to the date on which, through lapse of time, a previously provided
Internal Revenue Service Form W-8BEN (with respect to the benefits of an income
tax treaty) becomes no longer effective, an accurate and complete signed copy of
Internal Revenue Service Form W-8BEN (with respect to the benefits of an income
tax treaty) (or any successor form), dated the date hereof or such later date,
as appropriate, or (ii) within 30 days prior to the beginning of each subsequent
taxable year of such Lender so long as any Loan is outstanding, two accurate and
complete signed copies of Internal Revenue Service Form W-8ECI (or any successor
form), dated the date hereof or any such subsequent date, as appropriate, (iii)
or within 30 days prior to the date on which, through lapse of time, a
previously provided Internal Revenue Service Form W-8BEN (with respect to the
portfolio exemption) becomes no longer effective, two accurate and complete
signed copies of Internal Revenue Service Form W-8BEN (with respect to the
portfolio exemption) and a Section 2.18(b) Certificate (as defined in this
Section 2.18(b) (or any successor form), dated as appropriate and, in each case,
such other related forms (including any certificate with respect thereto) as the
Borrower may reasonably request and that are required pursuant to the Code or
the Regulations or any administrative rulings or procedures thereunder. In
addition, each such Lender shall deliver to the Borrower an accurate and
complete signed copy of Internal Revenue Service Form W-8BEN (with respect to
the benefits of an income tax treaty), two accurate and complete signed copies
of Internal Revenue Service Form W-8ECI or two
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accurate and complete signed copies of Internal Revenue Service Form W-8BEN
(with respect to the portfolio exemption) and, in the case of a Lender that
delivers Form W-8BEN (with respect to the portfolio exemption), a certificate
representing that such Lender is not a bank for purposes of Section 881(c) of
the Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Code) (a "Section 2.18(b) Certificate") as the case may be, at any time that
a change in circumstances renders the previous form inaccurate in any material
respect.
Any Lender that is not a U.S. person and that, as of the Restatement
Closing Date or as of the effective date of the Assignment and Acceptance in the
case of an Assignee Lender, is not eligible to provide a valid and complete
signed copy of Internal Revenue Service Form W-8BEN (with respect to a complete
exemption under an income tax treaty), W-8ECI or Internal Revenue Service Form
W-8BEN (with respect to the portfolio exemption) and a Section 2.18(b)
Certificate (as defined in Section 2.18(b) hereof) shall have no obligation
pursuant to Section 2.18(b) to provide such Form.
(c) In addition, the Borrower agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
(hereinafter referred to as "Other Taxes").
(d) The Borrower will indemnify each Lender, the Issuing Bank and the
Agent for the full amount of Taxes or Other Taxes (including any Taxes or Other
Taxes imposed by any jurisdiction (except as specified in Section 2.18(a)) on
amounts payable under this Section paid by such Lender, the Issuing Bank or the
Agent and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted; provided, however, that at the request of the
Borrower and solely at the Borrower's expense such Lender, the
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Issuing Bank or the Agent shall use reasonable efforts to contest the payment of
such Taxes or Other Taxes which the Borrower and the Agent, the Issuing Bank or
such Lender, as applicable, believe were not correctly or legally asserted. This
indemnification shall be made within 30 days from the date such Lender, the
Issuing Bank or the Agent (as the case may be) makes written demand therefor. If
any Lender receives a refund in respect of any Taxes or Other Taxes for which
such Lender has received payment from the Borrower hereunder, such Lender shall,
within 30 days of receipt by such Lender, repay such refund to the Borrower,
provided that the Borrower, upon the request of such Lender, agrees to return
such refund (plus any penalties, interest or other charges) to the Lender in the
event such Lender is required to repay such refund.
(e) In the event the Borrower is required to increase any amounts
payable to any Lender or the Issuing Bank pursuant to paragraph (a) above
(unless such Lender or the Issuing Bank shall have waived its right thereunder
with respect to any specific increase) or any Lender or the Issuing Bank makes a
written demand for an indemnity in respect of any Taxes pursuant to paragraph
(d) above, the Borrower may require, at its expense, such Lender or the Issuing
Bank to assign, at par, without recourse (in accordance with Section 10.04) all
its interests, rights and obligations hereunder (including, in the case of a
Lender, all of its Commitment and the Loans at the time owing to it and the
Notes and participations in Letters of Credit held by it) to a Substitute
Lender, provided that (i) such assignment shall not conflict with or violate any
law, rule or regulation or order of any court or other Governmental Authority,
(ii) the Borrower shall have received the written consent of the Agent and the
Issuing Bank (other than in the case of an assignment by the Issuing Bank),
which consent shall not unreasonably be withheld, to such assignment and (iii)
the Borrower shall have paid to the assigning Lender or the Issuing Bank, as
applicable, all monies accrued and owing hereunder to it (including pursuant to
this Section).
(f) The Borrower will, within 30 days after the date of any payment of
Taxes or Other Taxes withheld by the Borrower in respect of any payment to any
Lender, furnish to the Agent the
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original or a certified copy of a receipt evidencing payment thereof.
(g) Without prejudice to the survival of any other agreement hereunder,
the agreements and obligations contained in this Section shall survive the
payment in full of principal and interest hereunder.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder and under any other Loan Document not later than 11:00 a.m.,
New York City time, on the date when due in dollars to the Agent at its offices
at 270 Park Avenue, New York, New York, in immediately available funds. The
Agent shall promptly remit in dollars to the Issuing Bank or the Lenders, as the
case may be, their share of any payments received by the Agent.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
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ARTICLE III
LETTERS OF CREDIT
SECTION 3.01. Issuance of Letters of Credit. (a) The Issuing Bank
agrees, upon the terms and subject to the conditions hereinafter set forth, to
issue Letters of Credit, in a form reasonably acceptable to the Agent and the
Issuing Bank, appropriately completed, for the account of the Borrower, at any
time and from time to time on and after the Original Closing Date until the
earlier of the Maturity Date and the termination of the Letter of Credit
Commitment in accordance with the terms hereof; provided, however, that any
Letter of Credit shall be issued by the Issuing Bank only if, and each request
by the Borrower for the issuance of any Letter of Credit shall be deemed a
representation and warranty of the Borrower that, immediately following the
issuance of any such Letter of Credit, (i) the Letter of Credit Exposure shall
not exceed the Letter of Credit Commitment in effect at the time and (ii) the
sum of the Letter of Credit Exposure and the aggregate principal amount of
outstanding Revolving Credit Loans shall not exceed the aggregate Revolving
Credit Commitments at the time.
(b) Each Letter of Credit shall expire at the close of business on the
Maturity Date, unless such Letter of Credit expires by its terms on an earlier
date. Each Letter of Credit shall provide for payments of drawings in dollars.
(c) Each issuance of any Letter of Credit shall be made on at least
three Business Days' prior written or telex notice from the Borrower to the
Issuing Bank and the Agent (which shall give prompt notice thereof to each
Participating Lender) specifying the date of issuance, the date on which such
Letter of Credit is to expire (which shall not be later than the earlier of (i)
the Maturity Date and (ii) subject to extension, 180 days, in the case of
documentary or trade Letters of Credit, and one year, in the case of standby
Letters of Credit, after the date of any such Letter of Credit), the amount of
such Letter of Credit, the name and address of the beneficiary
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of such Letter of Credit and such other information as may be necessary or
desirable to complete such Letter of Credit. The Issuing Bank will give the
Agent and each Participating Lender reasonably prompt notice of the issuance and
amount of each Letter of Credit and the expiration of each Letter of Credit.
SECTION 3.02. Participations; Unconditional Obligations. (a) By the
issuance of a Letter of Credit and without any further action on the part of the
Issuing Bank or the Participating Lenders in respect thereof, the Issuing Bank
hereby grants to each Participating Lender, and each Participating Lender hereby
agrees to acquire from the Issuing Bank, a participation in such Letter of
Credit equal to such Participating Lender's Applicable Percentage of the face
amount of such Letter of Credit, effective upon the issuance of such Letter of
Credit. In consideration and in furtherance of the foregoing, each Participating
Lender hereby absolutely and unconditionally agrees to pay to the Agent, on
behalf of the Issuing Bank, in accordance with Section 2.02(e), such
Participating Lender's Applicable Percentage of each Letter of Credit
Disbursement made by the Issuing Bank; provided, however, that the Participating
Lenders shall not be obligated to make any such payment to the Issuing Bank with
respect to any wrongful payment or disbursement made under any Outstanding
Letter of Credit as a result of the gross negligence or wilful misconduct of the
Issuing Bank.
(b) Each Participating Lender acknowledges and agrees that its
obligation to acquire participations pursuant to paragraph (a) in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of an Event of
Default or Potential Event of Default hereunder, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
SECTION 3.03. Letter of Credit Fee. The Borrower agrees to pay to the
Agent for the account of the Participating Lenders for each calendar quarter (or
shorter period commencing with December 7, 1993, or ending
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with the first date on which the Letter of Credit Commitment shall have expired
or been terminated and there shall be no Outstanding Letters of Credit) a fee
(the "Letter of Credit Fee") on the average daily amount of the Outstanding
Letters of Credit at a rate per annum equal to the Applicable Margin in respect
of Eurodollar Loans in effect from time to time. The Letter of Credit Fee shall
be computed on the basis of the actual number of days elapsed over a year of 360
days. The Agent agrees to disburse to each Participating Lender its pro rata
portion of such Letter of Credit Fee promptly upon receipt. The Letter of Credit
Fee shall be paid in arrears on the last day of March, June, September and
December of each year and on the Maturity Date (or the first date on which the
Letter of Credit Commitment shall have expired or been terminated and there
shall be no Outstanding Letters of Credit, if earlier), commencing on the first
such date following the Original Closing Date. Once paid the Letter of Credit
Fee paid or payable shall not be refundable in any circumstances whatsoever,
absent manifest error.
SECTION 3.04. Agreement To Repay Letter of Credit Disbursements. (a) If
the Issuing Bank shall pay any draft presented under a Letter of Credit, the
Borrower shall pay to the Agent, on behalf of the Issuing Bank, an amount equal
to the amount of such draft before 11:00 a.m., New York City time, on the
Business Day on which the Issuing Bank shall have notified the Borrower that
payment of such draft will be made (or such later time as is not later than one
hour after the Borrower shall have received such notice or, if the Borrower
shall have received such notice later than 4:00 p.m. on any Business Day, not
later than 10:00 a.m. on the immediately following Business Day). The Agent will
promptly pay any such amounts received by it to the Issuing Bank, unless the
Lenders shall have funded their reimbursement obligations under Section 3.02(a).
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(b) The Borrower's obligation to repay the Issuing Bank for payments
and disbursements made by the Issuing Bank under the Outstanding Letters of
Credit shall be absolute, unconditional and irrevocable under any and all
circumstances and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower or any other person may at any time have
against the beneficiary under any Letter of Credit, the Issuing Bank,
the Agent or any Lender (other than the defense of payment in
accordance with the terms of this Agreement or a defense based on the
gross negligence or wilful misconduct of the Issuing Bank) or any other
person in connection with this Agreement or any other agreement or
transaction;
(iii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect; provided that payment by the Issuing Bank under such Letter of
Credit against presentation of such draft or document shall not have
constituted gross negligence or wilful misconduct of the Issuing Bank;
(iv) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document which does not comply
with the terms of such Letter of Credit; provided that such payment
shall not have constituted gross negligence or wilful misconduct of the
Issuing Bank; and
(v) any other circumstance or event whatsoever, whether or not
similar to any of the foregoing; provided that such other circumstance
or event shall not have been the result of gross negligence or wilful
misconduct of the Issuing Bank.
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It is understood that in making any payment under a Letter of Credit (x) the
Issuing Bank's exclusive reliance on the documents presented to it under such
Letter of Credit as to any and all matters set forth therein, including reliance
on the amount of any draft presented under such Letter of Credit, whether or not
the amount due to the beneficiary equals the amount of such draft and whether or
not any document presented pursuant to such Letter of Credit proves to be
insufficient in any respect, if such document on its face appears to be in
order, and whether or not any other statement or any other document presented
pursuant to such Letter of Credit proves to be forged or invalid or any
statement therein proves to be inaccurate or untrue in any respect whatsoever
and (y) any noncompliance in any immaterial respect of the documents presented
under a Letter of Credit with the terms thereof shall, in each case, not be
deemed wilful misconduct or gross negligence of the Issuing Bank.
SECTION 3.05. Letter of Credit Operations. The Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under an Outstanding Letter of Credit to
ascertain that the same appear on their face to be in substantial conformity
with the terms and conditions of such Outstanding Letter of Credit. The Issuing
Bank shall as promptly as possible, but in no event later than one hour after
such demand for payment, give oral notification, confirmed by tested telex, to
the Agent and the Borrower of such demand for payment and the determination by
the Issuing Bank as to whether such demand for payment was in accordance with
the terms and conditions of such Outstanding Letter of Credit and whether the
Issuing Bank has made or will make a Letter of Credit Disbursement thereunder,
provided that the failure to give such notice shall not relieve the Borrower of
its obligation to reimburse the Issuing Bank with respect to any such Letter of
Credit Disbursement, and the Agent shall promptly give each Lender notice
thereof.
SECTION 3.06. Cash Collateralization. If any Event of Default shall
occur and be continuing, the Borrower shall on the Business Day it receives
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notice from the Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Participating Lenders holding participations in
Outstanding Letters of Credit representing more than 50% of the aggregate
undrawn amount of all Outstanding Letters of Credit) therefor, deposit in an
account with the Agent, for the benefit of the Lenders, an amount in cash equal
to the Letter of Credit Exposure as of such date. Such deposit shall be held by
the Agent as collateral for the payment and performance of the Obligations. So
long as such Event of Default is continuing, the Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits in
Permitted Investments, which investments shall be made at the option and sole
discretion of the Agent, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall automatically be applied by the Agent to reimburse the
Issuing Bank for Letter of Credit Disbursements and, if the maturity of the
Loans has been accelerated (but subject to the consent of Participating Lenders
holding participations in Outstanding Letters of Credit representing more than
50% of the aggregate undrawn amount of all Outstanding Letters of Credit), to
satisfy the Obligations. All remaining amounts on deposit shall be returned to
the Borrower within three Business Days after all Events of Default have been
cured or waived.
SECTION 3.07. Termination of Letter of Credit Commitment Period. (a)
Notwithstanding any other provision hereof, in the event that any restrictions
or limitations are imposed upon or determined or held to be applicable to the
Issuing Bank, any Participating Lender or the Borrower by, under or pursuant to
any law or regulation (Federal, state or local) now or hereafter in effect or by
reason of any interpretation thereof by any court or Governmental Authority
(including any interpretation by the Comptroller of the Currency as to the
applicability of 12 U.S.C. ' 84 or any substitute statute, as now or hereafter
in effect, to the transactions contemplated hereby), which would prevent such
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Participating Lender from legally incurring liability under a Letter of Credit
issued or to be issued pursuant hereto, then such Participating Lender shall
give prompt written notice thereof to the Agent (which shall notify the
Borrower, the Issuing Bank and each other Participating Lender thereof as soon
as reasonably practicable), whereupon the obligation of the Issuing Bank to
issue additional Letters of Credit pursuant hereto shall be suspended until the
Agent shall be advised that such event is no longer continuing or until such
event shall have continued for a period of 180 days, after which period the
obligation of the Issuing Bank to issue additional Letters of Credit pursuant
hereto shall terminate.
(b) The Borrower may permanently terminate, or from time to time in
part permanently reduce, the Letter of Credit Commitment, in each case upon at
least three Business Days' prior written or telex notice to the Agent and the
Issuing Bank; provided that the Letter of Credit Commitment shall not be less
than the Letter of Credit Exposure at the time or greater than the Revolving
Credit Commitments at the time.
