EXHIBIT 4.1
FIRST AMENDMENT TO
CREDIT AGREEMENT
Among
ALLEGHENY TECHNOLOGIES INCORPORATED,
as the Borrower
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as the Lenders
MELLON BANK, N.A.,
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK,
and
BANK OF AMERICA, N.A.,
as Syndication Agents
and
PNC BANK, NATIONAL ASSOCIATION,
as the Documentation and Administrative Agent
and
PNC CAPITAL MARKETS, INC.,
as lead arranger
Dated as of August 12, 2002,
TABLE OF CONTENTS
PAGE
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ARTICLE I AMENDMENTS TO ORIGINAL CREDIT AGREEMENT....................... 1
Section 1.01. Amended Definitions................................ 1
Section 1.02. Additional Definitions............................. 6
Section 1.03. Amendment to Section 5.3........................... 7
Section 1.04. Amendment to Section 5.4........................... 7
Section 1.05. No Other Amendments................................ 8
ARTICLE II BORROWER'S SUPPLEMENTAL REPRESENTATIONS....................... 8
Section 2.01 Incorporation by Reference......................... 8
Section 2.02. Corporate Authority................................ 8
Section 2.03. Validity of this First Amendment................... 9
Section 2.04. Amendment Closing Fee.............................. 9
ARTICLE III CONDITIONS PRECEDENT.......................................... 9
Section 3.01. Conditions Precedent............................... 9
ARTICLE IV GENERAL PROVISIONS............................................ 10
Section 4.01. Ratification of Terms.............................. 10
Section 4.02. References......................................... 10
Section 4.03. Incorporation Into Original Credit Agreement....... 10
Section 4.04. Counterparts....................................... 11
Section 4.05. Capitalized Terms.................................. 11
Section 4.06. Taxes.............................................. 11
Section 4.07. Costs and Expenses................................. 11
Section 4.08. Severability....................................... 11
Section 4.09. Governing Law...................................... 11
Section 4.10. Headings........................................... 11
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "First Amendment") dated as
of August 12, 2002, to that certain Credit Agreement dated as of December 21,
2001 (the Credit Agreement together with the exhibits and schedules thereto and
all modifications, amendments, extensions, renewals, substitutions or
replacements prior to the date hereof, the "Original Credit Agreement"), among
ALLEGHENY TECHNOLOGIES INCORPORATED, a Delaware corporation, as the borrower
(the "Borrower"), the FINANCIAL INSTITUTIONS listed on the signature pages
hereto and each other financial institution which from time to time becomes a
party thereto in accordance with Section 9.6a of the Original Credit Agreement
(individually a "Lender" and collectively the "Lenders"), MELLON BANK, N.A., ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ BANK, and BANK OF AMERICA, N.A., as Syndication Agents
(individually a "Syndication Agent" and collectively the "Syndication Agents")
and PNC BANK, NATIONAL ASSOCIATION, a national banking association,
Documentation and Administrative Agent for the Lenders (in such capacity the
"Agent").
WITNESSETH:
WHEREAS, the Borrower and the initial Lenders, the Syndication Agents and
the Agent entered into the Original Credit Agreement pursuant to which the
Lenders made certain financial accommodations available to the Borrower
including a long term revolving credit commitment and a short term revolving
credit commitment;
WHEREAS, the Borrower and the Required Lenders, the Syndication Agents and
the Agent desire to amend the Original Credit Agreement as set forth herein; and
WHEREAS, the Borrower, the Syndication Agents, the Agent and the Required
Lenders acknowledge that PNC Capital Markets, Inc. ("PNC Capital"), has acted as
the lead arranger for this amendment; provided however, PNC Capital is not, and
shall not be, a party to this First Amendment.
NOW THEREFORE, in consideration of the mutual premises contained herein
and other good and valuable consideration, the Borrower, the Required Lenders,
the Syndication Agents and the Agent, with the intent to be legally bound
hereby, agree that the Original Credit Agreement shall be amended as follows:
ARTICLE I
AMENDMENTS TO ORIGINAL CREDIT AGREEMENT
SECTION 1.01. AMENDED DEFINITIONS. Section 1.1 of the Original Credit
Agreement is hereby amended such that the following definitions shall be amended
and restated as set forth below.
