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CREDIT AGREEMENT
(AMENDED AND RESTATED)
dated as of June 30, 1994,
as amended and restated as of June 30, 1997,
by and among
STEEL DYNAMICS, INC.,
as Borrower,
the Lenders parties hereto from time to time,
MELLON BANK, N.A.,
as Agent for the Lenders hereunder,
MELLON BANK, N.A.,
as Issuing Bank hereunder,
KREDITANSTALT FUR WIEDERAUFBAU and COMERICA BANK,
as Senior Co-Agents,
and
BANQUE NATIONALE DE PARIS, NBD BANK, N.A. and
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as Co-Agents
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TABLE OF CONTENTS
ARTICLE I - DEFINITIONS; CONSTRUCTION; ACCOUNTING PRINCIPLES .............. 2
1.01. Certain Definitions ............................................... 2
1.02. Construction ...................................................... 30
1.03. Accounting Principles. ............................................ 30
ARTICLE II - THE CREDITS .................................................. 31
2.01. Revolving Credit Loans. ........................................... 31
2.02. Commitment Fee; Reduction of the Revolving Credit
Committed Amounts ............................................... 33
2.03. Tranche 2 Loans on the Tranche 2 Conversion Date .................. 35
2.04. Tranche 3 Loans ................................................... 36
2.05. Making of Loans ................................................... 36
2.06. Interest Rates. ................................................... 37
2.07. Conversion or Renewal of Interest Rate Options .................... 43
2.08. Prepayments Generally ............................................. 44
2.09. Optional Prepayments .............................................. 45
2.10. Mandatory Prepayments ............................................. 46
2.11. Interest Payment Dates ............................................ 46
2.12. Pro Rata Treatment; Payments Generally;
Interest on Overdue Amounts .................................... 47
2.13. Additional Compensation in Certain
Circumstances .................................................. 50
2.14. Taxes. ............................................................ 52
2.15. Funding by Branch, Subsidiary or Affiliate. ....................... 55
2.16. Borrowing Base .................................................... 56
2.17. The Letter of Credit Subfacility .................................. 62
2.18. Procedure for Issuance and Amendment
of Letters of Credit ........................................... 64
2.19. Letter of Credit Participating Interests .......................... 66
2.20. Letter of Credit Drawings and Reimbursements ...................... 67
2.21. Obligations Absolute .............................................. 68
2.22. Additional Compensation in Certain Circumstances .................. 69
2.23. Further Assurances ................................................ 69
2.24. Letter of Credit Applications ..................................... 69
2.25. Cash Collateral for Letters of Credit ............................. 70
2.26. Certain Provisions Relating to the Issuing Bank ................... 71
2.27. The Swingline Subfacility ......................................... 73
2.28. Limitations on the Making of Swingline Loans;
Swingline Current Availability ................................. 74
2.29. Swingline Loan Participating Interests ............................ 75
2.30. Certain Provisions Relating to the
Swingline Lender ............................................... 77
ARTICLE III - REPRESENTATIONS AND WARRANTIES .............................. 78
3.01. Corporate Status .................................................. 78
3.02. Corporate Power and Authorization ................................. 78
3.03. Execution and Binding Effect ...................................... 79
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3.04. Governmental Approvals and Filings ................................ 79
3.05. Absence of Conflicts .............................................. 79
3.06. Projections ....................................................... 80
3.07. Labor Matters ..................................................... 81
3.08. Absence of Undisclosed Liabilities ................................ 81
3.09. Accurate and Complete Disclosure .................................. 81
3.10. Commitments ....................................................... 81
3.11. Solvency .......................................................... 81
3.12. Margin Regulations ................................................ 82
3.13. Subsidiaries ...................................................... 82
3.14. Partnerships, etc ................................................. 82
3.15. Ownership and Control ............................................. 82
3.16. Litigation ........................................................ 83
3.17. Absence of Events of Default ...................................... 83
3.18. Absence of Other Conflicts ........................................ 83
3.19. Insurance ......................................................... 83
3.20. Title to Property ................................................. 83
3.21. Intellectual and Other Property ................................... 84
3.22. Taxes ............................................................. 84
3.23. Employee Benefits ................................................. 84
3.24. Environmental Matters. ............................................ 84
3.25. Potential Conflicts of Interest ................................... 85
ARTICLE IV - CONDITIONS OF LENDING ........................................ 86
4.01. Conditions to Initial Loans and
Letters of Credit .............................................. 86
4.02. Conditions to All Loans or Letters
of Credit ...................................................... 88
4.03. Use of Proceeds of Initial Loans .................................. 89
ARTICLE V - AFFIRMATIVE COVENANTS ......................................... 89
5.01. Basic Reporting Requirements. ..................................... 89
5.02. Insurance ......................................................... 95
5.03. Payment of Taxes and Other Potential
Charges and Priority Claims .................................... 95
5.04. Preservation of Corporate Status .................................. 96
5.05. Governmental Approvals and Filings ................................ 96
5.06. Maintenance of Properties ......................................... 96
5.07. Avoidance of Other Conflicts ...................................... 96
5.08. Financial Accounting Practices .................................... 97
5.09. Use of Proceeds ................................................... 97
5.10. Continuation of or Change in Business ............................. 97
5.11. Consolidated Tax Return ........................................... 97
5.12. Fiscal Year ....................................................... 97
5.13. Future Project Agreements ......................................... 98
ARTICLE VI - NEGATIVE COVENANTS ........................................... 98
6.01. Financial Covenants ............................................... 98
6.02. Liens ............................................................. 98
6.03. Indebtedness. ..................................................... 98
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6.04. Guaranties, Indemnities, etc. .................................... 101
6.05. Loans, Advances and Investments .................................. 101
6.06. Dividends and Related Distributions .............................. 103
6.07. Sale-Leasebacks .................................................. 104
6.08. Leases ........................................................... 104
6.09. Mergers, Acquisitions, etc. ...................................... 104
6.10. Dispositions of Properties ....................................... 104
6.11. No Plans ......................................................... 105
6.12. Dealings with Affiliates ......................................... 105
6.13. Capital Expenditures ............................................. 106
6.14. Limitations on Modification of Certain
Agreements and Instruments ..................................... 106
6.15. Limitation on Other Restrictions on Liens ........................ 107
6.16. Limitation on Other Restrictions on
Amendment of the Loan Documents, etc. .......................... 107
6.17. Maintenance of Business .......................................... 107
6.18. Subsidiaries ..................................................... 107
ARTICLE VII - DEFAULTS ................................................... 108
7.01. Events of Default ................................................ 108
7.02. Consequences of an Event of Default .............................. 112
ARTICLE VIII - THE AGENT ................................................. 113
8.01. Appointment ...................................................... 113
8.02. General Nature of Agent's Duties ................................. 114
8.03. Exercise of Powers ............................................... 114
8.04. General Exculpatory Provisions ................................... 115
8.05. Administration by the Agent ...................................... 116
8.06. Lender Not Relying on Agent or Other Lenders ..................... 117
8.07. Indemnification .................................................. 117
8.08. Agent in its Individual Capacity ................................. 118
8.09. Holders of Notes ................................................. 118
8.10. Successor Agent .................................................. 118
8.11. Additional Agents ................................................ 119
8.12. Calculations ..................................................... 119
8.13. Funding by Agent ................................................. 120
8.14. Co-Agents ........................................................ 120
ARTICLE IX - MISCELLANEOUS ............................................... 120
9.01. Holidays ......................................................... 120
9.02. Records .......................................................... 121
9.03. Amendments and Waivers ........................................... 121
9.04. No Implied Waiver; Cumulative Remedies ........................... 123
9.05. Notices .......................................................... 123
9.06. Expenses; Taxes; Indemnity ....................................... 124
9.07. Severability ..................................................... 125
9.08. Prior Understandings ............................................. 125
9.09. Duration; Survival ............................................... 126
9.10. Counterparts ..................................................... 126
9.11. Limitation on Payments ........................................... 126
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9.12. Set-Off .......................................................... 126
9.13. Sharing of Collections ........................................... 127
9.14. Successors and Assigns; Participations;
Assignments .................................................... 128
9.15. Confidentiality .................................................. 132
9.16. Governing Law; Submission to
Jurisdiction; Waiver of Jury Trial;
Limitation of Liability ........................................ 132
Exhibits
Exhibit A-1-1997 Form of Tranche 1 Note
Exhibit A-2-1997 Form of Tranche 2 Note
Exhibit A-3-1997 Form of Tranche 3 Note
Exhibit B-1997 Form of Swingline Note
Exhibit DD-1997 Investments in Subsidiaries
Exhibit KK-1997 Prepayment Upon Receipt of
Condemnation/Insurance Proceeds
Schedules
Schedule 1.01B Project Agreements
Schedule 3.15-1997 Ownership and Control
Schedule 3.16-1997 Litigation
Schedule 3.23-1997 Employee Benefits
Schedule 3.25-1997 Conflicts of Interest
Schedule 4.01-1997 Amended Security Documents
Schedule 5.02-1997 Insurance
Schedule 6.05-1997 Loans and Investments
Schedule 6.12-1997 Contracts with Affiliates
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CREDIT AGREEMENT
(AMENDED AND RESTATED)
THIS AGREEMENT, dated as of June 30, 1994, as amended and
restated as of June 30, 1997, by and among STEEL DYNAMICS, INC., an Indiana
corporation (the "Borrower"), the lenders parties hereto from time to time (the
"Lenders", as defined further below), MELLON BANK, N.A., a national banking
association, as issuing bank (in such capacity, the "Issuing Bank", as defined
further below), MELLON BANK, N.A., a national banking association, as agent for
the Lenders hereunder (in such capacity, together with its successors in such
capacity, the "Agent"), and the Senior Co-Agents and Co-Agents named on the
signature pages hereof (in such capacities, the "Senior Co-Agents" and the
"Co-Agents").
Recitals:
WHEREAS, the Borrower, the Agent, the Lenders, the Senior
Co-Agents and the Co-Agents are parties to the Credit Agreement, dated as of
June 30, 1994, as amended by Amendments Nos. 1 through 10 thereto (as so
amended, the "Original Agreement");
WHEREAS, the parties desire to amend and restate the Original
Agreement to read in its entirety as set forth herein;
WHEREAS, the Borrower wishes to borrow an aggregate amount of up
to $450,000,000 and the Lenders are willing to extend credit to the Borrower to
permit, on the terms and subject to the conditions herein contained, such
borrowings;
WHEREAS, certain financial institutions which were not party to
the Original Agreement wish to become Lenders hereunder; and
WHEREAS, all of the Exhibits and Schedules to the Original
Agreement shall remain Exhibits and Schedules hereto, with the same
designations, and additional Exhibits and Schedules are attached hereto and
referred to herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained and intending to be legally bound hereby, the
parties hereto agree that the Original Agreement is amended and restated in its
entirety as follows:
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ARTICLE I
DEFINITIONS; CONSTRUCTION; ACCOUNTING PRINCIPLES
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1.01. CERTAIN DEFINITIONS. In addition to other words and terms
defined elsewhere in this Agreement, as used herein the following words and
terms shall have the following meanings, respectively, unless the context hereof
otherwise clearly requires:
"Affected Lender" shall have the meaning set forth in Section
2.06(e) hereof.
"Affiliate" of a Person (the "Specified Person") shall mean (a)
any Person which directly or indirectly controls, or is controlled by,
or is under common control with, the Specified Person, (b) any
director or officer (or, in the case of a Person which is not a
corporation, any individual having analogous powers) of the Specified
Person or of a Person who is an Affiliate of the Specified Person
within the meaning of the preceding clause (a), and (c) for each
individual who is an Affiliate of the Specified Person within the
meaning of the foregoing clauses (a) or (b), any other individual
related to such Affiliate by consanguinity within the third degree or
in a step or adoptive relationship within such third degree or related
by affinity with such Affiliate or any such individual. For purposes
of the preceding sentence, "control" of a Person means (a) the
possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether
through the ownership of voting securities, by contract or otherwise
and (b) in any case shall include direct or indirect ownership
(beneficially or of record) of, or direct or indirect power to vote,
5% or more of the outstanding shares of any class of capital stock of
such Person (or in the case of a Person that is not a corporation, 5%
or more of any class of equity interest). ▇▇▇▇ Capital, Inc. shall be
deemed to be an Affiliate of the Borrower so long as Bain is an
Affiliate of the Borrower, whether or not ▇▇▇▇ Capital, Inc. meets the
requirements of the foregoing definition.
"Applicable Margin" shall have the meaning set forth in Section
2.06(b) hereof.
"Assignment of Contracts" shall have the meaning set forth in
Section 4.01(b)(i)(D) of the Original Agreement.
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"Bain" shall mean, collectively, ▇▇▇▇ Capital Fund IV, L.P., ▇▇▇▇
Capital Fund IV-B, L.P., BCIP Associates, BCIP Trust Associates, L.P.
and Klans Associates.
"Base Rate" shall have the meaning set forth in Section 2.06(a)
hereof.
"Base Rate Option" shall have the meaning set forth in Section
2.06(a) hereof.
"Base Rate Portion" of any Loan or Loans shall mean at any time
the portion, including the whole, of such Loan or Loans bearing
interest at such time (i) under the Base Rate Option or (ii) in
accordance with Section 2.12(c)(ii) hereof. If no Loan or Loans is
specified, "Base Rate Portion" shall refer to the Base Rate Portion of
all Loans outstanding at such time.
"Borrower Group" shall mean the group consisting of the Borrower
and any of its consolidated Subsidiaries permitted hereunder.
"Borrowing Base" shall have the meaning set forth in Section 2.16
hereof.
"Borrowing Base Certificate" shall have the meaning set forth in
Section 2.16(e) hereof.
"Business Day" shall mean any day other than a Saturday, Sunday,
public holiday under the laws of the Commonwealth of Pennsylvania or
of the State of New York or other day on which banking institutions
generally are authorized or obligated to close in Pittsburgh,
Pennsylvania or in New York, New York.
"Capital Expenditures" of any Person shall mean, for any period,
all expenditures (whether paid in cash or accrued as liabilities
during such period) of such Person during such period which would be
classified as capital expenditures for purposes of GAAP (including,
without limitation, expenditures for maintenance and repairs which are
capitalized, and Capitalized Leases to the extent an asset is recorded
in connection therewith in accordance with GAAP).
"Capitalized Lease" shall mean at any time any lease which is, or
is required under GAAP to be, capitalized on the balance sheet of the
lessee at such time, and "Capitalized Lease Obligation" of any Person
at any time shall mean the aggregate amount which is, or is required
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under GAAP to be, reported as a liability on the balance sheet of such
Person at such time as lessee under a Capitalized Lease.
"Cash Equivalent Investments" shall mean any of the following, to
the extent acquired for investment and not with a view to achieving
trading profits: (a) obligations fully backed by the full faith and
credit of the United States of America, or issued by an agency or
instrumentality thereof, in each case maturing not in excess of nine
months from the date of acquisition, (b) commercial paper maturing not
in excess of nine months from the date of acquisition and rated "P-1"
or "P-2" by ▇▇▇▇▇'▇ Investors Service or "A-1" or "A-2" by Standard &
Poor's Corporation on the date of acquisition, (c) the following
obligations of any domestic commercial bank having capital and surplus
in excess of $500,000,000, which has, or the holding company of which
has, a commercial paper rating meeting the requirements specified in
clause (b) above: (i) time deposits, certificates of deposit and
acceptances maturing not in excess of nine months from the date of
acquisition, or (ii) repurchase obligations with a term of not more
than seven days for underlying securities of the type referred to in
clause (a) above, and (d) investments in mutual funds which do not
make any material investments other than those described in clauses
(a), (b) or (c) of this definition.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, and any successor statute
of similar import, and regulations thereunder, in each case as in
effect from time to time.
"CERCLIS" shall mean the Comprehensive Environmental Response,
Compensation and Liability Information System List, as the same may be
amended from time to time.
"Change of Control" shall mean that at any time any Person or
group of Persons (as defined in the Securities Exchange Act of 1934,
as amended) not a member of the Control Group shall own more than 30%
of the voting capital stock of the Borrower or more than 30% of the
equity securities of the Borrower.
As used herein, the term "Control Group" at any time shall mean
the following Persons: (a) Bain, (b) GECC, (c) ▇▇▇▇▇ ▇▇▇▇▇ and the
Designated Managers, (d) Heavy Metal, L.C., a Virginia limited
liability company, (e) Keylock Investments Limited, an Irish
non-resident corporation, and Mazelina Anstalt, a Liechenstein
business trust and (f) Preussag.
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"Code" means the Internal Revenue Code of 1986, as amended, and
any successor statute of similar import, and regulations thereunder,
in each case as in effect from time to time. References to sections of
the Code shall be construed also to refer to any successor sections.
"Cold Mill Work in Process Inventory" shall mean flat rolled
steel coils in processing or held for further processing.
"Collateral" shall mean the property from time to time subject to
or purported to be subject to the Liens of the Security Documents.
"Commercial Grade Finished Goods" shall mean finished goods which
are of prime grade in accordance with A.I.S.I. standards.
"Commitments" of a Lender shall mean the Tranche 1 Commitment,
the Tranche 2 Commitment and the Tranche 3 Commitment, as the case may
be, of such Lender.
"Consents to Assignment of Contracts" shall mean the Consents to
Assignment of Contracts delivered pursuant to Section 4.01(b)(i)(E) or
Section 4.05(b)(i)(C) of the Original Agreement.
"Continuing Letter of Credit Agreement" shall mean the continuing
letter of credit agreement executed and delivered by the Borrower
substantially in the form of Exhibit L hereto.
"Contractual Obligations" shall mean, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument to which such Person is a party or by which it or any of
its property (now owned or hereafter acquired) is bound.
"Controlled Group Member" shall mean each trade or business
(whether or not incorporated) which together with the Borrower is
treated as a single employer under Sections 4001(a)(14) or 4001(b)(1)
of ERISA or Sections 414(b), (c), (m) or (o) of the Code.
"Corresponding Source of Funds" shall mean, in the case of any
Funding Segment of the Euro-Rate Portion, the proceeds of hypothetical
receipts by a Notional Euro-Rate Funding Office or by a Lender through
a Notional Euro-Rate
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Funding Office of one or more Dollar deposits in the interbank
eurodollar market at the beginning of the Euro-Rate Funding Period
corresponding to such Funding Segment having maturities approximately
equal to such Euro-Rate Funding Period and in an aggregate amount
approximately equal to such Lender's Pro Rata share of such Funding
Segment.
"Cumulative Annual Change in Net Worth" at any time shall mean
the sum of the increases (or decreases) in Tangible Net Worth of the
Borrower Group for each fiscal year which has ended at the time in
question and has ended after December 31, 1996.
"Cumulative Net Income" shall mean for the period from July 1,
1997 until the end of the fiscal quarter completed most recently at
the time of measurement, the consolidated net earnings (without
deduction for losses incurred in any completed fiscal year or in any
completed fiscal quarter in the then current fiscal year) after taxes
of the Borrower Group; PROVIDED, that there shall be deducted
therefrom (a) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made against
income during such period, and (b) any gain arising from the
acquisition of any securities, or the extinguishment, under GAAP, of
any Indebtedness, of the Borrower Group.
"Depreciated Book Value of Specified Fixed Assets" shall mean the
net book value at the time in question of the equipment and real
estate of the Borrower which is subject to a perfected security
interest in favor of the Agent under the Security Documents and which,
in the case of equipment under construction or installation, has been
the subject of preliminary acceptance by the Borrower under its
contract with the supplier thereof.
"Designated Lender" shall have the meaning set forth in Section
2.14(f) hereof.
"Designated Managers" shall mean ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
such other senior management employee or employees of the Borrower, if
any, as shall have been approved by the Required Lenders as a
Designated Manager.
"Development Package" shall mean the combination of grants and
loans extended to the Borrower as described on Schedule 1.01A hereto.
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"Direct Reduced Iron Inventory" shall mean solid form iron units
not obtained from scrap and held for utilization as melting feedstock
by the Borrower.
"Dollar," "Dollars" and the symbol "$" shall mean lawful money of
the United States of America.
"EBITDA" for any period, with respect to the Borrower Group,
shall mean the sum of (a) Net Income for such period, (b) Interest
Expense for such period, (c) charges against income for foreign,
federal, state and local income taxes for such period, (d)
extraordinary losses to the extent included in determining such Net
Income, (e) depreciation expense for such period, and (f) amortization
expense for such period, MINUS (g) extraordinary gains to the extent
included in determining such Net Income, (h) interest income, and (i)
capitalized losses (exclusive of capitalized interest), all as
determined on a consolidated basis in accordance with GAAP; provided,
however, that there shall be excluded from EBITDA any net positive or
negative contribution that, absent such exclusion, would have been
made thereto by IDI or any other Subsidiary which is subject to any
material restriction on its ability to transfer, as a dividend, as a
loan or otherwise, cash or assets to the Borrower, except that there
shall not be so excluded (x) any positive contribution of any such
Subsidiary equal to dividends actually paid by such Subsidiary to the
Borrower during the applicable period and (y) any negative
contribution of any such Subsidiary equal to the advances or capital
contributions made during the applicable period to fund operating
losses of such Subsidiary after preliminary acceptance of the
principal operating property of such Subsidiary.
"Eligible Inventory" shall have the meaning set forth in Section
2.16(d) hereof.
"Eligible Receivables" shall have the meaning set forth in
Section 2.16(b) hereof.
"Employment Agreements" shall mean the employment agreements
between each of certain executives on the one hand and the Borrower on
the other.
"Environmental Affiliate" shall mean, with respect to any Person,
any other Person whose liability (contingent or otherwise) for any
Environmental Claim such Person has retained, assumed or otherwise is
liable for (by Law, agreement or otherwise).
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"Environmental Approvals" shall mean any Governmental Action
pursuant to or required under any Environmental Law.
"Environmental Claim" shall mean, with respect to any Person, any
action, suit, proceeding, investigation, notice, claim, complaint,
demand, request for information or other communication (written or
oral) by any other Person (including but not limited to any
Governmental Authority, citizens' group or present or former employee
of such Person) alleging, asserting or claiming any actual or
potential (a) violation of any Environmental Law, (b) liability under
any Environmental Law or (c) liability for investigatory costs,
cleanup costs, governmental response costs, natural resources damages,
property damages, personal injuries, fines or penalties arising out
of, based on or resulting from the presence, or release into the
environment, of any Environmental Concern Materials at any location,
whether or not owned by such Person.
"Environmental Cleanup Site" shall mean any location which is
listed or proposed for listing on the National Priorities List, on
CERCLIS or on any similar state list of sites requiring investigation
or cleanup, or which is the subject of any pending or threatened
action, suit, proceeding or investigation related to or arising from
any alleged violation of any Environmental Law.
"Environmental Concern Materials" shall mean (a) any flammable
substance, explosive, radioactive material, hazardous material,
hazardous waste, toxic substance, solid waste, pollutant, contaminant
or any related material, raw material, substance, product or
by-product of any substance specified in or regulated or otherwise
affected by any Environmental Law (including but not limited to any
"hazardous substance" as defined in CERCLA or any similar state Law),
(b) any toxic chemical or other substance from or related to
industrial, commercial or institutional activities, and (c) asbestos,
gasoline, diesel fuel, motor oil, waste and used oil, heating oil and
other petroleum products or compounds, polychlorinated biphenyls,
radon and urea formaldehyde.
"Environmental Law" shall mean any Law, whether now existing or
subsequently enacted or amended, relating to (a) pollution or
protection of the environment, including natural resources, (b)
exposure of Persons, including but not limited to employees, to
Environmental Concern Materials, (c) protection of the public health
or welfare from the effects of products, by-products, wastes,
emissions, discharges or releases of Environmental Concern
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Materials or (d) regulation of the manufacture, use or introduction
into commerce of Environmental Concern Materials including their
manufacture, formulation, packaging, labeling, distribution,
transportation, handling, storage or disposal. Without limitation,
"Environmental Law" shall also include any Environmental Approval and
the terms and conditions thereof.
"Equity Agreements" shall mean the Registration Agreement, dated
June 30, 1994 among the Borrower and the other parties thereto and the
Stockholders Agreement, dated June 30, 1994 among the Borrower and the
other parties thereto, as amended from time to time in accordance with
the terms thereof.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import, and
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA shall be construed also to refer to
any successor sections.
"Euro-Rate" shall have the meaning set forth in Section 2.06(a)
hereof.
"Euro-Rate Funding Period" shall have the meaning set forth in
Section 2.06(c) hereof.
"Euro-Rate Option" shall have the meaning set forth in Section
2.06(a) hereof.
"Euro-Rate Portion" of any Loan or Loans shall mean at any time
the portion, including the whole, of such Loan or Loans bearing
interest at any time under the Euro-Rate Option or at a rate
calculated by reference to the Euro-Rate under Section 2.12(c)(i)
hereof. If no Loan or Loans is specified, "Euro-Rate Portion" shall
refer to the Euro-Rate Portion of all Loans outstanding at such time.
"Euro-Rate Reserve Percentage" shall have the meaning set forth
in Section 2.06(a) hereof.
"Event of Default" shall mean any of the Events of Default
described in Section 7.01 hereof.
"Federal Funds Effective Rate" for any day shall mean the rate
per annum (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 the weighted average of the rates on overnight Federal funds
transactions arranged
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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, that 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.
"Funding Breakage Date" shall have the meaning set forth in
Section 2.13(b) hereof.
"Funding Breakage Indemnity" shall have the meaning set forth in
Section 2.13(b) hereof.
"Funding Periods" shall have the meaning set forth in Section
2.06(c) hereof.
"Funding Segment" of the Euro-Rate Portion of the Revolving
Credit Loans or the Term Loans at any time shall mean the entire
principal amount of such Portion to which at the time in question
there is applicable a particular Funding Period beginning on a
particular day and ending on a particular day. (By definition, each
such Portion is at all times composed of an integral number of
discrete Funding Segments and the sum of the principal amounts of all
Funding Segments of any such Portion at any time equals the principal
amount of such Portion at such time.)
"Future Project Agreement" shall mean any contract or agreement
described on Schedule 1.01E hereto, and any contract or agreement (or
series of related contracts or agreements) entered into by any Loan
Party after the Restatement Date for (a) the purchase of raw materials
of 100,000 tons or more annually for a term of one year or more, (b)
the sale of product for amounts of $10,000,000 or more annually for a
term of one year or more or (c) the disposal of Environmental Concern
Material (and other by-products of the Borrower's operations) for a
term of one year or more.
"GAAP" shall have the meaning set forth in Section 1.03 hereof.
"Governmental Action" shall have the meaning set forth in Section
3.04 hereof.
16
"Governmental Authority" shall mean any government or political
subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality of either, or any court,
tribunal, grand jury or public or private mediator or arbitrator, in
each case whether foreign or domestic.