SECTION 3.08. Resignation or Removal of Issuing Bank. (a) The Issuing
Bank may resign at any time by giving 60 days' notice to the Agent, the Lenders
and the Borrower, and may be removed at any time by the Borrower by notice to
the Issuing Bank, the Agent and the Lenders. Upon any such resignation or
removal, the Borrower shall (within 60 days after such notice of resignation or
removal) either appoint a successor, or terminate the unutilized Letter of
Credit Commitment; provided, however, that, if the Borrower elects to terminate
the unutilized Letter of Credit Commitment, the Borrower may at any time
thereafter that the Revolving Credit Commitments are in effect reinstate the
Letter of Credit Commitment in connection with the appointment of a successor
Issuing Bank. Subject to paragraph (b) below, upon the acceptance of any
appointment as Issuing Bank hereunder by a successor Issuing Bank, such
successor shall succeed to and become vested with all the interests, rights and
obligations of the retiring Issuing Bank and the retiring Issuing Bank shall be
discharged from its obligations to issue additional Letters
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of Credit hereunder. The acceptance of any appointment as Issuing Bank hereunder
by a successor issuing bank shall be evidenced by an agreement entered into by
such successor, in a form satisfactory to the Borrower and the Agent, and, from
and after the effective date of such agreement, (i) such successor shall be a
party hereto and have all the rights and obligations of the Issuing Bank under
this Agreement and the other Loan Documents and (ii) references herein and in
the other Loan Documents to the "Issuing Bank" shall be deemed to refer to such
successor or to any previous Issuing Bank, or to such successor and all previous
Issuing Banks, as the context shall require.
(b) After the resignation or removal of the Issuing Bank hereunder the
retiring Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of the Issuing Bank under this Agreement and the
other Loan Documents with respect to Letters of Credit issued by it prior to
such resignation or removal, but shall not be required to issue additional
Letters of Credit.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Lenders that:
SECTION 4.01. Organization; Powers. Each of the Borrower and each
Subsidiary (a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has all
requisite power and authority to own its property and assets and to carry on its
business as now conducted and as proposed to be conducted, (c) is qualified to
do business in every jurisdiction where such qualification is required, except
where the failure so to qualify would not result in a Material Adverse Effect,
and (d) has the corporate power and authority to execute, deliver and perform
its
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obligations under each of the Loan Documents and each other agreement or
instrument contemplated thereby to which it is or will be a party and, in the
case of the Borrower, to borrow hereunder.
SECTION 4.02. Authorization. The execution, delivery and performance by
each of the Borrower and each Subsidiary of each of the Loan Documents to which
it is or will be a party, the borrowings hereunder and the issuance of Letters
of Credit hereunder, the grant of the security interests contemplated by the
Security Documents, and the refinancing of indebtedness incurred under the Short
Term Credit Agreement (collectively, the "Transactions") (a) have been duly
authorized by all requisite corporate and, if required, stockholder action and
(b) will not (i) violate (A) any provision of any law, statute, rule or
regulation, or of the certificate or articles of incorporation or other
constitutive documents or By-laws of the Borrower or any Subsidiary, (B) any
order of any Governmental Authority or (C) after giving effect to the
satisfaction of the condition specified in clause (n) of Section 5.02, any
provision of any indenture, agreement or other instrument to which the Borrower
or any Subsidiary is a party or by which any of them or any of their property is
or may be bound, other than indentures, agreements and other instruments which,
individually or in the aggregate, are not material to the Borrower and the
Subsidiaries, taken as a whole, and the violation of which will not result in a
Material Adverse Effect, (ii) after giving effect to the satisfaction of the
condition specified in clause (n) of Section 5.02, be in conflict with, result
in a breach of or constitute (alone or with notice or lapse of time or both) a
default under any such indenture, agreement or other instrument, other than
indentures, agreements and other instruments which, individually or in the
aggregate, are not material to the Borrower and the Subsidiaries, taken as a
whole, and the violation of which will not result in a Material Adverse Effect,
or (iii) result in the creation or imposition of any Lien upon any property or
assets of the Borrower or any Subsidiary, other than the security interests
contemplated by the Security Documents.
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SECTION 4.03. Enforceability. This Agreement has been duly executed and
delivered by the Borrower and constitutes, and each other Loan Document to which
the Borrower or any Subsidiary is or will be a party (when executed and
delivered by the Borrower or such Subsidiary) will constitute, a legal, valid
and binding obligation of the Borrower or such Subsidiary enforceable against
the Borrower or such Subsidiary in accordance with its terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and similar laws affecting creditors' rights generally and to general
equitable principles).
SECTION 4.04. Governmental Approvals. No action, consent or approval
of, or registration or filing with, or any other action by, any Governmental
Authority is or will be required in connection with any of the Transactions,
except (i) such as have been made or obtained and are in full force and effect
or (ii) such as the failure to make or obtain will not result, individually or
in the aggregate, in a Material Adverse Effect.
SECTION 4.05. Financial Statements. The Borrower has heretofore
delivered or caused to be delivered to each Lender (i) a copy of its
consolidated balance sheet as of the end of, and related consolidated statements
of income, stockholders' equity and cash flows for, the year ended December 31,
1998, audited and reported on by PricewaterhouseCoopers, independent public
accountants and (ii) a copy of its consolidated balance sheet as of the end of,
and related consolidated statements of income, stockholders' equity and cash
flows for, the fiscal quarter and six-month period ended June 30, 1999,
certified by the Financial Officer of the Borrower. These financial statements,
including in the case of the annual financial statements the footnotes thereto,
have been prepared in accordance with GAAP consistently applied throughout the
periods indicated and disclose all material liabilities, direct or contingent,
of the Borrower and its Subsidiaries on a consolidated basis as of their
respective dates, required to be disclosed, and fairly present the financial
condition of the
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Borrower and its Subsidiaries at the date thereof. The related statements of
income, stockholders' equity and cash flows fairly present the results of the
operations of the Borrower and its Subsidiaries on a consolidated basis and
their cash flows for the respective periods indicated.
SECTION 4.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, properties, operations or condition,
financial or otherwise, of the Borrower and the Subsidiaries, taken as a whole,
since December 31, 1998.
SECTION 4.07. Title to Properties; Possession Under Leases; Accounts.
(a) Each of the Borrower and each Subsidiary has good and marketable title to,
or valid leasehold interests in, all its material properties (other than
railroad rights of way) and assets, except for minor defects in title that do
not interfere with its ability to conduct its business as currently conducted.
All such material properties and assets are free and clear of Liens other than
Liens permitted by Section 7.02. Each Subsidiary holds railroad rights of way
that are sufficient to conduct its railroad operations as currently conducted.
(b) Each of the Borrower and each Subsidiary has complied with all
obligations under all leases to which it is a party, other than leases which,
individually or in the aggregate, are not material to the Borrower and the
Subsidiaries, taken as a whole, and the violation of which will not result in a
Material Adverse Effect, and all such leases are in full force and effect, other
than leases which, individually or in the aggregate, are not material to the
Borrower and the Subsidiaries, taken as a whole, and in respect of which the
failure to be in full force and effect will not result in a Material Adverse
Effect. Each of the Borrower and each Subsidiary enjoys peaceful and undisturbed
possession under all such leases with respect to which it is the lessee, other
than leases which, individually or in the aggregate, are not material to the
Borrower and the Subsidiaries, taken as a whole, and in respect of which the
failure to enjoy peaceful
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and undisturbed possession will not result in a Material Adverse Effect.
(c) Since December 31, 1998, none of the Subsidiaries (or any of their
predecessors) has taken any action other than in the ordinary course of business
to collect any of its Accounts or has changed in any material respect its credit
criteria or collection policies concerning its Accounts. Other than as reflected
in the allowance for doubtful accounts, as of the Restatement Closing Date, each
Account constitutes a legal, valid and binding obligation of the Account Debtor
enforceable against the Account Debtor in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency, moratorium
and other similar laws affecting the enforcement of creditors' rights generally,
and is not subject to any Lien except pursuant to this Agreement and the
Security Documents.
SECTION 4.08. Identity of Subsidiaries. Schedule 4.08 sets forth as of
the Restatement Closing Date a list of all Subsidiaries of the Borrower, each of
which is wholly owned, directly or indirectly, by the Borrower.
SECTION 4.09. Litigation; Compliance with Laws. (a) Except as set forth
in Schedule 4.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or directly affecting the Borrower
or any Subsidiary or any business, property or rights of any such person (i)
which involve any Loan Document or any of the Transactions or (ii) which could
reasonably be expected to, individually or in the aggregate, result in a
Material Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in violation of
any law, rule or regulation, or in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority, where such violation or
default could reasonably be expected to result in a Material Adverse Effect.
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SECTION 4.10. Agreements. Neither the Borrower nor any of the
Subsidiaries is in default in any manner under any provision of any indenture or
other agreement or instrument evidencing Indebtedness, or any other material
agreement or instrument, to which it is a party, or by which it or any of its
properties or assets are or may be bound, where such default could reasonably be
expected to result in a Material Adverse Effect.
SECTION 4.11. Federal Reserve Regulations. (a) Neither the Borrower nor
any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, (i) to
purchase or carry Margin Stock or to extend credit to others for the purpose of
purchasing or carrying Margin Stock or to refund indebtedness originally
incurred for such purpose, or (ii) for any purpose which entails a violation of,
or which is inconsistent with, the provisions of the Regulations of the Board,
including Regulation T, U or X.
SECTION 4.12. Investment Company Act: Public Utility Holding Company
Act. Neither the Borrower nor any of the Subsidiaries is (a) an "investment
company" as defined in, or otherwise subject to regulation under, the Investment
Company Act of 1940 or (b) a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935.
SECTION 4.13. Use of Proceeds; Letters of Credit. The Borrower will use
the proceeds of the Loans only for the purposes specified in the preamble to
this Agreement. The Borrower will request the Issuing Bank to issue Letters of
Credit only for general corporate purposes in the ordinary course of its
business.
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SECTION 4.14. Tax Returns. Each of the Borrower and the Subsidiaries
has filed or caused to be filed all Federal, state and local tax returns
required to have been filed by it and has paid or caused to be paid all taxes
shown to be due and payable on such returns or on any assessments received by
it, except taxes that are being contested in accordance with Section 6.03.
SECTION 4.15. Information Memoranda. The information contained in the
Information Memorandum dated July 1999 relating to the Borrower was, as of the
date of such Information Memorandum or the dates otherwise specified therein,
accurate in all material respects and does not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading, provided that (a) the statements therein
describing documents and agreements are summary only and as such are qualified
in their entirety by reference to such documents and agreements, (b) to the
extent any such information therein was based upon or constitutes a forecast or
projection, the Borrower represents only that it acted in good faith and
utilized reasonable assumptions, due and careful consideration and the best
information known to it at the time in the preparation of such information, and
(c) as to the information which is specified as having been supplied by third
parties, other than Affiliates of the Borrower, the Borrower represents only
that it is not aware of any material misstatement or omission therein.
SECTION 4.16. Employee Benefit Plans. The Borrower and each of its
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the regulations and published interpretations
thereunder. No Reportable Event has occurred with respect to any Plan as to
which the Borrower or any ERISA Affiliate was required to file a report with the
PBGC, and the present value of all benefit liabilities (as defined in Section
4001(a)(16) of ERISA) under each Plan maintained by the Borrower or an ERISA
Affiliate (based on those assumptions used to fund such Plan) did not, as of the
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date of this Agreement and, thereafter, as of the most recent annual actuarial
valuation applicable to each such Plan, exceed by a material amount the value of
the assets of such Plan. Neither the Borrower nor any ERISA Affiliate has
incurred any Withdrawal Liability that could reasonably be expected to result in
a Material Adverse Effect. Neither the Borrower nor any ERISA Affiliate has
received any notification that any Multiemployer Plan is in reorganization or
has been terminated, within the meaning of Title IV of ERISA, and no
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, where such reorganization or termination has resulted or can
reasonably be expected to result, through increases in the contributions
required to be made to such Plan, in a Material Adverse Effect.
SECTION 4.17. Labor Matters. There are no strikes against the Borrower
or any Subsidiary pending, other than any strikes which, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. The hours worked and payment made to employees of the Borrower and each
Subsidiary have not been in violation in any material respect of the Fair Labor
Standards Act or any other applicable law dealing with such matters. All
payments due from the Borrower or any Subsidiary, or for which any claim may be
made against the Borrower or any Subsidiary, on account of wages and employee
health and welfare insurance and other benefits have been paid or accrued as a
liability on the books of the Borrower or such Subsidiary. The consummation of
the Transactions will not give rise to a right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which the Borrower or any Subsidiary (or any predecessor) is a party or by
which the Borrower or any Subsidiary (or any predecessor) is bound, other than
collective bargaining agreements which, individually or in the aggregate, are
not material to the Borrower and the Subsidiaries taken as a whole.
SECTION 4.18. Environmental Matters. The Borrower and each Subsidiary
have complied in all material respects with all Federal, state, local and
regional statutes, ordinances, orders, judgments,
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rulings and regulations relating to any matters of pollution or of environmental
regulation or control. Neither the Borrower nor any Subsidiary has received
written notice of any actual or claimed or asserted failure so to comply which
alone, or together with any other such notices which have been previously or
concurrently received, could reasonably be expected to result in a Material
Adverse Effect, other than in connection with failures which have been
corrected. No hazardous wastes, hazardous substances, hazardous materials, toxic
substances or toxic pollutants, as those terms are used in the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response
Compensation and Liability Act, the Hazardous Materials Transportation Act, the
Toxic Substance Control Act, the Clean Air Act and the Clean Water Act, are
managed on any property of the Borrower or any Subsidiary in material violation
of any regulations promulgated pursuant thereto or any other applicable law.
SECTION 4.19. Solvency. (a) The fair salable value of the assets of
each of the Borrower and each of the Subsidiaries exceeds as of the Restatement
Closing Date and will, immediately following the making of each Loan made on the
Restatement Closing Date and after giving effect to the application of the
proceeds of such Loans, exceed the amount that will be required to be paid on or
in respect of its existing debts and other liabilities (including contingent
liabilities) as they mature.
(b) The assets of each of the Borrower and each of the Subsidiaries do
not as of the Restatement Closing Date and will not, immediately following the
making of each Loan made on the Restatement Closing Date and after giving effect
to the application of the proceeds of such Loans, constitute unreasonably small
capital to carry out its business as conducted or as proposed to be conducted.
(c) The Borrower does not intend to or permit any Subsidiary to, and
does not believe that the Borrower or any Subsidiary will, incur debts beyond
its ability to pay such debts as they mature taking into account the timing of
and amounts of cash to be received by the Borrower or any such
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Subsidiary and the timing of and amounts of cash to be payable on or in respect
of indebtedness of the Borrower or any such Subsidiary.
SECTION 4.20. Capitalization. On the Original Closing Date, the
authorized capital stock of the Borrower consisted of (a) 10,000 shares of
Voting Stock and (b) 10,000 shares of Non-Voting Stock, all of which shares of
Voting Stock and Non-Voting Stock are issued and outstanding, except for such
shares that have been redeemed or repurchased pursuant to the Transtar, Inc.
Equity Participation Plan or the Additional Management Equity Plan. All of the
outstanding shares of capital stock of the Borrower have been duly authorized
and validly issued and are fully paid and nonassessable. All of the outstanding
shares of capital stock of each Subsidiary have been duly authorized and are
validly issued, are fully paid and nonassessable, and are owned, beneficially
and of record, by the Borrower or any other wholly owned Subsidiary, free and
clear of any Liens, other than pursuant to the Pledge Agreement. No shares of
capital stock of the Borrower or any Subsidiary are reserved for issuance and
there are no outstanding options, warrants, rights, subscriptions, claims of any
character, agreements, obligations, convertible or exchangeable securities, or
other commitments, contingent or otherwise, relating to the capital stock of the
Borrower or any Subsidiary, pursuant to which the Borrower or any Subsidiary is
or may become obligated to issue or exchange any shares of capital stock of the
Borrower or any Subsidiary except, in the case of the Borrower, for shares and
options to purchase shares of Voting Stock and Non-Voting Stock of the Borrower
issued or reserved for issuance pursuant to the terms of the Transtar, Inc.
Equity Participation Plan or the Additional Management Equity Plan. On the
Original Closing Date, and after giving effect to all transactions that occurred
on such date, Blackstone entities own, directly or indirectly, 5,100 shares of
Voting Stock and 5,100 shares of Non-Voting Stock; USX owns, beneficially and of
record, 4,900 shares of Voting Stock and 3,900 shares of Non-Voting Stock; and
members of management and employees of the Borrower and its Subsidiaries own of
record 700 shares of Non-Voting Stock; and in the case of each of Blackstone and
USX, all such shares are
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owned free and clear of any Liens, other than pursuant to the Stockholders'
Agreement.
SECTION 4.21. Security Interests. (a) The security interests created in
favor of the Agent for the benefit of the Lenders under the Pledge Agreement
constitute first-priority, perfected security interests in the Pledged
Securities, and such Pledged Securities are subject to no Liens or security
interests of any other person. No filings or recordings, other than those which
have been made, are or will be required in order to perfect the security
interests in the Pledged Securities created under the Pledge Agreement.