"Applicable Long Term Revolving Credit LIBOR Margin" means for
each LIBOR Portion of the Long Term Revolving Credit Loans, the
percentage (expressed in basis points) determined from time to time based
upon the Senior Ratings then in effect from ▇▇▇▇▇'▇ and S&P set forth
under the relevant column heading below:
Applicable Long Term
Revolving Credit LIBOR
Senior Ratings Margin
-------------- ----------------------
Level I
Senior Ratings are equal to or better than A
from S&P or A2 from ▇▇▇▇▇'▇ 32.5 Basis Points
Level II
Senior Ratings are A- from S&P or A3
from ▇▇▇▇▇'▇ 40 Basis Points
Level III
Senior Ratings are BBB+ from S&P or Baa1
from ▇▇▇▇▇'▇ 47.5 Basis Points
Level IV
Senior Ratings are BBB from S&P or Baa2
from ▇▇▇▇▇'▇ 77.5 Basis Points
Level V
Senior Ratings are BBB- from S&P or Baa3
from ▇▇▇▇▇'▇ 97.5 Basis Points
Level VI
Senior Ratings are less than BBB- from S&P
and Baa3 from ▇▇▇▇▇'▇ 145 Basis Points
provided, however, that (i) in the event the Senior Ratings of S&P and
▇▇▇▇▇'▇ do not coincide, the Applicable Long Term Revolving Credit LIBOR
Margin shall be determined utilizing the higher of such Senior Ratings;
and (ii) in the event only one Senior Rating is in effect, the Applicable
Long Term Revolving Credit LIBOR Margin set forth opposite such Senior
Rating shall apply.
"Applicable Short Term Revolving Credit LIBOR Margin" means
for each LIBOR Portion of the Short Term Revolving Credit Loans, the
percentage (expressed in basis points) determined from time to time based
upon the Senior Ratings then in effect from ▇▇▇▇▇'▇ and S&P set forth
under the relevant column heading below:
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Applicable Short Term
Revolving Credit
Senior Ratings LIBOR Margin
-------------- ---------------------
Level I
Senior Ratings are equal to or better than A from
S&P or A2 from ▇▇▇▇▇'▇ 34.5 Basis Points
Level II
Senior Ratings are A- from S&P or A3 from
▇▇▇▇▇'▇ 42.5 Basis Points
Level III
Senior Ratings are BBB+ from S&P or Baa1 from
▇▇▇▇▇'▇ 50.0 Basis Points
Level IV
Senior Ratings are BBB from S&P or Baa2 from
▇▇▇▇▇'▇ 82.5 Basis Points
Level V
Senior Ratings are BBB- from S&P or Baa3 from
▇▇▇▇▇'▇ 102.5 Basis Points
Level VI
Senior Ratings are less than BBB- from S&P and
Baa3 from ▇▇▇▇▇'▇ 150 Basis Points
provided, however, that (i) in the event the Senior Ratings of S&P and
▇▇▇▇▇'▇ do not coincide, the Applicable Short Term Revolving Credit LIBOR
Margin shall be determined utilizing the higher of such Senior Ratings;
and (ii) in the event only one Senior Rating is in effect, the Applicable
Short Term Revolving Credit LIBOR Margin set forth opposite such Senior
Rating shall apply.