"Guaranty Equivalent": A Person (the "Deemed Guarantor") shall be
deemed to be subject to a Guaranty Equivalent in respect of any
indebtedness, obligation or liability (the "Assured Obligation") of
another Person (the "Deemed Obligor") if the Deemed Guarantor directly
or indirectly guarantees, becomes surety for, endorses, assumes,
agrees to indemnify the Deemed Obligor against, or otherwise agrees,
becomes or remains liable (contingently or otherwise) for, such
Assured Obligation. Without limitation, a Guaranty Equivalent shall be
deemed to exist if a Deemed Guarantor agrees, becomes or remains
liable (contingently or otherwise), directly or indirectly: (a) to
purchase or assume, or to supply funds for the payment, purchase or
satisfaction of, an Assured Obligation, (b) to make any loan, advance,
capital contribution or other investment in, or to purchase or lease
any property or services from, a Deemed Obligor (i) to maintain the
solvency of the Deemed Obligor, (ii) to enable the Deemed Obligor to
meet any other financial condition, (iii) to enable the Deemed Obligor
to satisfy any Assured Obligation or to make any Stock Payment or any
other payment, or (iv) to assure the holder of such Assured Obligation
against loss, (c) to purchase or lease property or services from the
Deemed Obligor regardless of the non-delivery of or failure to furnish
such property or services, (d) in a transaction having the
characteristics of a take-or-pay or throughput contract or as
described in paragraph 6 of FASB Statement of Financial Accounting
Standards No. 47, or (e) in respect of any other transaction the
effect of which is to assure the payment or performance (or payment of
damages or other remedy in the event of nonpayment or nonperformance)
of any Assured Obligation.
"▇▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇▇ Steel Products Inc., an Ohio
corporation.
"▇▇▇▇▇▇▇▇ Documents" shall mean the agreements and other
documents listed on Exhibit S hereto, in the respective forms referred
to on or included in such Exhibit.
"I&M Development Debt" shall mean the indebtedness in the
original principal amount of $7,821,033 incurred by the Borrower as
part of the Development Package to finance the
17
Borrower's share of the cost of the electric transmission facilities
constituting part of the Phase I Project.
"IDI" shall mean Iron Dynamics, Inc., an Indiana corporation, all
of the capital stock of which is owned by
the Borrower.
"IDI Guaranty" shall mean that certain Guaranty and Suretyship
Agreement, substantially in the form of Exhibit R hereto, executed and
delivered by IDI in favor of the Agent.
"IDI Security Agreement" shall mean that certain Security
Agreement, substantially in form and substance satisfactory to the
Agent and its counsel, executed and delivered by IDI in favor of the
Agent.
"Indebtedness" of a Person shall mean:
(a) All obligations on account of money borrowed by, or
credit extended to or on behalf of, or for or on account of
deposits with or advances to, such Person;
(b) All obligations of such Person evidenced by bonds,
debentures, notes or similar instruments;
(c) All obligations of such Person for the deferred purchase
price of property or services;
(d) All obligations secured by a Lien on property owned by
such Person (whether or not assumed); and all obligations of such
Person under Capitalized Leases (without regard to any limitation
of the rights and remedies of the holder of such Lien or the
lessor under such Capitalized Lease to repossession or sale of
such property);
(e) The face amount of all letters of credit issued for the
account of such Person and, without duplication, the unreimbursed
amount of all drafts drawn thereunder, and all other obligations
of such Person associated with such letters of credit or draws
thereon;
(f) All obligations of such Person in respect of acceptances
or similar obligations issued for the account of such Person;
(g) All obligations of such Person under a product financing
or similar arrangement described in paragraph
18
8 of FASB Statement of Accounting Standards No. 49 or any similar
requirement of GAAP; and
(h) All obligations of such Person under any interest rate
or currency protection agreement, interest rate or currency
future, interest rate or currency option, interest rate or
currency swap or cap or other interest rate or currency hedge
agreement.
"Indebtedness for Borrowed Money" shall mean Indebtedness
described in clauses (a), (b), (d), (e) and (f) of the definition of
Indebtedness herein, but in no event shall Indebtedness for Borrowed
Money include the SMS vendor obligation or the electric transmission
agreement debt, in each case appearing on the Borrower's balance sheet
as of March 31, 1997.
"Indemnified Parties" shall mean the Agent, the Lender Parties,
the Issuing Bank, their respective Affiliates and the directors,
officers, employees, attorneys and agents of each of the foregoing.
"Initial Tranche 1 Committed Amount" shall have the meaning set
forth in Section 2.01(a) hereof.
"Initial Tranche 2 Committed Amount" shall have the meaning set
forth in Section 2.01(b) hereof.
"Interest Expense" for any period shall mean the total interest
expense of the Borrower Group for such period determined on a
consolidated basis in accordance with GAAP.
"Interest Rate Protection Agreements" shall mean one or more
contracts with one or more Lenders or affiliates thereof, having terms
and conditions reasonably satisfactory to the Agent , as contemplated
by Section 5.13 of the Original Agreement.
"Inventory" shall mean all goods now or hereafter owned by the
Borrower, whenever acquired and wherever located, held for sale or
lease or furnished or to be furnished under contracts of service, and
all raw materials, spares and supplies, work in process and materials
now or hereafter owned by the Borrower whenever acquired and wherever
located, and used or consumed in its business.
"IPO" shall mean the underwritten initial public offering of the
Borrower's equity securities.
"Issuing Bank" shall mean Mellon Bank, N.A.
19
"Law" shall mean any law (including common law), constitution,
statute, treaty, convention, regulation, rule, ordinance, order,
injunction, writ, decree or award of any Governmental Authority.
"Lenders" shall mean lender parties listed on the signature pages
hereof, subject to the provisions of Section 9.14 hereof pertaining to
Persons becoming or ceasing to be Lenders, and "Lender" shall mean any
of them.
"Lender Parties" shall mean the Lenders, the Issuing Bank, the
Senior Co-Agents, the Co-Agents and the Agent.
"Letter of Credit" shall mean each Standby Letter of Credit and
each Trade Letter of Credit issued by the Issuing Bank for the account
of the Borrower pursuant to this Agreement or the Original Agreement,
each as amended, modified or supplemented from time to time.
"Letter of Credit Application" shall have the meaning given that
term in Section 2.18(a) hereof.
"Letter of Credit Collateral Account" shall have the meaning
given that term in Section 2.25(b) hereof.
"Letter of Credit Exposure" at any time shall mean the sum at
such time of (a) the aggregate Letter of Credit Unreimbursed Draws and
(b) the aggregate Letter of Credit Undrawn Availability.
"Letter of Credit Facing Fee" shall have the meaning set forth in
Section 2.17(e) hereof.
"Letter of Credit Fee" shall have the meaning given that term in
Section 2.17(d) hereof.
"Letter of Credit Participating Interest" shall have the meaning
given that term in Section 2.19(a) hereof.
"Letter of Credit Reimbursement Obligation" with respect to a
Letter of Credit means the obligation of the Borrower to reimburse the
Issuing Bank for Letter of Credit Unreimbursed Draws, together with
interest thereon.
"Letter of Credit Undrawn Availability" with respect to a Letter
of Credit at any time shall mean the maximum amount available to be
drawn under such Letter of Credit at such time or thereafter,
regardless of the existence or satisfaction of any conditions or
limitations on drawing.
20
"Letter of Credit Unreimbursed Draws" with respect to a Letter of
Credit at any time shall mean the aggregate amount at such time of all
payments made by the Issuing Bank under such Letter of Credit, to the
extent not repaid by the Borrower.
"Level 1 Day", "Level 2 Day", "Level 3 Day", "Level 4 Day",
"Level 5 Day" and "Level 6 Day" shall have the respective meanings set
forth in Section 2.06(b).
"Leverage Ratio" for any period of four consecutive fiscal
quarters shall mean the ratio of (a) consolidated Indebtedness for
Borrowed Money of the Borrower Group at the end of such period to (b)
EBITDA of the Borrower Group for such period.
"Lien" shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement
of any nature whatsoever, including but not limited to any conditional
sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security.
"Loan" shall mean any loan by a Lender to the Borrower under this
Agreement, and "Loans" shall mean all Loans made by the Lenders under
this Agreement.
"Loan Documents" shall mean this Agreement, the Original
Agreement, the Notes, the Transfer Supplements, the Interest Rate
Protection Agreements, the Letters of Credit, the Continuing Letter of
Credit Agreement, the Letter of Credit Applications (and any other
agreements or documents pursuant to which any Letter of Credit may be
issued or amended), each Subsidiary Guaranty, the Security Documents
and all other agreements and instruments extending, renewing,
refinancing or refunding any indebtedness, obligation or liability
arising under any of the foregoing, in each case as the same may be
amended, modified or supplemented from time to time hereafter.
"Loan Parties" shall mean the Borrower and each Subsidiary of the
Borrower, and "Loan Party" shall mean any one of them.
"London Business Day" shall mean a day for dealing in deposits in
Dollars by and among banks in the London interbank market and which is
a Business Day.
21
"Material Adverse Effect" shall mean: (a) a material adverse
effect on the business, operations or condition (financial or
otherwise) of the Borrower or of the Borrower Group, (b) a material
adverse effect on the ability of the Borrower or any other Loan Party
to perform or comply with any of the terms and conditions of any Loan
Document or an adverse effect on the ability of the Borrower or any
other Loan Party to perform or comply with any of the terms and
conditions of any Project Agreement if the effect thereof could excuse
or preclude the other party to such Project Agreement, as the case may
be, from performing any of its obligations or duties thereunder
material to the properties or operations of the Borrower or any other
Loan Party, or could increase the duties or obligations of the
Borrower or any other Loan Party thereunder to an extent material to
the properties or operations of such Person or (c) a material adverse
effect on (i) the legality, validity, binding effect, enforceability
or admissibility into evidence of any Loan Document, or (ii) the
ability of the Agent or any Lender Party to enforce any rights or
remedies under or in connection with any Loan Document which could, in
the judgment of the Required Lenders reasonably exercised, prevent the
practical realization of the rights and benefits of the Lenders under
such Loan Document, or (iii) the ability of any Loan Party to enforce
any rights or remedies material to the properties or operations of the
Borrower or any Loan Party under or in connection with any Project
Agreement.
"Measurement Period" with respect to any day shall mean the
period of four consecutive fiscal quarters of the Borrower most
recently ended in a month which is not the month immediately preceding
the month in which such day occurs.
"Mellon" shall mean Mellon Bank, N.A., a national banking
association.
"Mortgage" shall have the meaning set forth in Section 4.01(c) of
the Original Agreement.
"Multiemployer Plan" shall mean any employee benefit plan which
is a "multiemployer plan" within the meaning of Section 4001(a)(3) of
ERISA and to which any Loan Party or any Controlled Group Member has
or had an obligation to contribute.
"Net Cash Proceeds" with respect to any property or issuance of
debt or equity securities shall mean cash or cash equivalents received
by any Loan Party from, and
22
payments of principal of any Capitalized Lease Obligations or other
obligation received by any Loan Party in connection with, the sale,
lease or other disposition of such property or securities, MINUS the
sum of (a) expenses reasonably incurred in respect of such sale, lease
or other disposition, (b) any sales or transfer taxes payable as a
result of such sale, lease or other disposition, (c) incremental
income taxes reasonably estimated by the Borrower to be payable by
such Loan Party as a result of such sale, lease or other disposition
and (d) the amount required to discharge any indebtedness or
obligation secured by a Lien on such property and required to be
discharged in connection with such sale, lease or other disposition.
"Net Income" for any period shall mean the net earnings (or loss)
after taxes of the Borrower Group for such period determined on a
consolidated basis in accordance with GAAP; PROVIDED, that there shall
be deducted therefrom (a) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was made
against income during such period, and (b) any gain arising from the
acquisition of any securities, or the extinguishment, under GAAP, of
any Indebtedness, of the Borrower Group.
"Notes" shall mean the Revolving Credit Notes and the Term Loan
Notes of the Borrower executed and delivered under this Agreement,
together with all extensions, renewals, refinancings or refundings of
any thereof in whole or part, and "Note" shall mean any one of the
Notes.
"Notional Euro-Rate Funding Office" shall have the meaning given
to that term in Section 2.15(a) hereof.
"Obligations" shall mean all indebtedness, obligations and
liabilities of any Loan Party to any Lender Party or the Agent from
time to time arising under or in connection with or related to or
evidenced by or secured by or under color of this Agreement or any
other Loan Document, and all extensions, renewals or refinancings
thereof, whether such indebtedness, obligations or liabilities are
direct or indirect, otherwise secured or unsecured, joint or several,
absolute or contingent, due or to become due, whether for payment or
performance, now existing or hereafter arising. Without limitation of
the foregoing, such indebtedness, obligations and liabilities include
the principal amount of Loans, interest, Letter of Credit
Reimbursement Obligations, guaranty obligations, fees, indemnities or
expenses under or in connection with this Agreement or any other Loan
Document, and all extensions, renewals and refinancings thereof,
whether or not such Loans were made or such Letters
23
of Credit were issued in compliance with the terms and conditions of
this Agreement or in excess of the obligation of the Lenders to lend
or the authority of the Issuing Bank to issue Letters of Credit.
Obligations shall remain Obligations notwithstanding any assignment or
transfer or any subsequent assignment or transfer of any of the
Obligations or any interest therein.
"Office," when used in connection with the Agent, shall mean its
office located at One Mellon Bank Center, Pittsburgh, Pennsylvania, or
at such other office or offices of the Agent or any branch, subsidiary
or affiliate thereof as may be designated in writing from time to time
by the Agent to the Borrower.
"OmniSource" shall mean OmniSource Corporation, an Indiana
corporation.
"OmniSource Documents" shall mean the agreements and other
documents listed on Exhibit T hereto, in the respective forms referred
to on or included in such Exhibit.
"Option" shall mean the Base Rate Option or the Euro-Rate Option,
as the case may be.
"Other Finished Goods" shall mean finished goods which are not
Commercial Grade Finished Goods.
"Other Raw Materials" shall mean raw materials other than Scrap.
"Participants" shall have the meaning set forth in Section
9.14(b) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation established
under Title IV of ERISA or any other governmental agency, department
or instrumentality succeeding to the functions of said corporation.
"Pension-Related Event" shall mean any of the following events or
conditions:
(a) Any action is taken by any Person (i) to terminate, or
which would result in the termination of, a Plan, either pursuant
to its terms or by operation of law (including, without
limitation, any amendment of a Plan which would result in a
termination under Section 4041(e) of ERISA) other than compliance
with Section 4041(b) of ERISA, or (ii) to have a trustee
appointed for a Plan pursuant to Section 4042 of ERISA;
24
(b) PBGC notifies any Person of its determination that an
event described in Section 4042 of ERISA has occurred with
respect to a Plan, that a Plan should be terminated, or that a
trustee should be appointed for a Plan;
(c) Any Reportable Event occurs with respect to a Plan;
(d) Any action occurs or is taken which could result in any
Loan Party becoming subject to liability for a complete or
partial withdrawal by any Person from a Multiemployer Plan
(including, without limitation, seller liability incurred under
Section 4204(a)(2) of ERISA), or any Loan Party or any Controlled
Group Member receives from any Person a notice or demand for
payment on account of any such alleged or asserted liability; or
(e) (i) There occurs any failure to meet the minimum funding
standard under Section 302 of ERISA or Section 412 of the Code
with respect to a Plan, or any tax return is filed showing any
tax payable under Section 4971(a) of the Code with respect to any
such failure, or any Loan Party or any Controlled Group Member
receives a notice of deficiency from the Internal Revenue Service
with respect to any alleged or asserted such failure, or (ii) any
request is made by any Person for a variance from the minimum
funding standard, or an extension of the period for amortizing
unfunded liabilities, with respect to a Plan.
"Permitted Liens" shall have the meaning set forth in Section
6.02 hereof.
"Permitted Payments" shall mean payments made by the Borrower to
Persons (other than Affiliates of the Borrower) of regular and
customary legal, accounting and similar fees in connection with the
Borrowers' capital stock, maintenance of the corporate existence of
the Borrower, the compliance of the Borrower with Laws and other
customary administrative expenses.
"Person" shall mean an individual, corporation, partnership,
trust, unincorporated association, joint venture, joint-stock company,
Governmental Authority or any other entity.
25
"Phase I Project" shall mean the 1.2 million ton thin slab cast
mini-mill and related improvements (including without limitation the
electric substation, the water-distribution system and mill railroad
tracks located on the Project Site.
"Phase II Project" shall mean the cold rolling and coating steel
processing facility located on the Project Site.
"Plan" means any employee pension benefit plan within the meaning
of Section 3(2) of ERISA (other than a Multiemployer Plan) covered by
Title IV of ERISA by reason of Section 4021 of ERISA, of which any
Loan Party or any Controlled Group Member is or has been within the
preceding five years a "contributing sponsor" within the meaning of
Section 4001(a)(13) of ERISA, or which is or has been within the
preceding five years maintained for employees of any Loan Party or any
Controlled Group Member.
"Portion" shall mean the Base Rate Portion or the Euro-Rate
Portion, as the case may be.
"Postretirement Benefits" shall mean any benefits, other than
retirement income, provided by any Loan Party to retired employees, or
to their spouses, dependents or beneficiaries, including, without
limitation, group medical insurance or benefits, or group life
insurance or death benefits.
"Postretirement Benefit Obligation" shall mean that portion of
the actuarial present value of all Postretirement Benefits expected to
be provided by any Loan Party which is attributable to employees'
service rendered to the date of determination (assuming that such
liability accrues ratably over an employee's working life to the
earlier of his date of retirement or the date on which the employee
would first become eligible for full benefits), reduced by the fair
market value as of the date of determination of any assets which are
segregated from the assets of the applicable Loan Party and which have
been restricted so that they cannot be used for any purpose other than
to provide Postretirement Benefits or to defray related expenses.
"Potential Base Rate Lender" shall mean each Revolving Credit
Lender and each Term Loan Lender which has provided written notice to
the Agent that it is willing to have Term Loans bear interest under
the Base Rate Option in the circumstances set forth in Section
2.06(e).
26
"Potential Default" shall mean any event or condition which with
notice, passage of time, or both, would constitute an Event of
Default.
"Preussag" shall mean Preussag ▇▇▇▇▇ ▇▇, a company incorporated
under the laws of the Federal Republic of Germany.
"Prime Rate" as used herein, shall mean the interest rate per
annum announced from time to time by the Agent as its prime rate, such
rate to change automatically effective as of the effectiveness of each
announced change in such prime rate. The Prime Rate may be greater or
less than other interest rates charged by the Agent to other borrowers
and is not solely based or dependent upon the interest rate which the
Agent may charge any particular borrower or class of borrower.
"Project Agreements" shall mean the contracts and agreements
listed on Schedule 1.01B hereto and any Future Project Agreements
after execution and delivery thereof by the Loan Party which is a
party thereto.
"Project Site" shall mean the property described in Exhibit A to
the Mortgage and which is located in ▇▇▇▇▇▇, Indiana.
"Pro Rata" shall mean from or to (i) each Tranche 1 Lender in
proportion to its Tranche 1 Commitment Percentage (ii) each Tranche 2
Lender in proportion to its Tranche 2 Commitment Percentage and (iii)
each Tranche 3 Lender in proportion to its outstanding principal
amount of Tranche 3 Loans, as the case may be.
"Purchasing Lender" shall have the meaning set forth in Section
9.14(c) hereof.
"Register" shall have the meaning set forth in Section 9.14(d)
hereof.
"Regular Payment Date" shall mean the last day of each March,
June, September and December after the Restatement Date, commencing
September 30, 1997.
"Reportable Event" means (i) a reportable event described in
Section 4043 of ERISA and regulations thereunder, (ii) a withdrawal by
a substantial employer from a Plan to which more than one employer
contributes, as referred to in Section 4063(b) of ERISA, (iii) a
cessation of operations at a facility causing more than twenty percent
27
(20%) of Plan participants to be separated from employment, as
referred to in Section 4062(e) of ERISA, or (iv) a failure to make a
required installment or other payment with respect to a Plan when due
in accordance with Section 412 of the Code or Section 302 of ERISA
which causes the total unpaid balance of missed installments and
payments (including unpaid interest) to exceed $750,000.
"Required Lenders" shall mean, as of any date, Lenders which have
Tranche 1 Commitments (or, if the Tranche 1 Commitments have
terminated, outstanding Tranche 1 Loans), Tranche 2 Commitments (or,
if the Tranche 2 Commitments have terminated, outstanding Tranche 2
Loans) and outstanding Tranche 3 Loans constituting, in the aggregate,
at least 51% of the total aggregate amount of Tranche 1 Commitments
(or if the Tranche 1 Commitments have terminated, outstanding Tranche
1 Loans), Tranche 2 Commitments (or if the Tranche 2 Commitments have
terminated, outstanding Tranche 2 Loans) and outstanding Tranche 3
Loans of all the Lenders on such date; PROVIDED, however, that for
purposes of the written request referred to in Section 7.02(a) as it
relates to clause (ii) thereof "Required Lenders" shall mean Lenders
which have made Loans (which for purposes of this proviso shall
include funded participations in Swingline Loans and shall not include
Swingline Loans to the extent of funded participations therein)
constituting, in the aggregate, at least 51% in principal amount of
all Loans outstanding and Letter of Credit Reimbursement Obligations
outstanding on the date of such request.
"Requirement of Law" shall mean, as to any Person, the
certificate or articles of incorporation and by-laws or other
organizational or governing documents of such Person, and any Law,
right, privilege, qualification, license or franchise or determination
of an arbitrator or a court or other Governmental Authority, in each
case applicable or binding upon such Person or any of its property
(now owned or hereafter acquired) or to which such Person or any of
its property is subject or pertaining to any or all of the
transactions contemplated or referred to herein.
"Responsible Officer" shall mean the President, any Executive
Vice President, the Treasurer or the Chief Financial Officer of the
Borrower.
"Restatement Date" shall mean June 30, 1997.
"Revolving Credit Commitment" of a Lender shall mean the Tranche
1 Commitment and, until the Tranche 2 Conversion Date, the Tranche 2
Commitment of such Lender.
28
"Revolving Credit Commitment Fee" shall mean the Tranche 1
Commitment Fee and, until the Tranche 2 Conversion Date, the Tranche 2
Commitment Fee.
"Revolving Credit Committed Amount" of a Lender shall mean the
Tranche 1 Committed Amount of such Lender plus, until the Tranche 2
Conversion Date, the Tranche 2 Committed Amount of such Lender.
"Revolving Credit Lenders" shall mean the Lenders listed on the
signature pages hereof who have a Revolving Credit Committed Amount
greater than zero set forth thereon, subject to the provisions of
Section 9.14 hereof pertaining to Persons becoming or ceasing to be
Lenders; "Revolving Credit Lender" shall mean any one of them.
"Revolving Credit Loans" shall mean the Tranche 1 Loans and,
until the Tranche 2 Conversion Date, the Tranche 2 Loans.
"Revolving Credit Notes" shall mean the Tranche 1 Notes and,
until the Tranche 2 Conversion Date, the Tranche 2 Notes.
"Scrap" shall mean ferrous material (excluding finished goods)
resident on Borrower's real property of suitable quality for melting
in Borrower's electric furnace.
"Security Agreement" shall have the meaning set forth in Section
4.01(b)(i)(A) of the Original Agreement.
"Security Documents" shall mean the Security Agreement, the IDI
Security Agreement, the IDI Guaranty, the Mortgage, the Assignment of
Contracts (and each assignment of contract entered into pursuant to
Section 5.15 of the Original Agreement), together with the Consents to
Assignment of Contracts (and each consent to assignment of contract
delivered pursuant to Section 5.15 of the Original Agreement) and any
other agreements or instruments from time to time to time granting or
purporting to grant the Agent a Lien in any property for the benefit
of the Lenders to secure the Obligations, or constituting a Guaranty
Equivalent for the Obligations.
"SMS" shall mean SMS ▇▇▇▇▇▇▇▇▇▇-Siemag AG, a German corporation.
29
"SMS Documents" shall mean the agreements and other documents
listed on Exhibit U hereto, in the respective forms referred to on and
included in such Exhibit.
"Solvent" means, with respect to any Person at any time, that at
such time (a) the sum of the debts and liabilities (including, without
limitation, contingent liabilities) of such Person is not greater than
all of the assets of such Person at a fair valuation, (b) the present
fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such
Person has not incurred, does not intend to incur, and does not
believe that it will incur, debts or liabilities (including, without
limitation, contingent liabilities) beyond such person's ability to
pay as such debts and liabilities mature, (d) such Person is not
engaged in, and is not about to engage in, a business or a transaction
for which such person's property constitutes or would constitute
unreasonably small capital, and (e) such Person is not otherwise
insolvent as defined in, or otherwise in a condition which could in
any circumstances then or subsequently render any transfer,
conveyance, obligation or act then made, incurred or performed by it
avoidable or fraudulent pursuant to, any Law that may be applicable to
such Person pertaining to bankruptcy, insolvency or creditors' rights
(including but not limited to the Bankruptcy Code of 1978, as amended,
and, to the extent applicable to such Person, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act, or any other
applicable Law pertaining to fraudulent conveyances or fraudulent
transfers or preferences).
"Spares" shall mean spares and supplies of the Borrower which the
Agent in its reasonable discretion determines to be readily
marketable.
"Standard Notice" shall mean an irrevocable notice provided to
the Agent on a Business Day which is
(a) On or before the same Business Day in the case of
selection of, conversion to or renewal of the Base Rate Option or
prepayment of any Base Rate Portion;
(b) At least four London Business Days in advance in the
case of selection of the Euro-Rate Option or prepayment of any
Euro-Rate Portion.
30
Standard Notice must be provided no later than 10:00 a.m., Pittsburgh
time, on the last day permitted for such notice.
"Standby Letter of Credit" shall mean a Letter of Credit which is
not a Trade Letter of Credit.
"Stock Payment" by any Person shall mean any dividend,
distribution or payment of any nature (whether in cash, securities, or
other property) on account of or in respect of any shares of the
capital stock (or warrants, options or rights therefor) of such
Person, including but not limited to any payment on account of the
purchase, redemption, retirement, defeasance or acquisition of any
shares of the capital stock (or warrants, options or rights therefor)
of such Person, in each case regardless of whether required by the
terms of such capital stock (or warrants, options or rights) or any
other agreement or instrument.
"Subsidiary" shall mean any corporation of which a majority (by
number of shares or number of votes) of any class of outstanding
capital stock normally entitled to vote for the election of one or
more directors (regardless of any contingency which does or may
suspend or dilute the voting rights of such class) is at such time
owned directly or indirectly, beneficially or of record, by the
Borrower or one or more Subsidiaries of the Borrower.
"Subsidiary Guaranty" shall mean a Guaranty and Suretyship
Agreement, substantially in the form of Exhibit R hereto, entered into
by a Subsidiary in compliance with Section 6.04(e) hereof.
"Swingline Current Availability" shall have the meaning assigned
to that term in Section 2.28 hereof.
"Swingline Lender" shall mean Mellon Bank, N.A., in its capacity
as the Swingline Lender.
"Swingline Loan Participating Interest" shall have the meaning
assigned to that term in Section 2.29(a) hereof.
"Swingline Loans" shall have the meaning assigned to that term in
Section 2.27(a) hereof.
"Swingline Note" shall mean the promissory note of the Borrower
executed and delivered under Section 2.27(c) hereof, together with all
extensions, renewals, refinancings or refundings thereof in whole or
in part.