(b) Upon the filing of Uniform Commercial Code financing statements in
the appropriate filing office in the jurisdictions listed in Schedule 4.21, the
security interests created in favor of the Agent for the benefit of the Lenders
under the Security Agreement will constitute first-priority, perfected security
interests in the Collateral (as defined in the Security Agreement), subject only
to Liens permitted by Section 7.02.
(c) The assets and properties of the Borrower and the Subsidiaries are
not subject to a negative pledge or other restriction which prohibits or
restricts the grant of a security interest in or Lien on such assets and
properties, except (i) the restriction contained in Section 7.02 and (ii) except
for a portion of such assets and properties that does not constitute a material
portion of the assets and properties of the Borrower and the Subsidiaries, taken
as a whole.
SECTION 4.22. Year 2000 Matters. Any reprogramming required to permit
the proper functioning, in and following the year 2000, of (i) the Borrower's
and the Subsidiaries' computer systems and (ii) equipment containing embedded
microchips (including systems and equipment supplied by others or with which the
Borrower's or the Subsidiaries' systems interface) and the testing of all such
systems and equipment, as so reprogrammed, will be completed in all material
respects prior to any expected
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failure date caused by a year 2000 problem and in any case prior to December 31,
1999. The cost to the Borrower of such reprogramming and testing and of the
reasonably foreseeable consequences of year 2000 to the Borrower (including
reprogramming errors and the failure of others' systems or equipment) could not
reasonably be expected to result in a Potential Event of Default, an Event of
Default or result in a Material Adverse Effect. Except for such of the
reprogramming referred to in the immediately preceding sentence as may be
necessary, the computer and management information systems of the Borrower and
the Subsidiaries are, and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement to be, sufficient to enable the Borrower
and the Subsidiaries to conduct their business without the occurrence of any
Material Adverse Effect.
ARTICLE V
CONDITIONS
SECTION 5.01. All Borrowings. The obligations of the Lenders to make
Loans hereunder and the obligation of the Issuing Bank to issue Letters of
Credit hereunder are subject to the conditions that on the date of each
Borrowing and each issuance of a Letter of Credit:
(a) The Agent shall have received a notice of such Borrowing as
required by Section 2.03 or a notice of such issuance as required by Section
3.01.
(b) The representations and warranties set forth in Article IV hereof
shall be true and correct in all material respects on and as of the date of such
Borrowing or issuance with the same effect as though made on and as of such
date, except to the extent such representations and warranties expressly relate
to an earlier date.
(c) The Borrower and each Subsidiary shall be in compliance in all
material respects with all the terms and
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provisions set forth herein and in each other Loan Document on its part to be
observed or performed, and at the time of and immediately after such Borrowing
or issuance no Event of Default or Potential Event of Default shall have
occurred and be continuing.
Each Borrowing and issuance of a Letter of Credit shall be deemed to
constitute a representation and warranty by the Borrower on the date of such
Borrowing or issuance as to the matters specified in paragraphs (b) and (c) of
this Section. Continuations and conversions of outstanding Borrowings pursuant
to Section 2.10 shall not be deemed to be new Borrowings for the purposes of
this Section.
SECTION 5.02. Restatement Closing Date. The effectiveness of the
amendment and restatement of the Original Credit Agreement by this Agreement and
the obligations of the Lenders with Tranche B Term Loan Commitments to make
Tranche B Term Loans hereunder are subject to the satisfaction of the following
conditions:
(a) The Agent shall have received from the Borrower, the Required
Lenders (as defined in the Original Credit Agreement), each Lender with a
Tranche B Term Loan Commitment and the Issuing Bank a counterpart of this
Agreement signed on behalf of such party.
(b) Each Lender having a Tranche B Term Loan Commitment shall have
received a duly executed Tranche B Term Note substantially in the form of
Exhibit A-3 complying with the provisions of Section 2.04.
(c) The Agent shall have received the favorable written opinion of
White & Case LLP, special counsel for the Borrower, dated the Restatement
Closing Date and addressed to the Lenders, to the effect set forth in Exhibit G.
(d) All legal matters incident to this Agreement and the borrowings
hereunder shall be satisfactory to the Required Lenders, each Lender with a
Tranche B Term Loan Commitment and to Cravath, Swaine & Moore, counsel for the
Agent.
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(e) The Agent shall have received (i) a copy of the certificate or
articles of incorporation, including all amendments thereto, of the Borrower and
of each Subsidiary, certified as of a recent date by the Secretary of State of
its respective state of organization, and a certificate as to the good standing
of the Borrower and of each Subsidiary, from such Secretary of State, as of a
recent date; (ii) a certificate of the Secretary or Assistant Secretary of the
Borrower and of each Subsidiary dated the Restatement Closing Date and
certifying (A) that attached thereto is a true and complete copy of the By-laws
of the Borrower or such Subsidiary, as applicable, as in effect on the
Restatement Closing Date and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached thereto is a true
and complete copy of resolutions duly adopted by the Board of Directors of the
Borrower or such Subsidiary, as applicable, authorizing the execution, delivery
and performance of the Loan Documents to which it is to be a party and, in the
case of the Borrower, the borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and effect, (C)
that the certificate or articles of incorporation of the Borrower or such
Subsidiary, as applicable, have not been amended since the date of the last
amendment thereto shown on the certificate of good standing furnished pursuant
to clause (i) above, and (D) as to the incumbency and specimen signature of each
officer executing any Loan Document or any other document delivered in
connection herewith on behalf of the Borrower or of such Subsidiary; (iii) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to
clause (ii) above; and (iv) such other documents as the Agent or Cravath, Swaine
& Moore, counsel for the Agent, may reasonably request.
(f) The Agent shall have received a certificate, dated the Restatement
Closing Date and signed by a Financial Officer or Responsible Officer of the
Borrower, confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 5.01.
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(g) Each document (including each Uniform Commercial Code financing
statement) required by law or reasonably requested by the Agent to be filed,
registered or recorded in order to create in favor of the Agent for the benefit
of the Lenders a valid, legal and perfected first priority security interest in
or lien on the collateral that is the subject of the Security Agreement shall
have been delivered to the Agent. Without limiting the foregoing, each party to
the Guarantee Agreement, the Security Agreement and the Pledge Agreement shall
have executed and delivered such documents, in form and substance satisfactory
to the Agent, as the Agent shall request to acknowledge that each such agreement
shall continue in full force and effect as of the Restatement Closing Date
(after giving effect to the amendment and restatement of the Original Credit
Agreement by this Agreement).
(h) No material adverse change in the business, assets, properties,
operations, prospects or condition, financial or otherwise, of the Borrower and
the Subsidiaries, taken as a whole, shall have occurred since December 31, 1998.
(i) No action, suit, litigation or similar proceeding at law or in
equity or by or before any court or governmental instrumentality or agency shall
exist (or, in the case of litigation or similar proceedings by any government or
governmental authority, be threatened) with respect to the Transactions or any
of them, which would in the reasonable opinion of the Lenders be likely to have
a Material Adverse Effect on the ability of the Borrower to perform its
obligations under any Loan Document to which it is a party, on the validity or
enforceability of any of the Loan Documents or on the rights, remedies or
benefits available to the Lenders thereunder.
(j) The Borrower shall have paid all fees to the Agent and the Lenders
required to be paid on or prior to the Restatement Closing Date.
(k) There shall not be any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority pending or threatened against
or directly affecting the
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Borrower or any Subsidiary or any business, property or rights of any such
person which could reasonably be expected to, individually or in the aggregate,
result in a Material Adverse Effect on the prospects of the Borrower and the
Subsidiaries, taken as a whole,
(l) Neither the Borrower nor any of the Subsidiaries shall be in
violation of any law, rule or regulation, or in default with respect to any
judgment, writ, injunction or decree of any Governmental Authority, where such
violation or default could reasonably be expected to result in a Material
Adverse Effect on the prospects of the Borrower and the Subsidiaries, taken as a
whole.
(m) No "Event of Default" or "Potential Event of Default" (as defined
in the Original Credit Agreement) shall have occurred and be continuing under
the Original Credit Agreement.
(n) All outstanding Loans (as defined in the Short Term Credit
Agreement) shall be simultaneously paid in full from the proceeds of the Tranche
B Term Loans made on the Restatement Closing Date hereunder.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect or the principal of or interest on any
Loan, any Fees or any other expenses or amounts payable under any Loan Document
shall be unpaid, unless the Required Lenders shall otherwise consent in writing,
the Borrower will, and will cause the Subsidiaries to:
SECTION 6.01. Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise permitted under Section 7.07.
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(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated; comply
in all material respects with all applicable laws, rules, regulations and orders
of any Governmental Authority, whether now in effect or hereafter enacted; and
at all times maintain and preserve all property material to the conduct of such
business and keep such property in good repair, working order and condition and
from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times.
SECTION 6.02. Insurance. Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses, including public liability insurance against
claims for personal injury or death or property damage occurring upon, in, about
or in connection with the use of any properties owned, occupied or controlled by
it; and maintain such other insurance as may be required by law or any other
Loan Document.
SECTION 6.03. Obligations and Taxes. Pay its material obligations
(other than Indebtedness) promptly and in accordance with their terms and pay
and discharge promptly all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or other claims which, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy or claim so long as the
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validity or amount thereof shall be contested by the Borrower or the relevant
Subsidiary in good faith by appropriate proceedings and so long as the Borrower
or the relevant Subsidiary shall, to the extent required by GAAP on a consistent
basis, set aside on its books adequate reserves with respect thereto.
SECTION 6.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Agent and, other than in the case of paragraph (e),
each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated
balance sheets and related statements of income and cash flows, showing the
financial condition of the Borrower and its consolidated Subsidiaries as of the
close of such fiscal year and the results of operations during such year, all
audited by independent public accountants of recognized national standing
acceptable to the Required Lenders, and accompanied by an opinion of such
accountants (which shall not be qualified in any material respect) to the effect
that such consolidated financial statements fairly present the financial
position and results of operations of the Borrower and the Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied and accompanied
by a written statement by the accountants certifying such financial statements
(unless such accountants are prohibited by law or the Financial Accounting
Standards Board (or any successor) from providing such statement) to the effect
that in the course of the audit upon which their certification of such financial
statements was based (but without any special or additional audit procedures for
the purpose), they obtained knowledge of no condition or event relating to
financial matters which constitutes a Potential Event of Default or an Event of
Default or, if such accountants shall have obtained in the course of such audit
knowledge of any such Potential Event of Default or Event of Default, disclosing
in such written statement the nature and period of existence thereof, it being
understood that such accountants shall be under no liability, directly or
indirectly, to the Lenders for failure to obtain knowledge of any such condition
or event;
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(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheets and related
statements of income and cash flows, showing the financial condition of the
Borrower and its consolidated Subsidiaries as of the close of such fiscal
quarter and the results of operations during such fiscal quarter and the then
elapsed portion of the fiscal year, all certified by one of its Financial
Officers as fairly presenting the financial condition and results of operations
of the Borrower and the Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes required by GAAP;
(c) concurrently with any delivery under (a) or (b) above, (i) a
certificate of a Financial Officer of the Borrower (x) certifying that no Event
of Default or Potential Event of Default has occurred or, if such an Event of
Default or Potential Event of Default has occurred, specifying the nature and
extent thereof and any corrective action taken or proposed to be taken with
respect thereto and (y) setting forth computations in reasonable detail
satisfactory to the Agent demonstrating compliance with the covenants contained
in Sections 7.13, 7.14 and 7.15 and (ii) the consolidating financial statements
used in preparing the financial statements delivered thereunder;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by it
with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of or all the functions of said Commission, or with any
national securities exchange, or distributed to its shareholders, as the case
may be;
(e) notice of, at least five Business Days prior to, (i) any
modification or amendment to the Certificate of Incorporation or By-laws of the
Borrower or any Subsidiary or (ii) any material waiver, supplement,
modification, amendment, termination or release of (w) the Holdings Notes or any
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indenture or other agreement governing the terms thereof, (x) any instrument or
agreement pursuant to which any Indebtedness of any Subsidiary which is in any
respect subordinate to or junior in respect of the Loans is outstanding, (y) any
of the Transportation Services Agreements or (z) the Stockholders' Agreement;
and
(f) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Borrower or any
Subsidiary, or the compliance with the terms of the Loan Documents, as the Agent
or any Lender may reasonably request.
SECTION 6.05. Litigation and Other Notices. Furnish to the Agent and
each Lender prompt written notice of the following:
(a) any Event of Default or Potential Event of Default, specifying the
nature and extent thereof and the corrective action (if any) proposed to be
taken with respect thereto;
(b) the filing or commencement of, or any written threat or notice of
intention of any person to file or commence, any action, suit or proceeding,
whether at law or in equity or by or before any Governmental Authority, against
the Borrower or any Subsidiary which could reasonably be expected to result in a
Material Adverse Effect or a material adverse effect on the prospects of the
Borrower and the Subsidiaries, taken as a whole; and
(c) any development that has resulted in, or could, in the reasonable
judgment of the Borrower, reasonably be anticipated to result in, a Material
Adverse Effect or a material adverse effect on the prospects of the Borrower and
the Subsidiaries, taken as a whole.
SECTION 6.06. ERISA. (a) Comply in all material respects with the
applicable provisions of ERISA and (b) furnish to the Agent and each Lender (i)
as soon as possible, and in any event within 30 days after any Responsible
Officer of the Borrower or any ERISA Affiliate either knows or
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96
has reason to know that any Reportable Event with respect to any Plan has
occurred that alone or together with any other Reportable Event with respect to
the same or another Plan could reasonably be expected to result in liability of
the Borrower to the PBGC in an aggregate amount exceeding $2,000,000, a
statement of a Financial Officer of the Borrower setting forth details as to
such Reportable Event and the action proposed to be taken with respect thereto,
together with a copy of the notice, if any, of such Reportable Event given to
the PBGC, (ii) promptly after receipt thereof, a copy of any notice that the
Borrower or any ERISA Affiliate may receive from the PBGC relating to the
intention of the PBGC to terminate any Plan or Plans or to appoint a trustee to
administer any Plan or Plans, (iii) within 10 days after a filing with the PBGC
pursuant to Section 412(n) of the Code of a notice of failure to make a required
installment or other payment with respect to a Plan, a statement of a Financial
Officer of the Borrower setting forth details as to such failure and the action
proposed to be taken with respect thereto, together with a copy of such notice
given to the PBGC and (iv) promptly and in any event within 30 days after
receipt thereof by the Borrower or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the Borrower or any ERISA
Affiliate concerning (A) the imposition of Withdrawal Liability by a
Multiemployer Plan in an amount exceeding $5,000,000 or (B) a determination that
a Multiemployer Plan is, or is expected to be, terminated or in reorganization,
in each case within the meaning of Title IV of ERISA, and which, in each case,
is expected to result in an increase in annual contributions of the Borrower or
an ERISA Affiliate to such Multiemployer Plan in an amount exceeding $2,000,000.
SECTION 6.07. Maintaining Records: Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP or
applicable regulatory standards and permit any representatives designated by any
Lender to visit and inspect the financial records and the properties of the
Borrower or any Subsidiary at reasonable times, upon reasonable prior notice,
during normal business hours and as often as requested, and to make extracts
from and copies of such
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financial records, and permit any representatives designated by any Lender to
discuss the affairs, finances and condition of the Borrower or any Subsidiary
with the officers thereof and independent accountants therefor; provided,
however, that neither the Borrower nor any Subsidiary shall be required to
permit any such representatives to inspect any such records which the Borrower
or such Subsidiary is required by law or any written agreement with any person
(other than any Affiliate of the Borrower, unless any such records were provided
by any third party to any such Affiliate on a confidential basis) to keep
confidential.
SECTION 6.08. Use of Proceeds; Letters of Credit. In the case of the
Borrower, use the proceeds of the Loans only for the purposes set forth in the
preamble to this Agreement and request the Issuing Bank to issue Letters of
Credit only for the purposes set forth in Section 4.13.
SECTION 6.09. Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take all
further actions (including filing Uniform Commercial Code financing statements,
mortgages and other instruments), which may be required under applicable law, or
which the Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and priority of the security interests created by the
Security Documents.
SECTION 6.10. Fiscal Year. Maintain a fiscal year ending on December 31
of each year.