"Applicable Term Loan LIBOR Margin" means for each LIBOR
Portion of the Term Loans, the percentage (expressed in basis points)
determined from time to time based upon the Senior Ratings then in effect
from ▇▇▇▇▇'▇ and S&P set forth under the relevant column heading below:
Applicable Term Loan
Senior Ratings LIBOR Margin
-------------- --------------------
Level I
Senior Ratings are equal to or better than A from
S&P or A2 from ▇▇▇▇▇'▇ 95 Basis Points
Level II
Senior Ratings are A- from S&P or A3 from
▇▇▇▇▇'▇ 105 Basis Points
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Applicable Term Loan
Senior Ratings LIBOR Margin
-------------- --------------------
Level III
Senior Ratings are BBB+ from S&P or Baa1 from
▇▇▇▇▇'▇ 115 Basis Points
Level IV
Senior Ratings are BBB from S&P or Baa2 from
▇▇▇▇▇'▇ 150 Basis Points
Level V
Senior Ratings are BBB- from S&P or Baa3 from
▇▇▇▇▇'▇ 175 Basis Points
Level VI
Senior Ratings are less than BBB- from S&P and
Baa3 from ▇▇▇▇▇'▇ 225 Basis Points
provided, however, that (i) in the event the Senior Ratings of S&P and
▇▇▇▇▇'▇ do not coincide, the Applicable Term Loan LIBOR Margin shall be
determined utilizing the higher of such Senior Ratings; and (ii) in the
event only one Senior Rating is in effect, the Applicable Term Loan LIBOR
Margin set forth opposite such Senior Rating shall apply.
"Consolidated EBITDA" means for any period Consolidated Net
Income for such period (x) excluding therefrom (A) any extraordinary items
of gain or loss (including without limitation those items created by
mandated changes in accounting treatment), (B) any gain or loss of any
other Person accounted for on the equity method, except to the extent of
cash distributions received during the relevant period, (C) any other
non-cash non-recurring items of gain or loss not covered in clauses (A)
and (B) of this definition, (D) any cash charge in an amount not to exceed
Ten Million Dollars ($10,000,000) recorded by the Borrower for its Fiscal
Year ending December 31, 2002 for the payment of severance costs incurred
in connection with restructuring costs recognized by the Borrower during
2002, and (E) for any Fiscal Quarter or Fiscal Year ending after December
31, 2002, any non-cash pension expense and any non-cash pension income
resulting from the application of SFAS 87, (y) plus the aggregate amounts
deducted in determining Consolidated Net Income for such period in respect
of (i) Consolidated Interest Expense (ii) depreciation expense, (iii) any
amortization of goodwill or other intangible and (iv) income taxes.
"Consolidated Total Capitalization" means as of any date of
determination the sum of (i) Consolidated Total Indebtedness plus (ii)
Consolidated Shareholders' Equity, excluding any changes in Consolidated
Shareholders' Equity caused by non-cash adjustments made in accordance
with SFAS 87 that require net pension assets or liabilities to be removed
from or added to the Consolidated balance sheet of the Borrower.
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"Consolidated Total Indebtedness" means the Indebtedness of
the Borrower and its Consolidated Subsidiaries determined on a
Consolidated basis in accordance with GAAP, consistently applied, together
with the funded amount under any Securitization Contract entered into by a
Special Purpose Subsidiary, less the sum of cash and Cash Equivalents on
the Consolidated balance sheet of the Borrower in excess of $25,000,000 as
of the date of any determination of the Consolidated Total Indebtedness of
the Borrower.
"Long Term Revolving Credit Facility Fee Percentage" shall
mean the rate per annum (expressed in basis points) determined from time
to time based upon the Senior Ratings in effect by S&P and ▇▇▇▇▇'▇ set
forth under the relevant column heading below opposite such Senior
Ratings:
Long Term
Revolving Credit
Facility Fee
Senior Ratings Percentage
-------------- ----------------
Level I
Senior Ratings are equal to or better than A from S&P
or A2 from ▇▇▇▇▇'▇ 12.5 Basis Points
Level II
Senior Ratings are A- from S&P or A3 from ▇▇▇▇▇'▇ 15 Basis Points
Level III
Senior Ratings are BBB+ from S&P or Baa1 from
▇▇▇▇▇'▇ 17.5 Basis Points
Level IV
Senior Ratings are BBB from S&P or Baa2 from
▇▇▇▇▇'▇ 22.5 Basis Points
Level V
Senior Ratings are BBB- from S&P or Baa3 from
▇▇▇▇▇'▇ 27.5 Basis Points
Level VI
Senior Ratings are less than BBB- from S&P or Baa3
from ▇▇▇▇▇'▇ 30 Basis Points
provided that, in the event that the Senior Ratings of S&P and ▇▇▇▇▇'▇ do
not coincide, the Long Term Revolving Credit Facility Fee Percentage set
forth above opposite the higher of such Senior Ratings will apply; and
provided further, in the event that one Senior Rating is in effect, the
Long Term Revolving Credit Facility Fee Percentage set forth above for
such Senior Rating will apply.