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"Swingline Subfacility Amount" shall have the meaning assigned to
that term in Section 2.27(a) hereof.
"Tangible Net Worth" at any time shall mean the total amount of
stockholders' equity of the Borrower Group at such time determined on
a consolidated basis in accordance with GAAP, except that there shall
be deducted therefrom the book value of all intangible assets (other
than the asset denominated the I&M Transmission Facilities Agreement
(as defined in the Original Agreement) which corresponds to the I&M
Development Debt) and deferred charges of the Borrower Group at such
time determined in accordance with GAAP.
"Tax Affected Lender" shall have the meaning assigned to that
term in Section 2.14(f) hereof.
"Taxes" shall have the meaning set forth in Section 2.14 hereof.
"Term Lenders" shall mean the Tranche 3 Lenders and, from and
after the Tranche 2 Conversion Date, the Tranche 2 Lenders,
collectively.
"Term Loans" shall mean the Tranche 3 Loans and, from and after
the Tranche 2 Conversion Date, the Tranche 2 Loans, collectively.
"Term Loan Notes" shall mean the Tranche 3 Notes and, from and
after the Tranche 2 Conversion Date, the Tranche 2 Notes.
"Total Tranche 1 Credit Exposure" of any Tranche 1 Lender at any
time shall mean the sum of the outstanding principal amount of such
Lender's Tranche 1 Loans plus such Lender's Pro Rata share of the
aggregate Letter of Credit Exposure at such time plus such Lender's
Pro Rata share of the aggregate outstanding amount of Swingline Loans
at such time (irrespective of whether such Lender has funded
participation interests in such Swingline Loans).
"Trade Letter of Credit" shall mean a Letter of Credit which is
designated as such by the Issuing Bank after determination by the
Issuing Bank that such Letter of Credit may, in accordance with the
Issuing Bank's usual operating practice, be treated as a documentary
or trade letter of credit.
"Tranche 1 Commitment" shall have the meaning set forth in
Section 2.01(a) hereof.
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"Tranche 1 Commitment Fee" shall have the meaning set forth in
Section 2.02(a) hereof.
"Tranche 1 Commitment Percentage" for any Lender shall mean the
Tranche 1 Commitment Percentage for such Lender set forth below its
name on the signature page hereof, subject to transfer to another
Lender as provided in Section 9.14 hereof.
"Tranche 1 Committed Amount" shall have the meaning set forth in
Section 2.01(a) hereof.
"Tranche 1 Lenders" shall mean the Lenders listed on the
signature pages hereof who have a Tranche 1 Committed Amount greater
than zero set forth thereon, subject to the provisions of Section 9.14
hereof pertaining to Persons becoming or ceasing to be Lenders;
"Tranche 1 Lender " shall mean any one of them.
"Tranche 1 Loans" shall have the meaning set forth in Section
2.01(a) hereof.
"Tranche 1 Maturity Date" shall mean June 30, 2002, PROVIDED,
that if the Leverage Ratio for the twelve month period ending June 30,
2000 is less than 3.0 to 1 and the Borrower notifies the Agent in
writing between July 1, 2000 and September 1, 2000 that it desires
such extension, the Tranche 1 Maturity Date shall be June 30, 2003,
and PROVIDED, further, that if the Leverage Ratio for the twelve month
period ending June 30, 2001 is less than 3.0 to 1, the Tranche 1
Maturity Date has previously been extended to June 30, 2003 and the
Borrower notifies the Agent in writing between July 1, 2001 and
September 1, 2001 that it desires such additional extension, the
Tranche 1 Maturity Date shall be June 30, 2004.
"Tranche 1 Notes" shall mean the promissory notes of the Borrower
executed and delivered under Section 2.01(c) hereof, any promissory
notes issued in substitution therefor pursuant to Sections 2.15(b) or
9.14(c) hereof, together with all extensions, renewals, refinancings
or refundings thereof in whole or part; "Tranche 1 Note" shall mean
any one of them.
"Tranche 2 Commitment" shall have the meaning set forth in
Section 2.01(b) hereof.
"Tranche 2 Commitment Fee" shall have the meaning set forth in
Section 2.02(a) hereof.
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"Tranche 2 Commitment Percentage" for any Lender shall mean the
Tranche 2 Commitment Percentage for such Lender set forth below its
name on the signature page hereof, subject to transfer to another
Lender as provided in Section 9.14 hereof.
"Tranche 2 Committed Amount" shall have the meaning set forth in
Section 2.01(b) hereof.
"Tranche 2 Conversion Date" shall mean June 30, 1998, as the same
may be extended in accordance with Section 2.02(d) hereof.
"Tranche 2 Lenders" shall mean the Lenders listed on the
signature pages hereof who have a Tranche 2 Committed Amount greater
than zero set forth thereon, subject to the provisions of Section 9.14
hereof pertaining to Persons becoming or ceasing to be Lenders;
"Tranche 2 Lender " shall mean any one of them.
"Tranche 2 Loans" shall have the meaning set forth in Section
2.01(b) hereof.
"Tranche 2 Maturity Date" shall mean a date which is the fifth
anniversary of the Tranche 2 Conversion Date.
"Tranche 2 Notes" shall mean the promissory notes of the Borrower
executed and delivered under Section 2.01(c) hereof, any promissory
notes issued in substitution therefor pursuant to Sections 2.03(c),
2.15(b) or 9.14(c) hereof, together with all extensions, renewals,
refinancings or refundings thereof in whole or part; "Tranche 2 Note"
shall mean any one of them.
"Tranche 2 Special Loans" shall mean Tranche 2 Loans in an
aggregate principal amount (i) as to which the Borrower has requested
a conversion of the Tranche 2 Committed Amounts to Tranche 1 Committed
Amounts, but such conversion has been rejected by the Tranche 1
Lenders, and (ii) which, if such amount were an amount of Tranche 1
Loans, would comply with all Borrowing Base requirements, based on the
then most recently delivered Borrowing Base Certificate, applicable to
Tranche 1 Loans.
"Tranche 3 Commitment" shall have the meaning set forth in
Section 2.04(a) hereof.
"Tranche 3 Commitment Percentage" for any Lender shall mean the
Tranche 3 Commitment Percentage for such Lender set forth below its
name on the signature page hereof,
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subject to transfer to another Lender as provided in Section 9.14
hereof.
"Tranche 3 Committed Amount" shall have the meaning set forth in
Section 2.04(a) hereof.
"Tranche 3 Lenders" shall mean the Lenders listed on the
signature pages hereof who have a Tranche 3 Committed Amount greater
than zero set forth thereon, subject to the provisions of Section 9.14
hereof pertaining to Persons becoming or ceasing to be Lenders;
"Tranche 3 Lender " shall mean any one of them.
"Tranche 3 Loans" shall have the meaning set forth in Section
2.04(a) hereof.
"Tranche 3 Maturity Date" shall mean June 30, 2004.
"Tranche 3 Notes" shall mean the promissory notes of the Borrower
executed and delivered under Section 2.04(c) hereof, any promissory
notes issued in substitution therefor pursuant to Sections 2.15(b) or
9.14(c) hereof, together with all extensions, renewals, refinancings
or refundings thereof in whole or part; "Tranche 3 Note" shall mean
any one of them.
"Tranche 3 Special Loans" shall mean Tranche 3 Loans outstanding
on any day during the period from July 1, 2002 through the Tranche 3
Maturity Date, unless on such day the Tranche 1 Maturity Date is June
30, 2004 or later.
"Transfer Effective Date" shall have the meaning set forth in the
applicable Transfer Supplement.
"Transfer Supplement" shall have the meaning set forth in Section
9.14(c) hereof.
"Treasury Rate" as of any Funding Breakage Date shall mean the
rate per annum determined by the applicable Lender (which
determination shall be conclusive absent manifest error) to be the
semiannual equivalent yield to maturity (expressed as a semiannual
equivalent and decimal and, in the case of United States Treasury
bills, converted to a bond equivalent yield) for United States
Treasury securities maturing on the last day of the corresponding
Funding Period and trading in the secondary market in reasonable
volume (or if no such securities mature on such date, the rate
determined by standard securities interpolation methods as applied to
the series of securities maturing as close as possible to, but earlier
than, such date, and the series of
35
such securities maturing as close as possible to, but later than, such
date).
"Work in Process" shall mean steel awaiting processing (excluding
Cold Mill Work in Process Inventory).
1.02. CONSTRUCTION. Unless the context of this Agreement
otherwise clearly requires, references to the plural include the singular, the
singular the plural and the part the whole; "or" has the inclusive meaning
represented by the phrase "and/or"; and "property" includes all properties and
assets of any kind or nature, tangible or intangible, real, personal or mixed.
References in this Agreement to "determination" (and similar terms) by the Agent
or by any Lender include good faith estimates by the Agent or by any Lender (in
the case of quantitative determinations) and good faith beliefs by the Agent or
by any Lender (in the case of qualitative determinations). The words "hereof,"
"herein," "hereunder" and similar terms in this Agreement refer to this
Agreement as a whole and not to any particular provision of this Agreement.
References herein to "out-of-pocket expenses" of a Person (and similar terms)
include, but are not limited to, the fees of in-house counsel and other in-house
professionals of such Person to the extent that such fees are routinely
identified and separately and specifically charged under such Person's normal
cost accounting system consistent with past practice. The terms "include" and
"including" mean "including without limitation". The section and other headings
contained in this Agreement and the Table of Contents preceding this Agreement
are for reference purposes only and shall not control or affect the construction
of this Agreement or the interpretation thereof in any respect. Section,
subsection and exhibit references are to this Agreement unless otherwise
specified.
1.03. ACCOUNTING PRINCIPLES.
(a) As used herein, "GAAP" shall mean generally accepted
accounting principles in the United States, applied on a basis consistent with
the principles used in preparing the Borrower's financial statements as of June
30, 1994 and for the fiscal quarter then ended.
(b) Except as otherwise provided in this Agreement, all
computations and determinations as to accounting or financial matters shall be
made, and all financial statements to be delivered pursuant to this Agreement
shall be prepared, in accordance with GAAP (including principles of
consolidation where appropriate), and all accounting or financial terms shall
have the meanings ascribed to such terms by GAAP.
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(c) If and to the extent that the financial statements generally
prepared by the Borrower apply accounting principles other than GAAP, all
financial statements referred to in this Agreement or any other Loan Document
shall be delivered in duplicate, one set based on the accounting principles then
generally applied by the Borrower and one set based on GAAP. To the extent this
Agreement or such other Loan Document requires financial statements to be
accompanied by an opinion of independent accountants, each set of financial
statements shall be accompanied by such an opinion.
ARTICLE II
THE CREDITS
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2.01. REVOLVING CREDIT LOANS.
(a) TRANCHE 1 COMMITMENTS. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each
Revolving Credit Lender, severally and not jointly, agrees (such agreement being
herein called such Revolving Credit Lender's "Tranche 1 Commitment") to make
loans (the "Tranche 1 Loans") to the Borrower at any time or from time to time
on or after the Restatement Date and to but not including the Tranche 1 Maturity
Date. A Revolving Credit Lender shall have no obligation to make any Tranche 1
Loan to the extent that the aggregate principal amount of such Revolving Credit
Lender's Total Tranche 1 Exposure at any time would exceed the lesser of (x)
such Revolving Credit Lender's Tranche 1 Committed Amount at such time and (y)
such Revolving Credit Lender's Pro Rata share of the Borrowing Base at such
time. Each Revolving Credit Lender's "Tranche 1 Committed Amount" at any time
shall be equal to the amount set forth as its "Initial Tranche 1 Committed
Amount" below its name on the signature pages hereof, as such amount may have
been increased or reduced under Section 2.02 hereof at such time, and subject to
transfer to another Lender as provided in Section 9.14 hereof. Within the limits
of time and amount set forth in this Section 2.01, and subject to the provisions
of this Agreement, the Borrower may borrow, repay and reborrow Tranche 1 Loans
hereunder.
(b) TRANCHE 2 COMMITMENTS. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each
Revolving Credit Lender, severally and not jointly, agrees (such agreement being
herein called such Revolving Credit Lender's "Tranche 2 Commitment") to make
loans (the "Tranche 2 Loans") to the Borrower at any time or from time to time
on or after the Restatement Date and to but not including
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the Tranche 2 Conversion Date. A Revolving Credit Lender shall have no
obligation to make any Tranche 2 Loan to the extent that the aggregate principal
amount of such Revolving Credit Lender's outstanding Tranche 2 Loans at any time
would exceed such Revolving Credit Lender's Tranche 2 Committed Amount at such
time. Each Revolving Credit Lender's "Tranche 2 Committed Amount" at any time
shall be equal to the amount set forth as its "Initial Tranche 2 Committed
Amount" below its name on the signature pages hereof, as such amount may have
been reduced under Section 2.02 hereof at such time, and subject to transfer to
another Lender as provided in Section 9.14 hereof. Within the limits of time and
amount set forth in this Section 2.01, and subject to the provisions of this
Agreement, the Borrower may borrow, repay and reborrow Tranche 2 Loans
hereunder.
(c) TRANCHE 1 NOTES AND TRANCHE 2 NOTES. The obligation of the
Borrower to repay the unpaid principal amount of the Tranche 1 Loans made to it
by each Tranche 1 Lender and to pay interest thereon shall be evidenced in part
by promissory notes of the Borrower, one to each Tranche 1 Lender, dated the
Restatement Date (the "Tranche 1 Notes") in substantially the form attached
hereto as Exhibit A-1-1997, with the blanks appropriately filled, payable to the
order of such Tranche 1 Lender in a face amount equal to such Tranche 1 Lender's
Initial Tranche 1 Committed Amount. The obligation of the Borrower to repay the
unpaid principal amount of the Tranche 2 Loans made to it by each Tranche 2
Lender and to pay interest thereon shall be evidenced in part by promissory
notes of the Borrower, one to each Tranche 2 Lender, dated the Restatement Date
(the "Tranche 2 Notes") in substantially the form attached hereto as Exhibit
A-2-1997, with the blanks appropriately filled, payable to the order of such
Tranche 2 Lender in a face amount equal to such Tranche 2 Lender's Initial
Tranche 2 Committed Amount
(d) MATURITY. To the extent not due and payable earlier, the
Tranche 1 Loans shall be due and payable on the Tranche 1 Maturity Date. To the
extent not due and payable earlier, the Tranche 2 Loans shall be initially due
and payable on the Tranche 2 Conversion Date.
(e) LETTERS OF CREDIT. Letters of Credit may be issued in
accordance with the terms and provisions of Section 2.17 hereof.
(f) SWINGLINE LOANS. Swingline Loans may be requested in
accordance with the terms and provisions of Section 2.27 hereof.
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2.02. COMMITMENT FEE; REDUCTION OF THE REVOLVING CREDIT COMMITTED
AMOUNTS.
(a) COMMITMENT FEE. (i) The Borrower shall pay to the Agent for
the account of each Tranche 1 Lender a commitment fee (the "Tranche 1 Commitment
Fee") for each day from and including the Restatement Date to but excluding the
Tranche 1 Maturity Date (based on a year of 365 days and actual days elapsed)
equal to 0.125% per annum for each Level I Day, 0.15% per annum for each Level
II Day, 0.20% per annum for each Level III Day, 0.25% per annum for each Level
IV Day, 0.30% per annum for each Level V Day and 0.375% per annum for each Level
VI Day, in each case on an amount equal to such Tranche 1 Lender's Tranche 1
Committed Amount on such day minus the aggregate principal amount of such
Tranche 1 Lender's Tranche 1 Loans outstanding on such day minus such Tranche 1
Lender's Pro Rata share of the Letter of Credit Exposure on such day minus such
Tranche 1 Lender's funded participation interest in outstanding Swingline Loans
(or, in the case of the Swingline Lender, the outstanding principal amount of
Swingline Loans as to which no participation is funded). Such Tranche 1
Commitment Fee shall be due and payable for the preceding period for which such
fee has not been paid: (x) on each Regular Payment Date, (y) on the date of each
reduction of the Tranche 1 Committed Amounts (whether optional or mandatory) on
the amount so reduced and (z) on the Tranche 1 Maturity Date.
(ii) The Borrower shall pay to the Agent for the account of each
Tranche 2 Lender a commitment fee (the "Tranche 2 Commitment Fee") for each day
from and including the Restatement Date to but excluding the Tranche 2
Conversion Date (based on a year of 365 days and actual days elapsed) equal to
0.125% per annum on an amount equal to such Tranche 2 Lender's Tranche 2
Committed Amount on such day minus the aggregate principal amount of such
Tranche 2 Lender's Tranche 2 Loans outstanding on such day. Such Tranche 2
Commitment Fee shall be due and payable for the preceding period for which such
fee has not been paid: (x) on each Regular Payment Date, (y) on the date of each
reduction (including by way of conversion to Tranche 1 Committed Amounts) of the
Tranche 2 Committed Amounts (whether optional or mandatory) on the amount so
reduced and (z) on the Tranche 2 Conversion Date.
(b) REDUCTION OF THE REVOLVING CREDIT COMMITTED AMOUNTS. The
Borrower may at any time or from time to time reduce Pro Rata the Tranche 1
Committed Amounts of the Tranche 1 Lenders to an aggregate amount (which may be
zero) not less than the sum of the unpaid principal amount of the Tranche 1
Loans then outstanding plus the principal amount of all Tranche 1 Loans not yet
made as to which notice has been given by the Borrower
39
under Section 2.05 hereof plus the Letter of Credit Exposure at such time. The
Borrower may at any time or from time to time reduce Pro Rata the Tranche 2
Committed Amounts of the Tranche 2 Lenders to an aggregate amount (which may be
zero) not less than the sum of the unpaid principal amount of the Tranche 2
Loans then outstanding plus the principal amount of all Tranche 2 Loans not yet
made as to which notice has been given by the Borrower under Section 2.05. Any
reduction of the Tranche 1 Committed Amounts or the Tranche 2 Committed Amounts
shall be in an aggregate amount which is an integral multiple of $1,000,000.
Reduction of the Tranche 1 Committed Amounts or the Tranche 2 Committed Amounts
shall be made by providing not less than three Business Days' notice (which
notice shall be irrevocable) to such effect to the Agent. After the date
specified in such notice the Tranche 1 Commitment Fee or the Tranche 2
Commitment Fee, as the case may be, shall be calculated upon the Tranche 1
Committed Amounts and Tranche 2 Committed Amounts, as the case may be, as so
reduced.
(c) CONVERSION OF TRANCHE 2 COMMITTED AMOUNTS TO TRANCHE 1
COMMITTED AMOUNTS. With the written consent of all of the Lenders (it being
understood that consent may be withheld by any Lender in its discretion) after
written request from the Borrower therefore, all or a portion of the Tranche 2
Committed Amounts may be converted to Tranche 1 Committed Amounts, ratably among
the Revolving Credit Lenders, thereby reducing the Tranche 2 Committed Amounts
of the Lenders and increasing the Tranche 1 Committed Amounts of the Lenders by
the amount of such conversion. Upon any such conversion, the Borrower will
furnish to the Agent, for distribution to the Revolving Credit Lenders, new
Tranche 1 Notes and Tranche 2 Notes reflecting such conversion.
(d) EXTENSION OF TRANCHE 2 CONVERSION DATE. The Borrower may request
an extension of the Tranche 2 Conversion Date to a date which is not more than
364 days from the Tranche 2 Conversion Date then in effect and in any event not
later than the Tranche 1 Maturity Date. Such request shall be in writing
delivered to the Agent, between 75 and 50 days prior to the Tranche 2 Conversion
Date then in effect, with a copy to each Tranche 2 Lender. Upon receipt of the
Borrower's request as aforesaid, each Tranche 2 Lender shall conduct its own
complete credit review of the Borrower and, within 45 days following its receipt
of the Borrower's request, shall advise the Agent whether it consents to such
extension. The Tranche 2 Conversion Date shall be extended only with the written
consent of all the Tranche 2 Lenders, which consent may be given or withheld in
the sole and absolute discretion of each Tranche 2 Lender, respectively. Any
Tranche 2 Lender which does not reply to such request by the Business Day prior
to the Tranche 2 Conversion
40
Date then in effect will be deemed to have withheld its consent thereto.
Promptly upon its receipt of the responses of all the Tranche 2 Lenders, the
Agent shall advise the Borrower as to whether such extension has been granted.
If such extension is granted, such extension shall not become effective until
the then current Tranche 2 Conversion Date, and effectiveness of the Tranche 2
Lenders' agreement to extend the Tranche 2 Conversion Date shall be subject to
fulfillment by the Borrower of the conditions precedent set forth in Section
4.02 hereof. If such extension is not granted, the aggregate principal amount of
the Tranche 2 Loans outstanding on the then current Tranche 2 Conversion Date
shall be converted pursuant to Section 2.03.
2.03. TRANCHE 2 LOANS ON THE TRANCHE 2 CONVERSION DATE.
(a) TRANCHE 2 COMMITMENTS. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth,
each Tranche 2 Lender, severally and not jointly, agrees to make a
Tranche 2 Loan to the Borrower on the Tranche 2 Conversion Date in
such principal amounts as may be requested by the Borrower but not
exceeding such Tranche 2 Lender's Tranche 2 Committed Amount on such
date.
(b) NATURE OF CREDIT. The Borrower may not reborrow amounts
repaid after the Tranche 2 Conversion Date with respect to Tranche 2
Loans.
(c) TRANCHE 2 NOTES. The obligation of the Borrower to repay the
unpaid principal amount of the Tranche 2 Loan made to it by each
Tranche 2 Lender and to pay interest thereon in accordance with this
Section 2.03 shall be evidenced in part by promissory notes of the
Borrower, one to each Tranche 2 Lender, dated the Tranche 2 Conversion
Date, in substantially the form of Exhibit A-4-1997 hereto, with the
blanks appropriately filled, payable to the order of each such Tranche
2 Lender in a face amount equal to the principal amount of each such
Tranche 2 Lender's Tranche 2 Loan made under subsection (a) hereof.
(d) AMORTIZATION AND MATURITY. The principal of the Tranche 2
Loans made on the Tranche 2 Conversion Date shall be due and payable
in eight equal quarterly installments, commencing on the Regular
Payment Date next following the third anniversary of the Tranche 2
Conversion Date and continuing on each Regular Payment Date
thereafter, with the final installment of the then unpaid principal
amount of the Tranche 2 Loans due and payable on the fifth anniversary
of the Tranche 2 Conversion Date.
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2.04. TRANCHE 3 LOANS.
(a) TRANCHE 3 COMMITMENTS. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth,
each Tranche 3 Lender, severally and not jointly, agrees (such
agreement being herein called such Tranche 3 Lender's "Tranche 3
Commitment") to make a loan (the "Tranche 3 Loans") to the Borrower on
the Restatement Date in a principal amount equal to such Tranche 3
Lender's Tranche 3 Committed Amount. Each Tranche 3 Lender's "Tranche
3 Committed Amount" at any time shall be equal to the amount set forth
below its name on the signature pages hereof.
(b) NATURE OF CREDIT. The Borrower may not reborrow amounts
repaid with respect to Tranche 3 Loans.
(c) TRANCHE 3 NOTES. The obligation of the Borrower to repay the
unpaid principal amount of the Tranche 3 Loan made to it by each
Tranche 3 Lender and to pay interest thereon shall be evidenced in
part by promissory notes of the Borrower to each Tranche 3 Lender,
dated the Restatement Date (the "Tranche 3 Notes") in substantially
the form attached hereto as Exhibit A-3-1997, with the blanks
appropriately filled, payable to the order of such Tranche 3 Lender in
a face amount equal to the principal amount of such Lender's Tranche 3
Committed Amount.
(d) AMORTIZATION AND MATURITY. The principal of the Tranche 3
Loans shall be due and payable in eight equal quarterly installments,
commencing on September 30, 2002 and continuing on December 31, 2002,
March 31, 2003, June 30, 2003, September 30, 2003, December 31, 2003
and March 31, 2004, with the final installment of the then unpaid
principal amount of the Tranche 3 Loans due and payable on June 30,
2004.
2.05. MAKING OF LOANS. Whenever the Borrower desires that the
Lenders make Loans, the Borrower shall provide Standard Notice to the Agent
setting forth the following information (a separate notice being required for
each such type of Loans):
(a) Whether the proposed Loans are Tranche 1 Loans, Tranche 2
Loans or Swingline Loans;
(b) The date, which shall be a Business Day, on which such
proposed Loans are to be made;
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(c) The aggregate principal amount of such proposed Loans, which
shall be the sum of the principal amounts selected pursuant to clause
(d) of this Section 2.05, and which shall be an integral multiple of
$500,000 not less than $1,000,000;
(d) The interest rate Option or Options selected in accordance
with Section 2.06(a) hereof and the principal amounts selected in
accordance with Section 2.06(d) hereof of the Base Rate Portion and
each Funding Segment of the Euro-Rate Portion, as the case may be, of
such proposed Loans; and
(e) With respect to each such Funding Segment of such proposed
Loans, the Funding Period to apply to such Funding Segment, selected
in accordance with Section 2.06(c) hereof.
Standard Notice having been so provided, the Agent shall promptly notify each
Lender no later than 12:00 o'clock Noon, Pittsburgh time, of the information
contained therein and of the amount of such Lender's Loan. Unless any applicable
condition specified in ARTICLE IV hereof has not been satisfied, on the date
specified in such Standard Notice each Lender shall make the proceeds of its
Loan available to the Agent at the Agent's Office, no later than 2:00 o'clock
P.M., Pittsburgh time, in funds immediately available at such Office. Promptly
after its receipt thereof, the Agent will make the funds so received available
to the Borrower in funds immediately available at the Agent's Office.
2.06. INTEREST RATES.
(a) OPTIONAL BASES OF BORROWING. The unpaid principal amount of
the Tranche 1 Loans and the Tranche 2 Loans shall bear interest for each day
until due on one or more bases selected by the Borrower from among the interest
rate Options set forth below. The unpaid principal amount of the Tranche 3 Loans
shall bear interest for each day on the basis of the Euro-Rate Option described
below. Subject to the provisions of this Agreement the Borrower may select
different Options to apply simultaneously to different Portions of the Tranche 1
Loans and the Tranche 2 Loans and may select different Funding Segments to apply
simultaneously to different parts of the Euro-Rate Portion of the Loans. Each
selection of a rate Option shall apply separately and without overlap to the
Tranche 1 Loans as a class, the Tranche 2 Loans as a class and the Tranche 3
Loans as a class. The aggregate number of Funding Segments applicable to the
Euro-Rate Portion of the Tranche 1 Loans at any time shall not exceed eight, the
aggregate number of Funding Segments applicable to the Euro-Rate Portion of the
Tranche 2 Loans at any time shall not exceed eight and the
43
aggregate number of Funding Segments applicable to the Tranche 3 Loans at any
time shall not exceed eight.
(i) "BASE RATE OPTION": A rate per annum (computed on the basis
of a year of 365 days and actual days elapsed) for each day equal to
the Base Rate for such day plus the Applicable Margin for such day.