SECTION 6.11. Environmental Compliance. Comply in all material respects
with all Federal, state and local laws or regulations for the purpose of
regulating the discharge of substances into the environment or for the purpose
of protecting the environment ("Environmental Laws"), and provide written notice
to the Agent within thirty days of the receipt of any notice of any material
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98
violation of any Environmental Laws from any Federal, state or local
governmental authority charged with enforcing such Environmental Laws.
SECTION 6.12. New Subsidiaries. Cause each Subsidiary not in existence
(or not a Subsidiary) on the Restatement Closing Date to enter into the
Guarantee Agreement as a guarantor, the Pledge Agreement as a pledgor and the
Security Agreement as a grantor, and pledge all of the capital stock of such
Subsidiary (or cause any Subsidiary which owns any such capital stock to pledge
such capital stock) to the Agent pursuant to the Pledge Agreement.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect or the principal of or interest on any
Loan, any Fees or any other expenses or amounts payable under any Loan Document
shall be unpaid, unless the Required Lenders shall otherwise consent in writing,
the Borrower will not, and will not cause or permit any of the Subsidiaries to:
SECTION 7.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness (including pursuant to Guarantees), except:
(a) Indebtedness existing on December 7, 1993 as set forth in Schedule
7.01; provided, however, that any extensions, renewals or replacements of such
Indebtedness shall not be permitted under this paragraph (a);
(b) Indebtedness represented by the Notes;
(c) [Intentionally Omitted]
(d) Capital Lease Obligations and Purchase Money Indebtedness incurred
to finance Capital Expenditures permitted by Section 7.12;
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(e) the Guarantees incurred pursuant to the Guarantee Agreement and
Guarantees of any Indebtedness permitted hereunder (other than any Guarantee by
a Subsidiary of Indebtedness of any other Subsidiary, unless such other
Subsidiary is a subsidiary of the guaranteeing Subsidiary);
(f) interest rate protection agreements of the Borrower entered into in
order to hedge the interest payable on up to 100% of the aggregate principal
amount of the Term Loans outstanding as of the date on which the most recent
such interest rate protection agreement is entered into;
(g) Capital Lease Obligations incurred in respect of any transaction of
the type described in Section 7.03, if, concurrently with the incurrence of any
such Capital Lease Obligation, Term Loans are prepaid (in the manner described
in Section 2.12(c)(iii)) in an aggregate principal amount equal to the greater
of the amount of the net proceeds received by the Borrower or any Subsidiary
upon the sale or transfer of the property the lease of which gave rise to such
Capital Lease Obligation and the amount of such Capital Lease Obligation (less
the amount of reasonable transaction expenses payable to any person other than
any Affiliate of the Borrower);
(h) unsecured Indebtedness of the Borrower and the Subsidiaries in an
aggregate principal amount at any time outstanding not in excess of $30,000,000;
(i) Indebtedness owed to any person providing property, casualty or
liability insurance to the Borrower or any Subsidiary, so long as such
Indebtedness shall not be in excess of the amount of the unpaid cost of, and
shall be incurred only to defer the cost of, such insurance for the year in
which such Indebtedness is incurred and such Indebtedness shall be outstanding
only during such year;
(j) Letters of Credit issued (or deemed issued) hereunder;
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(k) Indebtedness of the Borrower or any wholly owned Subsidiary to any
other wholly owned Subsidiary or the Borrower; and
(l) letters of credit in an aggregate stated amount not in excess of
$5,000,000 issued after any termination of the unutilized Letter of Credit
Commitment and prior to the reinstatement thereof.
SECTION 7.02. Negative Pledge. Create, incur, assume or permit to exist
any Lien on any property or assets (including stock or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or rights in respect of any thereof, except Liens described in any of
the following clauses:
(a) Liens on property or assets of the Borrower and the Subsidiaries
existing on the Original Closing Date as set forth in Schedule 7.02;
(b) purchase money security interests in real property, improvements
thereto or equipment hereafter acquired (or, in the case of improvements,
constructed) by the Borrower or any Subsidiary, including acquisitions of the
foregoing made in the form of Business Acquisitions; provided that (i) such
security interests secure Indebtedness permitted by Section 7.01, (ii) such
security interests are incurred, and the Indebtedness secured thereby is
created, within one year after such acquisition (or construction), (iii) the
Indebtedness secured thereby does not exceed the fair market value of such real
property, improvements or equipment at the time of such acquisition (or
construction) and (iv) such security interests do not apply to any other
property or assets (other than accessions to such real property, improvements or
equipment) of the Borrower or any Subsidiary;
(c) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary; provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition and (ii) such
Lien does not apply to any other property or assets of the Borrower or any
Subsidiary;
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(d) Liens for taxes not yet due and payable or which are being
contested in compliance with Section 6.03;
(e) carriers', warehousemen's, mechanic's, materialmen's, repairmen's
or other like Liens arising in the ordinary course of business and securing
obligations which are not due or which are being contested in compliance with
Section 6.03;
(f) pledges and deposits made in the ordinary course of business in
connection with workmen's compensation, unemployment insurance and other social
security laws or regulations;
(g) pledges and deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital Lease
Obligations), statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of
business;
(h) zoning, planning and other similar restrictions, rights of the
government and the public below the high water mark of any navigable water and
other riparian rights, easements, rights-of-way, restrictions on use of real
property, encroachments, licenses, railroad siding, crossing and interchange
rights, leases to other persons, slope and drainage agreements, sign agreements,
railroad interline exchanges and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value of the
property subject thereto for its current use or interfere with the ordinary
conduct of the business of the Borrower or any of the Subsidiaries;
(i) Liens on goods or documents of title for goods to secure
reimbursement obligations with respect to commercial letters of credit issued to
finance the purchase of goods in the ordinary course of business;
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102
(j) Liens granted pursuant to the Security Documents; and
(k) Liens for the benefit of any issuing bank issuing any letter of
credit permitted by Section 7.01(l), provided that such Liens consist only of
cash collateral in an aggregate amount not in excess of the aggregate stated
amount of such letters of credit.
SECTION 7.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred, other than any arrangement
which is a sale solely for cash consideration and (a) results in a Capital Lease
Obligation permitted by Section 7.01(d) or (g) or (b) results in an Operating
Lease if, concurrently with the sale or transfer of the property, Term Loans are
prepaid (in the manner described in Section 2.12(c)(iii)) in an aggregate
principal amount equal to the greater of the net proceeds received by the
Borrower or any Subsidiary upon such sale or transfer and the amount of such
Operating Lease (less the amount of reasonable transaction expenses payable to
any person other than any Affiliate of the Borrower).
SECTION 7.04. Investments, Loans and Advances. Purchase, hold or
acquire beneficially any stock, other securities or evidences of indebtedness
of, make or permit to exist any loans or advances to, or make or permit to exist
any investment or acquire any interest whatsoever in, any other person, except
any of the foregoing described in any of the following clauses:
(a) the capital stock of the Subsidiaries held on the date hereof,
(b) Permitted Investments;
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(c) loans or advances to employees in the ordinary course of business
in an aggregate amount to any single employee not in excess of $25,000 (or, if
and to the extent such loans or advances shall be used by such employee for
relocation expenses, $500,000) and in an aggregate amount for all employees of
the Borrower and the Subsidiaries not in excess of $3,500,000 at any one time
outstanding;
(d) trade credits and Accounts arising in the ordinary course of
business;
(e) securities received from insolvent Account Debtors (other than any
Affiliate of the Borrower) in settlement of Accounts arising in the ordinary
course of business in an aggregate amount in any year not in excess of
$3,000,000;
(f) loans or advances by the Borrower or any wholly owned Subsidiary to
the Borrower or any wholly owned Subsidiary;
(g) Business Acquisitions permitted by Section 7.12;
(h) securities held by the Borrower or any of the Subsidiaries prior to
the Restatement Closing Date and listed in Schedule 7.04; and
(i) (x) cash investments in Permitted Joint Ventures in an aggregate
amount in any fiscal year not in excess of 50% of the maximum amount of Capital
Expenditures for that fiscal year permitted under Section 7.12; and (y) noncash
investments in Permitted Joint Ventures in an aggregate amount, determined based
on the greater of the book value or the fair market value thereof as certified
in a certificate of a Financial Officer of the Borrower delivered to the Agent
(unless the Board of Directors of the Borrower shall determine, as evidenced by
a resolution thereof, that the book value of such noncash investment exceeds its
fair market value, in which case based on the fair market value thereof), not in
excess of (A) $15,000,000 in any fiscal year and (B) $45,000,000 in the
aggregate during the period since the Original Closing Date.
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SECTION 7.05. Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets of, or
otherwise engage in any other material transactions with, any of its Affiliates,
except:
(a) transactions at prices and on terms and conditions not less
favorable to the Borrower or such Subsidiary than fair market prices and on
terms and conditions not less favorable to the Borrower or such Subsidiary than
could be reasonably obtained on an arm's-length basis from unrelated third
parties;
(b) so long as no Event of Default has occurred and is continuing, the
payment to USX or its successor and Blackstone Management Partners L.P. or its
successor of management fees in an aggregate amount per annum (payable
quarterly) which shall not exceed 0.3% of the consolidated net revenues of the
Borrower for the fiscal year immediately preceding the year in which such
management fees are payable; and
(c) transactions pursuant to (i) each of the Transportation Services
Agreements as amended from time to time in accordance with the provisions of
this Agreement, (ii) each of the agreements listed on Schedule 7.05 attached
hereto, as such agreements may be amended from time to time with the consent of
the Required Lenders and (iii) unless USX owns or controls a majority of the
outstanding shares of Voting Stock, all other transportation services
agreements, purchase orders, contracts and other agreements arising in the
ordinary course of business by and among the Borrower, any of the Subsidiaries,
USX, any division of USX or any subsidiary of USX relating to the services
provided by the businesses conducted by any of the Borrower or the Subsidiaries.
SECTION 7.06. Business of Borrower and Subsidiaries; Credit Standards.
(a) In the case of the Borrower, engage at any time in any business or activity
other than the ownership of the capital stock of the Subsidiaries and activities
reasonably related thereto, and, in the case of the Subsidiaries, engage at any
time in any business or activity other than the business conducted by it on
December 7, 1993 and activities reasonably related thereto.
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(b) Modify in any material respect the credit standards and policies
with respect to the creation or collection of Accounts from those currently in
effect, other than in the ordinary course of business.
SECTION 7.07. Mergers, Consolidations and Sales. Merge into or
consolidate with any other person, or permit any other person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of or abandon
or permit the transfer or disposition of any of its assets or properties
(whether now owned or hereafter acquired), including any capital stock of any
Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a
series of transactions) all or any substantial part of the assets of any other
person, except:
(a) the sale, lease or other disposition of assets or properties in the
ordinary course of business;
(b) the sale of property solely for cash consideration which the
Borrower or any Subsidiary is permitted to leaseback, and is leasing back,
pursuant to Section 7.03;
(c) Business Acquisitions permitted by Section 7.12;
(d) so long as no Event of Default has occurred and is continuing, the
sale, lease or transfer by any Subsidiary of any of its assets or properties to
any other wholly owned Subsidiary;
(e) if at the time of such transaction and immediately after giving
effect thereto no Event of Default has occurred and is continuing (i) any wholly
owned Subsidiary may merge into the Borrower in a transaction in which the
surviving corporation is the Borrower and (ii) any wholly owned Subsidiary may
merge into any other wholly owned Subsidiary in a transaction in which the
surviving entity is a wholly owned Subsidiary and no person other than the
Borrower or a wholly owned Subsidiary receives any consideration; and
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(f) investments in Permitted Joint Ventures to the extent permitted by
Section 7.04.
SECTION 7.08. Dividends, etc. Declare or pay, directly or indirectly,
any dividends or make any other distribution, whether in cash, property,
securities or a combination thereof, with respect to (whether by reduction of
capital or otherwise) any shares of capital stock, or directly or indirectly
redeem, purchase, retire or otherwise acquire for any consideration, or set
apart any sum for the aforesaid purposes, any shares of any class of capital
stock, except that:
(a) on and after the sixth anniversary of the Original Closing Date,
the Borrower may pay cash dividends at any time during the six-month period
prior to each scheduled date for the payment of semi-annual cash interest on the
Holdings Notes in an aggregate amount equal to such next scheduled payment of
cash interest on the Holdings Notes (each such scheduled semi-annual payment of
cash interest in an amount not to exceed $15,500,000) divided by 0.51; provided
that (i) no such dividend shall be permitted if an Event of Default has occurred
and is continuing at the time of, or would result from, the payment thereof and
(ii) no Borrowing shall be made or utilized to make or finance the payment of
any such dividend;
(b) so long as there shall exist no Event of Default (both before and
after giving effect thereto), the Borrower may pay cash dividends from time to
time in an amount equal to (i) the amount of taxes and legal, rating agency,
accounting and other actual out-of-pocket administrative and operating expenses
payable by Holdings and/or TCC (determined without allocating to Holdings or TCC
any overhead of any Affiliate thereof) from time to time divided by (ii) 0.51;
provided that the aggregate amount of dividends paid pursuant to this Section
7.08(b) during any fiscal year shall not exceed $1,500,000;
(c) any wholly owned Subsidiary may declare and pay cash dividends to
the Borrower or, in the case of any Subsidiary
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that is wholly owned by any other Subsidiary, to such other Subsidiary; and
(d) the Borrower may redeem (i) Non-Voting Stock held in the Management
Stock Trust on December 7, 1993 pursuant to the terms of the Transtar, Inc.
Equity Participation Plan as in effect on the date hereof and (ii) any equity
and/or equity like investments issued pursuant to any Additional Management
Equity Plan entered into by the Borrower after December 7, 1993;
SECTION 7.09. Amendment of Constituent Documents. Permit any
modification or amendment which is adverse in any respect to the Lenders to be
made to the Certificate of Incorporation or By-laws of the Borrower or any
Subsidiary, without the prior written consent of the Agent.
SECTION 7.10. Transportation Services Agreements. Permit any waiver,
supplement, modification, amendment, termination or release of any of the
Transportation Services Agreements in any material respect without the prior
written consent of Lenders holding Loans and Lenders having Letter of Credit
Exposure and unutilized Revolving Credit Commitments representing in the
aggregate more than 66-2/3% of the aggregate principal amount of the Loans
outstanding, the Letter of Credit Exposure and the unutilized Revolving Credit
Commitments.
SECTION 7.11. Capital Stock. Issue any shares of any class of capital
stock, except (a) in the case of the Borrower, common stock (including common
stock of the Borrower issued to any Permitted Joint Venture), and (b) in the
case of any Subsidiary, capital stock which is issued to the Borrower or any
other wholly owned Subsidiary and which is pledged to the Agent under the Pledge
Agreement.
SECTION 7.12. Capital Expenditures. Permit the aggregate amount of
Capital Expenditures made by the Borrower and the Subsidiaries in any fiscal
year to exceed the sum of (a) the amount set forth below
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opposite such year and (b) the difference, if positive of (1) the amount of
Capital Expenditures permitted hereunder for all preceding fiscal years pursuant
to this Section (but disregarding amounts permitted pursuant to the following
proviso) minus (2) the aggregate amount of all Capital Expenditures of the
Borrower and the Subsidiaries made during such preceding fiscal years; provided,
however, that the Borrower and the Subsidiaries may in any fiscal year make up
to $5,000,000 in Capital Expenditures beyond the amount otherwise permitted in
such year provided that the aggregate amount of all such Capital Expenditures
made pursuant to this proviso shall not exceed $10,000,000 during any period of
three consecutive fiscal years or $15,000,000 in the aggregate:
Fiscal Year Maximum Permitted
Ending Amount of Capital
December 31, Expenditures
------------ ------------
1993 $18,000,000
1994 $30,000,000
1995 $30,000,000
1996 $35,000,000
1997 $35,000,000
1998 $35,000,000
1999 $35,000,000
2000 $35,000,000
SECTION 7.13. Debt Service Coverage Ratio. In the case of the Borrower,
permit the Debt Service Coverage Ratio as of the end of any fiscal quarter to be
less than 1.10 to 1.00.
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SECTION 7.14. Interest Expense Coverage Ratio. In the case of the
Borrower, permit the Interest Expense Coverage Ratio as of the end of any fiscal
quarter to be less than 4.00 to 1.00.
SECTION 7.15. Leverage Ratio. In the case of the Borrower, permit the
Leverage Ratio as of the end of any fiscal quarter to be in excess of 3.50 to
1.00.
