Exhibit 10.1
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
Between
UNIVERSAL STAINLESS & ALLOY PRODUCTS, INC.
as the Borrower
and
PNC BANK, NATIONAL ASSOCIATION
as the Bank
Dated as of
May 1, 1997
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FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(the "First Amendment") made as of May 1, 1997 to that certain Amended and
Restated Credit Agreement dated as of January 31, 1996 (the Amended and Restated
Credit Agreement together with the exhibits and schedules thereto, the "Existing
Agreement") by and between UNIVERSAL STAINLESS & ALLOY PRODUCTS, INC., a
corporation organized and existing under the laws of the State of Delaware (the
"Borrower") and PNC BANK, NATIONAL ASSOCIATION (the "Bank").
WITNESSETH:
WHEREAS, the Borrower and the Bank entered into the Existing
Agreement pursuant to which the Bank made certain financial accommodations
available to the Borrower including a Revolving Credit Commitment facility in an
aggregate principal amount not to exceed $6,500,000;
WHEREAS, the Borrower has requested that the Bank, and the
Bank is willing upon the following terms and conditions, to modify the Existing
Agreement; and
WHEREAS, the Borrower and the Bank 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 and the
Bank 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 from and
after the First Amendment Effective Date is hereby amended such that the
following definition shall be added thereto in the appropriate alphabetical
order:
Account: As used in each Loan Document except the Working Cash
Sweep Agreement and the Trust Agreement, an account, as that term is defined in
the Uniform Commercial Code, due the Borrower, whether now in existence or
hereafter created or
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acquired, and as used in the Working Cash Sweep Agreement and the Trust
Agreement, the account defined in this Agreement as the Parent Account.
Agreement: As used in each Loan Document except the Working
Cash Sweep Agreement and the Trust Agreement, this Amended and Restated Credit
Agreement, all exhibits and schedules hereto and all extensions, renewals,
amendments, substitutions and replacements hereof and hereto; and when this
Agreement is referred to in the Working Cash Sweep Agreement and the Trust
Agreement shall be referred to as the "Line of Credit Agreement".
Applicable Margin: The percentage (expressed in basis points)
determined from time to time based upon the ratio of the Borrower's Consolidated
Total Liabilities to the Borrower's Consolidated Tangible Net Worth set forth
under the relevant column heading below.
Ratio of Consolidated Total
Liabilities to Consolidated
Tangible Net Worth Applicable Margin
Less than .5:1.0 100 basis points
Greater than or equal to 50 basis points
.5:1.0 but less than .75:1.0
Greater than or equal to 0 basis points
.75:1.0 but less than 1.0:1.0
Credit: A Credit as defined in the Working Cash Sweep
Agreement.
Customer: The Borrower in its capacity as the customer under
the Working Cash Sweep Agreement.
Customer's Trust: The trust created pursuant to the Working
Cash Sweep Agreement.
DDA: Each checking account now or hereafter identified on the
Schedule to the Working Cash Sweep Agreement.
Debit: As defined in the Working Cash Sweep Agreement.
Federal Funds Effective Rate: For any day shall mean the rate
per annum (based on a year of 360 days and actual days elapsed and rounded
upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New
York (or any successor) on such day as being weighted average of the rates on
overnight federal funds transactions
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arranged by federal funds brokers on the previous trading day, as computed and
announced by such Federal Reserve Bank (or any successor) in substantially the
same manner as such Federal Reserve Bank computes and announces the weighted
average it refers to as the "Federal Funds Effective Rate" as of the date of
this Agreement; provided, if such Federal Reserve Bank (or its successor) does
not announce such rate on any day, the "Federal Funds Effective Rate" for such
day shall be the Federal Funds Effective Rate for the last day on which such
rate was announced.
First Amendment: The First Amendment to Amended and Restated
Credit Agreement dated as of May 1, 1997 by and between the Borrower and the
Bank.
First Amendment Effective Date shall mean May 1, 1997.
Grantor: The Borrower in its capacity as Grantor under the
Trust Agreement.