"Short Term Revolving Credit Facility Fee Percentage" shall
mean the rate per annum (expressed in basis points) determined from time
to time based
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upon the Senior Ratings in effect by S&P and ▇▇▇▇▇'▇ set forth under the
relevant column heading below opposite such Senior Ratings:
Short Term
Revolving Credit
Facility Fee
Senior Ratings Percentage
-------------- ----------------
Level I
Senior Ratings are equal to or better than A from S&P or A2
from ▇▇▇▇▇'▇ 10.5 Basis Points
Level II
Senior Ratings are A- from S&P or A3 from ▇▇▇▇▇'▇ 12.5 Basis Points
Level III
Senior Ratings are BBB+ from S&P or Baa1 from
▇▇▇▇▇'▇ 15 Basis Points
Level IV
Senior Ratings are BBB from S&P or Baa2 from
▇▇▇▇▇'▇ 17.5 Basis Points
Level V
Senior Ratings are BBB- from S&P or Baa3 from
▇▇▇▇▇'▇ 22.5 Basis Points
Level VI
Senior Ratings are less than BBB- from S&P and Baa3
from ▇▇▇▇▇'▇ 25 Basis Points
provided that, in the event that the Senior Ratings of S&P and ▇▇▇▇▇'▇ do
not coincide, the Short Term Revolving Credit Facility Fee Percentage set
forth above opposite the higher of such Senior Ratings will apply; and
provided further, in the event that one Senior Rating is in effect, the
Short Term Revolving Credit Facility Fee Percentage set forth above for
such Senior Rating will apply.
SECTION 1.02. ADDITIONAL DEFINITIONS. Section 1.1 of the Original Credit
Agreement is hereby amended such that the following definition shall be added
thereto in the appropriate alphabetical order:
"Cash Equivalents" means (i) marketable securities issued or
directly and unconditionally guaranteed by the United States Government or
issued by any agency thereof and backed by the full faith and credit of
the United States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct 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 one year
from the date of acquisition thereof and, at the time of acquisition,
having a rating of A or better or its equivalent from any Recognized
Rating Agency; (iii) commercial paper maturing
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no more than 180 days from the date of creation thereof and, at the time
of acquisition, having a rating of at least A-1 or P-1 or its equivalent
from any Recognized Rating Agency; (iv) certificates of deposit, time
deposits or bankers' acceptances maturing within one year from the date of
acquisition thereof and, at the time of acquisition, issued by 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 unimpaired
capital and surplus of not less than $500,000,000; (v) Eurodollar time
deposits having a maturity of less than one year purchased directly from
any lending institution described in item (iv) immediately above (provided
such deposit is with such lending institution or any other lending
institution described in item (iv) immediately above); (vi) repurchase
agreements collateralized at 102% by any of the obligations listed in item
(i) through (iii) inclusive, with such collateral being marked-to-market
on a daily basis; and (vii) money market funds rated AA or AAm or higher
(or any equivalent rating) by any Recognized Rating Agency with same day
liquidity and non-fluctuating net asset value.
"First Amendment" means the First Amendment to Credit
Agreement among the Borrower, the Required Lenders, the Syndication Agents
and the Agent dated as of August 12, 2002.
"First Amendment Effective Date" shall mean August 12, 2002.
"Recognized Rating Agency" means any of Standard and Poor's
Rating Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc., ▇▇▇▇▇'▇ Investors Services,
Inc., and Fitch, Inc., or any of their respective successor organizations.