ARTICLE VIII
EVENTS OF DEFAULT
In case of the happening of any of the following events (herein called
"Events of Default"):
(a) any representation or warranty made, or deemed made, in any Loan
Document, or any representation, warranty, statement or information in any
report, certificate, financial statement or other instrument furnished pursuant
to any Loan Document, shall prove to have been false or misleading in any
material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration thereof or
otherwise;
(c) default shall be made in the payment of any interest on any Loan or
the reimbursement of any Letter of Credit Disbursement or any Fee or any other
amount (other than an amount referred to in (b) above) due under any Loan
Document, when and as the same shall become due and payable, and such default
shall continue unremedied for a period of three Business Days;
(d) default shall be made in the due observance or performance of any
covenant, condition or agreement contained in Section 6.01(a) or 6.08 or in
Article VII (other than Sections 7.04 and 7.05);
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110
(e) default shall be made in the due observance or performance of any
covenant, condition or agreement to be observed or performed on the part of the
Borrower or any Subsidiary under the terms of any Loan Document (other than
those specified in (b), (c) or (d) above) and such default shall continue
unremedied for a period of 30 days after notice thereof from the Agent or any
Lender to the Borrower or, in the case of a default in the due observance or
performance of Sections 7.04 and 7.05, such default shall continue unremedied
for a period of five Business Days after any Responsible Officer of the Borrower
or any Subsidiary has notice or knowledge thereof.
(f) the Borrower or any Subsidiary shall (i) fail to pay any amount of
principal or interest, regardless of amount, with respect to any of its
Indebtedness in a principal amount in excess of $5,000,000, when and as the same
shall become due and payable (after giving effect to any applicable grace
period), or (ii) fail to observe or perform any term, covenant, condition or
agreement contained in any agreement or instrument evidencing or governing any
such Indebtedness, if the effect of any failure referred to in this clause (ii)
is to cause, or to permit the holder or holders of such Indebtedness or a
trustee on its or their behalf to cause, such Indebtedness to become due prior
to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of the Borrower or any Subsidiary, or of a substantial part of its
property or assets, under Title 11 of the United States Code, as now constituted
or hereafter amended, or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any
Subsidiary, or for a substantial part of its property or assets, or (iii) the
winding-up or liquidation of the Borrower or any Subsidiary, and such proceeding
or petition shall continue undismissed for 60 days, or an order or decree
approving or ordering any of the foregoing shall be entered;
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111
(h) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal or
state bankruptcy, insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (g) above, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary, or for a
substantial part of its property or assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they become
due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of the Borrower or any Subsidiary to enforce any such
judgment;
(j) (i) (A) a Reportable Event or Reportable Events, or a failure to
make a required payment (within the meaning of Section 412(n)(1)(A) of the
Code), shall have occurred with respect to any Plan or Plans that reasonably
could be expected to result in liability of the Borrower to the PBGC or to a
Plan and, after the reporting of any such Reportable Event to the Agent or after
the receipt by the Agent of the statement required pursuant to Section 6.06(b),
the Agent shall have notified the Borrower in writing that the Required Lenders
have made a determination that, on the basis of such Reportable Event or
Reportable Events or the receipt of such statement, there are reasonable grounds
(x) for the termination of such
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112
Plan or Plans by the PBGC, (y) for the appointment by the appropriate United
States District Court of a trustee to administer such Plan or Plans or (z) for
the imposition of a Lien in favor of a Plan; (B) a trustee shall be appointed by
a United States District Court to administer any such Plan or Plans; or (C) the
PBGC shall institute proceedings to terminate any Plan or Plans and (ii) the
occurrence of any of the events described above in subclause (i) (A), (B) or (C)
could reasonably be expected to result in a Material Adverse Effect in the
reasonable opinion of the Required Lenders;
(k) (i) the Borrower or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan, (ii) the Borrower or such ERISA Affiliate does not have
reasonable grounds for contesting such Withdrawal Liability and is not in fact
contesting such Withdrawal Liability in a timely and appropriate manner, and
(iii) the amount of such Withdrawal Liability specified in such notice, when
aggregated with all other amounts required to be paid to Multiemployer Plans in
connection with Withdrawal Liabilities (determined as of the date or dates of
such notification), requires payments of amounts which, in the aggregate, in the
reasonable opinion of the Required Lenders, could reasonably be expected to
result in a Material Adverse Effect;
(l) the Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if solely as a result of such reorganization or termination the aggregate annual
contributions of the Borrower and its ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or have been or are being terminated have
been or will be increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan years by an amount
which, in the reasonable opinion of the Required Lenders, could reasonably be
expected to result in a Material Adverse Effect;
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113
(m) any security interest purported to be created by any Security
Document shall cease to be, or shall be asserted by the Borrower or any
Subsidiary not to be, a valid, perfected, first priority (except as otherwise
expressly provided in such Security Document) security interest in the
securities, assets or properties covered thereby, other than in respect of
assets and properties which, individually and in the aggregate, are not material
to the Borrower and the Subsidiaries taken as a whole or in respect of which the
failure of the security interests in respect thereof to be valid, perfected
first priority security interests will not in the reasonable judgment of the
Agent or the Required Lenders have a Materially Adverse Effect on the rights and
benefits of the Lenders under the Loan Documents taken as a whole;
(n) the Stockholders' Agreement shall be amended, modified,
supplemented, or waived in any respect which is materially adverse to the
interests of the Lenders, or is released or terminated, without the prior
written consent of the Required Lenders; or
(o) on or after the Original Closing Date, a Change of Control shall
have occurred; then, and in every such event (other than an event with respect
to the Borrower described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of such event, the Agent may (so long as Chase
or any successor agent approved by the Borrower and the Required Lenders is the
Agent), and at the request of the Required Lenders the Agent shall, by notice to
the Borrower, take any or all of the following actions, at the same or different
times: (i) terminate forthwith the Commitments and the Letter of Credit
Commitment, (ii) declare the Loans then outstanding to be forthwith due and
payable, whereupon the principal of the Loans, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrower
accrued hereunder and under any other Loan Document, shall become forthwith due
and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Borrower, anything
contained herein or in any other Loan Document to the contrary notwithstanding,
(iii) require cash collateral as
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114
contemplated by Section 3.06 and (iv) exercise remedies available under the
Guarantee Agreement and the Security Documents or otherwise; and in any event
with respect to the Borrower described in paragraph (g) or (h) above, the
Commitments and the Letter of Credit Commitment shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrower
accrued hereunder and under any other Loan Document, shall automatically become
due and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Borrower, anything
contained herein or in any other Loan Document to the contrary notwithstanding.
ARTICLE IX
THE AGENT AND THE ISSUING BANK
In order to expedite the transactions contemplated by this Agreement,
Chase is hereby appointed to act as Agent (which term shall for the purposes of
this Article be deemed to refer to the Agent and the Collateral Agent) on behalf
of the Lenders and the Issuing Bank. Each of the Lenders and each holder of any
Note by its acceptance thereof and the Issuing Bank hereby irrevocably
authorizes the Agent to take such actions on behalf of such Lender or holder and
the Issuing Bank and to exercise such powers as are specifically delegated to
the Agent by the terms and provisions hereof and of the Security Documents,
together with such actions and powers as are reasonably incidental thereto. The
Agent is hereby expressly authorized by the Lenders and the Issuing Bank,
without hereby limiting any implied authority, (a) to receive on behalf of the
Lenders all payments of principal of and interest on the Loans and all other
amounts due to the Lenders and the Issuing Bank hereunder, and promptly to
distribute to each Lender or the Issuing Bank its proper share of each payment
so received in like funds; (b) to give notice on behalf of each of the Lenders
to the Borrower of any Event of Default specified in this
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115
Agreement of which the Agent has actual knowledge acquired in connection with
its agency hereunder; and (c) to distribute to each Lender and the Issuing Bank
copies of all notices (including notices of any Event of Default), financial
statements and other materials delivered by the Borrower pursuant to this
Agreement as received by the Agent. Nothing in the preceding sentence shall be
construed to relieve the Borrower of its obligations to furnish any notice,
financial statement or other materials directly to the Lenders as required
hereunder.
Neither the Agent nor the Issuing Bank nor any of their directors,
respective officers, employees or agents shall be liable as such for any action
taken or omitted by any of them except for its or his own gross negligence or
wilful misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document delivered in connection
herewith, or be required to ascertain or to make any inquiry concerning the
performance or observance by the Borrower of any of the terms, conditions,
covenants or agreements contained in any Loan Document. The Agent shall not be
responsible to the Lenders or the holders of the Notes or the Issuing Bank for
the due execution, genuineness, validity, enforceability or effectiveness of
this Agreement, the Notes or any other Loan Documents or other instruments or
agreements. The Agent may deem and treat the payee of any Note as the owner
thereof for all purposes hereof until it shall have received from the payee of
such Note notice, given as provided herein, of the transfer thereof. The Agent
shall in all cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Required Lenders (and the
Issuing Bank, with respect to Letters of Credit) and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders and each subsequent holder
of any Note and the Issuing Bank. The Agent and the Issuing Bank shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by either of them in good faith to be genuine and correct and
to have been signed or sent by the proper person or persons. Neither the Agent
nor the Issuing Bank nor any of their respective
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116
directors, officers, employees or agents shall have any responsibility to the
Borrower on account of the failure of or delay in performance or breach by any
Lender (or, in the case of the Agent, by the Issuing Bank) of any of its
obligations hereunder or to any Lender (or, in the case of the Agent, the
Issuing Bank) on account of the failure of or delay in performance or breach by
any other Lender (or, in the case of the Agent, the Issuing Bank) or the
Borrower of any of their respective obligations hereunder or under any other
Loan Document or in connection herewith or therewith. The Agent and the Issuing
Bank may execute any and all duties hereunder by or through agents or employees
and shall be entitled to rely upon the advice of legal counsel selected by
either of them with respect to all matters arising hereunder and shall not be
liable for any action taken or suffered in good faith by either of them in
accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither the Agent nor the Issuing
Bank shall be under any duty to take any discretionary action permitted to be
taken by it pursuant to the provisions of this Agreement or any other Loan
Document unless it shall be requested in writing to do so by the Required
Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor, which shall be reasonably
satisfactory to the Borrower. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation (or if the Borrower
shall have reasonably objected to the appointment of such successor), then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent which
shall be a bank with an office in New York, New York, having a combined capital
and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the
acceptance of any appointment as Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring
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117
Agent and the retiring Agent shall be discharged from its duties and obligations
hereunder. After the Agent's resignation hereunder, the provisions of this
Article and Section 10.05 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as Agent.
With respect to the Loans made by it hereunder and the Notes issued to
it and the Letter of Credit participations acquired by it, each of the Agent and
the Issuing Bank in its individual capacity and not as Agent or the Issuing
Bank, as the case may be, shall have the same rights and powers as any other
Lender and may exercise the same as though it were not the Agent or the Issuing
Bank, as the case may be, and the Agent and its Affiliates and the Issuing Bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Agent or the Issuing Bank, as the case may be.
Each Lender agrees (i) to reimburse each of the Agent and the Issuing
Bank, on demand, in the amount of such Lender's pro rata share (based on its
Commitment hereunder) of any expenses incurred for the benefit of the Lenders by
the Agent or the Issuing Bank, including counsel fees and compensation of agents
paid for services rendered on behalf of the Lenders, which shall not have been
reimbursed by the Borrower and (ii) to indemnify and hold harmless each of the
Agent and the Issuing Bank and any of their respective directors, officers,
employees or agents, on demand, in the amount of such pro rata share, 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 it in
its capacity as the Agent or the Issuing Bank, as the case may be, or any of
them in any way relating to or arising out of this Agreement or any other Loan
Document or any action taken or omitted by it or any of them under this
Agreement or any other Loan Document, to the extent the same shall not have been
reimbursed by the Borrower; provided that no Lender shall be liable to the Agent
or the Issuing Bank for any portion of such liabilities,
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118
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Agent or the Issuing Bank, as the case may be, or any of their
respective directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent, the Issuing Bank or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent,
the Issuing Bank or any other Lender and based on such documents and information
as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement or
any other Loan Document, any related agreement or any document furnished
hereunder or thereunder.
Each Lender recognizes that applicable laws, rules, regulations or
guidelines of Governmental Authorities may require the Agent to determine
whether the transactions contemplated hereby should be classified as "highly
leveraged" or assigned any similar or successor classification, and that such
determination may be binding upon the other Lenders. Each Lender understands
that any such determination shall be made solely by the Agent based upon such
factors (which may include, without limitation, the Agent's internal policies
and prevailing market practices) as the Agent shall deem relevant and agrees
that the Agent shall have no liability for the consequences of any such
determination.
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119
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed or sent by telex, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
(a) if to the Borrower, to it at 135 Jamison Lane,
Monroeville, Pennsylvania 15146, Attention of Joseph W. Schulte, Vice
President and Chief Financial Officer (telecopy no. 412-829-3448), with
a copy to Blackstone at 345 Park Avenue, New York, NY 10154, Attention
of Michael Chae (telecopy no. 212-583-5541) and to USX at 600 Grant
Street, Pittsburgh, Pennsylvania 15219-4776, Attention of Robert M.
Hernandez, Executive Vice President, Accounting and Finance and Chief
Financial Officer (telecopy no. 412-433-2015);
(b) if to the Agent, to it at 270 Park Avenue (Ninth Floor),
New York, New York 10017, Attention of Julie Long (telecopy no.
212-972-9854);
(c) if to the Issuing Bank, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire; and
(d) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telex, graphic scanning or other telegraphic communications equipment of the
sender, or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered,
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120
sent or mailed (properly addressed) to such party as provided in this Section or
in accordance with the latest unrevoked direction from such party given in
accordance with this Section. The Agent shall deliver a copy of each
Administrative Questionnaire received by it to the Borrower. References in this
Agreement to "written" notices or notices "in writing" shall include notices
delivered by one of the means permitted under this Section, unless expressly
provided to the contrary.
SECTION 10.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and shall survive the making by the Lenders
of the Loans, and the execution and delivery to the Lenders of the Notes
evidencing such Loans, regardless of any investigation made by the Lenders or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid and so long as the Commitments have not been terminated.
SECTION 10.03. Binding Effect. This Agreement shall become effective
when the conditions set forth in Section 5.02 have been satisfied, or waived by
the Required Lenders and each Lender with a Tranche B Term Loan Commitment, and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent, the Issuing Bank and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior consent of all the Lenders.