Ineligible Securities: Any security which may not be
underwritten or dealt in by member banks of the Federal Reserve System under
Section 16 of the Bank Act of 1933 (12 U.S.C. Section 24, Seventh), as amended.
Net Credit: As defined in the Working Cash Sweep Agreement.
Net Debit: As defined in the Working Cash Sweep Agreement.
Parent Account: The parent account as so designated in the
Working Cash Sweep Agreement and referred to in the Working Cash Sweep Agreement
and Trust Agreement as the Account.
Section 20 Subsidiary: The Subsidiary of the bank holding
company controlling the Bank, which Subsidiary has been granted authority by the
Federal Reserve Board to underwrite and deal in certain Ineligible Securities.
Target Balance: As defined in the Working Cash Sweep
Agreement.
Transfer Difference: As defined in the Working Cash Sweep
Agreement.
Trust Agreement: The Working Cash(R) Trust Agreement dated as
of the First Amendment Effective Date by and between the Grantor and the Trustee
and all extensions, renewals, amendments, substitutions and replacements thereto
and thereof.
Trustee: PNC Bank, National Association in its capacity as
trustee under the Trust Agreement.
Working Cash Agreements: This Agreement, the Working Cash
Sweep Agreement and the Trust Agreement.
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Working Cash Sweep Agreement: The Working Cash(R), Line of
Credit, Investment Sweep Agreement dated as of the First Amendment Effective
Date by and between the Borrower as the Customer and the Bank and all
extensions, renewals, amendments, substitutions and replacements thereto and
thereof.
Section 1.02. Amended and Restated Definitions. Section 1.1
from and after the First Amendment Effective Date is hereby amended such that
the following definitions shall be amended and restated in their entirety.
Base Rate: A fluctuating rate of interest per annum equal to
the greater of (i) the Prime Rate or (ii) the sum of (A) the Federal Funds
Effective Rate plus (B) 1/2 of one percent per annum.
Business Day: A day other than a Saturday or Sunday on which
the Bank and the Trustee are open for Business.
Collateral: Collectively, all of the property (whether real,
personal or mixed, and whether tangible or intangible), rights, titles and
interests subject to any Encumbrance in favor of the Bank pursuant to this
Agreement or any other Loan Document, including but not limited to the cash and
other assets held by the Bank in the Lockbox Account, each DDA, the Parent
Account and each other bank account maintained by the Bank in order to implement
the Working Cash Agreements.
Fee: Any of the fees payable or to be payable by the Borrower
to the Bank or the Trustee pursuant to any of the Loan Documents including but
not limited to the Commitment Fee, or any Letter of Credit Fee.
Letter of Credit: Any letter of credit issued by the Bank
pursuant to any application for letter of credit and/or any Reimbursement
Agreement.
Letter of Credit Fee: Any fee due the Bank for the issuance of
or processing of a Letter of Credit or a draw thereunder.
Loan Document: Any of this Agreement, the Note, any Security
Document, any Letter of Credit, any application for Letter of Credit, any
Reimbursement Agreement, any Lockbox Agreement, the Working Cash Sweep
Agreement, the Trust Agreement, any other cash management agreement and all
other documents and instruments executed and delivered from time to time to
govern, evidence or secure the Obligations, and the exhibits, schedules,
statements, reports, certificates and other documents required by, or related
to, any of the foregoing, and all extensions, renewals, amendments,
substitutions and replacements thereto and thereof.
Lockbox Account: A U.S. Postal Service lockbox in the
Borrower's name over which, pursuant to the Lockbox Agreement, the Bank has
dominion and control to the
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exclusion of the Borrower or other Persons acting by or through the Borrower,
and the related account into which the proceeds of the items received in the
Lockbox Account are processed, which may be a DDA.