The "Base Rate" for any day shall mean the greater of (A) the Prime
Rate for such day or (B) 0.50% plus the Federal Funds Effective Rate
for such day, such interest rate to change automatically from time to
time effective as of the effective date of each change in the Prime
Rate or the Federal Funds Effective Rate.
(ii) "EURO-RATE OPTION": A rate per annum (based on a year of 360
days and actual days elapsed) for each day equal to the Euro-Rate for
such day plus the Applicable Margin for such day. "Euro-Rate" for any
day, as used herein, shall mean for each Funding Segment of the
Euro-Rate Portion corresponding to a proposed or existing Euro-Rate
Funding Period the rate per annum determined by the Agent by dividing
(the resulting quotient to be rounded upward to the nearest 1/100 of
1%) (A) the rate of interest (which shall be the same for each day in
such Euro-Rate Funding Period) quoted on the Reuters screen ISDA page
to be (or, if such Reuters quotation is not available, determined in
good faith by the Agent, after inquiry to three reference banks
selected by the Agent from among the Lenders, in accordance with its
usual procedures when reference banks are consulted (which
determination shall be conclusive) to be) the average of the rates per
annum for deposits in Dollars offered to major money center banks in
the London interbank market at approximately 11:00 a.m., London time,
two London Business Days prior to the first day of such Euro-Rate
Funding Period for delivery on the first day of such Euro-Rate Funding
Period in amounts comparable to such Funding Segment and having
maturities comparable to such Funding Period by (B) a number equal to
1.00 minus the Euro-Rate Reserve Percentage.
"Euro-Rate Reserve Percentage" for any day shall mean the
percentage (expressed as a decimal, rounded upward to the nearest
1/100 of 1%), as determined in good faith by the Agent (which
determination shall be conclusive absent manifest error), which is in
effect on such day as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) representing the maximum
reserve requirement (including, without limitation, supplemental,
marginal and emergency reserve requirements) with respect to
eurocurrency funding (currently referred to as "Eurocurrency
liabilities") of a member bank in such System. The Euro-Rate shall be
adjusted automatically as of the
44
effective date of each change in the Euro-Rate Reserve Percentage. The
Euro-Rate Option shall be calculated in accordance with the foregoing
whether or not any Lender is actually required to hold reserves in
connection with its eurocurrency funding or, if required to hold such
reserves, is required to hold reserves at the "Euro-Rate Reserve
Percentage" as herein defined.
The Agent shall give prompt notice to the Borrower and to the
Lenders of the Euro-Rate determined or adjusted in accordance with the
definition of the Euro-Rate, which determination or adjustment shall
be conclusive if made in good faith.
In addition to the Euro-Rate Option for Tranche 3 Loans made by
Kreditanstalt fur Wiederaufbau ("KfW"), such Tranche 3 Loans may, at
the option of KfW and the Borrower, bear interest at a fixed rate per
annum offered by KfW and accepted by the Borrower for the then
remaining term of such Tranche 3 Loans based on KfW's cost of funding
plus the Applicable Margin and the ▇▇▇▇▇▇'▇ page "BNDS", all in
accordance with procedures agreed to between KfW and the Borrower.
(b) APPLICABLE MARGINS.
(i) Except with respect to any day occurring between the
Restatement Date and September 30, 1997, which shall be deemed to be a
Level IV Day, as used herein:
"Level I Day" means any day for which the Leverage Ratio for the
Measurement Period is less than 2.0 to 1.
"Level II Day" means any day for which the Leverage Ratio for the
Measurement Period is 2.0 to 1 or higher but less than 2.5 to 1.
"Level III Day" means any day for which the Leverage Ratio for
the Measurement Period is 2.5 to 1 or higher but less than 3.0 to 1.
"Level IV Day" means any day for which the Leverage Ratio for the
Measurement Period is 3.0 to 1 or higher but less than 3.5 to 1.
"Level V Day" means any day for which the Leverage Ratio for the
Measurement Period is 3.5 to 1 or higher but less than 4.0 to 1.
45
"Level VI Day" means any day for which the Leverage Ratio for the
Measurement Period is 4.0 to 1 or higher.
(ii) The "Applicable Margin" for each installment of each type of
Loan and interest rate Option for any day shall mean the applicable percentage
set forth in this clause (ii). The Applicable Margin for the Base Rate Option
with respect to Tranche 1 Loans and Tranche 2 Special Loans will be zero percent
for each Level I Day, each Level II Day, each Level III Day and each Level IV
Day, 0.125% for each Level V Day and 0.5% for each Level VI Day. The Applicable
Margin for the Base Rate Option with respect to Tranche 2 Loans (other than the
Tranche 2 Special Loans) will be 0.25% for each Level I Day, each Level II Day,
each Level III Day and each Level IV Day, 0.375% for each Level V Day and 0.75%
for each Level VI Day. The Applicable Margin for the Euro-Rate Option with
respect to the Tranche 1 Loans, the Tranche 3 Loans (other than Tranche 3
Special Loans) and the Tranche 2 Special Loans will be 0.375% for each Level I
Day, 0.50% for each Level II Day, 0.625% for each Level III Day, 0.75% for each
Level IV Day, 1.125% for each Level V Day and 1.50% for each Level VI Day. The
Applicable Margin for the Euro-Rate Option with respect to the Tranche 2 Loans
(other than the Tranche 2 Special Loans) and to the Tranche 3 Special Loans will
be 0.625% for each Level I Day, 0.75 % for each Level II Day, 0.875% for each
Level III Day, 1.0% for each Level IV Day, 1.375% for each Level V Day and 1.75
% for each Level VI Day.
(iii) Notwithstanding clause (ii) above, upon the occurrence of
an Event of Default, the Applicable Margin for each type of Loan and the
interest rate option for any day shall mean the percentage set forth with
respect thereto in clause (ii) plus 2%. Such Applicable Margin shall remain in
effect from the date of the occurrence of such Event of Default until the
earlier to occur of (a) the date on which such Event of Default is cured or
waived or otherwise ceases to exist (and no other Event of Default exists), in
which case the Applicable Margin shall be determined in accordance with clause
(ii) above, and (b) the date on which the unpaid principal amount of the Loans,
interest accrued thereon and all other Obligations are declared to be
immediately due and payable pursuant to Section 7.02(a)(ii) hereof, in which
case Section 2.12(c) shall apply.
(iv) Notwithstanding clause (ii) above, but subject to clause
(iii) above, the Applicable Margin for the Euro-Rate Option for all Loans for
any day on which Standard & Poor's Ratings Group has issued, and there remains
applicable, a rating of the Borrower's senior unsecured debt rating of BBB- or
better shall be .25%.
46
(c) FUNDING PERIODS. At any time when the Borrower shall select,
convert to or renew the Euro-Rate Option to apply to any part of the Loans, the
Borrower shall specify one or more periods (the "Funding Periods") during which
each such Option shall apply, such Funding Periods being one, two, three or six
months ("Euro-Rate Funding Period"); PROVIDED, that:
(i) Each Euro-Rate Funding Period shall begin on a London
Business Day, and the term "month", when used in connection with a
Euro-Rate Funding Period, shall mean the interval between the
Euro-Convention Dates in consecutive calendar months as to such
Euro-Rate Funding Period (and the "Euro-Convention Date" in a calendar
month as to any Euro-Rate Funding Period shall mean the day in such
calendar month numerically corresponding to the first day of such
Euro-Rate Funding Period, except (x) if there is no such numerically
corresponding day in a calendar month, the "Euro-Convention Date" for
such calendar month shall mean the last London Business Day of such
calendar month, (y) if the first day of such Euro-Rate Period is the
last day of a calendar month, the "Euro-Convention Date" for any
calendar month shall mean the last London Business Day of such
calendar month and (z) otherwise, if a numerically corresponding day
in a given calendar month is not a London Business Day, the
"Euro-Convention Date" for such calendar month shall mean the next
following day that is a London Business Day, but not later than the
last Business Day of such calendar month);
(ii) In the case of (A) Tranche 1 Loans, the Borrower may not
select a Funding Period that would end after the Tranche 1 Maturity
Date, (B) Tranche 2 Loans, the Borrower may not select a Funding
Period that would end after the Tranche 2 Conversion Date, unless the
Tranche 2 Conversion Date has occurred, in which case the Borrower may
not select a Funding Period that would end after the Tranche 2
Maturity Date, and (C) Tranche 3 Loans, the Borrower may not select a
Funding Period that would end after the Tranche 3 Maturity Date; and
(iii)The Borrower shall, in selecting any Funding Period, allow
for scheduled mandatory payments and foreseeable mandatory prepayments
of the Loans.
(d) TRANSACTIONAL AMOUNTS. Every selection of, conversion
from, conversion to or renewal of an interest rate Option and every payment or
prepayment of any Loans shall be in a principal amount such that after giving
effect thereto the aggregate principal amount of the Base Rate Portion of the
Tranche 1 Loans or the Tranche 2 Loans, or the aggregate
47
principal amount of each Funding Segment of the Euro-Rate Portion of the Tranche
1 Loans, the Tranche 2 Loans or the Tranche 3 Loans, respectively, as the case
may be, shall be as set forth below:
PORTION OR FUNDING SEGMENT ALLOWABLE AGGREGATE PRINCIPAL AMOUNTS
Base Rate Portion Any; and
Each Funding Segment $1,000,000 or integral
of the Euro-Rate Portion multiples of $500,000.
(e) EURO-RATE UNASCERTAINABLE; IMPRACTICABILITY. If
(i) on any date on which a Euro-Rate would otherwise be set the
Agent (in the case of clauses (A) or (B) below) or any Lender (in the
case of clause (C) below) shall have determined in good faith (which
determination shall be conclusive) that:
(A) adequate and reasonable means do not exist for
ascertaining such Euro-Rate,
(B) a contingency has occurred which materially and
adversely affects the interbank eurodollar market, as the case
may be, or
(C) the effective cost to such Lender of funding a proposed
Funding Segment of the Euro-Rate Portion from a Corresponding
Source of Funds shall exceed the Euro-Rate applicable to such
Funding Segment, or
(ii) at any time any Lender shall have determined in good faith
(which determination shall be conclusive) that the making, commitment
to make, maintenance or funding of any part of the Euro-Rate Portion
has been made impracticable or unlawful by compliance by such Lender
or a Notional Euro-Rate Funding Office in good faith with any Law or
guideline or interpretation or administration thereof by any
Governmental Authority charged with the interpretation or
administration thereof or with any request or directive of any such
Governmental Authority (whether or not having the force of law);
then, and in any such event, the Agent or such Lender, as the case may be, shall
promptly notify the Borrower of such determination (and any Lender giving such
notice shall notify the Agent). Upon such date as shall be specified in such
notice (which shall not be earlier than the date such notice is given), the
obligation of each of the Potential Base Rate Lenders to
48
allow the Borrower to select, convert to or renew the Euro-Rate Option shall be
suspended until the Agent or such Lender, as the case may be, shall have later
notified the Borrower (and any Lender giving such notice shall notify the Agent)
of the Agent's or such Potential Base Rate Lender's determination in good faith
(which determination shall be conclusive) that the circumstance giving rise to
such previous determination no longer exist. The obligation of each of the
Lenders which are not Potential Base Rate Lenders to allow the Borrower to
select, convert to or renew the Euro-Rate Option shall not be suspended,
provided that, in the case of a determination under clause A of subsection (i)
of this Section 2.06(e), the Euro-Rate shall be deemed to be the most recent
ascertainable Euro-Rate with a Euro-Rate Funding Period of one month (or, at the
option of the applicable Lender, such Lender's cost of funds as verified to the
Borrower and the Agent) until the Agent shall have later notified the Borrower
of the Agent's determination in good faith (which determination shall be
conclusive) that the circumstances giving rise to such previous determination no
longer exist.
If any Potential Base Rate Lender notifies the Borrower of a
determination under subsection (ii) of this Section 2.06(e), the Euro-Rate
Portion of the Loans of such Lender (the "Affected Lender") shall automatically
be converted to the Base Rate Option as of the date specified in such notice
(and accrued interest thereon shall be due and payable on such date). When such
Affected Lender later notifies the Borrower and the Agent of such Affected
Lender's determination in good faith (which determination shall be conclusive)
that the circumstances giving rise to such previous determination no longer
exist, any portion of the Term Loans of the Affected Lender bearing interest at
the Base Rate Option shall automatically be converted to the Euro-Rate Option in
accordance with paragraphs (c) and (d) of this Section 2.06 as of the date
specified in such notice (which specified date of conversion shall not be
earlier than the fourth Business Day after the date of such notice) and accrued
interest thereon shall be due and payable on such date.
If at the time the Agent or a Potential Base Rate Lender makes a
determination under subsection (i) or (ii) of this Section 2.06(e) the Borrower
previously has notified the Agent that it wishes to select, convert to or renew
the Euro-Rate Option with respect to any proposed Loans but such Loans have not
yet been made, such notification shall be deemed to provide for selection of,
conversion to or renewal of the Base Rate Option instead of the Euro-Rate Option
with respect to such Loans or, in the case of a determination by a Lender, such
Loans of such Lender.
2.07. CONVERSION OR RENEWAL OF INTEREST RATE OPTIONS.
49
(a) CONVERSION OR RENEWAL. Subject to the provisions of Section
2.13(b) hereof, and if no Event of Default or Potential Default shall have
occurred and be continuing or shall exist, the Borrower may convert any part of
its Tranche 1 Loans or Tranche 2 Loans from any interest rate Option or Options
to one or more different interest rate Options and may renew the Euro-Rate
Option as to any Funding Segment of the Euro-Rate Portion of the Tranche 1
Loans, Tranche 2 Loans or Tranche 3 Loans:
(i) At any time with respect to conversion from the Base Rate
Option; or
(ii) At the expiration of any Funding Period with respect to
conversions from or renewals of the Euro-Rate Option as to the Funding
Segment corresponding to such expiring Funding Period.
Whenever the Borrower desires to convert or renew any interest rate Option or
Options, the Borrower shall provide to the Agent Standard Notice setting forth
the following information:
(v) Whether such renewal is to apply to Tranche 1 Loans, Tranche
2 Loans or Tranche 3 Loans;
(w) The date, which shall be a Business Day, on which the
proposed conversion (in the case of Tranche 1 Loans and Tranche 2
Loans only) or renewal is to be made;
(x) The principal amounts selected in accordance with Section
2.06(d) hereof of the Base Rate Portion and each Funding Segment of
the Euro-Rate Portion to be converted from or renewed;
(y) The interest rate Option or Options selected in accordance
with Section 2.06(a) hereof and the principal amounts selected in
accordance with Section 2.06(d) hereof of the Base Rate Portion and
each Funding Segment of the Euro-Rate Portion to be converted to (in
the case of Tranche 1 Loans and Tranche 2 Loans only); and
(z) With respect to each Funding Segment to be converted to (in
the case of Tranche 1 Loans and Tranche 2 Loans only) or renewed, the
Funding Period selected in accordance with Section 2.06(c) hereof to
apply to such Funding Segment.
Standard Notice having been so provided, after the date specified in such
Standard Notice, interest shall be calculated upon the
50
principal amount of the Loans as so converted or renewed. Interest on the
principal amount of any part of the Loans converted or renewed (automatically or
otherwise) shall be due and payable on the conversion or renewal date.
(b) FAILURE TO CONVERT OR RENEW. Absent due notice from the
Borrower of conversion or renewal in the circumstances described in Section
2.07(a)(ii) hereof, (i) any part of the Euro-Rate Portion of the Tranche 1 Loans
or the Tranche 2 Loans for which such notice is not received shall be converted
automatically to the Base Rate Option on the last day of the expiring Funding
Period and (ii) any part of the Euro-Rate Portion of the Tranche 3 Loans for
which such notice is not received shall be renewed with a Funding Period of one
month.
2.08. PREPAYMENTS GENERALLY. Whenever the Borrower desires or is
required to prepay any part of its Loans, it shall provide Standard Notice to
the Agent setting forth the following information:
(i) Whether such prepayment is to be applied to the Tranche 1
Loans, the Tranche 2 Loans or the Tranche 3 Loans;
(ii) The date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(iii) The total principal amount of such prepayment, which shall
be the sum of the principal amounts selected pursuant to clause
(a)(iv) of this Section 2.08; and
(iv) The principal amounts selected in accordance with Section
2.06(d) hereof of the Base Rate Portion and each part of each Funding
Segment of the Euro-Rate Portion to be prepaid.
Standard Notice having been so provided, on the date specified in such Standard
Notice, the principal amounts of the Base Rate Portion and each part of the
Euro-Rate Portion specified in such notice, together with interest on each such
principal amount to such date, shall be due and payable.
2.09. OPTIONAL PREPAYMENTS. (a) The Borrower shall have the
right at its option from time to time to prepay its Loans in whole or part
without premium or penalty (subject, however, to Section 2.13(b) hereof):
(i) At any time with respect to any part of the Base Rate
Portion; or
51
(ii) At the expiration of any Funding Period with respect to
prepayment of the Euro-Rate Portion with respect to any part of the
Funding Segment corresponding to such expiring Funding Period.
Any such prepayment shall be made in accordance with Section 2.08 hereof.
(b) Optional prepayment, if made, shall be in integral multiples
of $1,000,000.
(c) Unless the Borrower elects (which it may do) to apply an
optional prepayment to the Term Loans in the inverse order of their scheduled
maturities, optional prepayments of the Term Loans shall be applied as follows:
(i) First, to the next scheduled installment of principal due
under the Term Loans (it being understood that if, on the
date of such next scheduled installment, there are
installments due under the Tranche 2 Loans and the Tranche 3
Loans, such optional prepayments shall be applied on a pro
rata basis among the two).
(ii) Second, to the remaining installments due under the Term
Loans, on a pro rata basis among all the installments.
2.10. MANDATORY PREPAYMENTS.
(a) BORROWING BASE. If on any date any Borrowing Base Certificate
is required to be furnished pursuant to Section 2.16(e) hereof the aggregate
principal amount of the Total Tranche 1 Credit Exposure of the Tranche 1 Lenders
exceeds the Borrowing Base, the Borrower shall prepay (on the prepayment date
described in the last sentence of this paragraph) a principal amount of the
Tranche 1 Loans (and, to the extent of undrawn Letters of Credit, provide cash
collateral therefor in accordance with the terms hereof) in an aggregate amount
not less than the amount of such excess. The provision of cash collateral in
accordance with Section 2.25 hereof for Letters of Credit issued under this
Agreement shall be equivalent to the making of a prepayment under this Section
2.10(a). Concurrently with the delivery of any Borrowing Base Certificate which
shows such an excess, the Borrower shall give notice to the Agent of such
prepayment in accordance with Section 2.08 hereof, which notice shall specify a
prepayment date no later than three Business Days after the date of delivery of
such Borrowing Base Certificate.
52
(b) INSURANCE PROCEEDS AND CONDEMNATION AWARDS. The Borrower
shall prepay a principal amount of the Loans from time to time in an amount not
less than the amount of Net Proceeds (as defined in Section 2.06 of the
Mortgage) of casualty insurance or of any condemnation award not used for the
payment of costs of restoring improvements and equipment in accordance with such
Section 2.06. Such prepayment shall be made on the earliest date on which it
shall have been determined that the Borrower will not, or is not entitled under
such Section 2.06 to, apply such proceeds to such restoration. Such prepayment
shall be applied as set forth in Exhibit KK-1997.
(c) APPLICABILITY OF CERTAIN PROVISIONS. Prepayments required by
this Section 2.10 are subject to all of the terms and conditions applicable to
prepayments generally pursuant to Section 2.08 hereof and Section 2.13(b) hereof
and to all of the terms and conditions applicable to optional prepayments
pursuant to Section 2.09 hereof, except that Sections 2.08(a)(iv) and 2.09(b)
hereof shall not apply to such prepayments to the extent necessary to comply
with this Section 2.10. If the Borrower is required to give notice of a
prepayment but for any reason fails to give a notice in accordance with the
provisions of this Agreement, the amount as to which the Borrower is required to
have given notice of prepayment shall nevertheless be deemed due and payable as
of the date required to have been prepaid (for purposes of calculating interest
on such amounts pursuant to Section 2.12(c) hereof and otherwise).
2.11. INTEREST PAYMENT DATES. Interest on the Base Rate Portion
shall be due and payable in arrears on each Regular Payment Date. Interest on
each Funding Segment of the Euro-Rate Portion shall be due and payable on the
last day of the corresponding Euro-Rate Funding Period and, if such Euro-Rate
Funding Period is longer than three months, also every third month during such
Funding Period. After maturity of any part of the Loans (by acceleration or
otherwise), interest on such part of the Loans shall be due and payable on
demand.
2.12. PRO RATA TREATMENT; PAYMENTS GENERALLY; INTEREST ON OVERDUE
AMOUNTS.
(a) PRO RATA TREATMENT.
(i) TRANCHE 1 LOANS. Each borrowing and conversion and renewal of
interest rate Options hereunder shall be made, and all payments made
in respect of principal, interest, Tranche 1 Commitment Fees, and
Letter of Credit Fees due from the Borrower hereunder with respect to
Tranche 1 Loans or under the Tranche 1 Notes shall be applied Pro Rata
among the Tranche 1 Lenders, except for
53
payments of interest involving an Affected Lender as provided in
Section 2.06(e) hereof and payments to a Lender subject to a
withholding deduction under Section 2.14(c) hereof and payments of the
Commitment Fee, which shall be calculated in accordance with Section
2.02(a)(i) hereof. The failure of any Tranche 1 Lender to make a
Tranche 1 Loan (or the failure of any other Lender to make any other
Loan) shall not relieve any other Tranche 1 Lender of its obligation
to lend hereunder, but neither the Agent nor any other Lender shall be
responsible for the failure of any other Lender to make a Tranche 1
Loan.
(ii) TRANCHE 2 LOANS. Each borrowing and conversion and renewal
of interest rate Options hereunder shall be made, and all payments
made in respect of principal, interest and Tranche 2 Commitment Fees
due from the Borrower hereunder with respect to Tranche 2 Loans or
under the Tranche 2 Notes shall be applied Pro Rata among the Tranche
2 Lenders, except for payments of interest involving an Affected
Lender as provided in Section 2.06(e) hereof and payments to a Lender
subject to a withholding deduction under Section 2.14(c) hereof. The
failure of any Tranche 2 Lender to make a Tranche 2 Loan (or the
failure of any other Lender to make any other Loan) shall not relieve
any other Tranche 2 Lender of its obligation to lend hereunder, but
neither the Agent nor any other Lender shall be responsible for the
failure of any other Lender to make a Tranche 2 Loan.
(iii) TRANCHE 3 LOANS. Each borrowing and renewal of interest
rate Options hereunder shall be made, and all payments made in respect
of principal and interest due from the Borrower hereunder with respect
to Tranche 3 Loans or under the Tranche 3 Notes shall be applied Pro
Rata among the Tranche 3 Lenders, except for payments of interest
involving an Affected Lender as provided in Section 2.06(e) hereof and
payments to a Lender subject to a withholding deduction under Section
2.14(c) hereof. The failure of any Tranche 3 Lender to make a Tranche
3 Loan (or the failure of any other Lender to make any other Loan)
shall not relieve any other Tranche 3 Lender of its obligation to lend
hereunder, but neither the Agent nor any other Lender shall be
responsible for the failure of any other Lender to make a Tranche 3
Loan.
(b) PAYMENTS GENERALLY. All payments and prepayments to be made
by any Loan Party in respect of principal, interest, fees, indemnity, expenses
or other amounts due from any Loan Party hereunder or under any Loan Document
shall be payable in Dollars at 12:00 o'clock Noon, Pittsburgh time, on the day
when
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due without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived, and an action therefor shall immediately accrue,
without setoff, counterclaim, withholding or other deduction of any kind or
nature, except for payments to a Lender subject to a withholding deduction under
Section 2.14(c) hereof. Except for payments under Sections 2.13, 2.22 and 9.06
hereof, such payments shall be made to the Agent at its Office in Dollars in
funds immediately available at such Office, and payments under Sections 2.13,
2.22 and 9.06 hereof shall be made to the applicable Lender or Issuing Bank at
such domestic account as it shall specify to the Borrower from time to time in
funds immediately available at such account. Any payment or prepayment received
by the Agent or such Lender or Issuing Bank after 12:00 o'clock Noon, Pittsburgh
time, on any day shall be deemed to have been received on the next succeeding
Business Day. The Agent shall distribute to the Lenders all such payments
received by it from any Loan Party as promptly as practicable after receipt by
the Agent, but in any event by 2:00 o'clock P.M., Pittsburgh time, if received
by 12:00 o'clock Noon, Pittsburgh time.
(c) INTEREST ON OVERDUE AMOUNTS. To the extent permitted by law,
after there shall have become due (by acceleration or otherwise) principal,
interest, fees, indemnity, expenses or any other amounts due from any Loan Party
hereunder or under any other Loan Document, such amounts shall bear interest for
each day until paid (before and after judgment), payable on demand, at a rate
per annum (in each case based on a year of 365 days and actual days elapsed)
which for each day shall be equal to the following:
(i) In the case of any part of the Euro-Rate Portion of any
Loans, (A) until the end of the applicable then-current Funding Period
at a rate per annum 2% above the rate otherwise applicable to such
part, and (B) thereafter in accordance with the following clause (ii);
and
(ii) In the case of any other amount due from any Loan Party
hereunder or under any Loan Document, 2% above the then-current Base
Rate Option applicable to Tranche 1 Loans or Tranche 2 Loans.
To the extent permitted by law, interest accrued on any amount which has become
due hereunder or under any Loan Document shall compound on a day-by-day basis,
and hence shall be added daily to the overdue amount to which such interest
relates.
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2.13. ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES.