SECTION 10.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the
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121
Borrower, the Agent, the Issuing Bank or the Lenders that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it and the Notes
and participations in Letters of Credit held by it); provided, however, that (i)
(x) except in the case of an assignment to an Eligible Assignee, the Borrower
must give its prior written consent to such assignment (which consent shall not
be unreasonably withheld) and (y) the Agent and, in the case of an assignment of
Revolving Credit Loans and/or of such assigning Lender's Revolving Credit
Commitment, the Issuing Bank must give its prior written consent to such
assignment (which consent shall not be unreasonably withheld), (ii) the
aggregate amount of the Revolving Credit Commitment and Term Loans or (prior to
the Restatement Closing Date) unutilized Tranche B Term Loan Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Agent) shall not be less than $5,000,000 (or such lesser amount as shall equal
the assigning Lender's entire Revolving Credit Commitment and all the Term Loans
at the time owing to it (or, prior to the Restatement Closing Date, such
Lender's entire unutilized Tranche B Term Loan Commitment)), (iii) after giving
effect to such assignment, unless otherwise consented to by the Borrower, the
aggregate amount of the Revolving Credit Commitment of and Term Loans at the
time owing to the assigning Lender (or, prior to the Restatement Closing Date,
such Lender's unutilized Tranche B Term Loan Commitment) shall not be less than
$10,000,000 (unless the assigning Lender shall have assigned its entire
Revolving Credit Commitment and all the Term Loans at the time owing to it (or,
prior to the Restatement Closing Date, such Lender's entire unutilized Tranche B
Term Loan Commitment) pursuant to such assignment or assignments otherwise
complying with this paragraph (b) executed substantially simultaneously with
such assignment) and (iv) the parties to each such assignment shall execute and
deliver to the Agent an Assignment and Acceptance, together
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122
with the Note or Notes subject to such assignment and a processing and
recordation fee of $3,500, payable as agreed between the assigning Lender and
the assignee. Lenders may assign non-pro rata portions of Term Loans and Tranche
B Term Loan Commitments and Revolving Credit Loans and Revolving Credit
Commitments. Upon acceptance and recording pursuant to paragraph (e), from and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five Business Days after the execution thereof
(except in the case of assignments on the Restatement Closing Date), (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender under
this Agreement and (B) the assigning Lender thereunder shall, to the extent
provided in such assignment, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) other than the representation and warranty that it is the legal and
beneficial owner of the interest being assigned thereby free and clear of any
adverse claim, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, any other Loan Document or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower or any Subsidiary or the performance or observance by the Borrower of
any of its obligations under this Agreement, any other Loan Document or any
other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements
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123
delivered pursuant to Section 6.04 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will independently and
without reliance upon the Agent, the Issuing Bank, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; and (vi)
such assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(d) The Agent, acting for this purpose as agent for the Borrower, shall
maintain at one of its offices in The City of New York a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive in the absence of
manifest error and the Borrower, the Agent, the Issuing Bank and the Lenders
shall treat each person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee together with the Note or Notes
subject to such assignment, the processing and recordation fee referred to in
paragraph (b) above and the written consent to such assignments, if required
hereunder, of the Issuing Bank and the Borrower, the Agent shall (subject to the
consent of the Agent to such assignment,
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if required), (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. No assignment shall be effective unless it has been
recorded in the Register as provided in this paragraph (e). Within five Business
Days after receipt of notice, the Borrower, at its own expense, shall execute
and deliver to the Agent, in exchange for the surrendered Note or Notes, a new
Note or Notes to the order of such assignee in a principal amount equal to, as
applicable, the Tranche B Term Loan Commitment, the Tranche A Term Loan
Commitment and/or Revolving Credit Commitment assumed by the assignee pursuant
to such Assignment and Acceptance and, if the assigning Lender has retained a
Tranche A Term Loan Commitment, Tranche B Term Loan Commitment and/or Revolving
Credit Commitment, a new Note or Notes to the order of such assigning Lender in
a principal amount equal to the Tranche A Term Loan Commitment, Tranche B Term
Loan Commitment and/or Revolving Credit Commitment retained by it; provided,
however, that any such Note or Notes shall comply with Section 2.04. Such new
Note or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes; such new Notes shall be
dated the date of such surrendered Notes and shall otherwise be in substantially
the form of Exhibit A-1, A-2 or A-3 hereto, as appropriate. Canceled Notes shall
be returned to the Borrower.
(f) Each Lender may without the consent of the Borrower, the Issuing
Bank or the Agent sell participations to one or more banks or other entities in
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans owing to it and the Notes and
participations in Letters of Credit held by it); provided, however, that (i)
such Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other entities
shall be entitled to the benefit of the cost protection provisions contained in
Sections 2.13, 2.15 and 2.18 to the same extent that the Lender from which such
participating bank or other entity acquired its participation would be entitled
to the benefit of such cost protection
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125
provisions, provided that the Borrower shall not be required to reimburse the
participating banks or other entities pursuant to Section 2.13, 2.15 or 2.18 in
an amount which exceeds the amount that would have been payable thereunder to
such Lender had such Lender not sold such participation and (iv) the Borrower,
the Agent, the Issuing Bank and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to the Loans and participations
in Letters of Credit and to approve any amendment, modification or waiver of any
provision of this Agreement (provided that the participating bank or other
entity may be provided with the right to approve amendments, modifications or
waivers affecting it with respect to any decrease in the Fees payable hereunder,
any change in the amount of principal of or decrease in the rate at which
interest is payable on the Loans, or extend the dates fixed for scheduled
payments of principal of or interest on the Loans or the release or substitution
of material amounts of collateral under any Security Document (other than as
permitted in any Loan Document)).
(g) In the event that Standard & Poor's Corporation, Moody's Investors
Service, Inc. or Thompson's BankWatch shall, after the date that any
Participating Lender becomes a Participating Lender, downgrade the long-term
certificate of deposit ratings of such Participating Lender, and the resulting
ratings shall be below BBB-, Baa3 and C, respectively, or the equivalent, then
the Issuing Bank shall have the right, but not the obligation, at its own
expense, upon notice to such Participating Lender and the Agent, to replace such
Participating Lender with an assignee (in accordance with and subject to the
restrictions contained in Section 10.04(b)), and such Participating Lender
hereby agrees to transfer and assign without recourse (in accordance with and
subject to the restrictions contained in Section 10.04(b)) all its interests,
rights and obligations in respect of its Revolving Credit Commitment and Letter
of Credit Exposure to such assignee; provided, however, that (i) no such
assignment shall conflict with any law, rule or regulation or order of any
Governmental
<PAGE> 127
126
Authority and (ii) the Issuing Bank or such assignee, as the case may be, shall
pay to such Participating Lender in immediately available funds on the date of
such assignment the principal of and interest accrued to the date of payment on
the Revolving Credit Loans made by such Participating Lender hereunder, the
amount of Letter of Credit Disbursements funded by such Participating Lender
together with interest accrued thereon to the date of payment and all other
amounts accrued for such Participating Lender's account or owed to it hereunder
in respect of either thereof.
(h) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section, disclose to
the assignee or participant or proposed assignee or participant any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower, provided that, prior to any such disclosure, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of any confidential information
relating to the Borrower received from such Lender.
(i) The Borrower shall not assign or delegate any of its respective
rights and duties hereunder. Except as provided in Section 3.09, the Issuing
Bank may not assign or delegate any of its respective rights and duties
hereunder without the prior written consent of the Borrower and the Agent.
(j) Any Lender may at any time assign all or any portion of its rights
under this Agreement and the Notes to a Federal Reserve Bank to secure
extensions of credit by such Federal Reserve Bank to such Lender; provided that
no such assignment shall release a Lender from any of its obligations hereunder
or substitute any such Federal Reserve Bank for such Lender as a party hereto.
SECTION 10.05. Expenses: Indemnity. (a) The Borrower agrees to pay all
out-of-pocket expenses incurred by the Agent and the Issuing Bank in connection
with the preparation of this Agreement and the other
<PAGE> 128
127
Loan Documents or in connection with any amendments, modifications or waivers of
the provisions hereof or thereof (whether or not the transactions hereby
contemplated shall be consummated) or incurred by the Agent, the Issuing Bank or
any Lender in connection with the enforcement or protection of their rights in
connection with this Agreement and the other Loan Documents or in connection
with the Loans made or the Notes or Letters of Credit issued hereunder,
including the fees and disbursements of Cravath, Swaine & Moore, counsel for the
Agent, and, in connection with any such enforcement or protection, the fees and
disbursements of any other counsel for the Agent, the Issuing Bank or any Lender
(including, in connection with any such enforcement or protection, the allocated
costs of in house counsel). The Borrower further agrees that it shall indemnify
the Lenders from and hold them harmless against any documentary taxes,
assessments or charges made by any Governmental Authority by reason of the
execution and delivery of this Agreement or any of the other Loan Documents.
(b) The Borrower agrees to indemnify the Agent, the Issuing Bank, each
Lender and its directors, officers, employees and agents (each such person being
called an "Indemnitee") against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees and expenses, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document or any
agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions, (ii) the use of any Letter of Credit or the proceeds of the Loans
or (iii) any claim, litigation, investigation or proceeding relating to any of
the foregoing, whether or not any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses result from the
gross negligence or wilful misconduct of such Indemnitee.
<PAGE> 129
128
(c) The provisions of this Section shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf
of the Agent, the Issuing Bank or any Lender. All amounts due under this Section
shall be payable not later than 10 Business Days after written demand therefor.
SECTION 10.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing and the Agent shall have declared, or the Required
Lenders shall have requested the Agent to declare, the Loans immediately due and
payable pursuant to Article VIII, each Lender (including the Issuing Bank in its
capacity as such) is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender to or for the credit or the
account of the Borrower against any of and all the obligations of the Borrower
now or hereafter existing under this Agreement and other Loan Documents held by
such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement or such other Loan Document and although such
obligations may be unmatured. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 10.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 10.08. Waivers; Amendment. (a) No failure or delay of the
Agent, the Issuing Bank or any Lender in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any
<PAGE> 130
129
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and
exclusive of any rights or remedies which they would otherwise have. No waiver
of any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances. Each holder of any of the Notes shall be bound by any amendment,
modification, waiver or consent authorized as provided herein, whether or not
such Note shall have been marked to indicate such amendment, modification,
waiver or consent.
(b) Neither this Agreement, the Guarantee Agreement nor any of the
Security Documents nor any provision hereof or thereof may be waived, amended or
modified except, in the case of this Agreement, pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required Lenders, or,
in the case of the Guarantee Agreement or any of the Security Documents,
pursuant to an agreement or agreements in writing entered into by the Borrower
and any of the Subsidiaries party thereto and the Collateral Agent and consented
to by the Required Lenders, provided that the foregoing shall not restrict the
ability of the Required Lenders to waive any Event of Default prior to the time
the Agent shall have declared, or the Required Lenders shall have requested the
Agent to declare, the Loans immediately due and payable pursuant to Article
VIII; provided, however, that no such agreement shall (i) change the principal
amount of, or extend the scheduled maturity of or any date for the scheduled
payment of any principal of or interest on, any Loan, or waive or excuse any
such payment or any part thereof, or reduce the rate of interest on any Loan,
without the prior written consent of each holder of a Note affected thereby
(provided that the
<PAGE> 131
130
foregoing shall not restrict the ability of the Required Lenders to waive any
Event of Default (other than any Event of Default the waiver of which would
effectively result in any such change, extension, waiver or excuse, or
reduction), prior to the time the Agent shall have declared, or the Required
Lenders shall have requested the Agent to declare, the Loans immediately due and
payable), (ii) increase the Commitment or reduce the Commitment Fees of any
Lender without the prior written consent of such Lender, (iii) amend or modify
the provisions of Section 2.16, the provisions of this Section or the definition
of the "Required Lenders" without the prior written consent of each Lender or
(iv) permit the release (other than for purposes of substitution of collateral
of reasonably equivalent value) of any material amount of collateral under any
Security Document except as expressly permitted hereby or thereby without the
prior written consent of each Lender; provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the Agent or the
Issuing Bank hereunder without the prior written consent of the Agent or the
Issuing Bank, as the case may be. Each Lender and each holder of a Note shall be
bound by any modification or amendment authorized by this Section regardless of
whether its Note shall have been marked to make reference thereto, and any
consent by any Lender or holder of a Note pursuant to this Section shall bind
any person subsequently acquiring a Note from it, whether or not such Note shall
have been so marked.
SECTION 10.09. Interest Rate Limitation. Notwithstanding anything
herein or in the Notes to the contrary, if at any time the applicable interest
rate, together with all fees and charges which are treated as interest under
applicable law (collectively the "Charges"), as provided for herein or in any
other document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Lender, shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, the rate
of interest payable under the Note held by such Lender, together with all
Charges payable to such Lender, shall be limited to the Maximum Rate.
<PAGE> 132
131
SECTION 10.10. Entire Agreement. This Agreement and the other Loan
Documents constitute the entire contract between the parties relative to the
subject matter hereof, except as provided in Section 2.05(b) and (c). Any
previous agreement among the parties with respect to the subject matter hereof
is superseded by this Agreement and the other Loan Documents. Nothing in this
Agreement or in the other Loan Documents, expressed or implied, is intended to
confer upon any party other than the parties hereto and thereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement or the
other Loan Documents.
SECTION 10.11. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10.12. Confidentiality. Except as otherwise provided in Section
10.04(h), each of the Agent, the Issuing Bank and each of the Lenders agrees to
keep confidential (and to cause its respective officers, directors, employees,
agents and representatives to keep confidential) and, at the Borrower's request
(except as provided below), promptly to return to the Borrower or destroy, after
the termination of this Agreement, the Information and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that
the Agent, the Issuing Bank or any Lender shall be permitted to disclose
Information (a) to such of its respective officers, directors, employees, agents
and representatives as need to know such Information, (b) to the extent required
by applicable
<PAGE> 133
132
laws and regulations or by any subpoena or similar legal process, or requested
by any bank regulatory authority, or (c) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Agreement,
or (ii) becomes available to the Agent, the Issuing Bank or any Lender on a
non-confidential basis from a source other than the Borrower or any Subsidiary.
For the purposes of this Section, "Information" shall mean all financial
statements, certificates, reports and information (including all analyses,
compilations and studies prepared by the Agent, the Issuing Bank or any Lender
based on any of the foregoing) which are received from the Borrower or any of
the Subsidiaries which relates to the Borrower, any Subsidiary, any shareholder
of the Borrower or any employee, customer or supplier of the Borrower or any
Subsidiary, other than which were available to the Agent, the Issuing Bank or
any Lender on a non-confidential basis prior to its disclosure thereto by the
Borrower or any Subsidiary, and which are, in the case of Information provided
after the date hereof, clearly identified at the time of delivery as
confidential.
SECTION 10.13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 10.03. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart to this Agreement.
SECTION 10.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 10.15. Jurisdiction; Consent to Service of Process. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
<PAGE> 134
133
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Borrower or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents in the courts of any
jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 10.16. Original Credit Agreement; Effectiveness of the
Amendment and Restatement. Until this Agreement becomes effective upon the
satisfaction, or waiver by the required Lenders and each Lender with a Tranche B
Term Loan Commitment, of the conditions set forth in Section 5.02, the Original
Credit Agreement shall remain in full force and effect and shall not be affected
<PAGE> 135
134
hereby. After the Restatement Closing Date, all obligations of the Borrower
under the Original Credit Agreement shall become obligations of the Borrower
hereunder, secured by the Security Documents, and the provisions of the Original
Credit Agreement shall be superseded by the provisions hereof.
IN WITNESS WHEREOF, the Borrower, the Agent, the Issuing Bank and the
Lenders have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
TRANSTAR, INC.,
by /s/ J. W. Schulte
-----------------------------------------
Name: J. W. Schulte
Title: Vice President Finance
THE CHASE MANHATTAN BANK,
individually, as Agent and
as Issuing Bank,
by /s/ Julie S. Long
-----------------------------------------
Name: Julie S. Long
Title: Vice President
BANK OF AMERICA, N.A., as Co-Agent,
formerly known as Bank of America
National Trust and Savings Association,
by /s/ Ronald McKaig
-----------------------------------------
Name: Ronald McKaig
Title: Managing Director
<PAGE> 136
135
BANK OF MONTREAL, as Co-Agent,
by /s/ Elizabeth F. Trapp
-----------------------------------------
Name: Elizabeth F. Trapp
Title: Director
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as Co-Agent,
by /s/ Takuya Honjo
-----------------------------------------
Name: Takuya Honjo
Title: Senior Vice President
COMMERCIAL LOAN FUNDING TRUST I
By: LEHMAN COMMERCIAL PAPER INC.
----------------------------------------
NOT IN ITS INDIVIDUAL CAPACITY
BUT SOLELY AS ADMINISTRATIVE AGENT,
by /s/ Michele Swanson
-----------------------------------------
Name: Michele Swanson
Title: Authorized Signatory
<PAGE> 137
136
FIRST UNION NATIONAL BANK,
by /s/ Theresa M. Smith
-----------------------------------------
Name: Theresa M. Smith
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
by /s/ Greg Wilson
-----------------------------------------
Name: Greg Wilson
Title: Banking Officer
CREDIT LYONNAIS NEW YORK BRANCH,
by /s/ Scott R. Chappelka
-----------------------------------------
Name: Scott R. Chappelka
Title: Vice President
KZH STERLING LLC,
by /s/ Peter Chin
-----------------------------------------
Name: Peter Chin
Title: Authorized Agent
MELLON BANK N.A.,
by /s/ Robert J. Reichenbach
-----------------------------------------
Name: Robert J. Reichenbach
Title: Assistant Vice President
<PAGE> 138
137
PARIBAS CAPITAL FUNDING LLC,
by /s/ M. S. Alexander
-----------------------------------------
Name: M. S. Alexander
Title: Director
NATEXIS BANQUE BFCE,
by /s/ Gary Kania
-----------------------------------------
Name: Gary Kania
Title: Vice President
by /s/ Frank H. Madden, Jr.
-----------------------------------------
Name: Frank H. Madden, Jr.