Obligations: Collectively, (i) all unpaid principal and
accrued and unpaid interest under the Loans, (ii) all accrued and unpaid Fees
hereunder or under any of the other Loan Documents, (iii) all obligations
(contingent or matured) due the Bank pursuant to draws on Letters of Credit,
(iv) any other amounts due hereunder or under any of the other Loan Documents,
including all reimbursements, indemnities, Fees, costs, expenses, prepayment
premiums, and other obligations of the Borrower or any Subsidiary to the Bank,
the Trustee or any indemnified party hereunder and thereunder, (v) all other
existing and future obligations of the Borrower or any Subsidiary to the Bank
for the payment of money under any other agreement or instrument between the
Borrower or any Subsidiary and the Bank or among the Borrower or any Subsidiary,
the Bank and any other Person, and (vi) all reasonable out-of-pocket costs and
reasonable expenses incurred by the Bank in connection with this Agreement and
the other Loan Documents, including but not limited to the reasonable fees and
expenses of the Bank's counsel.
Outstanding Revolving Credit Amount: The sum of the aggregate
principal amount of outstanding Loans.
Reimbursement Agreement: Any agreement relating to a Letter of
Credit issued by the Bank for the account of the Borrower or an Affiliate
pursuant to which the Borrower agrees to reimburse the bank for any draw against
such letter of credit.
Revolving Credit Commitment: The obligation of the Bank to
make available to the Borrower an amount which does not exceed $6,500,000 at any
one time outstanding.
Revolving Credit Termination Date: Initially, April 30, 2000,
as such date may be extended upon the terms and conditions set forth in Section
2.1f, or if any such day is not a Business Day, the Business Day next preceding
such date.
Subsidiary: (i) Any corporation or trust of which 50% or more
(by number of shares or number of votes) of the outstanding capital stock or
shares of beneficial interest normally entitled to vote for the election of one
or more directors or trustees (regardless of any contingency which does or may
suspend or dilute the voting rights) is at such time owned directly or
indirectly by another Person or one or more of such other Person's subsidiaries,
(ii) any partnership of which such other Person is a general partner or of which
50% or more of the partnership interests is at the time directly or indirectly
owned by such other Person or one or more of such other Person's Subsidiaries,
(iii) any limited liability company of which such Person is a member or of which
50% or more of the limited liability company interests is at the time directly
or indirectly owned by such other Person or one or more of such other Person's
Subsidiaries or (iv) any corporation, trust, partnership, limited
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liability company or other entity which is controlled or capable of being
controlled by such other Person or one or more of such other Person's
Subsidiaries.
Section 1.03. Deleted Definitions. From and after the First
Amendment Effective Date Section 1.1 is amended by deleting the following
defined terms and their related definitions:
Borrowing Base
Borrowing Base Certificate
Cash Collateral Account
Controlled Disbursement Account
Controlled Disbursement Account Agreement
Federal Funds Rate
Qualified Account
Qualified Inventory
Section 1.04. Revision of Revolving Credit Commitment. From
and after the First Amendment Effective Date Section 2.1 is amended and restated
in its entirety to read as follows:
2.1 Revolving Credit Commitment.
2.1a Loans. The Bank agrees, subject to the terms and conditions
hereof and relying upon the representations and warranties herein set forth,
that the Borrower shall have the right to borrow, repay and reborrow, from the
date hereof until the Revolving Credit Termination Date, an aggregate principal
amount shall not exceed $6,500,000 in the aggregate at any one time outstanding.
2.1b Mandatory and Voluntary Reductions of Revolving Credit
Commitment.
(i) DELETED
(ii) Asset Sales. Subject to the provisions of Section 6.8
hereof, upon the sale or disposition in one or a series of transactions of the
Borrower's assets which yields Net Cash Proceeds in excess of $250,000 per
annum, the Borrower shall make a mandatory payment of the outstanding Loans in
an amount equal to the Net Cash Proceeds in excess of $250,000 relating to any
such sale or disposition, and at the Bank's option, the Revolving Credit
Commitment shall be permanently reduced by such amount, and, if so reduced, the
portion of the Revolving Credit Commitment so terminated shall no longer be
available for borrowing.
(iii) Voluntary Reductions. Upon at least ten Business Days'
prior written notice to the Bank, the Borrower may from time to time permanently
reduce the Revolving Credit Commitment, and, to the extent of such reduction,
the portion of the Revolving Credit
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Commitment shall no longer be available for borrowing. Simultaneously with any
such voluntary permanent reduction, the Borrower shall make a payment of the
outstanding Loans equal to the excess, if any, of (A) the Outstanding Revolving
Credit Amount over (B) the Revolving Credit Commitment, as so reduced. Each such
reduction shall be in a minimum principal amount of $500,000 or, if in excess of
$500,000, in integral multiples of $250,000.