(a) INCREASED COSTS OR REDUCED RETURN RESULTING FROM TAXES,
RESERVES, CAPITAL ADEQUACY REQUIREMENTS, EXPENSES, ETC. If any Law or guideline
or interpretation or application thereof by any Governmental Authority charged
with the interpretation or administration thereof or compliance with any request
or directive of any Governmental Authority (whether or not having the force of
law) now existing or hereafter adopted:
(i) subjects any Lender or any Notional Euro-Rate Funding Office
to any tax or changes the basis of taxation with respect to this
Agreement, the Notes, the Loans or payments by any Loan Party of
principal, interest, commitment fee or other amounts due from the
Borrower hereunder or under the Notes (except for taxes on the overall
net income or overall gross receipts of such Lender or such Notional
Euro-Rate Funding Office imposed by the jurisdictions (federal, state
and local) in which the Lender's principal office or Notional
Euro-Rate Funding Office is located),
(ii) imposes, modifies or deems applicable any reserve, special
deposit or similar requirement against credits or commitments to
extend credit extended by, assets (funded or contingent) of, deposits
with or for the account of, other acquisitions of funds by, such
Lender or any Notional Euro-Rate Funding Office (other than
requirements expressly included herein in the determination of the
Euro-Rate hereunder),
(iii)imposes, modifies or deems applicable any capital adequacy
or similar requirement (A) against assets (funded or contingent) of,
or credits or commitments to extend credit extended by, any Lender or
any Notional Euro-Rate Funding Office, or (B) otherwise applicable to
the obligations of any Lender or any Notional Euro-Rate Funding Office
under this Agreement, or
(iv) imposes upon any Lender or any Notional Euro-Rate Funding
Office any other condition or expense with respect to this Agreement,
the Notes or its making, maintenance or funding of any Loan or any
security therefor,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Lender, any Notional Euro-Rate Funding Office or, in the case of clause (iii)
hereof, any Person controlling a Lender, with respect to this Agreement,
56
the Notes or the making, maintenance or funding of any Loan (or, in the case of
any capital adequacy or similar requirement, to have the effect of reducing the
rate of return on such Lender's or controlling Person's capital, taking into
consideration such Lender's or controlling Person's policies with respect to
capital adequacy) by an amount which such Lender deems to be material (such
Lender being deemed for this purpose to have made, maintained or funded each
Funding Segment of the Euro-Rate Portion from a Corresponding Source of Funds),
such Lender may from time to time notify the Borrower of the amount determined
in good faith (using any averaging and attribution methods) by such Lender
(which determination shall be conclusive absent manifest error) to be necessary
to compensate such Lender or such Notional Euro-Rate Funding Office for such
increase, reduction or imposition. Such amount shall be due and payable by the
Borrower to such Lender fifteen Business Days after such notice is given,
together with an amount equal to interest on such amount from the date two
Business Days after the date demanded until such due date at the Base Rate
Option applicable to Term Loans. A certificate by such Lender as to the amount
due and payable under this Section 2.13(a) from time to time and the method of
calculating such amount shall be conclusive absent manifest error. Each Lender
agrees that it will use good faith efforts to notify the Borrower of the
occurrence of any event that would give rise to a payment under this Section
2.13(a); PROVIDED, however, that any failure of such Lender to give any such
notice shall have no effect on any Loan Party's obligations hereunder.
(b) FUNDING BREAKAGE. In addition to all other amounts payable
hereunder, if and to the extent for any reason any part of any Funding Segment
of any Euro-Rate Portion of the Loans becomes due (by acceleration or
otherwise), or is paid, prepaid or converted to another interest rate Option
(whether or not such payment, prepayment or conversion is mandatory or automatic
and whether or not such payment or prepayment is then due), on a day other than
the last day of the corresponding Funding Period (the date such amount so
becomes due, or is so paid, prepaid or converted, being referred to as the
"Funding Breakage Date"), the Borrower shall pay each Lender an amount ("Funding
Breakage Indemnity") determined by such Lender as follows:
(i) first, calculate the following amount: (A) the principal
amount of such Funding Segment of the Loans owing to such Lender which
so became due, or which was so paid, prepaid or converted, times (B)
the greater of (x) zero or (y) the rate of interest applicable to such
principal amount on the Funding Breakage Date minus the Treasury Rate
as of the Funding Breakage Date, times (C) the number of days from
57
and including the Funding Breakage Date to but not including the last
day of such Funding Period, times (D) 1/360;
(ii) the Funding Breakage Indemnity to be paid by the Borrower to
such Lender shall be the amount equal to the present value as of the
Funding Breakage Date (discounted at the Treasury Rate as of such
Funding Breakage Date, and calculated on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed) of the amount
described in the preceding clause (i) (which amount described in the
preceding clause (i) is assumed for purposes of such present value
calculation to be payable on the last day of the corresponding Funding
Period).
Such Funding Breakage Indemnity shall be due and payable on demand, and each
Lender shall, upon making such demand, notify the Agent of the amount so
demanded. In addition, the Borrower shall, on the due date for payment of any
Funding Breakage Indemnity, pay to such Lender an additional amount equal to
interest on such Funding Breakage Indemnity from the Funding Breakage Date to
but not including such due date at the Base Rate Option (calculated on the basis
of a year of 365 days and actual days elapsed). The amount payable to each
Lender under this Section 2.13(b) shall be determined in good faith by such
Lender, and such determination shall be conclusive.
2.14 TAXES.
(a) PAYMENTS NET OF TAXES. All payments made by any Loan Party
under this Agreement or any other Loan Document shall be made free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
EXCLUDING (x) in the case of each Lender and the Agent, net income taxes (but
not withholding taxes imposed on gross interest income) imposed on such Lender
or the Agent (as the case may be) by the United States, and net income taxes and
franchise taxes imposed on such Lender or the Agent (as the case may be) by the
jurisdiction under the laws of which such Lender or the Agent (as the case may
be) is organized or by any political subdivision thereof, and (y) in the case of
each Lender, net income taxes and franchise taxes imposed on such Lender by the
jurisdiction in which is located the Lender's lending office which makes or
books a particular extension of credit hereunder or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deduction, charges,
withholdings and liabilities being referred to as "Taxes"). If any Loan Party
shall be required by law to deduct any Taxes from or in respect of any sum
payable under this Agreement or any other Loan Document to the Lender or the
Agent, (i) the sum payable shall be increased as may be
58
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Loan Party shall make such
deductions, and (iii) such Loan Party shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) OTHER TAXES. 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 under this
Agreement or any other Loan Document or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any other Loan
Document (hereinafter referred to as "Other Taxes").
(c) INDEMNITY. The Borrower will indemnify each Lender and the
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.14) paid by such Lender or the Agent (as the case
may be) and any liability (including, without limitation, penalties, interest
and expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. This indemnification
shall be made within 30 days from the date such Lender or the Agent (as the case
may be) makes written demand therefor.
(d) RECEIPTS, ETC. Within 45 days after the date of any payment
of Taxes or Other Taxes, the Borrower will furnish to the Agent the original or
a certified copy of a receipt evidencing payment thereof.
(e) OTHER. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the obligations of the Borrower contained
in this Section 2.14 shall survive the payment in full of all other obligations
of the Borrower under this Agreement and the other Loan Documents, termination
of all commitments to extend credit under, and all letters of credit issued
under, the Loan Documents, and all other events and circumstances whatever.
Nothing in this Section 2.14 or otherwise in this Agreement shall require the
Agent or any Lender to disclose to the Borrower any of its tax returns (or any
other information that it deems to be confidential or proprietary).
(f) WITHHOLDING TAX EXEMPTION.
(i) Each Lender organized under the laws of a jurisdiction
outside the United States shall, on the date such
59
Lender becomes party to this Agreement, and from time to time thereafter if
requested in writing by the Borrower or the Agent, provide the Agent and the
Borrower with the forms prescribed by the United States Internal Revenue Service
certifying as to such Lender's status for purposes of determining exemption
from, or reduced rate applicable to, United States withholding taxes with
respect to payments to be made to such Lender under this Agreement and the other
Loan Documents; PROVIDED, that a Lender shall not be obligated to provide any
such form after the date such Lender becomes party to this Agreement if such
Lender is not legally able to do so.
(ii) The Borrower shall not be required to indemnify any Lender,
or to pay any additional amounts to any Lender, in respect of United States
withholding taxes (or any withholding tax imposed by a state of the United
States that applies only when such United States withholding tax is imposed),
pursuant to Sections 2.14(a) or 2.14(c), to the extent that: (A) the obligation
to withhold amounts with respect to United States withholding tax existed on the
date such Lender became a party to this Agreement; PROVIDED, that this clause
(A) shall not apply to a Lender that became a Lender as a result of an
assignment made or other action taken at the request of the Borrower, or (B) the
obligation to make such indemnification or to pay such additional amounts would
not have arisen but for a failure of such Lender to comply with the provisions
of Section 2.14(f)(i).
(iii) If the Borrower is required under Section 2.14(a) or
2.14(c) to indemnify any Lender organized under the laws of a jurisdiction
outside the United States, or to pay additional amounts to any such Lender, in
respect of United States withholding taxes (or any withholding tax imposed by a
state of the United States that applies only when such United States withholding
tax is imposed), and such Lender (herein the "Tax Affected Lender") does not
waive the requirement for such indemnification or payment after request by the
Borrower that it do so, then, if the Borrower finds a financial institution
which offers in writing to purchase all such Tax Affected Lender's outstanding
Notes and Commitments, in accordance with Section 9.14(c), at a price equal to
the full outstanding principal amount thereof together with accrued and unpaid
interest and fees to the date of purchase and all other amounts accrued or
payable to such Tax Affected Lender to the date of purchase (including but not
limited to funding breakage under Section 2.13(b) to the extent such date of
purchase falls within a Euro-Rate Funding Period), such Tax Affected Lender will
accept such offer. Nothing in this Section 2.14(f) shall limit the rights of the
Agent and the Issuing Bank under Section 9.14(c) or shall require a Lender which
is also the Agent or the Issuing Bank to accept any such offer.
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(iv) The lender designated on Exhibit EE (the "Designated
Lender") makes the following representations and covenants: (A) it is not a bank
as such term is used in Section 881(c)(3)(A) of the Code, (B) it is not a
10-percent shareholder of the Borrower as that term is used in Section
881(c)(3)(B) of the Code, (C) it is not a controlled foreign corporation as that
term is used in Section 881(c)(3)(C) of the Code, (D) it is the beneficial owner
of the rights which it holds under this Agreement, (E) it will provide the
Borrower with a completed Form W-8 or other appropriate statement to the effect
that it is not a U.S. person in such form and with such other information as
will satisfy the requirements of Section 881(c)(2)(B)(ii) of the Code, and (F)
it will notify the Borrower and the Agent of any change relevant to its ability
to make the representations and covenants provided in (A) through (E) above.
2.15. FUNDING BY BRANCH, SUBSIDIARY OR AFFILIATE.
(a) NOTIONAL FUNDING. Each Lender shall have the right from time
to time, prospectively or retrospectively, without notice to the Borrower, to
deem any branch, subsidiary or affiliate of such Lender to have made, maintained
or funded any part of the Euro-Rate Portion at any time. Any branch, subsidiary
or affiliate so deemed shall be known as a "Notional Euro-Rate Funding Office."
Such Lender shall deem any part of the Euro-Rate Portion of the Loans or the
funding therefor to have been transferred to a different Notional Euro-Rate
Funding Office if such transfer would avoid or cure an event or condition
described in Section 2.06(e)(ii) hereof or would lessen compensation payable by
the Borrower under Section 2.13(a) hereof, and if such Lender determines in its
sole discretion that such transfer would be practicable and would not have a
material adverse effect on such part of the Loans, such Lender or any Notional
Euro-Rate Funding Office (it being assumed for purposes of such determination
that each part of the Euro-Rate Portion is actually made or maintained by or
funded through the corresponding Notional Euro-Rate Funding Office). Notional
Euro-Rate Funding Offices may be selected by such Lender without regard to such
Lender's actual methods of making, maintaining or funding Loans or any sources
of funding actually used by or available to such Lender.
(b) ACTUAL FUNDING. Each Lender shall have the right from time to
time to make or maintain any part of the Euro-Rate Portion by arranging for a
branch, subsidiary or affiliate of such Lender to make or maintain such part of
the Euro-Rate Portion. Such Lender shall have the right to (i) hold any
applicable Note payable to its order for the benefit and account of such branch,
subsidiary or affiliate or (ii) request the
61
Borrower to issue one or more promissory notes in the principal amount of such
Euro-Rate Portion, in substantially the form attached hereto as Exhibit
A-1-1997, Exhibit A-2-1997 or Exhibit A-3-1997, as the case may be, with the
blanks appropriately filled, payable to such branch, subsidiary or affiliate and
with appropriate changes reflecting that the holder thereof is not obligated to
make any additional Loans to the Borrower. The Borrower agrees to comply
promptly with any request under subsection (ii) of this Section 2.15(b). If any
Lender causes a branch, subsidiary or affiliate to make or maintain any part of
the Euro-Rate Portion hereunder, all terms and conditions of this Agreement
shall, except where the context clearly requires otherwise, be applicable to
such part of the Euro-Rate Portion and to any note payable to the order of such
branch, subsidiary or affiliate to the same extent as if such part of the
Euro-Rate Portion were made or maintained and such note were a Revolving Credit
Note or Term Loan Note, as the case may be, payable to such Lender's order.
2.16. BORROWING BASE.
(a) BORROWING BASE. The "Borrowing Base" at any time shall mean
the sum, at the date of the most recent Borrowing Base Certificate required to
be furnished pursuant to Section 2.16(e) hereof, of
(i) 80% of the Depreciated Book Value of Specified Fixed Assets,
PLUS
(ii) the sum of (A) 85% of the Net Value of Eligible Receivables;
PLUS
(B) the sum of 65% of the Net Value of Commercial Grade Finished
Goods, PLUS 50% of the Net Value of Other Finished Goods, PLUS 65% of the Net
Value of Work in Process, PLUS 65% of the Net Value of Cold Mill Work in Process
Inventory, plus 65% of the Net Value of Direct Reduced Iron Inventory, PLUS 65%
of the Net Value of Scrap, PLUS 50% of the Net Value of Other Raw Materials,
PLUS 30% of the Net Value of Spares, in each case which are owned by the
Borrower and which meet each of the requirements for Eligible Inventory set
forth in Section 2.16(d) hereof and in the case of Commercial Grade Finished
Goods and Other Finished Goods are held for sale by the Borrower in the ordinary
course of its business; PROVIDED that the sum calculated under this subclause
(ii)(B) shall not constitute more than 65% of the sum calculated under this
clause (ii).
(b) ELIGIBLE RECEIVABLES. "Eligible Receivable" at any time shall
mean all rights to payments due and to become due to the Borrower (each such
right, a "Receivable" and
62
collectively, "Receivables") which meet each of the following requirements at
such time:
(i) The Borrower has good title to such Receivable, free and
clear of any Lien, except for the Liens in favor of the Agent for the
benefit of the Lenders and the Agent securing the Obligations, and
such Receivable is subject to such a valid and perfected Lien in favor
of the Agent;
(ii) Such Receivable constitutes an "account" as defined in the
Uniform Commercial Code as in effect in the State of Indiana (and,
accordingly, without limitation, is not evidenced by any promissory
note or other instrument);
(iii) Such Receivable arises from the sale of goods or rendering
of services performed by the Borrower in the ordinary course of its
business. Such transaction was effected pursuant to the Borrower's
ordinary and customary policies, practices and procedures, including
but not limited to credit policies;
(iv) Such Receivable is collectible, is not disputed, and
represents an unconditional payment obligation in favor of the
Borrower. All services in connection with such Receivable have been
rendered and all merchandise sold in connection with such Receivable
has been shipped (other than merchandise with respect to Receivables
not exceeding $5,000,000 in the aggregate at any time, which
merchandise is being temporarily held pending shipment) and has not
been subject to return, rejection, repossession, dispute, offset,
defense or counterclaim (including but not limited to any claim for
credits, allowances or adjustments). No contra account or other
obligation, contingent or otherwise, exists from the Borrower to such
obligor;
(v) Such Receivable has been fully invoiced by the Borrower, is
payable by its terms in full in Dollars on ordinary trade terms, and
in any event is payable no later than 30 days (or with respect to
Receivables aggregating no more than $10,000,000 and the obligor of
which is not ▇▇▇▇▇▇▇▇ or Preussag, no later than 60 days) after its
original invoice date. The due date of such Receivable has not been
extended. Such Receivable is payable by the obligor to the lockbox
account referred to in the Security Documents and the obligor has been
so instructed;
(vi) The related invoice has not remained unpaid for more than 90
days past its original invoice date;
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(vii) The obligor on such Receivable (A) is a Person whose
principal office is located in the United States (unless the
obligations of such Person or such Receivable are backed up by a
Letter of Credit or export credit insurance in an amount and in a
manner reasonably satisfactory to, and issued by an issuer reasonably
satisfactory to, the Agent), (B) is not the Borrower or an Affiliate
of the Borrower, other than ▇▇▇▇▇▇▇▇, General Electric Corporation or
one of its Affiliates, ▇.▇. ▇▇▇▇▇▇▇ and Company or one of its
Affiliates or Preussag or one of its Affiliates, (C) is not the United
States of America, any State, municipality or Governmental Authority
(unless the security interest of the Agent therein is effectively
perfected and assigned under the Federal Assignment of Claims Act or
other relevant statute in a manner satisfactory to the Agent) and (D)
is not insolvent, subject to any bankruptcy, insolvency or similar
proceeding or unable to pay its debts as they become due;
(viii) Such Receivable shall not have arisen out of a contract or
agreement which by its terms purports to forbid or make void or
unenforceable any assignment thereof or Lien thereon;
(ix) In the event a single obligor (other than ▇▇▇▇▇▇▇▇ or
Preussag) shall account for more than 10% of the aggregate dollar
amount of all rights to payment due and to become due to the Borrower,
the Receivables owed by such obligor shall only include the dollar
amount equal to said 10%;
(x) On or prior to September 30, 1997, in the event the dollar
amount of all rights to payment due and to become due to the Borrower
from ▇▇▇▇▇▇▇▇ shall exceed $12,000,000, the Receivables owed by
▇▇▇▇▇▇▇▇ shall only include $12,000,000;
(xi) After September 30, 1997, in the event ▇▇▇▇▇▇▇▇ shall
account for more than the Applicable ▇▇▇▇▇▇▇▇ Percentage Limit of the
aggregate dollar amount of all rights to payment due and to become due
to the Borrower, the Receivables owed by ▇▇▇▇▇▇▇▇ shall only include
the dollar amount equal to said Applicable ▇▇▇▇▇▇▇▇ Percentage Limit
("Applicable ▇▇▇▇▇▇▇▇ Percentage Limit" being defined as (x) 40% from
October 1, 1997 to September 30, 1998, inclusive, (y) 35% from October
1, 1998 to September 30, 1999, inclusive, and (z) 30% thereafter);
(xii) In the event Preussag shall account for more than the 30%
of the aggregate dollar amount of all rights to payment due and to
become due to the Borrower, the
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Receivables owed by Preussag shall only include the dollar amount
equal to said 30%; and
(xiii) Not more than 20% of the aggregate number or aggregate
amount of all invoices (excluding amounts in dispute) of the Borrower
to the obligor on such Receivable remain unpaid 90 days past their
respective invoice dates.
Notwithstanding the foregoing, "Eligible Receivable" shall not include (A) any
Receivable with respect to which the account debtor's obligation to pay is
conditional upon such account debtor's approval or is otherwise subject to any
repurchase obligation or return right, as with sales made on a ▇▇▇▇-and-hold
(except as permitted by clause (iv) above), guaranteed sale, sale-and-return,
sale on approval or consignment basis; (B) any Receivable with respect to which
the account debtor is domiciled or has its principal place of business or chief
executive office in Indiana, Minnesota, New Jersey or any other state denying
creditors access to its courts in the absence of a Notice of Business Activities
Report (which in Indiana, Minnesota and New Jersey are currently required by
▇▇▇▇▇ In. Stat. ▇▇▇. ss. 6-8.1-6-6, 1988 Minn. Sess. Law Serv. Sec. 41 (West)
and N.J. Stat. ▇▇▇. ss. 14A.13-18, respectively) or other similar filing, unless
a current Notice of Business Activities Report or similar filing has been made
with the applicable state agency (and a copy thereof provided to the Agent) or
unless an exemption from such requirement exists; or (C) any Receivable
generated by the sale of merchandise which is being held pending shipment in any
public warehouse or premises leased by the Borrower, or any other premises not
owned by the Borrower, if the bailee, landlord or owner thereof has not
consented in writing to the existence and first priority of the Liens in favor
of the Agent for the benefit of the Lenders and the Agent securing the
Obligations and the Agent's right to enter such warehouse or premises and take
possession of and remove such merchandise. Any Receivable which is at any time
an Eligible Receivable, but which subsequently fails to meet any of the
foregoing requirements, shall forthwith cease to be an Eligible Receivable until
such time as it once again meets all of the foregoing requirements.
The "Net Value" of an Eligible Receivable shall be its face amount, net of any
discount for prompt payment (and net of any other amount representing payment of
finance charges, late charges, or interest (however denominated)), and net of
any portion thereof which constitutes payment of sales, use or other taxes.
(c) CERTAIN ADJUSTMENTS AND EXCLUSIONS. The Agent, upon the
direction of the Required Lenders, from time to time may adjust the percentages
or dollar amounts set forth in Section
65
2.16(a) or exclude any otherwise Eligible Receivables from the class of Eligible
Receivables, in each case based on reasonable determinations as to the
creditworthiness of the obligor, as to the aggregate amount of receivables owing
by such obligor and its affiliates, or as to such other and further eligibility
standards as the Required Lenders may reasonably elect to impose from time to
time; provided, however, that neither the percentages nor the dollar amounts set
forth in Section 2.16(a) may be increased without the written consent of all the
Lenders. The Agent shall give notice to the Borrower of the terms of any such
adjustment or exclusion at least thirty days prior to the effective date
thereof. Except as otherwise expressly stated in such notice, all such
exclusions shall be continuing and cumulative, and an exclusion as to any
obligor shall apply in the aggregate to all receivables of such obligor and its
affiliates. The Borrower shall, not later than one Business Day after the Agent
effects any such exclusion, deliver to the Agent a revised Borrowing Base
Certificate reflecting the Borrowing Base as redetermined in accordance with
such exclusion. The making of a Revolving Credit Loan in reliance on a Borrowing
Base Certificate shall not affect the Lenders' right later to exclude any
receivables in accordance with this Section 2.16(c). No Eligible Receivable
excluded under this Section 2.16(c) shall be included by the Borrower in any
later Borrowing Base Certificate without written permission by the Agent.
(d) ELIGIBLE INVENTORY. "Eligible Inventory" shall mean at any
time (i) Commercial Grade Finished Goods, (ii) Other Finished Goods, (iii)
Scrap, (iv) Other Raw Materials, (v) Spares, (vi) Work in Process, (vii) Cold
Mill Work in Process Inventory and (viii) Direct Reduced Iron Inventory, in each
case owned by the Borrower and held for sale by the Borrower in the ordinary
course of its business which meet each of the following requirements at such
time:
(i) The Borrower has good title to such Inventory, free and clear
of any Lien, except for the Liens in favor of the Agent for the
benefit of the Lenders and the Agent securing the Obligations, and
such Inventory and proceeds thereof is subject to such a valid and
perfected Lien in favor of the Agent;
(ii) Such Inventory is in good and merchantable condition, is
readily salable by the Borrower in the ordinary course of its business
and has not been held by the Borrower for more than 180 days;
(iii) Such Inventory is located in the United States and is in
the possession of the Borrower; and
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(iv) Such Inventory conforms to such other eligibility
standards as the Required Lenders reasonably may impose from time to
time by notice to the Borrower of such eligibility standards at least
thirty days prior to the effective date thereof.
Notwithstanding the foregoing, no Inventory shall constitute Eligible Inventory
(A) if, at the request of the Borrower, the Lenders release their security
interest therein, (B) if it is produced in violation of the Fair Labor Standards
Act and subject to the so-called "hot goods" provision contained in Title 219,
ss.215(a)(1) of the United States Code, (C) if it is finished goods held for
consumption by the Borrower and not for sale in the ordinary course of business,
(D) if it is full, hard cold rolled steel or cold rolled steel in the process of
annealing and tempering, or (E) if it is located in any public warehouse or
premises leased by the Borrower, or any other premises not owned by the
Borrower, where the bailee, landlord or owner thereof has not consented in
writing to the existence and first priority of the Liens in favor of the Agent
for the benefit of the Lenders and the Agent securing the Obligations and the
Agent's right to enter such warehouse or premises and take possession of and
remove such Inventory. Any Inventory which is at any time Eligible Inventory,
but which subsequently fails to meet any of the foregoing requirements, shall
forthwith cease to be Eligible Inventory until such time as it once again meets
all of the foregoing requirements.
The "Net Value" of Eligible Inventory shall be the Borrower's book value of such
Eligible Inventory at lower of cost or market, net of all reserves against such
Eligible Inventory required by GAAP, with "cost" calculated on a first-in,
first-out basis, all determined in accordance with GAAP.
(e) BORROWING BASE CERTIFICATES. From time to time as specified
herein the Borrower shall furnish to the Agent a certificate ("Borrowing Base
Certificate") substantially in the form of Exhibit D hereto, appropriately
completed, signed by a Responsible Officer of the Borrower and setting forth the
Borrowing Base and the other information required therein. Borrowing Base
Certificates shall be delivered to the Agent:
(i) on the first Business Day of each calendar quarter, and if on
any day during any calendar month Revolving Credit Loans are
outstanding, on the first Business Day of the next succeeding month;
(ii) as required by Section 2.16(c) hereof; and
67
(iii) not later than two Business Days after the reasonable
request therefor by the Agent at the direction of the Required Lenders
from time to time.
To the extent the Borrower is required to deliver a Borrowing Base Certificate
on a particular day (A) the Eligible Receivables reflected on such Borrowing
Base Certificate and the Net Value applicable thereto shall be determined as of
a day (which shall be specified in the Borrowing Base Certificate) not earlier
than the Business Day before the day the Borrower is required to deliver such
Borrowing Base Certificate, and (B) the Eligible Inventory reflected on such
Borrowing Base Certificate and the Net Value applicable thereto shall be
determined as of a day (which shall be specified in the Borrowing Base
Certificate) not earlier than the Business Day before the day the Borrower is
required to deliver such Borrowing Base Certificate, PROVIDED, however, that
such date of determination may be a day not earlier than 40 days before the day
the Borrower is required to deliver such Borrowing Base Certificate, if the
Borrowing Base Certificate includes certification that there has been no
material decrease in the Net Value of Eligible Inventory since such specified
date. The Borrowing Base set forth in any such Borrowing Base Certificate shall
be effective until delivery of a subsequent Borrowing Base Certificate.
(f) Any failure to comply with the requirements of Section 2.10
with respect to a principal amount of Loans not exceeding the lesser of
$5,000,000 and an amount equal to 15% of the Borrowing Base for a period not
longer than five Business Days shall be deemed to have been waived by the
Lenders if the Agent, in the exercise of its sole and absolute discretion,
determines such waiver to be appropriate.
2.17. THE LETTER OF CREDIT SUBFACILITY.
(a) GENERAL. The Issuing Bank has issued Letters of Credit
pursuant to the Original Agreement, which remain outstanding. Subject to the
terms and conditions of this Agreement, and relying upon the representations and
warranties herein set forth and upon the agreements of the Tranche 1 Lenders set
forth in Sections 2.19 and 2.20 hereof, the Issuing Bank agrees to issue Letters
of Credit for the account of the Borrower at any time or from time to time on or
after the Restatement Date; PROVIDED, however, that (i) the Issuing Bank shall
have no obligation to, and shall not, issue any Letter of Credit if the
aggregate Letter of Credit Exposure upon such issuance would exceed $25,000,000
and (ii) the Issuing Bank shall have no obligation to, and shall not, issue any
Letter of Credit if the aggregate Total Tranche 1 Credit Exposure of all Tranche
1
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Lenders upon such issuance would exceed the lesser of (x) the aggregate Tranche
1 Committed Amounts of the Tranche 1 Lenders at such time and (y) the Borrowing
Base at such time. The issuance of a Letter of Credit shall be equivalent to the
making of a Tranche 1 Loan in accordance with Section 2.01 hereof.