Title: Vice President & Group Manager
FLEET NATIONAL BANK,
by /s/ Deanne M. Horn
-----------------------------------------
Name: Deanne M. Horn
Title: Vice President
BHF (USA) Capital Corporation,
by /s/ Geoffrey C. Gwin
-----------------------------------------
Name: Geoffrey C. Gwin
Title: Assistant Vice President
by /s/ Michael Pellerito
-----------------------------------------
Name: Michael Pellerito
Title: Assistant Vice President
<PAGE> 139
138
VAN KAMPEN CLO I, LIMITED,
by /s/ Darvin D. Pierce
-----------------------------------------
Name: Davin D. Pierce
Title: Vice President
STB DELAWARE FUNDING TRUST I,
by /s/ Robert D. Brown
-----------------------------------------
Name: Robert D. Brown
Title: Assistant Vice President
CREDIT SUISSE FIRST BOSTON
by /s/ Jeffery B. Ulmer
-----------------------------------------
Name: Jeffery B. Ulmer
Title: Vice President
by /s/ Thomas G. Muoio
-----------------------------------------
Name: Thomas G. Muoio
Title: Vice President
DG BANK
DEUTSCHE GENOSSENSCHAFTSBANK AG,
by /s/ Linda J. O'Connell
-----------------------------------------
Name: Linda J. O'Connell
Title: Vice President
by /s/ Lynne McCarthy
-----------------------------------------
Name: Lynne McCarthy
Title: Assistant Vice President
<PAGE> 1
Exhibit 10.6.2
August 12, 1999
Robert N. Gentile, Esquire
V.P.-Law, General Counsel and Secretary
Transtar, Inc.
P.O. Box 68
135 Jamison Lane
Monroeville, PA 15146
RE: USS/KOBE - RTI OPCO CONSENTS AND NOTICES REGARDING TRANSTAR, INC.
AND LAKE TERMINAL RAILROAD - AGREEMENTS ON ATTACHED SCHEDULE
Dear Bob:
USS/Kobe Steel Company ("USS/Kobe") has decided to combine (the
"Combination") its business of manufacturing and selling hot-rolled and
cold-finished carbon and alloy steel bars (the "Bar Business") with the Bar
Businesses of Republic Engineered Steels, Inc. ("Republic") and Bar Technologies
Inc. ("Bar Tech"). The Combination, which is expected to be completed on August
13, 1999, will result in a new company to be called "Republic Technologies
International, LLC" ("RTI"). Following the Combination, USX Corporation and Kobe
Steel, the current owners of USS/Kobe, are expected to own 30% of RTI and
affiliates of The Blackstone Group and Veritas Capital Management, the current
owners of Republic and Bar Tech, and certain other investors are expected to own
70% of RTI. Prior to the Combination, USS/Kobe's business of the manufacture and
sale of high-quality hot-rolled carbon and alloy seamless tubes will be
transferred to a new company to be owned by USX Corporation and Kobe Steel, Ltd.
The parties are confident that the Combination will be effectuated in a smooth
manner and that their customers, distributors and suppliers will continue to
obtain the same quality services for which they are each well known.
The Combination requires assignment of the agreements on the attached
schedule ("Agreements") from USS/Kobe to RTI. Upon assignment, RTI will assume
all rights of USS/Kobe and all obligations to Transtar, Inc, The Lake Terminal
Railroad Company, and USS Great Lakes Fleet, Inc. under the Agreements. These
Agreements to RTI's knowledge, constitute all written agreements presently in
effect between USS/Kobe, on the one hand, and Transtar, Inc., The Lake Terminal
Railroad Company or USS Great Lakes Fleet, Inc., on the other. Some of the
Agreements require consent to assignment, while some do not require such
consent. By this letter, USS/Kobe and RTI are seeking Transtar's written
consent, on its behalf and on behalf of The Lake Terminal Railroad Company and
USS Great Lakes Fleet, Inc., as the case may be, to assignments by USS/Kobe to
RTI of the scheduled Agreements which require consent to be transferred, and are
providing notice of the assignment of those Agreements on the attached schedule
which do not require consent to assignment. RTI represents that the relationship
with Transtar, Inc., The Lake Terminal Railroad Company and USS Great Lakes
Fleet, Inc. under
<PAGE> 2
Robert N. Gentile, Esquire
August 12, 1999
Page Two
each of the Agreements to be assigned, and the provision of services by The Lake
Terminal Railroad Company and USS Great Lakes Fleet, Inc. under the Agreements,
will not be affected by the Combination inasmuch as RTI will continue to utilize
the services of The Lake Terminal Railroad Company and USS Great Lakes Fleet,
Inc. which these entities have had rights to provide to USS/Kobe under the
Agreements, either directly for its own account or indirectly by arranging for
the use of such services by the successors and assigns of USS/Kobe going
forward, in accordance with the terms of the Agreements. With respect to those
Agreements which are easements, Transtar, on its own behalf and on behalf of The
Lake Terminal Railroad Company, acknowledges and agrees that those easements
were granted for the benefit of the entire USS/Kobe parcel, and after the
Combination the respective portions of the USS/Kobe parcel will each continue to
have full benefit of all the existing easements, which will be shared by RTI and
an affiliate of USS/Kobe. We would appreciate it if you would execute and return
the enclosed copy of this letter evidencing such consent and confirmation in the
self-addressed envelope provided at your earliest possible convenience.
If you have any questions regarding this matter, please contact me at
(216) 348-5432.
Sincerely,
/s/ Paul N. Edwards
Paul N. Edwards, Counsel to RTI
CONSENTED TO AND CONFIRMED:
REPUBLIC TECHNOLOGIES TRANSTAR, INC. on behalf of itself
INTERNATIONAL, LLC and The Lake Terminal Railroad Company
and USS Great Lakes Fleet, Inc.
By: /s/ John B. George By: /s/ J. W. Schulte
------------------------------- -----------------------------------
Print Name: John B. George Print Name: J. W. Schulte
----------------------- ---------------------------
Title: V.P., Finance, Treasurer
and Secretary Title: V.P. Finance & CFO
---------------------------- --------------------------------
<PAGE> 3
TRANSTAR/LAKE TERMINAL SCHEDULE OF CONTRACTS
1. Transportation Services Agreement, dated December 29, 1998, with Transtar,
Inc.
2. Transportation Services Agreement dated July 1, 1998, with USS Great Lakes
Fleet, Inc.
3. Agreement Concerning Leases, Licenses, and Easements with Transtar, Inc.,
effective December 29, 1998
4. Locomotive Lease Agreement, dated April 1, 1978, but actually made on June
23, 1978, with The Lake Terminal Railroad Company
5. Lease Agreement (145 Gondola Cars), dated December 21, 1998, with The Lake
Terminal Railroad Company
6. Lease Agreement (81 Billet Flat Cars), dated December 21, 1998, with The
Lake Terminal Railroad Company
7. Electrical Services Agreement with The Lake Terminal Railroad Company,
dated July 18, 1991
8. Lease (Locker Room), dated March 15, 1999, with The Lake Terminal Railroad
Company,
9. Track Lease with The Lake Terminal Railroad Company, dated January 1, 1995
for fifty-five (55) feet of LTRR's Track No. 111
10. License with The Lake Terminal Railroad, dated December 12, 1990, to
Access No. 3 Blast Furnace For Construction
11. Standing Order No. 295-0069314 ("Rubber Tire Scrap Box Services"), dated
July 28, 1995, with The Lake Terminal Railroad Company
12. Non-Exclusive Track No. 789 Easement With The Lake Terminal Railroad
Company To Cross Track No. 801 of The Lake Terminal Railroad Company, dated
December 4, 1989
13. Perpetual License to The Lake Terminal Railroad Company, dated June 26,
1989, Granting LTRR access to the Lorain Plant
14. Perpetual Utility License to The Lake Terminal Railroad Company, dated June
26, 1989, Granting LTRR a Utility License
15. Non-Exclusive Pipeline Easement from The Lake Terminal Railroad Company to
USS/Kobe, dated June 26, 1989
<PAGE> 4
16. Non-Exclusive Wireline Easement from The Lake Terminal Railroad Company to
USS/Kobe, dated June 26, 1989
17. Non-Exclusive Emergency Access Easement from The Lake Terminal Railroad
Company to USS/Kobe, dated June 26, 1989
18. Non-Exclusive Access Easement from The Lake Terminal Railroad Company to
USS/Kobe, dated June 26, 1989 (Bridges 1-3, Vine St., Globe St., Pearl
Ave., Grove St., Dries 1, 5, 7-10); also Partial Termination of Easement
dated March 1, 1994 terminating the portion described as "Charleston-2
easement"
19. Non-Exclusive Access Easement from USS/Kobe to The Lake Terminal Railroad
Company, dated June 26, 1989, (ingress and egress to and from tracks,
switches and equipment of USS/Kobe)
20. Memorandum of Understanding with The Lake Terminal Railroad Company, dated
May 8, 1997
21. Rail Transportation Contract LT-C-0023 with The Lake Terminal Railroad
Company, dated December 21, 1998
22. Indemnification Agreement & Nursing Services Agreement With The Lake
Terminal Railroad Company, dated September 21, 1993
23. Lease Agreement from USS/Kobe to The Lake Terminal Railroad Company dated
November 1, 1991, leasing westerly half up to corrugated steel partition of
Narrow Gauge Locomotive Repair Shop. The Lake Terminal Railroad Company
gave 60-day notice to cancel to USS/Kobe on July 30, 1999.
<PAGE> 1
EXHIBIT 10.13.1
SIXTH AMENDMENT
TO THE
TRANSTAR, INC.
SAVINGS PLAN FOR SALARIED EMPLOYEES
(As Amended and Restated Effective January 1, 1989)
The Transtar, Inc. Savings Plan for Salaried Employees shall be amended
effective January 1, 2000 as follows:
1. Section 4.2 shall be amended to read as follows:
NON-PARTICIPATING EMPLOYEE. Each other Employee shall become eligible
to participate in the Plan on the day an Employee completes six (6)
months of service as described in Section 3.1 or 3.4, whichever is
applicable.
2. Section 5.9 subsection (a) shall be amended to read as follows:
a) Subject to Article IX, an Eligible Employee may elect to have
the Employers pay on his behalf into the Plan during each
payroll period, through a reduction in his compensation, at
least one percent (1%) of his compensation (before such
contribution) for such payroll period and additional amounts
in one-half percent (1/2%) increments, but not more than ten
percent (10%) of his compensation (taking into account amounts
contributed as Voluntary Employee After-Tax Contributions).
Notwithstanding the foregoing, effective for Plan years
commencing on or after January 1, 1995, the previous sentence
shall be amended by substituting "fifteen percent (15%)" for
"ten percent (10%), and effective for Plan years commencing on
or after January 1, 2000, the previous sentence shall be
amended by substituting "eighteen percent (18%)" for "ten
percent (10%)" with respect to any Eligible Employee who was
not classified as a Highly Compensated Employee in the Plan
year prior to the Plan year for which the Pre-Tax Contribution
is made. The amounts so contributed shall constitute such
Participant's Pre-Tax Contribution, and shall be one hundred
percent (100%) non-forfeitable at all times. No Employer
contribution (other than a Matching Contribution to this Plan
or any other plan sponsored by the Employees shall be affected
by or conditioned upon a Participant's election to make
Pre-Tax Contributions. The Employer shall remit such Pre-Tax
Contributions to the Plan no later than (90 days after the
close of the month in which such contributions were withheld.
<PAGE> 2
However, any Participant's election may be reduced (as
described in Section 5.9(b) and Article IX) by the Plan
Manager as necessary to assure compliance with IRC Sections
401(k) and 415. Elections shall be made as follows:
IN WITNESS WHEREOF, Transtar, Inc. has caused this Amendment
to be executed by its duly authorized officers this 2nd day
of November, 1999.
ATTEST: TRANSTAR, INC.
By: /s/ R. N. Gentile By: /s/ J. W. Schulte
------------------------ ------------------------
<PAGE> 1
EXHIBIT 10.13.2
SEVENTH AMENDMENT
TO THE
TRANSTAR, INC.
SAVINGS PLAN FOR SALARIED EMPLOYEES
(As Amended and Restated Effective January 1, 1989)
The Transtar, Inc. Savings Plan for Salaried Employees shall be amended
effective January 1, 2000, as follows:
1 Section 5.5(a) shall be amended to read as follows:
a) Subject to Article IX, Employers shall contribute to the
Matching Contribution Account of each Participant an amount
which, together with the balance of forfeitures then available
for allocation, shall equal the Participant's Pre-Tax
Contributions and Voluntary Employee After-Tax Contributions
for the Plan year, up to the percentage of Compensation
determined in accordance with the following schedule:
<TABLE>
<CAPTION>
Maximum Matching Contribution
-----------------------------
YEARS OF SERVICE Prior to 1-1-96 1-1-96-12-31-99 After 1-1-2000
--------------- --------------- --------------
<S> <C> <C> <C>
1 but less than 10 years 3.0% 4.0% 5.0%
10 but less than 15 years 3.5% 4.5% 5.5%
15 or more years 4.0% 5.0% 6.0%
</TABLE>
An Employee need not accrue a Year of Service during the Plan
Year in order to share in Matching Contributions for such Plan
Year.
Each Employer shall be liable to contribute to the Plan the
amount of Matching Contribution determine under this Section
5.5 for each of the Eligible Employees employed by such
Employer. Where an Eligible Employee is employed by more than
one Employer during the Plan Year, liability for payment to
the Plan of the amount of such Matching Contribution shall be
based on the amount of such Employee's Pre-Tax Contributions
and Voluntary After-Tax Contributions made to the Plan while
the Employee was in the employ of each respective Employer.
<PAGE> 2
-2-
2. A new Sub-Section (a)(4) shall be added to Section 5.9 of the Plan to
read as follows:
(a)(4) An Eligible Employee may elect to commence having Pre-Tax
Contributions made on his behalf or increase or decrease his
Compensation reduction percentage effective as of the first
day of January, 2000 by filing a written notice with the Plan
Manager by January 14, 2000.
Paragraph 5.9 (a)(4) shall be deleted from the Plan effective
January 31, 2000,
IN WITNESS WHEREOF, Transtar, Inc. has caused this Amendment to be
executed by its duly authorized officers this 1st day of December, 1999.
ATTEST: TRANSTAR, INC.
By /s/ R. N. Gentile By /s/ J. W. Schulte
------------------------------ ------------------------------
<PAGE> 1
EXHIBIT 10.14.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of November 1, 1999 (the "Date of this Agreement") by and between ROBERT S.
ROSATI, an individual who resides at 108 Hickory Hill Road, Pittsburgh,
Allegheny County, Pennsylvania 15238 (the "Executive") and TRANSTAR, INC., a
Delaware corporation with offices located at 135 Jamison Lane, Monroeville,
Allegheny County, Pennsylvania 15146 ("Transtar") on behalf of itself and those
of its subsidiaries listed on Exhibit A attached to this Agreement (the
"Transtar Subsidiaries").
W I T N E S S E T H;
WHEREAS, Prior to the Date of this Agreement and since at least January
1, 1994, the Executive has been employed as President, Chief Executive Officer
and a non-voting ex officio director of Transtar and as President, Chief
Executive Officer, a Director and Chairman of the Boards of Directors of the
Transtar Subsidiaries; and
WHEREAS, Prior to the Date of this Agreement, the Executive has
announced, both publicly and to the appropriate officers of Transtar, the
Transtar Subsidiaries, Transtar Holdings, L.P. and USX Corporation (the
"Transtar Shareholders"), his intention to retire from the employment of
Transtar and the Transtar Subsidiaries and to resign as an ex officio director
of Transtar and as a Director and Chairman of the Boards of the Transtar
Subsidiaries, effective October 31, 1999; and
<PAGE> 2
WHEREAS, the Transtar Shareholders are contemplating structural changes
to Transtar and the Transtar Subsidiaries which, if implemented, are anticipated
to be completed on or before June 30, 2000 (the "Transaction"); and
WHEREAS, the Transtar Shareholders and the Executive each desire that
Executive postpone his retirement and resignations, extend his employment with
Transtar and serve both Transtar and the Transtar Subsidiaries in the
aforementioned positions after October 31, 1999, but in no event beyond, June
30, 2000, in accordance with the terms and conditions of this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below, the parties hereto, intending to be legally bound, hereby agree
as follows:
1. EMPLOYMENT PERIOD. Unless otherwise terminated in accordance with
the provisions of Section 5 of this Agreement, the term of this Agreement and
the Employment Period provided herein shall commence on November 1, 1999 and
shall extend until (i) closing of the Transaction, (ii) death or disability of
the Executive, or (iii) June 30, 2000, whichever first occurs (the "Employment
Period"). Except upon termination of the Employment Period (i) in accordance
with the provisions of Section 5 of this Agreement or (ii) upon death or
disability of the Executive, the Employment Period shall continue until at least
November 30, 1999. In no event shall the Employment Period continue beyond June
30, 2000.