Notice of a reduction, once given, shall be irrevocable.
(iv) Application of Payments. Any and all Revolving Credit
Commitment reductions or mandatory or voluntary prepayments made pursuant to any
particular item of this Section 2.1b shall be made in addition to, and not in
lieu of, any and all Revolving Credit Commitment reductions and mandatory and
voluntary prepayments required to be made pursuant to any other item of this
Section 2.1b. All such mandatory and voluntary prepayments shall be accompanied
by all accrued and unpaid interest thereon, and all amounts due pursuant to
Section 2.4, if any.
2.1c Advance Procedures. In the event that the assets transferred
into the Parent Account from the Customer's Trust under the Working Cash Sweep
Agreement are insufficient to cover the Net Debit, the Bank shall on behalf of
the Borrower advance an amount equal to the lesser of (i) the remaining amount
of the Net Debit or (ii) the Revolving Credit Commitment.
2.1d Payment Terms. Any Credit in the Parent Account shall, to the
extent available at the end of any Business Day, be automatically applied to the
repayment of the outstanding balance of the Loans. In addition, the outstanding
principal balance of the Loans and any accrued and unpaid interest thereon shall
be due and payable on the Revolving Credit Termination Date. If any payment
hereunder shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and such extension of time
shall be included in computing interest with such payment. Borrower hereby
authorizes the Bank to charge the Parent Account or any deposit account
maintained by the Borrower, individually or jointly with others with the Bank
for any payment when due hereunder. Payments received will be applied to
charges, fees, expenses, accrued interest and principal in any order the Bank
may choose in its sole discretion.
2.1e Note. The obligation of the Borrower to repay on or before the
Revolving Credit Termination Date the aggregate unpaid principal amount of all
Loans shall be evidenced by the Note substantially in the form of Exhibit "B"
attached hereto, executed by the Borrower and delivered to the Bank.
2.1f Extension of Revolving Credit Termination Date. The provisions
of Section 2.1 shall be in effect until, and all Obligations relating to the
Revolving Credit Commitment shall be due and payable on, the Revolving Credit
Termination Date, unless terminated earlier, as provided in Section 8.2. The
Borrower in March of 1998 and in each subsequent month of March during the term
of the Revolving Credit Commitment (whether the original term or any extended
term as provided hereby) when the remaining term of the Revolving
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Credit Commitment is approximately twenty-six (26) months, may request, by
written notice executed by an Authorized Officer and delivered to the Bank, an
extension or further extension of the Revolving Credit Commitment and a
corresponding alteration of the Revolving Credit Commitment. The Bank shall
inform the Borrower not later than the last Business Day in April in each year
the request is made whether or not such extension has been agreed to. If the
Bank does not respond to any such request within the specified time period, such
request, in the absence of a written agreement between the Bank and the Borrower
to the contrary, shall be deemed to be denied.
2.1g Lockbox.
(i) Lockbox Account. On or prior to the Closing Date, the Bank
and the Borrower shall enter into a Lockbox Agreement in the form of Exhibit "C"
hereto. The Borrower shall notify all Account Debtors to make payment directly
to the Lockbox Account. All notifications to Account Debtors shall contain such
instructions regarding the address and account number of the Lockbox Account as
may be specified by the Bank to the Borrower from time to time, and shall
otherwise be satisfactory to the Bank. The Bank may also instruct Account
Debtors to make payment to the Lockbox Account at any time. The Bank, pursuant
to the term of the Lockbox Agreement, shall process all items received in the
lockbox and deposit the proceeds of the Lockbox Account into a DDA.