(b) TERMS OF LETTERS OF CREDIT. The Borrower shall not request
any Letter of Credit to be issued except within the following limitations: (i)
each Letter of Credit shall have an expiration date no later than the earlier of
(A) 12 months after the date of issuance thereof and (B) the date which is 60
days prior to the Tranche 1 Maturity Date, (ii) shall be denominated in Dollars
and (iii) shall be payable only against sight drafts (and not time drafts).
(c) LETTERS OF CREDIT SATISFACTORY TO ISSUING BANK. Each Letter
of Credit shall be satisfactory in form, substance and beneficiary to the
Issuing Bank in its discretion. Each Standby Letter of Credit shall be used by
the Borrower as a standby letter of credit to provide credit enhancement for
workers' compensation obligations, contract performance guarantees, and like
bonding requirements, all in the ordinary course of business of the Borrower.
The provisions of this Section 2.17(c) represent only an obligation of the
Borrower to the Issuing Bank and the Tranche 1 Lenders; the Issuing Bank shall
have no obligation to the Tranche 1 Lenders to ascertain the purpose of any
Letter of Credit, and the rights and obligations of the Tranche 1 Lenders and
the Issuing Bank among themselves shall not be impaired or affected by a breach
of this Section 2.17(c).
(d) LETTER OF CREDIT FEE. The Borrower shall pay to the Agent for
the account of each Tranche 1 Lender a fee (the "Letter of Credit Fee") equal to
0.35% per annum for Trade Letters of Credit and a rate per annum equal to the
Applicable Margin for Tranche 1 Loans under the Euro-Rate Option for the
relevant day for Standby Letters of Credit (in each case based on a year of 365
or 366 days, as the case may be, and actual days elapsed), for each Letter of
Credit for each day from and including the date of issuance thereof to and
including the date of expiration or termination thereof, on the Letter of Credit
Undrawn Availability on such day. Such Letter of Credit Fee shall be due and
payable for the preceding period for which such fee has not been paid on each of
the following dates: (i) each Regular Payment Date, (ii) the date of each
drawing on such Letter of Credit, and (iii) the date of expiration or
termination of such Letter of Credit.
(e) FACING FEE; ADMINISTRATION FEES. The Borrower shall pay to
the Agent, for the sole account of the Issuing Bank,
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for each Letter of Credit, on the date of issuance of such Letter of Credit, a
fee (the "Letter of Credit Facing Fee") equal to 0.25% of the stated amount of
such Letter of Credit. In addition, the Borrower shall pay to the Agent, for the
sole account of the Issuing Bank, such other administration, maintenance,
amendment, drawing and negotiation fees as may be customarily charged by the
Issuing Bank from time to time in connection with letters of credit.
2.18. PROCEDURE FOR ISSUANCE AND AMENDMENT OF LETTERS OF CREDIT.
(a) REQUEST FOR ISSUANCE. The Borrower may from time to time
request, upon at least three Business Days' notice, the Issuing Bank to issue a
Letter of Credit by:
(i) delivering to the Issuing Bank and the Agent a written
request to such effect, specifying the date on which such Letter of
Credit is to be issued, the expiration date thereof, and the stated
amount thereof, and
(ii) delivering to the Issuing Bank an application, in such form
as may from time to time be approved by the Issuing Bank (the "Letter
of Credit Application"), completed to the satisfaction of the Issuing
Bank, together with such other certificates, documents and other
papers and information as the Issuing Bank may request.
Upon issuing each such Letter of Credit, the Issuing Bank shall promptly notify
the Agent (by telephone or otherwise), and furnish the Agent with the proposed
form of Letter of Credit to be issued. The Agent shall, promptly upon receiving
such notice, notify the Tranche 1 Lenders of such proposed Letter of Credit
(which notice shall specify the stated amount and term of such proposed Letter
of Credit), and shall determine, as of the close of business on the Business Day
before such proposed issuance, whether such proposed Letter of Credit complies
with the limitations set forth in Sections 2.17(a) and 2.17(b) hereof. Unless
such limitations are not satisfied, or unless the Required Lenders have given
notice to the Agent to cease issuing Letters of Credit pursuant to Section
2.18(c)(ii) hereof, the Agent shall notify the Issuing Bank (in writing or by
telephone promptly confirmed in writing) that the Issuing Bank is authorized to
issue such Letter of Credit. If the Issuing Bank issues a Letter of Credit, it
shall deliver the original of such Letter of Credit to the beneficiary thereof
or as the Borrower shall otherwise direct, and shall promptly notify the Agent
thereof and furnish a copy thereof to the Agent.
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(b) REQUEST FOR EXTENSION OR INCREASE. The Borrower may from time
to time request the Issuing Bank to extend the expiration date of an outstanding
Letter of Credit or increase the Letter of Credit Undrawn Availability of such
Letter of Credit. Such extension or increase shall for all purposes hereunder be
treated as though the Borrower had requested issuance of a replacement Letter of
Credit (except only that the Issuing Bank may, if it elects, issue a notice of
extension or increase in lieu of issuing a new Letter of Credit in substitution
for the outstanding Letter of Credit).
(c) LIMITATIONS ON ISSUANCE, EXTENSION AND AMENDMENT.
(i) As between the Issuing Bank, on the one hand, and the Agent
and the Lenders, on the other hand, the Issuing Bank shall be
justified and fully protected in issuing such Letter of Credit after
receiving authorization from the Agent as provided in Section 2.18(a)
hereof, notwithstanding any subsequent notices to the Issuing Bank,
any knowledge of an Event of Default (unless the Issuing Bank shall
have received a notice specifying that such Event of Default is an
"Event of Default" under this Agreement) or Potential Default, any
knowledge of failure of any condition specified in Section 4.02 hereof
to be satisfied, any other knowledge of the Issuing Bank, or any other
event, condition or circumstance whatsoever. The Issuing Bank may
amend, modify or supplement Letters of Credit or Letter of Credit
Applications, or waive compliance to any condition of issuance or
payment, without the consent of, and without liability to, the Agent
or any Lender, provided that any such amendment, modification or
supplement that extends the expiration date or increases the Letter of
Credit Undrawn Availability of an outstanding Letter of Credit shall
be subject to Sections 2.17(a) and (b) hereof.
(ii) As between the Agent, on the one hand, and the Lenders, on
the other hand, the Agent shall not authorize issuance of any Letter
of Credit if the Agent shall have received, at least two Business Days
before authorizing such issuance, from the Required Lenders an
unrevoked written notice that any condition precedent set forth in
Section 4.02 will not be satisfied and expressly requesting that the
Agent direct the Issuing Bank to cease to issue Letters of Credit.
Absent such notice, or unless the Agent determines that the applicable
limitations set forth in Sections 2.17(a) and 2.17(b) hereof are not
satisfied, the Agent shall be justified and fully protected, as
against the Lenders, in authorizing the Issuing Bank to issue such
Letter of Credit, notwithstanding any subsequent notices to the Agent,
any knowledge of an Event of Default or Potential
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Default, any knowledge of failure of any condition specified in
Section 4.02 hereof to be satisfied, any other knowledge of the Agent,
or any other event, condition or circumstance whatsoever.
2.19. LETTER OF CREDIT PARTICIPATING INTERESTS.
(a) GENERALLY. Concurrently with the issuance of each Letter of
Credit, the Issuing Bank automatically shall be deemed, irrevocably and
unconditionally, to have sold, assigned, transferred and conveyed to each other
Tranche 1 Lender, and each other Tranche 1 Lender automatically shall be deemed,
irrevocably and unconditionally, severally to have purchased, acquired, accepted
and assumed from the Issuing Bank, without recourse to, or representation or
warranty by, the Issuing Bank, an undivided interest, in a proportion equal to
such Tranche 1 Lender's Pro Rata share, in all of the Issuing Bank's rights and
obligations in, to or under such Letter of Credit, the related Letter of Credit
Application, the Letter of Credit Reimbursement Obligations, and all collateral,
guarantees and other rights from time to time directly or indirectly securing
the foregoing (such interest of each Tranche 1 Lender being referred to herein
as a "Letter of Credit Participating Interest"). Amounts other than Letter of
Credit Reimbursement Obligations and Letter of Credit Fees payable from time to
time under or in connection with a Letter of Credit or Letter of Credit
Application shall be for the sole account of the Issuing Bank. On the date that
any Purchasing Lender becomes a party to this Agreement in accordance with
Section 9.14 hereof, Letter of Credit Participating Interests in any outstanding
Letters of Credit held by the Tranche 1 Lender from which such Purchasing Lender
acquired its interest hereunder shall be proportionately reallotted between such
Purchasing Lender and such transferor Tranche 1 Lender (and, to the extent such
transferor Tranche 1 Lender is the Issuing Bank, the Purchasing Lender shall be
deemed to have acquired a Letter of Credit Participating Interest from such
transferor Tranche 1 Lender to such extent).
(b) OBLIGATIONS ABSOLUTE. Notwithstanding any other provision
hereof, each Tranche 1 Lender hereby agrees that its obligation to participate
in each Letter of Credit issued in accordance herewith, its obligation to make
the payments specified in Section 2.20 hereof, and the right of the Issuing Bank
to receive such payments in the manner specified therein, are each absolute,
irrevocable and unconditional and shall not be affected by any event, condition
or circumstance whatever. The failure of any Tranche 1 Lender to make any such
payment shall not relieve any other Tranche 1 Lender of its funding obligation
hereunder on the date due, but no Tranche 1 Lender shall be
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responsible for the failure of any other Tranche 1 Lender to meet its funding
obligations hereunder.
2.20. LETTER OF CREDIT DRAWINGS AND REIMBURSEMENTS.
(a) BORROWER'S REIMBURSEMENT OBLIGATION. The Borrower hereby
agrees to reimburse the Issuing Bank, by making payment to the Agent for the
account of the Issuing Bank in accordance with Section 2.12(b) hereof on the
date of each payment made by the Issuing Bank under any Letter of Credit,
without notice, protest or demand, all of which are hereby waived, and an action
therefor shall immediately accrue. To the extent such payment is not timely
made, the Borrower hereby agrees to pay to the Agent, for the account of the
Issuing Bank, on demand, interest on any Letter of Credit Unreimbursed Draws for
each day from and including the date of such payment by the Issuing Bank until
paid (before and after judgment) in accordance with Section 2.12(c) hereof, at
the rate per annum set forth in Section 2.12(c)(ii) hereof.
(b) PAYMENT BY LENDERS ON ACCOUNT OF UNREIMBURSED DRAWS. If the
Issuing Bank makes a payment under any Letter of Credit and is not reimbursed in
full therefor on such payment date in accordance with Section 2.20(a) hereof,
the Issuing Bank will promptly notify the Agent thereof (which notice may be by
telephone), and the Agent shall forthwith notify each Tranche 1 Lender (which
notice may be by telephone promptly confirmed in writing) thereof. No later than
the Agent's close of business on the date such notice is given, each such
Tranche 1 Lender will pay to the Agent, for the account of the Issuing Bank, in
immediately available funds, an amount equal to such Tranche 1 Lender's Pro Rata
share of the unreimbursed portion of such payment by the Issuing Bank, PROVIDED
such notice is given no later than 2:00 o'clock P.M., Pittsburgh time. If and to
the extent that any Tranche 1 Lender fails to make such payment to the Issuing
Bank on such date, such Tranche 1 Lender shall pay such amount on demand,
together with interest, for the Issuing Bank's own account, for each day from
and including the date of the Issuing Bank's payment to and including the date
of repayment to the Issuing Bank (before and after judgment) at the following
rates per annum: (i) for each day from and including the date of such payment by
the Issuing Bank to and including the second Business Day thereafter, at a rate
set forth in Section 9.14.
(c) DISTRIBUTIONS TO LENDERS. If, at any time, after there occurs
a Letter of Credit Unreimbursed Draw and the Issuing Bank has received from any
Tranche 1 Lender such Tranche 1 Lender's share of such Letter of Credit
Unreimbursed Draw, and the Issuing Bank receives any payment or makes any
application of funds on account of the Letter of Credit Reimbursement Obligation
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arising from such Letter of Credit Unreimbursed Draw, the Issuing Bank will pay
to the Agent, for the account of such Tranche 1 Lender, such Tranche 1 Lender's
Pro Rata share of such payment.
(d) RESCISSION. If any amount received by the Issuing Bank on
account of any Letter of Credit Reimbursement Obligation shall be avoided,
rescinded or otherwise returned or paid over by the Issuing Bank for any reason
at any time, whether before or after the termination of this Agreement (or the
Issuing Bank believes in good faith that such avoidance, rescission, return or
payment is required, whether or not such matter has been adjudicated), each such
Tranche 1 Lender will, promptly upon notice from the Agent or the Issuing Bank,
pay over to the Agent for the account of the Issuing Bank its Pro Rata share of
such amount, together with its Pro Rata share of any interest or penalties
payable with respect thereto.
(e) EQUALIZATION. If any Tranche 1 Lender receives any payment or
makes any application on account of its Letter of Credit Participating Interest,
such Tranche 1 Lender shall forthwith pay over to the Issuing Bank, in Dollars
and in like kind of funds received or applied by it the amount in excess of such
Tranche 1 Lender's ratable share of the amount so received or applied.
2.21. OBLIGATIONS ABSOLUTE. The payment obligations of the
Borrower and of the Tranche 1 Lenders under Section 2.20 shall be unconditional
and irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including, without limitation, the following
circumstances:
(a) any lack of validity or enforceability of this Agreement, any
Letter of Credit or any other Loan Document;
(b) the existence of any claim, set-off, defense or other right
which the Borrower or any other Person may have at any time against
any beneficiary or transferee of any Letter of Credit (or any Persons
for whom any such beneficiary or transferee may be acting), the
Issuing Bank, any Lender, or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or any
unrelated transaction;
(c) any draft, certificate, statement or other document presented
under any 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;
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(d) payment by the Issuing Bank under any Letter of Credit
against presentation of a draft or certificate which does not comply
with the terms of such Letter of Credit, or payment by the Issuing
Bank under the Letter of Credit in any other circumstances in which
conditions to payment are not met, except any such wrongful payment
resulting solely from the gross negligence or willful misconduct of
the Issuing Bank; or
(e) any other event, condition or circumstance whatever, whether
or not similar to any of the foregoing.
The Borrower bears the risk of, and neither the Issuing Bank, any of its
directors, officers, employees or agents, nor any Lender, shall be liable or
responsible for any of, the foregoing matters, the use which may be made of any
Letter of Credit, or acts or omissions of the beneficiary or any transferee in
connection therewith, except for such person's gross negligence or willful
misconduct.
2.22. ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES. Without
limitation of any provision of Section 2.13(a) hereof, the Issuing Bank and each
Tranche 1 Lender shall be entitled to the benefit of Section 2.13(a) hereof, and
the Borrower shall pay additional compensation to the Issuing Bank and each
Tranche 1 Lender in accordance with such Section 2.13(a), in respect of this
Agreement, the Letters of Credit and Letter of Credit Participating Interests,
to the same extent and in the same manner as if the word "Lender," in each place
in which it occurs in such Section 2.13(a), were replaced with "Lender or
Issuing Bank," and the word "Loan," in each place in which it occurs in such
Section 2.13(a), were replaced with "Loan, Letter of Credit or Letter of Credit
Participating Interest."
2.23. FURTHER ASSURANCES. The Borrower hereby agrees, from time
to time, to do and perform any and all acts and to execute any and all further
instruments reasonably requested by the Issuing Bank more fully to effect the
purposes of this Agreement and the issuance of the Letters of Credit hereunder.
2.24. LETTER OF CREDIT APPLICATIONS. The representations,
warranties and covenants by the Borrower under, and the rights and remedies of
the Issuing Bank under, the Continuing Letter of Credit Agreement and any Letter
of Credit Application relating to any Letter of Credit are in addition to, and
not in limitation or derogation of, representations, warranties and covenants by
the Borrower under, and rights and remedies of the Issuing Bank and the Lenders
under, this Agreement, the Loan Documents, and applicable Law. The Borrower
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acknowledges and agrees that all rights of the Issuing Bank under any Letter of
Credit Application shall inure to the benefit of each Tranche 1 Lender to the
extent of its Tranche 1 Commitment Percentage as fully as if such Lender was a
party to such Letter of Credit Application. In the event of any inconsistency
between the terms of this Agreement and any Letter of Credit Application, this
Agreement shall prevail.
2.25. CASH COLLATERAL FOR LETTERS OF CREDIT.
(a) CASH COLLATERAL FOR LETTER OF CREDIT EXPOSURE IN CERTAIN
CIRCUMSTANCES. To the extent that this Agreement or any other Loan Document
requires a payment or prepayment to be made with respect to the Tranche 1 Loans,
such provision shall be construed as follows: after payment in full of the
outstanding Tranche 1 Loans, then, to the extent of the excess, if any, of the
aggregate Letter of Credit Exposure at such time over the balance in the Letter
of Credit Collateral Account, an amount equal to the remainder of the amount so
required to be paid by the Borrower shall immediately be paid by the Borrower to
the Agent for deposit in the Letter of Credit Collateral Account. In addition,
the Borrower agrees that, without limitation of the foregoing or of any other
provisions of this Agreement or the Loan Documents requiring collateral for the
Letters of Credit or other Obligations in whole or in part, and without
limitation of other rights and remedies under this Agreement or any Loan
Document or at law or in equity, if all of the Loans become due and payable
pursuant to Section 7.02 hereof, the Borrower shall immediately pay to the
Agent, for deposit in the Letter of Credit Collateral Account, an amount equal
to the excess, if any, of the aggregate Letter of Credit Exposure at such time
over the balance in the Letter of Credit Collateral Account.
(b) LETTER OF CREDIT COLLATERAL ACCOUNT. The Agent shall maintain
in its own name at its Office a deposit account (the "Letter of Credit
Collateral Account"), which shall bear interest (added to the deposit balance)
in accordance with the Agent's ordinary practices for deposit accounts of like
size and nature, over which the Agent shall have sole dominion and control, and
the Borrower shall have no right to withdraw any funds deposited therein. The
Agent shall deposit into the Letter of Credit Collateral Account such funds as
are required to be paid therein by Section 2.25(a). As security for the payment
of all Obligations, the Borrower hereby grants, conveys, assigns, pledges,
transfers to the Agent, and creates in the Agent's favor a continuing Lien on
and security interest in, the Letter of Credit Collateral Account, all amounts
from time to time on deposit therein, all proceeds of the conversion, voluntary
or involuntary, thereof into cash, instruments, securities or other property,
and all other proceeds thereof. The Borrower hereby
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represents, warrants, covenants and agrees that such Lien shall at all times be
valid and perfected, prior to all other Liens, and the Borrower shall take or
cause to be taken such actions and execute and deliver such instruments and
documents as may be necessary or, in the Agent's judgment, desirable to perfect
or protect such Lien. The Borrower shall not create or suffer to exist any Lien
on any amounts or investment held in the Letter of Credit Collateral Account
other than the Lien in favor of the Agent granted under this Section.
(c) APPLICATION OF FUNDS. The Agent shall apply funds in the
Letter of Credit Collateral Account: (i) on account of Letter of Credit
Reimbursement Obligations as and when the same become due and payable if and to
the extent that the Borrower fails directly to pay the same, and (ii) if no
Letter of Credit Reimbursement Obligations are due and payable, no Letters of
Credit are outstanding and the balance of the Letter of Credit Collateral
Account exceeds the aggregate Letter of Credit Exposure, the excess shall be
applied on account of the other Obligations secured hereby (it being understood
that, if no Event of Default or Potential Default has occurred or is continuing,
the Borrower may direct that such application be delayed for such time as is
necessary to avoid the requirement of a payment under Section 2.13(b)). If all
Obligations (other than Obligations constituting contingent obligations under
indemnification provisions which survive indefinitely, so long as no unsatisfied
claim has been made under any such indemnification provision) have been
indefeasibly paid in full in cash, all Commitments have terminated and all
Letters of Credit have expired, the Agent shall release to the Borrower all
remaining funds in the Letter of Credit Collateral Account.
2.26. CERTAIN PROVISIONS RELATING TO THE ISSUING BANK.
(a) GENERAL. The Issuing Bank shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents, and no implied duties or responsibilities on the part of
the Issuing Bank shall be read into this Agreement or any Loan Document or shall
otherwise exist. The duties and responsibilities of the Issuing Bank to the
other Lender Parties under this Agreement and the other Loan Documents shall be
mechanical and administrative in nature, and the Issuing Bank shall not have a
fiduciary relationship in respect of any Lender Party or any other Person. The
Issuing Bank shall not be liable for any action taken or omitted to be taken by
it under or in connection with this Agreement or any other Loan Document, unless
caused by its own gross negligence or willful misconduct. The Issuing Bank shall
not be under any obligation to ascertain, inquire or give any notice relating to
(i) the performance or observance of any of the terms or
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conditions of this Agreement or any other Loan Document on the part of the
Borrower, (ii) the business, operations, condition (financial or otherwise) or
prospects of the Borrower or any other Person, or (iii) the existence of any
Event of Default or Potential Default. The Issuing Bank shall not be under any
obligation, either initially or on a continuing basis, to provide the Agent or
any Lender with any notices, reports or information of any nature, whether in
its possession presently or hereafter, except for such notices, reports and
other information expressly required by this Agreement to be so furnished.
(b) ADMINISTRATION. The Issuing Bank may rely upon any notice or
other communication of any nature (written or oral, including but not limited to
telephone conversations, whether or not such notice or other communication is
made in a manner permitted or required by this Agreement or any Loan Document)
purportedly made by or on behalf of the proper party or parties, and the Issuing
Bank shall not have any duty to verify the identity or authority of any Person
giving such notice or other communication. The Issuing Bank may consult with
legal counsel (including, without limitation, in-house counsel for the Issuing
Bank or in-house or other counsel for the Borrower), independent public
accountants and any other experts selected by it from time to time, and the
Issuing Bank shall not be liable for any action taken or omitted to be taken in
good faith in accordance with the advice of such counsel, accountants or
experts. Whenever the Issuing Bank shall deem it necessary or desirable that a
matter be proved or established with respect to the Borrower or Lender Party,
such matter may be established by a certificate of the Borrower or Lender Party,
as the case may be, and the Issuing Bank may conclusively rely upon such
certificate.
(c) INDEMNIFICATION OF ISSUING BANK BY LENDERS. Each Tranche 1
Lender hereby agrees to reimburse and indemnify the Issuing Bank and each of
their respective directors, officers, employees and agents (to the extent not
reimbursed by the Borrower and without limitation of the obligations of the
Borrower to do so), Pro Rata, from and against any and all amounts, losses,
liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature (including,
without limitation, the fees and disbursements of counsel (other than in-house
counsel) for the Issuing Bank or such other Person in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not the Issuing Bank or such other Person shall be designated a party
thereto) that may at any time be imposed on, incurred by or asserted against the
Issuing Bank, in its capacity as such, or such other Person, as a result of, or
arising out of, or in any way related to or by reason of, this Agreement, any
other Loan Document, any
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transaction from time to time contemplated hereby or thereby, or any transaction
financed in whole or in part or directly or indirectly with the proceeds of any
Letter of Credit, PROVIDED, that no Tranche 1 Lender shall be liable for any
portion of such amounts, losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements
resulting from the gross negligence or willful misconduct of the Issuing Bank or
such other Person, as finally determined by a court of competent jurisdiction.
2.27 THE SWINGLINE SUBFACILITY.
(a) GENERAL. Subject to the terms and conditions of this
Agreement, and relying upon the representations and warranties herein set forth
and upon the agreements of the Lenders set forth in Section 2.28 hereof, the
Swingline Lender may in its discretion make loans (the "Swingline Loans") to the
Borrower at any time or from time to time on or after the date hereof and to but
not including the Tranche 1 Maturity Date. The Swingline Lender shall not make
any Swingline Loan to the extent that the aggregate amount of Swingline Loans
outstanding would exceed $10,000,000 ("Swingline Subfacility Amount"). The
Swingline Lender shall not make any Swingline Loan to the extent that the
aggregate amount of Swingline Loans outstanding would exceed the Swingline
Current Availability most recently notified to it, as more fully provided in
Section 2.28(a) hereof.
(b) NATURE OF CREDIT. Within the limits of time and amount set
forth in this Section 2.27, and subject to the provisions of this Agreement, and
so long as the Swingline Lender is willing in its discretion to make Swingline
Loans, the Borrower may borrow, repay and reborrow Swingline Loans hereunder.
(c) SWINGLINE NOTE. The obligation of the Borrower to repay the
unpaid, principal amount of the Swingline Loans made to it by the Swingline
Lender and to pay interest thereon shall be evidenced in part by a promissory
note of the Borrower to the Swingline Lender, dated the Restatement Date (the
"Swingline Note") in substantially the form attached hereto as Exhibit B-1997,
with the blanks appropriately filled, payable to the order of the Swingline
Lender in a face amount equal to the Swingline Subfacility Amount.
(d) MATURITY. To the extent not due and payable earlier, the
Swingline Loans shall be due and payable on the Tranche 1 Maturity Date.
(e) MAKING OF SWINGLINE LOANS, ETC. The Borrower may request
Swingline Loans to be made in accordance with the
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provisions of Section 2.05 hereof, except that (x) the Agent need not notify
other Lenders of such request, and (y) Swingline Loans may be requested and made
in any amount of not less that $250,000 (subject to the overall limits of amount
set forth in this Section 2.27).
(f) REPAYMENT OF SWINGLINE LOANS, ETC. Without limitation of any
other provision hereof, the Swingline Lender may in its discretion and with
prior notice to the Borrower elect to apply to repayment of Swingline Loans any
amounts on deposit from time to time in accounts maintained with it
(individually or as Agent) by or for the benefit of the Borrower. The Borrower
may, in the alternative, prepay Swingline Loans in accordance with the
provisions of Section 2.09 hereof, except that the Borrower need give notice
only to the Agent and the Swingline Lender and the Agent need not notify other
Lenders of such request.
(g) INTEREST ON SWINGLINE LOANS. Each Swingline Loans shall,
until any Tranche 1 Lender shall have funded a participation therein under
Section 2.29, bear interest at such rate as may be agreed between the Borrower
and the Swingline Lender, and thereafter shall bear interest under the Base Rate
Option for Tranche 1 Loans. Interest on Swingline Loans shall be payable on each
Regular Payment Date and on the date of each payment of principal thereof.
2.28 LIMITATIONS ON THE MAKING OF SWINGLINE LOANS; SWINGLINE
CURRENT AVAILABILITY. The Agent shall calculate the Swingline Current
Availability each time there is a change in the aggregate outstanding principal
amount of the Tranche 1 Loans, the aggregate Letter of Credit Exposure or the
Tranche 1 Committed Amounts. The "Swingline Current Availability" at any time
shall be equal to the lesser of
(i) the Swingline Subfacility Amount, or
(ii) the amount equal to (A) the sum of the Tranche 1 Committed
Amounts of the Lenders at such time, minus (B) the sum of
the aggregate principal amount of Tranche 1 Loans and the
aggregate Letter of Credit Exposure at such time.
