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EXHIBIT 4.1
FIFTH AMENDMENT TO
CREDIT AGREEMENT
Among
ALLEGHENY TECHNOLOGIES INCORPORATED,
(FORMERLY KNOWN AS ALLEGHENY TELEDYNE INCORPORATED)
as the Borrower
THE FINANCIAL INSTITUTIONS PARTY THERETO
as the Lenders
BANK OF AMERICA, N.A. (FORMERLY BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION)
THE CHASE MANHATTAN BANK
MELLON BANK, N.A.
and
PNC BANK, NATIONAL ASSOCIATION
as Managing Agents
and
PNC BANK, NATIONAL ASSOCIATION
as the Documentation and Administrative Agent
Dated as of and Effective nunc pro tunc as of
December 29, 2000
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FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (the "Fifth Amendment") dated
as of and effective nunc pro tunc as of December 29, 2000, to that certain
Credit Agreement dated as of August 30, 1996, as amended by the First Amendment
to Credit Agreement dated as of August 31, 1997, the Second Amendment to Credit
Agreement dated as of March 24, 1998, the Third Amendment to Credit Agreement
dated as of March 30, 1999, and the Fourth Amendment and Waiver to Credit
Agreement dated as of August 6, 1999 (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 "Existing
Agreement"), among ALLEGHENY TECHNOLOGIES INCORPORATED, a Delaware corporation
(formerly known as Allegheny Teledyne Incorporated), 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 hereto
in accordance with Section 9.6a (individually a "Lender" and collectively the
"Lenders"), BANK OF AMERICA, N.A. (formerly Bank of America National Trust and
Savings Association), THE CHASE MANHATTAN BANK, MELLON BANK, N.A. and PNC BANK,
NATIONAL ASSOCIATION as Managing Agents (individually a "Managing Agent" and
collectively the "Managing 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 Managing Agents and
the Agent entered into the Existing Agreement pursuant to which the Lenders made
certain financial accommodations available to the Borrower including a Revolving
Credit Commitment;
WHEREAS, the Borrower and the Lenders, the Managing Agents and the
Agent desire to amend the Existing Agreement as set forth herein.
NOW THEREFORE, in consideration of the mutual premises contained herein
and other good and valuable consideration, the Borrower, the Lenders, the
Managing Agents and the Agent, with the intent to be legally bound hereby, agree
that the Existing Agreement shall be amended as follows:
ARTICLE I
AMENDMENTS TO EXISTING AGREEMENT
SECTION 1.01. ADDITIONAL DEFINITIONS. Section 1.1 of the Existing
Agreement is hereby amended such that the following definition shall be added
thereto in the appropriate alphabetical order:
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"Fifth Amendment" means the Fifth Amendment to Credit Agreement and
Waiver among the Borrower, the Lenders, the Managing Agents and the Agent dated
as of and effective nunc pro tunc as of December 29, 2000.
"Fifth Amendment Effective Date" shall mean December 29, 2000.
"▇▇▇▇▇▇ Metals" the ▇▇▇▇▇▇ Metals division of TDY Industries, which
consists of assets which produce stainless steel and specialty metal strip
together with other related products.
"TDY Industries" means TDY Industries, Inc., a California corporation.
"TILLC" means TDY Holdings, LLC, a Delaware limited liability company,
having as its sole member the Borrower.
SECTION 1.02. AMENDMENT TO SECTION 4.11. Section 4.11 of the Existing
Agreement is amended and restated in its entirety to read as follows:
SECTION 4.11 OWNERSHIP OF OPERATING SUBSIDIARIES. After the
Fifth Amendment Effective Date, the Borrower shall at all
times, directly or indirectly through one or more wholly-owned
Subsidiaries, be the legal and beneficial owner of, and shall
retain all voting rights relating to, all of the issued and
outstanding capital stock of ATI Funding, TILLC, OREMET, ALC
and TDY Industries.
SECTION 1.03. AMENDMENT TO SECTION 5.5. Section 5.5 of the Existing
Agreement is amended and restated in entirety to read as follows:
5.5 SALES OF ASSETS. The Borrower shall not nor shall it
permit any Consolidated Subsidiary to enter into any
arrangement, direct or indirect, pursuant to which the
Borrower or any Consolidated Subsidiary shall sell or
otherwise transfer or dispose of any property, real, personal
or mixed, whether now owned or hereafter acquired, except (i)
sales, transfers or dispositions in the ordinary course of
business, (ii) the sale, transfer or other disposition of the
stock or assets set forth on Schedule 5.5, (iii) sales,
transfers or dispositions of assets (A) by any one of the
Borrower, ATI Funding, TILLC, OREMET, ALC, TDY Industries or
any other direct or indirect wholly-owned Subsidiary of any of
the Borrower, ATI Funding, TILLC, OREMET, ALC or TDY
Industries, (B) to any one or more of the Borrower, ATI
Funding, TILLC, OREMET, ALC, TDY Industries or any direct or
indirect wholly-owned Subsidiaries of any of the Borrower, ATI
Funding, TILLC, OREMET, ALC or TDY Industries, and (iv) sales,
transfers or dispositions not in the ordinary course of
business provided that the aggregate proceeds of all such
sales, transfers and dispositions permitted by this item (iv)
shall not exceed, (A) from August 31, 1996 until December 31,
2001, thirty percent (30%) of the Borrower's Consolidated
Total Assets as of June 30, 1996, and (B) beginning with the
first day of the Borrower's Fiscal Year 2002, if and to the
extent that the Termination Date is extended pursuant to
Section 2.8, in any
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Fiscal Year of the Borrower thereafter during the term hereof
more than ten (10%) of the Borrower's Consolidated Total
Assets as of the beginning of such Fiscal Year.