(ii) Other Bank Accounts. The Borrower agrees that it shall
not maintain any other depository accounts in which cash or proceeds of
Collateral could be deposited, except for those accounts meeting the
requirements of this item (ii). Pursuant to an agreement satisfactory in form
and substance to the Bank, each bank or other financial institution at which
such an account is maintained by the Borrower shall acknowledge that the Bank
has a security interest in and to such account maintained with it, and shall
agree that, either on a daily basis or upon receipt of instructions from the
Bank, it will cause all collected funds in such account (except for any required
minimum balances) to be deposited in a DDA by wire transfer.
2.1h Termination of Working Cash Sweep Agreement. The Working Cash
Sweep Agreement may be terminated by the Borrower or the Bank on thirty (30)
days' prior written notice from the Person terminating the Working Cash Sweep
Agreement to the other party thereto. During such thirty (30) day period the
Bank and the Borrower shall attempt to agree on an alternative mechanism for
funding Loans under this Agreement. Failure of the Borrower and the Bank to
agree on an alternative funding mechanism shall constitute an Event of Default
hereunder at the end of such thirty (30) day period.
Section 1.05. Deletion of Letter of Credit Facility. From and
after the First Amendment Effective Date Section 2.2 shall be deleted in its
entirety without there being a renumbering of the remaining Sections of Article
II.
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Section 1.06. Revision of Interest Provisions. From and after
the First Amendment Effective Date Section 2.3 shall be amended and restated in
its entirety to read as follows:
2.3 Interest.
2.3a Interest Rate. During the term hereof, all amounts outstanding
hereunder shall bear interest at a rate per annum equal to the sum of (i) the
Base Rate less (ii) the Applicable Margin.
2.3b Adjustments to Interest Rates.
(i) Changes in Applicable Margin. The Applicable Margin shall
be adjusted as of the first day of each Fiscal Quarter based upon the ratio of
the Borrower's Consolidated Total Liabilities to the Borrower's Consolidated
Tangible Net Worth as shown in the Compliance Certificate for the immediately
preceding Fiscal Quarter.
(ii) Changes in Prime Rate or Federal Funds Effective Rate.
The Base Rate shall be adjusted from time to time, without notice to the
Borrower, as necessary to reflect any changes in the Prime Rate or in the
Federal Effective Funds Rate, as applicable, which adjustments shall be
automatically effective on the day of any such change.
(iii) Event of Default. Upon the occurrence of and during the
continuance of an Event of Default, the outstanding principal amount of the
Loans shall bear interest from the date of such occurrence at a rate per annum
which is equal to 2% (200 basis points) in excess of the rate or rates which
would then otherwise be in effect pursuant to this Section 2.3 with respect to
such Loans.
2.3c Interest Payment and Dates of Payment. Interest will be due
and payable on or about the last date of each month and will be charged to the
Parent Account or another account created by the Bank to implement the Working
Cash Agreements. In the event that there is insufficient Credit in the Parent
Account or such other account to pay interest, the Bank will advance funds on
behalf of the Borrower as provided by Subsection 2.1c hereof to the extent the
Borrower has availability under the Revolving Credit Commitment. If not paid by
one of the two foregoing alternates interest will be immediately due and payable
by the Borrower. The foregoing notwithstanding, automatic payments of interest
pursuant to this Subsection 2.3c shall be based exclusively on the Prime Rate
less the Applicable Margin. In the event that the sum of Federal Funds Effective
Rate plus fifty (50) basis points is, for any period during any month, greater
than the Prime Rate a separate billing for additional interest due shall be sent
to the Borrower. Such additional interest shall be due and payable within ten
(10) days.
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2.3d Method of Calculation. The interest rate shall be calculated
on the basis of the actual number of days elapsed, using a year of 360 days.
Interest for any period shall be calculated from and including the first day
thereof to but not including the last day thereof.
Section 1.07. Payment Instruction. From and after the First
Amendment Effective Date, Section 2.6 shall be amended and restated in its
entirety to read as follows:
2.6 Payments. All payments of principal, interest, fees, costs
and other amounts due hereunder and under the other Loan Documents not credited
to the Bank directly pursuant to the terms hereof or of the Working Cash Sweep
Agreement shall be made by the Borrower to the Bank at the Bank's principal
office at One PNC Plaza, Fifth Avenue and Wood Street, Pittsburgh, Pennsylvania
15222, Attention: Metals Group, not later than 12:00 noon (Eastern time) on the
due date. All such payments with respect to the Loans shall be immediately good
funds when delivered by the Borrower to the Bank.