SECTION 1.03. AMENDMENT TO SECTION 5.3. Section 5.3 of the Original Credit
Agreement is amended and restated in its entirety to read as follows:
5.3 LEVERAGE RATIO . At no time shall the Borrower's Consolidated Total
Indebtedness be more than fifty percent (50%) of its Consolidated Total
Capitalization.
SECTION 1.04. AMENDMENT TO SECTION 5.4. Section 5.4 of the Original Credit
Agreement is amended and restated in entirety to read as follows:
5.4 INTEREST COVERAGE RATIO . (i) At no time prior to or on June 30, 2003
shall the ratio of the Borrower's Consolidated EBITDA for the four (4)
most recently completed Fiscal Quarters as of any Fiscal Quarter ended
during such period, taken as a single accounting period, to its
Consolidated Interest Expense for the same four (4) Fiscal Quarter period,
taken as a single accounting period, be less than 2.25 to 1.0; (ii) at no
time during the period after June 30, 2003 through June 30, 2004 shall the
ratio of the Borrower's Consolidated EBITDA for the four (4) most recently
completed Fiscal Quarters as of any Fiscal Quarter ended during such
period, taken as a single accounting period, to its Consolidated Interest
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Expense for the same four (4) Fiscal Quarter period, taken as a single
accounting period, be less than 2.75 to 1.0; (iii) at no time during the
period after June 30, 2004 through December 31, 2004 shall the ratio of
the Borrower's Consolidated EBITDA for the four (4) most recently
completed Fiscal Quarters as of any Fiscal Quarter ended during such
period, taken as a single accounting period, to its Consolidated Interest
Expense for the same four (4) Fiscal Quarter period, taken as a single
accounting period, be less than 3.0 to 1.0; and (iv) at no time after
December 31, 2004 shall the ratio of the Borrower's Consolidated EBITDA
for the four (4) most recently completed Fiscal Quarters as of any Fiscal
Quarter ended during such period, taken as a single accounting period, to
its Consolidated Interest Expense for the same four (4) Fiscal Quarter
period, taken as a single accounting period, be less than 3.50 to 1.0.
SECTION 1.05. NO OTHER AMENDMENTS. The amendments to the Original Credit
Agreement set forth in Sections 1.01 and 1.04 inclusive above do not either
implicitly or explicitly alter or amend, except as expressly provided in this
First Amendment, the provisions of the Original Credit Agreement. The amendments
set forth in Sections 1.01 and 1.04 hereof do not waive, now or in the future,
compliance with any other covenant, term or condition to be performed or
complied with nor do they impair any rights or remedies of the Lenders or the
Agent under the Original Credit Agreement with respect to any such violation.
Nothing in this First Amendment shall be deemed or construed to be a release of,
or a limitation upon, the Lenders', Syndication Agents' or the Agent's exercise
of any of their respective rights and remedies under the Original Credit
Agreement and the other Loan Documents, whether arising as a consequence of any
Events of Default which may now exist or otherwise, and all such rights and
remedies are hereby expressly reserved.
ARTICLE II
BORROWER'S SUPPLEMENTAL REPRESENTATIONS
SECTION 2.01 INCORPORATION BY REFERENCE. As an inducement to the Lenders,
the Syndication Agents and the Agent to enter into this First Amendment, (i) the
Borrower hereby repeats and remakes herein, for the benefit of the Lenders, the
representations and warranties made by the Borrower in Sections 3.1 through
3.16, inclusive, of the Original Credit Agreement, as amended hereby, except
that for purposes hereof such representations and warranties shall be deemed to
extend to and cover this First Amendment and are remade as of the First
Amendment Effective Date, and (ii) the Borrower hereby represents and warrants
that on and as the First Amendment Effective Date that no Potential Default or
Event of Default has occurred and is continuing.