Each time the Swingline Current Availability changes, the Agent shall promptly
notify the Swingline Lender (by telephone promptly confirmed in writing) of such
fact, stating the new Swingline Current Availability. The Swingline Lender shall
not make any Swingline Loan to the extent that the aggregate principal amount of
Swingline Loans would exceed the Swingline Current Availability so notified to
the Swingline Lender.
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2.29. SWINGLINE LOAN PARTICIPATING INTERESTS.
(a) GENERALLY. At the discretion of the Swingline Lender at any
time, on one Business Day's notice to each Tranche 1 Lender, the Swingline
Lender may, subject to subsection (b) below, require each other Tranche 1 Lender
to purchase, acquire, accept and assume from the Swingline Lender, without
recourse to, or representation or warranty by, the Swingline Lender, an
undivided interest, in a portion equal to such Lender's Pro Rata share, in all
of the Swingline Lender's rights and obligations in, to or under the outstanding
Swingline Loans, together with accrued and unpaid interest thereon, and all
collateral, guarantees and other rights from time to time directly or indirectly
securing the foregoing (such interest of each Lender being referred to herein as
a "Swingline Loan Participating Interest"). On the date that any Purchasing
Lender becomes a party to this Agreement with a Tranche 1 Committed Amount in
accordance with Section 9.14 hereof, Swingline Loan Participating Interests in
any outstanding Swingline Loans held by the Tranche 1 Lender from which such
Purchasing Lender acquired its interest hereunder shall be proportionately
reallotted between such Purchasing Lender and such transferor Lender.
(b) OBLIGATIONS ABSOLUTE. Notwithstanding any other provision
hereof, each Tranche 1 Lender hereby agrees that its obligation to participate
in each Swingline Loan issued in accordance herewith, and its obligation to make
the payments specified in Section 2.05 hereof, are each absolute, irrevocable
and unconditional and shall not be affected by any event, condition or
circumstance whatsoever; provided, that no Tranche 1 Lender shall be obligated
to fund a participation if to do so would cause the Total Tranche 1 Credit
Exposure of such Lender to exceed its Tranche 1 Committed Amount. The failure of
any Tranche 1 Lender to make any such payment shall not relieve any other
Tranche 1 Lender of its funding obligation hereunder on the date due, but no
Tranche 1 Lender shall be responsible for the failure of any other Tranche 1
Lender to meet its funding obligations hereunder.
(c) PAYMENT BY LENDERS ON ACCOUNT OF SWINGLINE LOANS. If the
Swingline Lender desires to sell Swingline Loan Participating Interests to the
Tranche 1 Lenders, the Swingline Lender will promptly notify the Agent thereof
(which notice may be by telephone), and the Agent shall forthwith notify each
Tranche 1 Lender (which notice may be by telephone promptly confirmed in
writing) thereof. No later than the Agent's close of business on the Business
Day next succeeding the day such notice is given by the Agent, each such Tranche
1 Lender will pay
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to the Agent, for the account of the Swingline Lender, in immediately available
funds, an amount equal to such Lender's Pro Rata share of the outstanding
principal amount of the Swingline Loans and accrued and unpaid interest thereon.
If and to the extent that any Lender fails to make such payments to the
Swingline Lender on such date, such Lender shall pay such amount on demand,
together with interest, for the Swingline Lender's own account, for each day
from and including the date of the Swingline Lender's payment to and including
the date of repayment to the Swingline Lender (before and after judgment)
following rates per annum: (x) for each day from and including the date of such
nonpayment by such Lender to and including the second Business Day thereafter,
at the Federal Funds Effective Rate for such day, and (y) for each day
thereafter, at the rate applicable to the Swingline Loans for such day.
(d) DISTRIBUTIONS TO PARTICIPANTS. If, at any time, after the
Swingline Lender has made a Swingline Loan and has received from any Tranche 1
Lender such Lender's share of such Swingline Loan, the Swingline Lender receives
any payment or makes any application of funds on account of such Swingline Loan,
the Swingline Lender will pay to the Agent, for the account of such Lender, such
Lender's Pro Rata share of such payment.
(e) RECISSION. If any amount received by the Swingline Lender on
account of any Swingline Loan or interest thereon shall be avoided, rescinded or
otherwise returned or paid over by the Swingline Lender for any reason at any
time, whether before or after the termination of this Agreement (or the
Swingline Lender believes in good faith that such avoidance, recission, return
or payments is required, whether or not such matter has been adjudicated) each
Tranche 1 Lender which either has not previously funded a participation interest
in such Swingline Loan or has received a distribution under subsection (d) above
with respect to such amount will, promptly upon notice from the Agent or the
Swingline Lender, pay over to the Agent for the account of the Swingline Lender
such Lender's ratable share of such amount, together with its ratable share of
any interest or penalties payable with respect thereto.
(f) EQUALIZATION. If any Tranche 1 Lender receives any payment or
makes any application on account of its Swingline Loan Participating Interest,
such Lender shall forthwith pay over to the Agent, in dollars and in like kind
of funds received or applied by it the amount in excess of such Lender's ratable
share of the amount so received or applied.
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2.30. CERTAIN PROVISIONS RELATING TO THE SWINGLINE LENDER.
(a) GENERAL. The Swingline Lender shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
Related Documents, and no implied duties or responsibilities on the part of the
Swingline Lender shall be read into this Agreement or any Related Document or
shall otherwise exist. The duties and responsibilities of the Swingline Lender
to the other Lender Parties under this Agreement and the Related Documents shall
be mechanical and administrative in nature, and the Swingline Lender shall not
have a fiduciary relationship in respect of any Lender Party or any other
person. The Swingline Lender shall not be liable for any action taken or omitted
to be taken by it under or in connection with this Agreement or any Related
Document, unless caused by its own gross negligence or willful misconduct, as
finally determined by a court of competent jurisdiction. The Swingline Lender
shall not be under any obligation to ascertain, inquire or give any notice
relating to (i) the performance or observance of any of the terms or conditions
of this Agreement or any Related Document, (ii) the businesses operations,
conditional (financial or otherwise) or prospects the Borrower or any other
person, or (iii) the existence of any Event of Default or Potential Default. The
Swingline Lender shall not be under any obligation, either initially or on a
continuing basis, to provide any person with any notices, reports or information
of any nature, whether in its possession presently or hereafter, except for such
notices, reports and other information expressly required by this Agreement to
be so furnished.
(b) ADMINISTRATION. The Swingline Lender may rely upon any notice
or other communication of any nature (written or oral, whether or not such
notice or other communication is made in a manner permitted or required by this
Agreement or any Related Document) purportedly made by or on behalf of the
proper party or parties, and the Swingline Lender shall not have any duty to
verify the identity or authority of any person giving such notice or other
communication. The Swingline Lender may consult with legal counsel (including
in-house counsel for the Swingline Lender or in-house or other counsel for the
Borrower), independent public accountants and any other experts selected by it
from time to time, and the Swingline Lender shall not be liable for any action
taken or omitted to be taken in good faith in accordance with the advice of such
counsel, accountants or experts. Whenever the Swingline Lender shall deem it
necessary or desirable that a matter be proved or established with respect to
the Borrower or any Lender Party, such matter may be established by a
certificate of the Borrower or such other Lender
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Party, as the case may be, and the Swingline Lender may conclusively rely upon
such certificate.
(c) INDEMNIFICATION OF SWINGLINE LENDER BY LENDERS. The Borrower hereby
indemnifies and holds the Swingline Lender harmless from and against any and all
claims, damages, losses, liabilities, expenses, actions, judgments and suits of
any kind or nature whatsoever (including reasonable attorneys' fees and
expenses) ("Swingline Lender Claims") that may at any time be imposed on,
incurred by or asserted against the Swingline Lender in its capacity as such as
a result of, or arising out of, or in any way relating to or by reason of, this
Agreement, any Related Document, any transaction contemplated hereby or thereby,
or any transaction financed, in whole or in part, directly or indirectly, with
the proceeds of Swingline Loan, except to the extent, but only to the extent,
any such Swingline Lender claims are caused by the Swingline Lender's gross
negligence or willful misconduct, as finally determined by a court of competent
jurisdiction.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower hereby represents and warrants to each Lender Party as
follows:
3.01. CORPORATE STATUS. Each Loan Party is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. Each Loan Party has corporate power and authority
to own its property and to transact the business in which it is engaged or
presently proposes to engage. Each Loan Party is duly qualified to do business
as a foreign corporation and is in good standing in all jurisdictions in which
the ownership of its properties or the nature of its activities or both makes
such qualification necessary or advisable except where the failure to so qualify
could not have a Material Adverse Effect.
3.02. CORPORATE POWER AND AUTHORIZATION. Each Loan Party has corporate
power and authority to execute, deliver, perform, and take all actions
contemplated by, each Loan Document to which it is a party, and all such action
has been duly and validly authorized by all necessary corporate proceedings on
its part. Without limitation of the foregoing, the Borrower has the corporate
power and authority to borrow and request Letters of Credit to be issued
pursuant to the Loan Documents to the fullest extent permitted hereby and
thereby from time to time, and has taken all necessary corporate action to
authorize such borrowings and requests.
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3.03. EXECUTION AND BINDING EFFECT. This Agreement and each other Loan
Document to which any Loan Party is a party and which is required to be
delivered on or before the Restatement Date pursuant to Section 4.01 hereof has
been duly and validly executed and delivered by such Loan Party. This Agreement
constitutes, and each other Loan Document when executed and delivered by each
Loan Party which is a party thereto will constitute, the legal, valid and
binding obligation of the Borrower or such Loan Party, as the case may be,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable remedies.
3.04. GOVERNMENTAL APPROVALS AND FILINGS. No approval, order, consent,
authorization, certificate, license, permit or validation of, or exemption or
other action by, or filing, recording or registration with, or notice to, any
Governmental Authority (collectively, "Governmental Action") is or will be
necessary in connection with execution and delivery of any Loan Document by any
Loan Party, consummation by any Loan Party of the transactions herein or therein
contemplated, performance of or compliance with the terms and conditions hereof
or thereof by any Loan Party, except for (i) government permits not yet
available which the Borrower has no reason to expect will not be received when
needed, (ii) recordings and filings necessary to perfect the Liens granted by
the Security Documents and (iii) matters set forth in Schedule 3.04. Each
Governmental Action referred to in such Schedule 3.04 has been duly obtained or
made, as the case may be, and is in full force and effect, and there is no
action, suit, proceeding or investigation pending or, to the Borrower's
knowledge, threatened which seeks or has a reasonable possibility of resulting
in the reversal, rescission, termination, modification or suspension of any such
Governmental Action. No Governmental Action referred to in such Schedule 3.04
requires any further act to be performed or condition to be satisfied by any
Person as a condition to continued effectiveness thereof, except as set forth in
such Schedule 3.04. With respect to each of the matters set forth in Schedule
3.04, no Loan Party made any application to any Governmental Authority in
connection therewith which application, when taken together with all amendments,
supplements and modifications thereto, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements contained therein not misleading.
3.05. ABSENCE OF CONFLICTS. Neither the execution and delivery of any
Loan Document by any Loan Party, nor consummation
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by any Loan Party of the transactions herein or therein contemplated, nor
performance of or compliance with the terms and conditions hereof or thereof by
any Loan Party does or will
(a) violate or conflict with any Requirement of Law, or
(b) violate, conflict with or result in a breach of any term or
condition of, OR constitute a default under, OR result in (or give rise
to any right, contingent or otherwise, of any Person to cause) any
termination, cancellation, prepayment or acceleration of performance
of, OR result in the creation or imposition of (or give rise to any
obligation, contingent or otherwise, to create or impose) any Lien upon
any of the property of any Loan Party (except for any Lien in favor of
the Agent for the benefit of the Lenders and the Agent securing the
Obligations) pursuant to, OR otherwise result in (or give rise to any
right, contingent or otherwise, of any Person to cause) any change in
any right, power, privilege, duty or obligation of any Loan Party under
or in connection with,
(i) the certificate or articles of incorporation or by-laws
(or other constituent documents) of any Loan Party,
(ii) any Contractual Obligations creating, evidencing or
securing any Indebtedness or Guaranty Equivalent to which any
Loan Party is a party or by which it or any of its properties
(now owned or hereafter acquired) may be subject or bound, or
(iii) any other Contractual Obligations of any Loan Party,
except (in the case of each of (a) and (b) above) for matters as to which a
consent, waiver, amendment or agreement which has been duly obtained and is in
full force and effect (all of which matters are set forth on Schedule 3.05
hereof), and the Agent and each Lender has received a true, correct and complete
copy of each such consent, waiver, amendment or agreement and of each of the
underlying agreements or instruments to which it relates and except for matters
which, individually or in the aggregate, could not have a Material Adverse
Effect.
3.06. PROJECTIONS. The Borrower has furnished to the Agent and each
Lender projections prepared by the Borrower demonstrating the projected
financial condition and results of operations of the Borrower for the period
commencing on January 1, 1997 and ending on December 31, 2002, which
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projections are accompanied by a written statement of the assumptions and
estimates underlying such projections. Such projections were prepared on the
basis of such assumptions and estimates. Such projections, assumptions and
estimates, as of the date of preparation thereof and as of the Restatement Date,
are reasonable, are made in good faith, represent the Borrower's best judgment
as to such matters on the date thereof and do not contain assumptions or methods
of calculation which are inconsistent with the requirements of the Loan
Documents. Nothing contained in this Section shall constitute a representation
or warranty that such future financial performance or results of operations will
in fact be achieved.
3.07. LABOR MATTERS. On the Restatement Date, no Loan Party is a party
to any collective bargaining agreements with respect to any of its employees.
3.08. ABSENCE OF UNDISCLOSED LIABILITIES. Except as disclosed in
writing to the Lenders, no Loan Party has any liability or obligation of any
nature whatever (whether absolute, accrued, contingent or otherwise, whether or
not due), forward or long-term commitments or unrealized or anticipated losses
from unfavorable commitments, except matters that, individually or in the
aggregate, could not have a Material Adverse Effect.
3.09. ACCURATE AND COMPLETE DISCLOSURE. All information provided (in
writing) by or on behalf of any Loan Party to the Agent or any Lender (or to the
Persons listed on Schedule 3.09 hereto) pursuant to or in connection with any
Loan Document or any transaction contemplated hereby or thereby (excluding,
however, for purposes of this Section 3.09, the projections described in Section
3.06 hereof) is true and accurate in all material respects on the date as of
which such information is dated (or, if not dated, when received by the Agent or
such Lender, as the case may be) and such information, taken as a whole, which
was provided on or prior to the time this representation is made or remade, does
not omit to state any material fact necessary to make such information not
misleading at such time in light of the circumstances in which it was provided.
3.10. COMMITMENTS. Other than as set forth on Schedule 3.10 hereto or
as permitted by Section 6.03 hereof, no Loan Party has received any commitments
for financing other than the Tranche 1 Commitments, the Tranche 2 Commitments
and the Tranche 3 Commitments.
3.11. SOLVENCY. On and as of the Restatement Date, after consummation
of the transactions contemplated herein and after giving effect to all Loans and
other obligations and
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liabilities being incurred on such respective dates in connection therewith, and
on the date of each subsequent Loan or other extension of credit hereunder and
after giving effect to application of the proceeds thereof in accordance with
the terms of the Loan Documents, each of the Borrower and each other Loan Party
is and will be Solvent.
3.12. MARGIN REGULATIONS. No part of the proceeds of any Loan hereunder
will be used for the purpose of buying or carrying any "margin stock," as such
term is used in Regulations G and U of the Board of Governors of the Federal
Reserve System, as amended from time to time, or to extend credit to others for
the purpose of buying or carrying any "margin stock". No Loan Party is engaged
in the business of extending credit to others for the purpose of buying or
carrying "margin stock". No Loan Party owns any "margin stock". Neither the
making of any Loan nor any use of proceeds of any such Loan will violate or
conflict with the provisions of Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System, as amended from time to time.
3.13. SUBSIDIARIES. Except as otherwise specifically permitted by this
Agreement, the Borrower has no Subsidiaries other than IDI.
3.14. PARTNERSHIPS, ETC. Except as otherwise specifically permitted by
this Agreement, no Loan Party is a partner (general or limited) of any
partnership, is a party to any joint venture or is an owner (beneficially or of
record) of any equity or similar interest in any Person (including but not
limited to any interest pursuant to which the Borrower has or may in any
circumstance have an obligation to make capital contributions to, or be
generally liable for or on account of the liabilities, acts or omissions of such
other Person).
3.15. OWNERSHIP AND CONTROL. Schedule 3.15-1997 hereto states, as of
the Restatement Date, the authorized capitalization of each Loan Party, the
number of shares of each class of capital stock issued and outstanding of each
Loan Party and the number and percentage of outstanding shares of each such
class of capital stock and the names of the record owners of such shares and, to
the Borrower's knowledge, the beneficial owners of such shares. The outstanding
shares of capital stock of each Loan Party have been duly authorized and validly
issued and are, except as designated on such Schedule 3.15-1997, fully paid and
nonassessable. There are no options, warrants, calls, subscriptions, conversion
rights, exchange rights, preemptive rights or other rights, agreements or
arrangements (contingent or otherwise) which may in any circumstances now or
hereafter obligate any Loan Party to issue any shares of its capital stock
88
or any other securities, except for matters set forth in such Schedule
3.15-1997, and except for matters which are permitted by the terms hereof and
notice of which is provided by the Borrower to the Agent. Schedule 3.15-1997
hereof describes as of the Restatement Date all options, rights, purchase
agreements, buy-sell agreements, restrictions on transfer, pledges, proxies,
voting trusts, powers of attorney, voting agreements and other agreements,
instruments or arrangements to which any Loan Party is a party or is subject or
bound, or to which any record or beneficial owner of capital stock of any Loan
Party is a party or is subject or bound, which pertain to any shares of capital
stock (now or hereafter outstanding) of any Loan Party, including any matter
which may affect beneficial or record ownership thereof or transferability
thereof or voting rights with respect thereto.
3.16. LITIGATION. Except as set forth in Schedule 3.16-1997 hereof (in
the case of the making of this representation and warranty on the Restatement
Date and on any other date prior to the date of the request for the initial Term
Loans), there is no pending or, to the Borrower's knowledge, threatened action,
suit, claim, proceeding or investigation by or before any Governmental Authority
against or affecting any Loan Party which could, if adversely determined, have a
Material Adverse Effect.
3.17. ABSENCE OF EVENTS OF DEFAULT. No event has occurred and is
continuing and no condition exists which constitutes an Event of Default or
Potential Default.
3.18. ABSENCE OF OTHER CONFLICTS. None of the Loan Parties is in
violation of or conflict with, or is subject to any contingent liability on
account of any violation of or conflict with:
(a) any Requirement of Law,
(b) its certificate or articles of incorporation or by-laws (or other
constituent documents), or
(c) any Contractual Obligations to which it is party, which violation
or conflict could have a Material Adverse Effect.
3.19. INSURANCE. Each Loan Party maintains with financially sound and
reputable insurers the insurance required by Section 5.02 hereof.
3.20. TITLE TO PROPERTY. Each Loan Party has good and marketable title
in fee simple to all real property owned or purported to be owned by it and good
title to all other property
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of whatever nature owned or purported to be owned by it, in each case free and
clear of all Liens, other than Permitted Liens.
3.21. INTELLECTUAL AND OTHER PROPERTY. Each Loan Party owns, or is
licensed or otherwise has the right to use, all the patents, trademarks, service
marks, names (trade, service, fictitious or otherwise), copyrights, technology,
processes, data bases and other rights, free from burdensome restrictions,
necessary to own and operate its properties and to carry on its business as
presently conducted and presently planned to be conducted without conflict with
the rights of others in any material respect.
3.22. TAXES. All tax and information returns required to be filed by or
on behalf of each Loan Party have been properly prepared, executed and filed,
except when the failure to do so could not have a Material Adverse Effect. All
taxes, assessments, fees and other governmental charges upon any Loan Party or
upon any of its properties, incomes, sales or franchises which are due and
payable have been paid other than those not yet delinquent and payable without
premium or penalty, and except for those being diligently contested in good
faith by appropriate proceedings, and in each case adequate reserves and
provisions for taxes have been made on the books of such Loan Party. The
reserves and provisions for taxes on the books of each Loan Party are adequate
for all open years and for its current fiscal period. The Borrower does not know
of any proposed additional assessment or basis for any material assessment for
additional taxes against any Loan Party (whether or not reserved against) except
assessments or basis therefor which could not have a Material Adverse Effect.
3.23. EMPLOYEE BENEFITS. Schedule 3.23-1997 hereof sets forth as of the
Restatement Date a list of all Plans and Multiemployer Plans, and all
information available to the Borrower with respect to the direct, indirect or
potential withdrawal liability to any Multiemployer Plan of any Loan Party or
any Controlled Group Member. On the Restatement Date, except as set forth in
Schedule 3.23-1997 hereof, no Loan Party has any liability (contingent or
otherwise) for or in connection with, and none of their respective properties is
subject to a Lien in connection with, any Pension-Related Event.
3.24. ENVIRONMENTAL MATTERS.
(a) Each Loan Party, and to the Borrower's knowledge each of its
Environmental Affiliates, is and has been in compliance with all applicable
Environmental Laws, except where the failure to so comply, individually or in
the aggregate, could not have a Material Adverse Effect. There are no
circumstances
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that may prevent or interfere with such compliance by any Loan Party in the
future.
(b) All Environmental Approvals necessary for the ownership and
operation of any Loan Party's properties, facilities and businesses as presently
owned and operated and as presently proposed to be owned and operated have been
issued and are in full force and effect.
(c) There is no Environmental Claim pending or, to the Borrower's
knowledge, threatened, and there are no past or present acts, omissions, events
or circumstances (including but not limited to any dumping, leaching,
deposition, removal, abandonment, escape, emission, discharge or release of any
Environmental Concern Material at, on or under any facility or property now or
previously owned, operated or leased by any Loan Party or, to Borrower's
knowledge, any of its Environmental Affiliates) that could form the basis of any
Environmental Claim, against any Loan Party or any of its Environmental
Affiliates, except matters which, individually or in the aggregate, could not
have a Material Adverse Effect.
(d) No facility or property now or previously owned, operated or leased
by any Loan Party is an Environmental Cleanup Site. Neither any Loan Party nor,
to Borrower's knowledge, any of its Environmental Affiliates has directly
transported or directly arranged for the transportation of any material
quantities of Environmental Concern Materials to any Environmental Cleanup Site,
except matters which, individually or in the aggregate, could not have a
Material Adverse Effect. No Lien exists, and no condition exists which could
result in the filing of a Lien, against any property of any Loan Party or any of
its Environmental Affiliates, under any Environmental Law.
3.25 POTENTIAL CONFLICTS OF INTEREST. As of the Restatement Date,
except for the Equity Agreements, the Employment Agreements and as set forth on
Schedule 3.25-1997, to the best knowledge of the Borrower, without independent
investigation, no Affiliate of the Borrower: (a) owns, directly or indirectly,
any interest in (excepting less than 5% stock holdings for investment purposes
in securities of publicly held and traded companies), or is an officer,
director, employee or consultant of, any Person which is, or is engaged in
business as, a competitor, lessor, lessee, supplier, distributor, sales agent or
customer of, or lender to or borrower from, the Borrower or any of its
Subsidiaries; (b) owns, directly or indirectly, in whole or in part, any
tangible or intangible property that the Borrower or any of its Subsidiaries
uses in the conduct of business; or (c) has any cause of action or other claim
whatsoever against, or owes any amount to, the Borrower or any of
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its Subsidiaries, except for claims in the ordinary course of business.
ARTICLE IV
CONDITIONS OF LENDING
---------------------
4.01. CONDITIONS TO INITIAL LOANS AND LETTERS OF CREDIT. The
effectiveness of the amendment and restatement of the Original Agreement
provided herein, and the obligation of each Lender Party to make the first Loans
or issue the first Letters of Credit on or after the Restatement Date, is
subject to the satisfaction, on or before the date of such first Loans or Letter
of Credit of the following conditions precedent, in addition to the conditions
precedent set forth in Sections 4.02 and 4.03 hereof:
(a) AGREEMENT; NOTES; FEES. The Agent shall have received an executed
counterpart of this Agreement for each Lender, duly executed by the
Borrower, and executed Tranche 1 Notes, Tranche 2 Notes and Tranche 3 Notes
conforming to the requirements hereof, duly executed on behalf of the
Borrower and each Lender shall have received the fees set forth in a letter
from the Borrower to the Agent dated on or about the date of execution
hereof.
(b) SECURITY DOCUMENTS AMENDMENTS. The Agent shall have received the
following, with a copy for each Lender:
(i) Executed copies of amendments to each of the Security
Documents listed on Schedule 4.01-1997 hereto, in form satisfactory to
the Agent, reflecting the execution and delivery of this Agreement and
the increase in the amount of the Obligations referred to in such
Security Documents;
(ii) Executed copies of a Supplement to the Mortgage, in
recordable form and otherwise in form satisfactory to the Agent,
reflecting the execution and delivery of this Agreement and the
increase in the amount of Obligations referred to in the Mortgage; and
(iii) Evidence of the completion of all recordings and filings of
or with respect to, and of all other actions with respect to, the
Security Documents as may be necessary or, in the opinion of the Agent,
desirable to create or perfect the Liens created or purported to be
created by such Security Documents as valid, continuing and perfected
Liens in favor of the Agent for the benefit of the Agent and the
Lenders
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securing the Obligations, prior to all other Liens; and evidence of the
payment of any necessary fee, tax or expense relating to such recording
or filing.
(c) CORPORATE PROCEEDINGS. The Agent shall have received, with a
counterpart for each Lender, certificates by the Secretary of each Loan
Party dated as of the Restatement Date as to (i) true copies of the
certificate or articles of incorporation and by-laws (or other constituent
documents) of such Loan Party in effect on such date, (ii) true copies of
all corporate action taken by such Loan Party relative to this Agreement and
the other Loan Documents (and amendments thereto) being delivered on the
Restatement Date and (iii) the incumbency and signature of the respective
officers of such Loan Party executing this Agreement, together with
satisfactory evidence of the incumbency of such Secretary or Assistant
Secretary. The Agent shall have received, with a copy for each Lender,
certificates from the appropriate Secretaries of State or other applicable
Governmental Authorities dated not more than 30 days before the Restatement
Date showing the good standing of each Loan Party in its state of
incorporation and each state in which it does business.
(d) LEGAL OPINIONS. The Agent shall have received, with an executed
counterpart for each Lender, opinions addressed to the Agent and each
Lender, dated the Restatement Date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the
Borrower, as to such matters as may be requested by the Agent and in form
and substance satisfactory to the Agent.
(e) OFFICERS' CERTIFICATES. The Agent shall have received, with an
executed counterpart for each Lender, certificates from such officers of
each Loan Party as to such matters as the Agent or any Lender may request.
(f) FEES, EXPENSES, ETC. All fees and other compensation required to be
paid to the Agent or the Lenders pursuant hereto or pursuant to any other
written agreement on or prior to the Restatement Date shall have been paid
or received.