Section 1.08. Letter of Credit Fee Adjustment. From and after
the First Amendment Effective Date Subsection 2.8a shall be amended and restated
in its entirety to read as follows:
2.8a Letter of Credit Fees. The Borrower shall pay Letter of
Credit Fees in accordance with the terms of the relevant application for Letter
of Credit or the Reimbursement Agreement, as the case may be.
Section 1.09. Payment from Accounts. From and after the First
Amendment Effective Date, Section 2.9 shall be amended and restated in its
entirety to read as follows:
2.9 Payment from Accounts Maintained by Borrower. In the event
that any payment of principal, interest, Commitment Fee, Letter of Credit Fee,
other Fee or expense or any other amount due the Bank under any of the Loan
Documents is not paid when due, the Bank is hereby authorized to effect such
payment by debiting the Parent Account or any deposit account now or in the
future maintained with the Bank by the Borrower, either individually or with
another Person. This right of debiting accounts of the Borrower is in addition
to any right of setoff accorded the Bank hereunder or by operation of law.
Section 1.10. Modification of Reporting Requirements. From and
after the First Amendment Effective Date Section 5.2 shall be amended by
deleting therefrom existing Subsection 5.2f through 5.2i inclusive and by
redesignating Subsection 5.2j as Subsection 5.2f and Subsection 5.2k as
Subsection 5.2g.
Section 1.11. Modification of Financial Covenants. From and
after the First Amendment Effective Date item (iii) of Section 6.4 shall be
amended and restated in its entirety to read as follows:
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(iii) Leverage. The Borrower's ratio of Consolidated Total
Liabilities to Tangible Net Worth shall at no time exceed 1.00:1.00.
Section 1.12. Adjustment of Capital Expenditure Limitation.
From and after the First Amendment Effective Date Section 6.5 shall be amended
and restated in its entirety to read as follows:
6.5 Capital Expenditure. The Borrower shall not in any one Fiscal
Year make Consolidated Capital Expenditures in excess of $10,000,000.
Section 1.13. Limitation Upon Use of Proceeds. From and
after the First Amendment Effective Date Section 6.12 shall be amended and
restated in its entirety to read as follows:
6.12 Use of Proceeds. The Borrower shall not use any proceeds of
the Loans or any Letter of Credit either directly or indirectly (i) for the
purpose of "purchasing or carrying any margin stock" within the meaning of
Regulations G, T, U or X, or (ii) (x) to knowingly purchase any Ineligible
Securities from a Section 20 Subsidiary during any period in which such Section
20 Subsidiary makes a market in such Ineligible Security, (y) to knowingly
purchase during the underwriting or placement period Ineligible Securities being
underwritten or privately placed by a Section 20 Subsidiary or (z) to make
payments of principal or interest on Ineligible Securities underwritten or
privately placed by a Section 20 Subsidiary and issued by or for the benefit of
the Borrower or an Affiliate of the Borrower.
Section 1.14. Modification of Advance Prerequisites. From and
after the First Amendment Effective Date Section 7.1 shall be amended and
restated in its entirety to read as follows:
7.1 All Loans. The obligation of the Bank to make any Loan is
subject to the satisfaction of each of the following conditions precedent:
7.1a Working Cash Sweep Agreement. No advance pursuant to
Section 2.1 shall occur if either the Borrower or the Bank has terminated the
Working Cash Sweep Agreement.
7.1b No Default or Event of Default. The Borrower shall have
performed and complied with all agreements and conditions which are required
hereby or by any other Loan Document to be performed or complied with by it
prior to such Loan being made and, at the time of such Loan, no Default or Event
of Default has occurred and is continuing or will result from the making of such
Loan.
7.1c No Material Adverse Change. At the time of making such Loan,
no Material Adverse Change has occurred and is continuing.