SECTION 2.02. CORPORATE AUTHORITY. As an inducement to the Lenders, the
Syndication Agents and the Agent to enter into this First Amendment, the
Borrower hereby represents and warrants that the Borrower is duly authorized to
execute and deliver this First Amendment; all necessary corporate action to
authorize the execution and delivery of this First Amendment has been properly
taken; and it is and will continue to be duly authorized to borrow under the
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Original Credit Agreement, as amended hereby, and to perform all of the other
terms and provisions of this First Amendment and the Original Credit Agreement,
as amended hereby.
SECTION 2.03. VALIDITY OF THIS FIRST AMENDMENT. As an inducement to the
Lenders, the Syndication Agents and the Agent to enter into this First
Amendment, the Borrower hereby represents and warrants that the execution and
delivery of this First Amendment does not, and the borrowings contemplated by
the Original Credit Agreement, as amended hereby, and the performance by the
Borrower of its obligations under this First Amendment and the Original Credit
Agreement, as amended hereby, will not contravene any provision of law, of the
Borrower's Certificate of Incorporation or Bylaws, or the provisions of any
agreement to which the Borrower is a party or by which the Borrower is bound;
this First Amendment constitutes the legal, valid and binding obligation of the
Borrower enforceable in accordance with its terms.
SECTION 2.04. AMENDMENT CLOSING FEE. As an inducement to the Lenders, the
Syndication Agents and the Agent to enter into this First Amendment, the
Borrower hereby represents, warrants and agrees to pay to the Agent, on behalf
of each Lender that executes and delivers to the Agent this First Amendment to
the Agreement on or before 5:00 p.m. on August 12, 2002, an amendment closing
fee equal to the product of twenty-five (25) basis points (.25%) times the sum
of the maximum Commitments of each such Lender under the Agreement (the
"AMENDMENT CLOSING FEE").
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. CONDITIONS PRECEDENT. Each of the following shall be a
condition precedent to the effectiveness of this First Amendment.
(i) The Agent shall have received duly executed counterpart originals of
this First Amendment executed by the Borrower and the Required Lenders.
(ii) The Borrower shall deliver to the Agent a certificate of the
Secretary or assistant secretary of the Borrower certifying:
(A) the corporate authority of the Borrower to execute, deliver and
perform under this First Amendment; and
(B) the names of the persons authorized on behalf of the Borrower to
sign this First Amendment, together with the true signatures of such
persons.
(iii) The following statements shall be true and correct on the First
Amendment Effective Date and on the date of the execution and delivery of this
First Amendment by the Borrower:
(A) except to the extent modified in writing by the Borrower
heretofore delivered to the Lenders, the representations and warranties
made pursuant to Section
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2.01 of this First Amendment and in the other Loan Documents are true and
correct on and as of the First Amendment Effective Date and as of the date
of the execution and delivery of this First Amendment by the Borrower as
though made on and as of such date in all material respects;
(B) no Event of Default or event which with the giving of notice or
passage of time or both would become an Event of Default has occurred and
is continuing, or would result from the execution of or performance under
this First Amendment;
(C) the Borrower has in all material respects performed all
agreements, covenants and conditions required to be performed on or prior
to the date hereof under the Original Credit Agreement and the other Loan
Documents.
(iv) Payment to the Agent of the Amendment Closing Fee for the benefit of
the applicable Lenders, and the payment of the arrangement fee due to PNC
Capital in connection with this First Amendment.
(v) Receipt by the Agent of such other instruments, documents and opinions
of counsel as the Agent shall reasonably require, all of which shall be
satisfactory in form and content to the Agent and its counsel.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01. RATIFICATION OF TERMS. Except as expressly amended or waived
by this First Amendment, the Original Credit Agreement and each and every
representation, warranty, covenant, term and condition contained therein is
specifically ratified and confirmed in all material respects. The Borrower
expressly ratifies and confirms the waiver of jury trial provisions contained in
the Original Credit Agreement and the other Loan Documents.