SECTION 1.04. NO OTHER AMENDMENTS. The amendments to the Existing
Agreement set forth in Sections 1.01 and 1.03 inclusive above do not either
implicitly or explicitly alter or amend, except as expressly provided in this
Fifth Amendment, the provisions of the Existing Agreement. The amendments set
forth in Sections 1.01 and 1.03 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 Existing Agreement with respect to any such violation. Nothing
in this Fifth Amendment shall be deemed or construed to be a release of, or a
limitation upon, the Lenders' or the Agents' exercise of any of their respective
rights and remedies under the Existing 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 to enter into this Fifth Amendment, the Borrower hereby repeats herein,
for the benefit of the Lenders, the representations and warranties made by the
Borrower in Sections 3.1 through 3.15, inclusive, of the Existing Agreement, as
amended hereby, except that for purposes hereof such representations and
warranties shall be deemed to extend to and cover this Fifth Amendment.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. CONDITIONS PRECEDENT. Each of the following shall be a
condition precedent to the effectiveness of this Fifth Amendment:
(i) The Agent shall have received duly executed counterpart originals
of this Fifth 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 Fifth Amendments; and
(B) the names of the persons authorized on behalf of the
Borrower to sign this Fifth Amendment, together with
the true signatures of such persons.
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(iii) The following statements shall be true and correct on the Fifth
Amendment Effective Date and on the date of the execution and delivery of this
Fifth 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 2.01 of this Fifth Amendment and in the other
Loan Documents are true and correct on and as of the
Fifth Amendment Effective Date and as of the date of
the execution and delivery of this Fifth Amendment by
the Borrower as though made on and as of such dates
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 Fifth 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
Existing Agreement and the other Loan Documents.
SECTION 3.02 FIFTH AMENDMENT EFFECTIVE DATE. Upon completion of the
conditions set forth in Section 3.01 of this Fifth Amendment, the effective date
of this Fifth Amendment is deemed to be December 29, 2000, nunc pro tunc.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01. RATIFICATION OF TERMS. Except as expressly amended or
waived by this Fifth Amendment, the Existing Agreement and each and every
representation, warranty, covenant, term and condition contained therein is
specifically ratified and confirmed in all material respects.
SECTION 4.02. REFERENCES. All notices, communications, agreements,
certificates, documents or other instruments executed and delivered after the
execution and delivery of this Fifth Amendment in connection with the Agreement,
any of the other Loan Documents or the transactions contemplated thereby may
refer to the Existing Agreement without making specific reference to this Fifth
Amendment, but nevertheless all such references shall include this Fifth
Amendment unless the context requires otherwise. After the execution and
delivery of this Fifth Amendment by the Borrower and the effectiveness of this
Fifth Amendment, all references in the Existing Agreement and each of the other
Loan Documents to the "Agreement" shall be deemed to be references to the
Existing Agreement as amended hereby.
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SECTION 4.03. COUNTERPARTS. This Fifth 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 Fifth Amendment. Delivery of an
executed signature page of a counterpart of this Fifth Amendment by telecopier
shall be as effective as delivery of a manually executed counterpart of this
Fifth Amendment.
SECTION 4.04. 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 Existing Agreement, as amended hereby.
SECTION 4.05. 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 Fifth Amendment and
(ii) to save the Managing 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 4.06. 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 Fifth
Amendment and the related documents.
SECTION 4.07. SEVERABILITY. Any provision of this Fifth 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 4.08. GOVERNING LAW. THIS FIFTH 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 4.09. HEADINGS. The headings of the sections in this Fifth
Amendment are for purposes of reference only and shall not be deemed to be a
part hereof.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Fifth Amendment to be duly executed by their proper and
duly authorized officers as of, and effective, nunc pro tunc as of the day first
above written.
PNC BANK, NATIONAL ASSOCIATION, ALLEGHENY TECHNOLOGIES
as Lender, Managing Agent and Agent INCORPORATED, a Delaware corporation
(formerly known as Allegheny Teledyne
Incorporated)
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL) By:/s/R. S. Park (SEAL)
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Name: Name:
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Title: Title:
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THE CHASE MANHATTAN BANK, as BANK OF AMERICA, N.A. (formerly Bank
as Lender and Managing Agent of America National Trust and Savings
Association), as Lender and Managing Agent
and as successor in interest to NationsBank,
N.A.
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL) By:/s/▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
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Name: Name:
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Title: Title:
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THE BANK OF NEW YORK MELLON BANK, N.A., as Lender and
Managing Agent
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (SEAL) By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, C.F.A. (SEAL)
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Name: Name:
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Title: Title:
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BANK OF TOKYO-MITSUBISHI TRUST COMPANY ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
By:/s/▇. ▇. ▇▇▇▇▇▇ (SEAL) By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (SEAL)
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Name: Name:
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Title: Title:
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[CONTINUATION OF SIGNATURE PAGE]
BANK ONE, NA THE TORONTO-DOMINION BANK
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL) By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL)
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Name: Name:
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Title: Title:
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THE FUJI BANK LIMITED, NEW YORK FIRST UNION NATIONAL BANK, successor
BRANCH by merger to CoreStates Bank, NA
By: (SEAL) By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (SEAL)
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Name: Name:
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Title: Title:
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THE SANWA BANK LIMITED NATIONAL CITY BANK OF
PENNSYLVANIA
By:/s/▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (SEAL) By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (SEAL)
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Name: Name:
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Title: Title:
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