<PAGE> 3
2. DUTIES AND RESPONSIBILITIES. During the Employment Period, Transtar
shall continue to employ the Executive, and the Executive shall continue to
serve as President, Chief Executive Officer and non-voting ex officio Director
of Transtar and as President, Chief Executive Officer, Director and Chairman of
the Boards of Directors of the Transtar Subsidiaries. Throughout the Employment
Period, the Executive shall continue to perform all duties and accept all
responsibilities directly related or incidental to such positions and any
additional duties or responsibilities that may be assigned to the Executive by
the Transtar Shareholders or the Transtar Board of Directors. Such additional
duties and responsibilities shall include those assigned to the Executive in
connection with assessment and implementation of any structural changes to
Transtar and the Transtar Subsidiaries. During the Employment Period, the
Executive's office shall continue to be located at the Transtar Headquarters
Building in Monroeville, Pennsylvania.
3. COMPENSATION OF EXECUTIVE. The parties acknowledge that immediately
prior to the Date of this Agreement, the Executive was the recipient of a
compensation package (the "Compensation Package") from Transtar that included,
among other things, monthly salary, annual bonus, participation in employee
welfare and benefit plans, basic pension, life insurance, medical, dental,
supplemental health, disability, deferred compensation and savings plans, Excess
Pension Benefits, Supplemental Pension Benefits, Supplemental Thrift Benefits,
Supplemental Life Insurance Benefits, paid vacation and holidays, use of a
company vehicle, business expense reimbursement, annual medical checkup, limited
reimbursement for fees incurred in connection with professional tax advice and
financial planning services rendered to the Executive, and participation in the
Transtar,
<PAGE> 4
Inc. Stock Plan and the Transtar, Inc. Stock Option Plan. As full compensation
to the Executive for his performance of the duties and responsibilities
hereunder during the Employment Period, Transtar agrees to pay the Executive,
and the Executive agrees to accept, the Compensation Package under which the
Executive was employed by Transtar immediately prior to the Date of this
Agreement, augmented by the following enhancements:
(a) During the Employment Period, the Executive shall receive the
Compensation Package (including salary) in effect immediately prior to
the Date of this Agreement and all increases in, or improvements to,
the Compensation Package that may be established by Transtar from time
to time throughout the Employment Period;
(b) (i) Upon termination of the Employment Period after December 31, 1999
but no later than March 31, 2000 other than in accordance with the
provisions of Section 5 of this Agreement, the Executive (or his
designated beneficiaries if termination of the Employment Period
results from the death of the Executive) shall be paid, upon
termination of the Employment Period, (1) the Executive's monthly
salary from the date of termination of the Employment Period through
June 30, 2000, and (2) an annual bonus for the year 2000 in the amount
of $162,500; or (ii) upon termination of the Employment Period after
March 31, 2000 other than in accordance with the provisions of Section
5 of this Agreement, the Executive (or his designated beneficiaries if
termination of the Employment Period results from death of the
Executive) shall be paid, upon termination of the Employment Period,
(1) the Executive's monthly salary from the date of termination of the
Employment Period through December 31, 2000, and (2) an annual bonus
for the year 2000, in the amount of $325,000.
(c) In the event of termination of the Employment Period in accordance with
the provisions
<PAGE> 5
of Section 5 of this Agreement, the amount of the annual bonus payable
to the Executive in accordance with the provisions of Subsection 3(b)of
this Agreement shall be determined by multiplying the $162,500 or the
$325,000, as the case may be, by a fraction, the numerator of which is
the number of calendar days in the year 2000 that have expired up
through and as of the date of termination, and the denominator of which
is 366.
(d) Redemption of all vested shares and options awarded to the Executive
under the terms and conditions of the Transtar, Inc. Stock Plan and the
Transtar, Inc. Stock Option Plan shall occur and be paid to the
Executive by December 30, 1999, the value of such shares and options to
be determined as if the Executive had retired on October 31, 1999.
(e) If the Employment Period terminates after December 31, 1999, all
benefits payable to the Executive under the Transtar, Inc. Salaried
Retirement, Non-Contributory, Excess Pension Benefits and Supplemental
Pension Benefits Plans shall be calculated using the lower of (1) the
PBGC discount rate that is in effect on October 31, 1999, or (2) the
PBGC discount rate that is in effect on the actual date of retirement.
(f) If the Executive or his spouse, Gloria Perry Rosati, shall die during
the Employment Period, all benefits paid to the survivor of them (or to
their designated beneficiaries if both of them shall die simultaneously
or within thirty (30) calendar days of each other) under the Transtar,
Inc. Salaried Retirement, Non-Contributory, Excess Pension Benefits and
Supplemental Pension Benefits Plans shall be paid in lump sums
calculated as though both the Executive and his spouse had survived the
Employment Period.
(g) Except for salary and amounts paid upon redemption of the Executive's
vested shares or options awarded under the terms and conditions of the
Transtar, Inc. Stock Plan or the
<PAGE> 6
Transtar, Inc. Stock Option Plan, any components of the Compensation
Package as augmented by the provisions of this Section 3 of this
Agreement payable to the Executive upon termination of the Employment
Period for any reason except in accordance with the provisions of
Section 5 of this Agreement, shall be paid to the Executive (or his
designated beneficiaries if termination of the Employment Period
results from death of the Executive) upon termination of the Employment
Period and in accordance with their value determined (1) as of the date
of termination of the Employment Period or (2) October 31, 1999,
whichever is greater (the difference being referred to herein as the
"Incremental Portion"). To the extent that an Incremental Portion of a
payment for any such component of compensation involving a pension or
health and welfare plan cannot properly or legally be made to the
Executive or his designated beneficiaries from the funds of such
Transtar pension or health and welfare benefit plan, such payment shall
be made from the general funds of Transtar and the amount of such
payment shall be grossed-up to reimburse the Executive for any federal,
state or local income tax payable by the Executive on the Incremental
Portion as result of the payment originating from the general funds of
Transtar instead of from the funds of a Transtar pension or health and
welfare benefit plan.
4. EXTENT OF SERVICE. During the Employment Period, the Executive shall
use his best efforts in the business of Transtar and the Transtar Subsidiaries,
and shall devote substantially his full-time working hours, attention and energy
to the business of Transtar and the Transtar Subsidiaries and to the performance
of his services and the discharge of his duties and responsibilities hereunder.
The Executive shall perform such work duties and responsibilities on behalf of
Transtar and the Transtar Subsidiaries hereunder to the standards
<PAGE> 7
as have been customary prior to the Date of this Agreement. The Executive shall
not become engaged in any other business activity that may interfere with his
ability to discharge his duties and responsibilities hereunder to Transtar and
the Transtar Subsidiaries. The Executive further agrees that his performance of
duties and responsibilities hereunder shall at all times be subject to the
Policies, corporate governance procedures and Administrative Programs and
Procedures of Transtar and the Transtar Subsidiaries in effect on the Date of
this Agreement and as may be amended or promulgated from time to time during the
Employment Period, and further agrees not to work either on a part time or
independent contractual basis for any other business or enterprise during the
Employment Period. Throughout the Employment Period, the Executive shall
faithfully and diligently perform his duties and responsibilities under this
Agreement and shall use his best efforts to promote the interests of Transtar
and the Transtar Subsidiaries.
5. TERMINATION OF EMPLOYMENT PERIOD FOR CAUSE. Nothing in this
Agreement shall be construed to prevent the termination of this Agreement and
the Employment Period by the Transtar Shareholders or the Transtar Board of
Directors at any time for "cause." For purposes of this Agreement, "cause" shall
mean (i) the Executive's breach in respect of his duties and responsibilities
under this Agreement, if such breach remains unremedied for ten (10) calendar
days after written notice thereof from the Transtar Shareholders or the Transtar
Board of Directors to the Executive, specifying the acts constituting the breach
and requesting that they be remedied; (ii) the Executive having been charged
with a felony during the Employment Period, provided that, in the reasonable
opinion of
<PAGE> 8
the Board of Directors of Transtar, the charge results, or is likely to result,
in substantial detriment to Transtar or the Transtar Subsidiaries; or (iii) the
Executive's gross negligence or gross misconduct or dereliction of duty, or a
substantial or material breach of this Agreement, that, in the reasonable
opinion of the Board of Directors of Transtar, causes or threatens to cause
serious injury to Transtar or the Transtar Subsidiaries.
6. GOVERNING LAW. This Agreement shall be governed by and interpreted
under the laws of the Commonwealth of Pennsylvania without giving effect to any
conflict of laws provisions.
7. CONTENTS OF AGREEMENT; AMENDMENT AND ASSIGNMENT. This Agreement sets
forth the entire understanding between the parties hereto with respect to the
subject matter hereof, supersedes any prior agreement or employment agreement
between the parties and shall not be changed, modified or terminated except upon
written amendment executed by the parties. This Agreement and any rights
(including compensation) or obligations hereunder shall not be assigned, pledged
or transferred in any way by either party without the prior written consent of
the other, except that (i) Transtar may assign this Agreement to its successor
in interest provided that Transtar guarantees performance of the obligations set
forth in this Agreement by such successor (ii) the Executive may designate his
beneficiaries to receive (and such beneficiaries shall receive) any
compensation, payments or other benefits payable hereunder upon his death, (iii)
any assignment by will or by laws of descent and distribution is permitted, and
(iv)
<PAGE> 9
the Executive's executors, administrators or other legal representatives may
assign any rights hereunder to the person or persons entitled thereto.
8. NOTICE. All notices, requests, demands and other communications
hereunder must be in writing and shall be deemed to have been duly given if
delivered by hand or mailed within the continental United States by first class,
registered mail, return receipt requested, postage and registry fees prepaid, to
the applicable party and addressed as follows:
If to Transtar: Transtar, Inc.
135 Jamison Lane
P.O. Box 68
Monroeville, Pennsylvania 15146
Attention - Vice President - Law
If to Executive: Robert S. Rosati
108 Hickory Hill Road
Pittsburgh, Pennsylvania 15238
9. SEVERABILITY. If any provision of this Agreement or application
thereof to anyone or under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provision or application and shall not invalidate or render
unenforceable such provision or application in any other jurisdiction.
10. BOARD AND SHAREHOLDER APPROVAL. The effectiveness of this Agreement
as well any obligations of Transtar or the Transtar Subsidiaries hereunder shall
be
<PAGE> 10
subject to approval by the Board of Directors and shareholders of Transtar and
the shareholders of the Transtar Subsidiaries. If such approvals are not
obtained within fourteen (14) calendar days of the date on which this Agreement
has been fully executed by the parties, then this Agreement shall be of no force
and effect.
11. LEGAL COUNSEL. The Executive acknowledges that this Agreement has
been prepared by Robert N. Gentile, Esq. ("Counsel") acting solely in his
capacity as counsel to Transtar and the Transtar Subsidiaries, that any
discussion between the Executive and Counsel which has occurred during the
preparation of this Agreement should not be understood as, or relied upon, by
the Executive as legal advice and further that Counsel has informed the
Executive of Executive's right to retain legal counsel on his own behalf to
review this Agreement and to advise Executive appropriately.
<PAGE> 11
IN WITNESS WHEREOF, the Executive and Transtar, on behalf of itself and
the Transtar Subsidiaries, have executed this Agreement as of the date first
above written.
ATTEST: TRANSTAR, INC., ON BEHALF
OF ITSELF AND ITS SUBSIDIARIES:
/s/ R. N. GENTILE BY /s/ J. W. SCHULTE
- ------------------------------------ ----------------------------
SECRETARY ITS V.P. FINANCE & CFO
WITNESS:
/s/ R. N. GENTILE /s/ ROBERT S. ROSATI
- ------------------------------------ -------------------------------
ROBERT S. ROSATI
DRAFT 11/17/99
<PAGE> 1
EXHIBIT 10.16.4
SEVENTH AMENDMENT
TO THE
TRANSTAR, INC.
SALARIED RETIREMENT PLAN
(As Amended and Restated Effective January 1, 1989)
Effective January 1, 2000, the following revision is adopted by the
Transtar, Inc. Salaried Retirement Plan.
APPENDIX A, Subsection (a) shall be amended as follows:
(a) Normal wages and salaries for services performed, including
incentive, shift differential, out-of-line differential, and
Sunday, holiday and overtime premium payments applicable to
such services, but excluding any cost-of-living payment and
the amount resulting from a Cost-of-Living Adjustment included
in the base hourly or salary rates on or after May 1, 1974
other than the first thirty-nine cents ($.39) per hour for
hourly paid employees and the first sixty-eight dollars ($68)
per month for salaried employees. Effective January 1, 1997,
Participants whose rolled into base Cost-of-Living Adjustment
excluded from Pensionable Earnings prior to January 1, 1997
exceeds six hundred dollars ($600.00) per month shall have
such exclusion reduced prospectively to six hundred dollars
($600.00) per month. Effective January 1, 1998, Participants
whose rolled into base Cost-of-Living Adjustment excluded from
Pensionable Earnings prior to January 1, 1998 exceeds four
hundred fifty dollars ($450.00) per month shall have such
exclusion reduced prospectively to four hundred fifty dollars
($450.00) per month. Effective January 1, 1999, Participants
whose rolled into base Cost-of-Living Adjustment excluded from
Pensionable Earnings prior to January 1, 1999 exceeds three
hundred dollars ($300.00) per month shall have such exclusion
reduced prospectively to three hundred dollars ($300.00) per
month. EFFECTIVE JANUARY 1, 2000, PARTICIPANTS WHOSE ROLLED
INTO BASE COST-OF-LIVING ADJUSTMENT EXCLUDED FROM PENSIONABLE
EARNINGS PRIOR TO JANUARY 1, 2000 EXCEEDS ONE-HUNDRED FIFTY
DOLLARS ($150.00) PER MONTH SHALL HAVE SUCH EXCLUSION REDUCED
PROSPECTIVELY TO ONE HUNDRED FIFTY DOLLARS ($150.00) PER
MONTH. The preceding shall be modified for Participants
covered by a collective bargaining agreement that provides for
a deviation in the method of determining normal wages and
salaries. Effective August 11, 1986, the amount of any
temporary reduction in any Participant"s salary will be
included in Pensionable Earnings for pension purposes;
provided, however, that the temporary reduction included in
Pensionable Earnings shall be reduced by any subsequent salary
increase.
<PAGE> 2
-2-
IN WITNESS WHEREOF, Transtar, Inc. has caused this Amendment to be
executed by its duly authorized officers this 1st day of December , 1999.
ATTEST: TRANSTAR, INC.
By /s/ R. N. Gentile By /s/ J. W. Schulte
----------------------------------- ------------------------------
<PAGE> 1
Exhibit 12.1
TRANSTAR, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(In thousands)
<TABLE>
<CAPTION>
For the year ended December 31,
1999 1998 1997 1996 1995
-------- -------- -------- -------- -------
<S> <C> <C> <C> <C> <C>
Income before income taxes,
extraordinary item and change in
accounting principle................................. $ 85,830 $ 95,757 $110,579 $103,714 $93,915
Fixed charges:
Interest expense and amortization of
debt issuance costs.................................. $ 9,516 $ 12,942 $ 17,358 $ 21,314 $24,144
Interest expense on rentals............................ 8,241 7,904 7,976 7,854 6,057
-------- -------- -------- -------- -------
Total fixed charges............................. $ 17,757 $ 20,846 $ 25,334 $ 29,168 $30,201
======== ======== ======== ======== =======
Earnings before income taxes,
extraordinary item, change in
accounting principle and fixed charges .............. $103,587 $116,603 $135,913 $132,882 $124,116
======== ======== ======== ======== ========
Ratio of earnings to fixed charges..................... 5.83 5.59 5.36 4.56 4.11
==== ==== ==== ==== ====
</TABLE>
- ----------
Income for the years 1996, 1997, 1998 and 1999 includes non-recurring charges
(credits) of $(1.0) million, $7.0 million ,$3.5 million, and $0.9 million,
respectively.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 299
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 309
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 134,386
<CURRENT-LIABILITIES> 1,685
<BONDS> 218,080
0
0
<COMMON> 0
<OTHER-SE> (85,379)
<TOTAL-LIABILITY-AND-EQUITY> 134,386
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 182
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (27,379)
<INCOME-PRETAX> 3,725
<INCOME-TAX> 0
<INCOME-CONTINUING> 3,725
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,725
<EPS-BASIC> 0
<EPS-DILUTED> 0
</TABLE>