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7.1d Representations Correct. The representations and warranties
contained in Article 4 hereof and in the other Loan Documents and otherwise made
in writing by or on behalf of the Borrower in connection with the transactions
contemplated by this Agreement shall be (i) correct when made and (ii) correct
in all material respects at the time of such Loan.
Each Loan shall be deemed to be, as of the time made, a certification by the
Borrower as to the accuracy of the matters set forth in Sections 7.1b, 7.1c and
7.1d.
Section 1.15. Additional Event of Default. From and after the
First Amendment Effective Date Section 8.1 shall be amended by adding thereto a
new Subsection 8.1l which shall read as follows:
8.1l Termination of Working Cash Sweep Agreement. The termination
upon thirty (30) days' prior written notice by either the Bank or the Borrower
of the Working Cash Sweep Agreement.
Section 1.16. No Other Amendments or Waivers. The amendments
to the Existing Agreement set forth in Sections 1.01 through 1.15 inclusive
above do not either implicitly or explicitly alter, waive or amend, except as
expressly provided in this First Amendment, the provisions of the Existing
Agreement. The amendments set forth in Sections 1.01 through 1.15 inclusive
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 Bank under the Existing Agreement with respect to any such
violation. Nothing in this First Amendment shall be deemed or construed to be a
waiver or release of, or a limitation upon, the Bank's exercise of any of its
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 Bank to enter into this First Amendment, the Borrower hereby repeats herein
for the benefit of the Bank the representations and warranties made by the
Borrower in Sections 4.1 through 4.24, 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 First Amendment.
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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 Bank shall have received, as of the First Amendment
Effective Date, duly executed counterpart originals of this First Amendment.
(ii) The Bank shall have received, as of the First Amendment
Effective Date, duly executed counterpart originals of the Working Cash Sweep
Agreement and the Trust Agreement.
(iii) The Bank shall have received resolutions of the board of
directors of the Borrower authorizing execution and delivery of the First
Amendment, the Working Cash Sweep Agreement and the Trust Agreement certified by
the Secretary of the Borrower as being true, correct, complete and in effect as
of the First Amendment Effective Date in form and substance satisfactory to the
Bank.
(iv) The following statements shall be true and correct on the
First Amendment Effective Date and the Bank shall have received a certificate
signed by an Authorized Officer of the Borrower, dated the First Amendment
Effective Date, stating that:
(A) except to the extent modified in writing
by the Borrower and delivered to the Bank on or prior to the date hereof, the
representations and warranties made pursuant to Section 2.01 of this First
Amendment and in the other Loan Documents are true and correct in all material
respects on and as of the First Amendment Effective Date as though made on and
as of such date;
(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 Existing Agreement and the other Loan
Documents; and
(D) the certificate of incorporation of the
Borrower, the bylaws of the Borrower and the incumbency certificate of the
Borrower delivered on the Closing Date, unless amendments are delivered at the
First Amendment Effective Date, remain unchanged and are still in full force and
effect.
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ARTICLE IV
GENERAL PROVISIONS
Section 4.01. Ratification of Terms. Except as expressly
amended by this First 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. The Borrower
hereby confirms that any collateral for the Bank Indebtedness, including but not
limited to liens, security interests, granted by the Borrower, shall continue
unimpaired and in full force and effect.
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 Existing Agreement without making specific reference to
this First Amendment, but nevertheless all such references shall include this
First Amendment unless the context requires otherwise. From and after the First
Amendment Effective Date, 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.
Section 4.03. Counterparts. This First Amendment may be
executed in different counterparts, each of which when executed by the Borrower
and the Bank shall be regarded as an original, and all such counterparts shall
constitute one First 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. 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.
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Section 4.06. 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.
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 the day first above written.
ATTEST: (SEAL) UNIVERSAL STAINLESS & ALLOY
PRODUCTS, INC., a Delaware
corporation
By By
Name Name
Title Title
PNC BANK, NATIONAL
ASSOCIATION
By
Name
Title
C/M 11834.0000 491934.1
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President and Chief Executive Officer
Date: May 13, 1997 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Financial Officer,
Principal Accounting Officer and
Treasurer
8
600602.1