SECTION 4.02. REFERENCES. All notices, communications, agreements,
certificates, documents or other instruments executed and delivered after the
execution and delivery of this First Amendment in connection with the Agreement,
any of the other Loan Documents or the transactions contemplated thereby may
refer to the Original Credit Agreement without making specific reference to this
First Amendment, but nevertheless all such references shall include this First
Amendment unless the context requires otherwise. After the execution and
delivery of this First Amendment by the Borrower and the effectiveness of this
First Amendment, all references in the Original Credit Agreement and each of the
other Loan Documents to the "Agreement" shall be deemed to be references to the
Original Credit Agreement as amended hereby.
SECTION 4.03. INCORPORATION INTO ORIGINAL CREDIT AGREEMENT. This First
Amendment is deemed incorporated into, is to be construed in connection with and
is made a part of, the Original Credit Agreement. To the extent that any term or
provision of this First Amendment is or may be deemed expressly inconsistent
with any term or provision of the Original Credit Agreement, the terms and
provisions hereof shall control.
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SECTION 4.04. COUNTERPARTS. This First Amendment may be executed in
different counterparts, and by the different parties hereto on separate
counterparts, each of which when so executed shall be regarded as an original,
and all such counterparts shall constitute one First Amendment. Delivery of an
executed signature page of a counterpart of this First Amendment by telecopier
shall be as effective as delivery of a manually executed counterpart of this
First Amendment.
SECTION 4.05. CAPITALIZED TERMS. Except for proper nouns and as otherwise
defined herein, capitalized terms used herein as defined terms shall have the
meanings ascribed to them in the Original Credit Agreement, as amended hereby.
SECTION 4.06. TAXES. The Borrower hereby agrees (i) to pay any and all
stamp and other taxes and fees payable or determined to be payable in connection
with the execution, delivery, filing and recording of this First Amendment and
(ii) to save the Syndication Agents, the Agent and the Lenders harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes and fees.
SECTION 4.07. COSTS AND EXPENSES. The Borrower hereby agrees to pay all
costs and expenses of the Agent (including, without limitation, the reasonable
fees and the disbursements of the Agent's special counsel, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
P.C.) in connection with the preparation, execution and delivery of this First
Amendment and the related documents.
SECTION 4.08. SEVERABILITY. Any provision of this First Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or enforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 4.09. GOVERNING LAW. THIS FIRST AMENDMENT AND THE RIGHTS AND
OBLIGATIONS HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT REGARD TO THE PROVISIONS
THEREOF REGARDING CONFLICTS OF LAW.
SECTION 4.10. HEADINGS The headings of the sections in this First
Amendment are for purposes of reference only and shall not be deemed to be a
part hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this First Amendment to be duly executed by their proper and
duly authorized officers as of the day first above written.
BORROWER:
Attest/Witness: ALLEGHENY TECHNOLOGIES
INCORPORATED, a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. Park
------------------------- -------------------------------------
Name: Name: ▇▇▇▇▇▇ ▇. Park
Title: Title: Vice President and Treasurer
AGENT:
PNC BANK, NATIONAL ASSOCIATION, as
Lender and Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
LENDERS:
BANK OF AMERICA, N.A., as a Lender and
Syndication Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Principal
MELLON BANK, N.A., as Lender and
Syndication Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[SIGNATURES OF LENDERS CONTINUED ON NEXT PAGE]
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[CONTINUATION OF SIGNATURES OF LENDERS TO
FIRST AMENDMENT TO CREDIT AGREEMENT DATED AUGUST 12, 2002]
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK, as a Lender and
Syndication Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
CITIBANK, N.A., as a Lender and
Syndication Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
THE BANK OF NEW YORK, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
NATIONAL CITY BANK OF PENNSYLVANIA,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President & Regional Manager
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[SIGNATURES OF LENDERS CONTINUED ON NEXT PAGE]
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[CONTINUATION OF SIGNATURES OF LENDERS TO
FIRST AMENDMENT TO CREDIT AGREEMENT DATED AUGUST 12, 2002]
MIZUHO CORPORATE BANK,
LTD. (as successor to The Industrial
Bank of Japan, Limited), as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President &
Department Head
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