(g) ADDITIONAL MATTERS. The Agent shall have received such other
certificates, opinions, documents and instruments as may be requested by any
Lender. All corporate and other proceedings, and all documents, instruments
and other matters in connection with the transactions contemplated by this
Agreement and the other Loan Documents shall be satisfactory in form and
substance to the Agent and each Lender.
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4.02. CONDITIONS TO ALL LOANS OR LETTERS OF CREDIT. The obligation of
each Lender Party to make any Loan or issue any Letter of Credit is subject to
the performance by each Loan Party of its obligations to be performed hereunder
or under the other Loan Documents on or before the date of such Loan or of the
issuance of such Letter of Credit, satisfaction of the conditions precedent set
forth herein and in the other Loan Documents and to satisfaction of the
following further conditions precedent:
(a) NOTICE. Appropriate notice of such Loan or Letter of Credit shall
have been given by the Borrower as provided in ARTICLE II hereof.
(b) BORROWING BASE. In the case of Tranche 1 Loans and Letters of
Credit, the Agent shall have received a Borrowing Base Certificate, signed
by a Responsible Officer of the Borrower, complying with the provisions of
Section 2.16.
(c) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by the Borrower in ARTICLE III hereof (excluding Section
3.06) or made by any Loan Party in each other Loan Document (other than in
the Assignment of Contracts) shall be true and correct in all material
respects on and as of such date as if made on and as of such date, both
before and after giving effect to the Loans or Letters of Credit requested
to be made or issued on such date; PROVIDED, however, that, with respect to
Section 3.16, the condition precedent in this paragraph (c) shall not be
deemed to be unsatisfied solely as a result of a pending or threatened
action, suit, proceeding or investigation (i) which is the subject of a
currently dated certificate of the Borrower delivered to the Agent stating
that the Borrower believes such action, suit, proceeding or investigation is
without merit and (ii) as to which the Required Lenders have reasonably
determined that an outcome adverse to each Loan Party affected thereby is
remote.
(d) NO DEFAULTS. No Event of Default or Potential Default shall have
occurred and be continuing on such date or after giving effect to the Loans
or Letters of Credit requested to be made or issued on such date.
(e) NO VIOLATIONS OF LAW, ETC. Neither the making, issuing nor use of
the Loans or Letters of Credit shall cause any Lender to violate or conflict
with any Requirement of Law.
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(f) NO MATERIAL ADVERSE CHANGE. There shall not have occurred a
material adverse change in the business, operations, assets or condition
(financial or otherwise) of the Borrower or of the Borrower Group since the
date of the most recently delivered audited financial statements provided to
the Agent in accordance with Section 5.01(a) hereof. There shall not have
occurred any other event, act or condition which could have a Material
Adverse Effect.
(g) DOLLAR LIMITS. The dollar limits set forth in Section 2.17 hereof
with respect to the issuance of all Letters of Credit and in Section 2.27
hereof with respect to Swingline Loans have been and are being complied
with.
Each request by the Borrower for any Loan or Letter of Credit shall constitute a
representation and warranty by the Borrower that the conditions set forth in
this Section 4.02 have been satisfied as of the date of such request (except
that no representation or warranty will be deemed to be made as to whether the
Required Lenders have made the determination referred to in the proviso to
paragraph (c) above). Failure of the Agent to receive notice from the Borrower
to the contrary before such Loan is made shall constitute a further
representation and warranty by the Borrower that the conditions referred to in
this Section 4.02 have been satisfied as of the date such Loan is made or Letter
of Credit is issued.
4.03. USE OF PROCEEDS OF INITIAL LOANS. The Borrower will request the
initial Loans to be made on the Restatement Date in an amount which is
sufficient to refinance all Loans outstanding under the Original Agreement on
the Restatement Date and the proceeds of such initial Loans will be used for
such purpose (subject to Section 2.13(b) of the Original Agreement). The
Commitments of the Lenders hereunder will, on the Restatement Date, replace the
Commitments of the Lenders under the Original Agreement.
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
The Borrower hereby covenants to the Agent and each Lender as follows:
5.01. BASIC REPORTING REQUIREMENTS.
(a) ANNUAL AUDIT REPORTS. As soon as practicable, and in any event
within 90 days after the close of each fiscal year of the Borrower, the Borrower
shall furnish to the Agent, with a copy for each Lender, consolidated and
consolidating statements
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of income, cash flows and changes in stockholders' equity of the Borrower and
the Borrower Group for such fiscal year and consolidated and consolidating
balance sheets of the Borrower and the Borrower Group as of the close of such
fiscal year, and notes to each, all in reasonable detail, setting forth in
comparative form the corresponding figures for the preceding fiscal year. Such
consolidated financial statements shall be accompanied by an opinion of Ernst &
Young or other independent certified public accountants of recognized national
standing selected by the Borrower. Such opinion shall be free of exceptions or
qualifications other than exceptions for accounting changes. Such opinion in any
event shall contain a written statement of such accountants substantially to the
effect that (i) such accountants examined such financial statements in
accordance with generally accepted auditing standards and accordingly made such
tests of accounting records and such other auditing procedures as such
accountants considered necessary in the circumstances and (ii) in the opinion of
such accountants such financial statements present fairly in all material
respects the financial position of the Borrower and the Borrower Group as of the
end of such fiscal year and the results of operations and cash flows and changes
in stockholders' equity for such fiscal year, in conformity with GAAP. The
Borrower shall deliver to the Agent, with a copy for each Lender, an Annual
Compliance Certificate in substantially the form set forth as Exhibit E hereto,
duly completed and signed by a Responsible Officer of the Borrower concurrently
with the delivery of the financial statements referred to in this Section
5.01(a).
(b) QUARTERLY REPORTS. As soon as practicable, and in any event within
60 days after the close of each of the first three fiscal quarters of each
fiscal year of the Borrower, the Borrower shall furnish to the Agent, with a
copy for each Lender, unaudited consolidated and (unless the Borrower has no
Subsidiaries) consolidating statements of income, cash flows and changes in
stockholders' equity of the Borrower and the Borrower Group for such fiscal
quarter and for the period from the beginning of such fiscal year to the end of
such fiscal quarter and unaudited consolidated and (unless the Borrower has no
Subsidiaries) consolidating balance sheets of the Borrower and the Borrower
Group as of the close of such fiscal quarter, and notes to each which would be
required to be included in a Form 10-Q quarterly report of the Borrower filed in
accordance with the Securities Exchange Act of 1934, all in reasonable detail,
setting forth in comparative form the corresponding figures for the same periods
or as of the same date during the preceding fiscal year (except for the balance
sheet, which shall set forth in comparative form the corresponding balance sheet
as of the prior fiscal year end). Such financial statements shall be certified
by a Responsible Officer of the Borrower as presenting
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fairly in all material respects the financial position of the Borrower and of
the Borrower Group as of the end of such fiscal quarter and the results of
operations and cash flows and changes in stockholders' equity for such fiscal
year, in conformity with GAAP, subject to normal and recurring year-end audit
adjustments. The Borrower shall deliver to the Agent, with a copy for each
Lender, a Quarterly Compliance Certificate in substantially the form set forth
as Exhibit F hereto, duly completed and signed by a Responsible Officer of the
Borrower concurrently with the delivery of the financial statements referred to
in this Section 5.01(b).
(c) BUSINESS PLAN. Prior to the end of each fiscal year of the
Borrower, the Borrower shall furnish to the Agent, with a copy for each Lender,
a certificate signed by a Responsible Officer on behalf of the Borrower
containing the Borrower Group's business plan for the next fiscal year.
(d) COMMERCIAL FINANCE REPORTS. At such times as the Agent or the
Required Lenders shall reasonably specify from time to time in writing, which
may be as frequently as quarterly (and which may be more frequently if a
Potential Default or Event of Default has occurred and is continuing), the
Borrower shall furnish to the Agent, with a copy for each Lender, a report of a
Responsible Officer of the Borrower setting forth such matters pertaining to the
working capital of the Borrower and of the Borrower Group and in such detail as
the Agent may specify from time to time, which may include, among other things,
information as to receivables (which may include, among other things, a breakout
of aging and collections, identification of each receivable, obligor, due date
and original invoice date, identification of write-offs and changes made in
reserves for bad debts, and identification of any extension of the maturity of,
refinancing or other material change in the terms of any receivables), inventory
(which may include, among other things, a breakdown of the amount of inventory
by type (raw materials, work-in-progress and finished goods), by location, and
identification of write-offs and write-downs), payables (which may include,
among other things, a breakout of aging and payments), sales, credits
collections, backlog, and forecasts.
(e) CERTAIN OTHER REPORTS AND INFORMATION. Promptly upon their becoming
available to the Borrower (and in any event, in the case of clauses (iv) and (v)
of this definition, within ninety days after the end of each fiscal quarter),
the Borrower shall deliver to the Agent, with a copy for each Lender, a copy of
(i) all regular or special reports, registration statements and amendments to
the foregoing which the Borrower shall file with the Securities and Exchange
Commission (or any successor thereto) or any securities exchange, (ii) all
reports, proxy
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statements, financial statements and other information distributed by the
Borrower to its stockholders, bondholders or the financial community generally,
(iii) all accountants' management letters pertaining to, all other reports
submitted by accountants in connection with any audit of, and all other material
reports from outside accountants with respect to, any Loan Party, (iv) quarterly
expenditure reports on the Phase II Project until substantially all such
expenditures have been made, and (v) upon commencement of the Borrower's Phase
III caster project, a expenditure budget for such project and quarterly
expenditure reports for such project until substantially all such expenditures
have been made.
(f) FURTHER INFORMATION. The Borrower will promptly furnish to the
Agent, with a copy for each Lender, such other information and in such form as
the Agent or any Lender may reasonably request from time to time.
(g) NOTICE OF CERTAIN EVENTS. Promptly upon becoming aware of any of
the following, the Borrower shall give the Agent notice thereof, together with a
written statement of a Responsible Officer of the Borrower setting forth the
details thereof and any action with respect thereto taken or proposed to be
taken by the Borrower:
(i) Any Event of Default or Potential Default.
(ii) Any material adverse change in the business, operations or
condition (financial or otherwise) or prospects of any Loan Party or of the
Borrower Group.
(iii) Any pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or affecting
any Loan Party which seeks damages in excess of $500,000 or which, if
adversely determined, could have a Material Adverse Effect.
(iv) Any material violation, breach or default by any Loan Party of or
under any agreement or instrument to which such Loan Party is a party
material to the business, operations, condition (financial or otherwise) or
prospects of such Loan Party, the Borrower or the Borrower Group.
(v) Any amendment or supplement to, or extension, renewal, refinancing,
or refunding of, or waiver by any other party thereto of any right under or
conditions of, any agreement or instrument creating, evidencing or securing
any Indebtedness or Guaranty Equivalent of any Loan Party, or any agreement
or instrument material to the business, operations, condition (financial or
otherwise) or prospects
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of any Loan Party or the Borrower Group, and any negotiations pertaining to
any of the foregoing.
(vi) Any Pension-Related Event. Such notice shall be accompanied by a
copy of any notice, request, return, petition or other document received by
any Loan Party or any Controlled Group Member from any Person, or which has
been or is to be filed with or provided to any Person (including without
limitation the Internal Revenue Service, PBGC or any Plan participant,
beneficiary, alternate payee or employer representative), in connection with
such Pension-Related Event.
(vii) Any Environmental Claim pending or threatened against any Loan
Party or any of its Environmental Affiliates, or any past or present acts,
omissions, events or circumstances (including but not limited to any
dumping, leaching, deposition, removal, abandonment, escape, emission,
discharge or release of any Environmental Concern Material at, on or under
any facility or property now or previously owned, operated or leased by any
Loan Party or any of its Environmental Affiliates) that could form the basis
of such Environmental Claim, which Environmental Claim, if adversely
resolved, individually or in the aggregate, could have a Material Adverse
Effect.
(viii) Any lapse or other termination of a government permit or other
Governmental Action (unless such permit or Action is no longer necessary) in
connection with the Loan Documents, the ▇▇▇▇▇▇▇▇ Documents, the OmniSource
Documents, the other Project Agreements or matters contemplated therein, or
any dispute between any Loan Party and any Governmental Authority which may
have a Material Adverse Effect.
(ix) Any Loan Party becoming a party to a collective bargaining
agreement with respect to any of its employees.
(h) NOTICES UNDER OTHER AGREEMENTS. Concurrently with any Loan Party's
delivery or receipt thereof, the Borrower shall provide the Agent with copies of
any reports, certificates or notices furnished by any Loan Party to any other
party to any agreement or instrument creating, evidencing or securing any
Indebtedness or Guaranty Equivalent of any Loan Party, or any agreement or
instrument material to the business, operations, condition (financial or
otherwise) or prospects of any Loan Party or of the Borrower Group, or received
by any Loan Party from any other party to any of the foregoing.
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(i) VISITATION; VERIFICATION. Upon reasonable prior notice, the
Borrower shall permit (and cause each Loan Party to permit) the Agent or any
Lender or its accountants, attorneys or other agents to visit and inspect any of
the properties of any Loan Party, to examine its books and records and take
copies and extracts therefrom and to discuss its affairs with its directors,
officers, employees and independent accountants at such times and as often as
the Agent or any Lender may reasonably request; PROVIDED, that a Loan Party
shall have the right to have an officer present at any discussion with its
employees; and PROVIDED, further, that the Lenders (as opposed to the Agent)
shall not have any right under this Section to examine any proprietary technical
information of the Borrower; the foregoing shall not preclude walk-through
visits of the properties of a Loan Party by the Agent or any Lender. The
Borrower hereby authorizes (and directs each Loan Party to authorize) such
officers, employees and independent accountants to discuss with the Agent or any
Lender the affairs of any Loan Party. The Agent and the Lenders shall have the
right to examine and verify accounts, inventory and other properties and
liabilities of each Loan Party from time to time, and the Borrower shall
cooperate with the Agent and the Lenders in such verification. Any such
inspection or examination shall be for the protection of the Agent and the
Lenders and neither the Agent nor any Lender shall have any responsibility to
any Loan Party or any other Person for any deficiency in construction or
variance from specifications which may be revealed by any inspection by the
Agent or any Lender, whether or not discovered by any of such Persons.
(j) BORROWING BASE. The Borrower shall provide Borrowing Base
Certificates from time to time in accordance with Section 2.16 hereof.
(k) ENVIRONMENTAL AUDIT. The Agent or the Required Lenders shall have
the right from time to time upon reasonable notice to designate such Persons
("Environmental Auditors") as the Agent may select to visit, inspect and have
access to any of the properties, products or wastes of each Loan Party and, to
the extent possible, its Environmental Affiliates, for the purpose of
investigating whether there may be a basis for any Environmental Claim or any
condition which could result in any liability, cost or expense to the Agent or
any Lender; PROVIDED that unless an Event of Default or Potential Default shall
have occurred and be continuing, or unless there is reasonable cause, such
visitation and investigation shall not occur more than once during any period of
two calendar years. Such investigation may include, among other things, above
and below ground testing for the presence of Environmental Concern Materials and
such other tests as may be necessary or advisable in the opinion of the Agent,
after consultation with the Borrower. The Borrower will supply
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to the Environmental Auditors such historical and operational information,
including the results of all samples sent for analysis, correspondence with
Governmental Authorities and environmental audits or reviews regarding
properties, products and wastes of each Loan Party or its Environmental
Affiliates as are within its possession, custody or control, or which are
available to it, and will make available for meetings with the Environmental
Auditors appropriate personnel employed by or consultants retained by the
Borrower having knowledge of such matters.
5.02. INSURANCE. The Borrower shall, and shall cause each other Loan
Party to, (a) maintain with financially sound and reputable insurers insurance
with respect to the Phase I Project, the Phase II Project and its business and
against such liabilities, casualties and contingencies and of such types and in
such amounts as is satisfactory to the Required Lenders (including without
limitation product and other liability, casualty, workers' compensation and
umbrella coverage, and such insurance described on Schedule 5.02-1997 hereof),
(b) provide that such insurance cannot terminate, expire, be canceled or amended
in any material respect without 30 days' prior notice to the Agent, (c) furnish
to each Lender from time to time upon reasonable request the policies under
which such insurance is issued, certificates of insurance and such other
information relating to such insurance as such Lender may reasonably request,
(d) cause the insurance policies to contain (i) a "replacement cost
endorsement", (ii) a standard first mortgagee endorsement, without contribution,
substantially equivalent to the New York standard mortgagee endorsement, and
(iii) an endorsement that any loss shall be payable in accordance with the terms
of such policy notwithstanding any act or negligence of any Loan Party which
might otherwise give rise to a defense by the insurer, and (e) provide such
other insurance and endorsements as are required by this Agreement and the other
Loan Documents.
5.03. PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES AND PRIORITY CLAIMS.
The Borrower shall, and shall cause each other Loan Party to, pay or discharge
(a) on or prior to the date on which penalties attach thereto, all
taxes, assessments and other governmental charges imposed upon it or any of
its properties;
(b) on or prior to the date when due, all lawful claims of materialmen,
mechanics, carriers, warehousemen, landlords and other like Persons which,
if unpaid, might result in the creation of a Lien upon any such property;
and
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(c) on or prior to the date when due, all other lawful claims which, if
unpaid, might result in the creation of a Lien upon any such property or
which, if unpaid, might give rise to a claim entitled to priority over
general creditors of the Borrower or such Loan Party in a case under Title
11 (Bankruptcy) of the United States Code, as amended;
PROVIDED, that unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced the Loan Parties need not pay or discharge
any such tax, assessment, charge or claim so long as (x) the validity thereof is
contested in good faith and by appropriate proceedings diligently conducted and
(y) such reserves or other appropriate provisions as may be required by GAAP
shall have been made therefor.
5.04. PRESERVATION OF CORPORATE STATUS. The Borrower shall, and shall
cause each other Loan Party to, maintain its status as a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and, unless failure to do so could not have a
Material Adverse Effect, to be duly qualified to do business as a foreign
corporation and in good standing in all jurisdictions in which the ownership of
its properties or the nature of its business or both make such qualification
necessary or advisable.
5.05. GOVERNMENTAL APPROVALS AND FILINGS. The Borrower shall, and shall
cause each other Loan Party to, keep and maintain in full force and effect all
Governmental Actions necessary or advisable in connection with execution and
delivery of any Loan Document by any Loan Party, consummation by each Loan Party
of the transactions herein or therein contemplated, performance of or compliance
with the terms and conditions hereof or thereof by any Loan Party or to ensure
the legality, validity, binding effect, enforceability or admissibility in
evidence hereof or thereof.
5.06. MAINTENANCE OF PROPERTIES. The Borrower shall, and shall
cause each other Loan Party to, maintain or cause to be maintained in good
repair, working order and condition (ordinary wear and tear excepted) the
properties now or hereafter owned, leased or otherwise possessed by it so that
the business carried on in connection therewith may be conducted at all times in
accordance with customary mini-mill practice.
5.07. AVOIDANCE OF OTHER CONFLICTS. The Borrower shall, and shall cause
each other Loan Party to, not violate or conflict with, be in violation of or
conflict with, or be or remain subject to any liability (contingent or
otherwise) on account of any violation or conflict with
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(a) any Requirement of Law (including without limitation any
Environmental Law),
(b) its certificate or articles of incorporation of by-laws (or other
constituent documents), or
(c) any Contractual Obligations to which it is party, which violation
could have Material Adverse Effect.
5.08. FINANCIAL ACCOUNTING PRACTICES. The Borrower shall, and shall
cause each other Loan Party to, make and keep books, records and accounts which,
in reasonable detail, accurately and fairly reflect its transactions and
dispositions of its assets and maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (a) transactions are executed
in accordance with management's general or specific authorization, (b)
transactions are recorded as necessary (i) to permit preparation of financial
statements in conformity with GAAP, and (ii) to maintain accountability for
assets, (c) access to assets is permitted only in accordance with management's
general or specific authorization and (d) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
5.09. USE OF PROCEEDS. The Borrower shall apply the proceeds of the
Loans to refinance the Loans outstanding under the Original Agreement, for
working capital purposes and for other general corporate purposes. The Borrower
shall not use, or permit the use of, the proceeds of any Loans hereunder
directly or indirectly for any unlawful purpose, in any manner inconsistent with
Section 3.12 hereof, or inconsistent with any other provision of any Loan
Document.
5.10. CONTINUATION OF OR CHANGE IN BUSINESS. The Borrower shall, and
shall cause each other Loan Party to, continue to engage in its business as
currently contemplated, and, except as specifically permitted by Section
6.05(e), no Loan Party shall engage in any other business.
5.11. CONSOLIDATED TAX RETURN. The Borrower shall not, and shall not
permit any other Loan Party to, file or consent to the filing of any
consolidated income tax return with any Person other than a Loan Party.
5.12. FISCAL YEAR. The Borrower shall not change its fiscal year or
fiscal quarter or permit any other Loan Party to do so.
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5.13. FUTURE PROJECT AGREEMENTS. The Borrower shall furnish to the
Agent, with a copy for each Lender, certified copies of any Future Project
Agreements within five days of the execution and delivery thereof, together with
(i) a duly executed consent and agreement from each other party to such Future
Project Agreements, in substantially the form attached hereto as Exhibit V, with
such changes therein as the Required Lenders may reasonably approve and with the
blanks appropriately filled, (ii) if such Future Project Agreement is with a
Loan Party other than the Borrower, a duly executed assignment of contract
executed by such Loan Party substantially in the form of Exhibit HH hereto and
(iii) if such Future Project Agreement involves amounts in excess of $5,000,000,
an opinion addressed to the Agent and each Lender, of each such other party's
counsel addressing such matters as may reasonably be requested by the Agent.
ARTICLE VI
NEGATIVE COVENANTS
------------------
The Borrower hereby covenants to the Agent and each Lender as follows:
6.01. FINANCIAL COVENANTS.
(a) LEVERAGE RATIO. The Leverage Ratio shall not, for any period of
four consecutive fiscal quarters, exceed 5.0 to 1.
(b) TANGIBLE NET WORTH. From and after the Restatement Date, Tangible
Net Worth shall not at any time be less than the sum of (i) $187,000,000 and
(ii) 50% of Cumulative Net Income at such time.
(c) INTEREST COVERAGE. For any period of four consecutive fiscal
quarters, the ratio of EBITDA for such period to Interest Expense for such
period shall not be less than 2.0 to 1.
6.02. LIENS. The Borrower shall not, and shall not permit any other
Loan Party to, at any time create, incur, assume or suffer to exist any Lien on
any of its property (now owned or hereafter acquired), or agree, become or
remain liable (contingently or otherwise) to do any of the foregoing, except for
the following ("Permitted Liens"):
(a) Liens pursuant to the Security Documents in favor of the Agent for
the benefit of the Lenders and the Agent to secure the Obligations;
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(b) Liens which are granted by the Borrower pursuant to the Development
Package, or permitted refinancings thereof, whether existing on or after the
date hereof (and described on Schedule 6.02 hereof);
(c) Liens arising from taxes, assessments, charges or claims described
in Section 5.03 hereof that are not yet due or that remain payable without
penalty or to the extent permitted to remain unpaid under the proviso to
such Section 5.03 and under the second proviso contained in Section 2.07 of
the Mortgage;
(d) Deposits or pledges of cash or securities in the ordinary course of
business to secure (i) workmen's compensation, unemployment insurance or
other social security obligations, (ii) performance of bids, tenders, trade
contracts (other than for payment of money) or leases, (iii) stay, surety or
appeal bonds, or (iv) other obligations of a like nature incurred in the
ordinary course of business; and
(e) Easements, rights of way and other restrictions on the use of real
property which are described in Schedule B-I of the title insurance policy
insuring the Lien of the Mortgage.
(f) Liens described on Schedule 6.02(f) and Liens on property of the
Borrower securing all or part of the purchase price thereof, provided that:
(i) such Lien is created before or substantially simultaneously with the
purchase of such property by the Borrower, (ii) such Lien is confined solely
to the property so purchased and proceeds thereof, (iii) the aggregate
amount secured by all such Liens on any particular property at the time
purchased by the Borrower shall not exceed the lesser of the purchase price
of such property and the fair market value of such property at the time of
purchase, (iv) such property shall not consist of anything integral to
casters, rolling ▇▇▇▇▇, cold ▇▇▇▇▇, furnaces or the production of steel, (v)
the purchase price of such property shall have been included in the
calculation required by Section 6.13 hereof and (vi) the aggregate amount
secured by all Liens described in this Section 6.02(f) shall not at any time
exceed $5,000,000.
(g) Liens on accounts receivable of any Loan Party in favor of the
Borrower.
(h) Liens incurred in connection with governmental incentive financing
covering property of the Borrower comprising part of a new project having an
original total
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cost exceeding $200,000,000 which is constructed on a site other than on the
Project Site, which property covered by such Liens has an original cost not
exceeding, and secures Indebtedness not exceeding, $65,000,000 for each such
new project.
"Permitted Lien" shall in no event include any Lien imposed by, or required to
be granted pursuant to, ERISA or any Environmental Law. Nothing in this Section
6.02 shall be construed to limit any other restriction on Liens imposed by the
Security Documents or otherwise in the Loan Documents.
6.03. INDEBTEDNESS. The Borrower shall not, and shall not permit any
other Loan Party to, at any time create, incur, assume or suffer to exist any
Indebtedness, or agree, become or remain liable (contingently or otherwise) to
do any of the foregoing, except:
(a) Indebtedness to the Lenders and the Agent pursuant to this
Agreement and the other Loan Documents;
(b) The Indebtedness of the Borrower incurred pursuant to the
Development Package and refinancings thereof on the same terms (other than
interest rate or a longer maturity), each as listed on Schedule 6.03 hereof,
but in no case any extensions or renewals thereof, and the Indebtedness of
the Borrower incurred pursuant to the Reimbursement Agreement, dated as of
May 23, 1995, between the Borrower, National City Bank, Indiana and Indiana
Development Finance Authority and refinancings thereof on the same terms
(other than interest rate or a longer maturity);
(c) Accounts payable to trade creditors arising out of purchases of
goods or services in the ordinary course of business, provided that (i) such
accounts payable are payable not later than 90 days after the original
invoice date according to the original terms of sale, and (ii) as of the end
of each calendar month, not more than 15% of such accounts payable are more
than 90 days past due, and not more than 5% of such accounts payable are
more than 120 days past due, in each case according to the original terms of
sale (except to the extent that any such account payable is being contested
in good faith and by appropriate proceedings diligently conducted and so
long as such reserves or other appropriate provisions as may be required by
GAAP shall have been made with respect therefor);
(d) Any licensing or royalty fees owed by the Borrower in the ordinary
course of business, including such fees payable to SMS pursuant to the SMS
documents;
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(e) Indebtedness secured by Liens permitted by Section 6.02(f) or
Section 6.02(h) hereof;
(f) Unsecured Indebtedness of the Borrower in an aggregate principal
amount not exceeding $10,000,000 at any time outstanding;
(g) Indebtedness of another Loan Party to the Borrower as to which the
Borrower's rights are subject to a first perfected Lien in favor of the
Agent; and
(h) Indebtedness of a Subsidiary of the Borrower to the Borrower to the
extent permitted by Exhibit DD hereto.
6.04. GUARANTIES, INDEMNITIES, ETC. The Borrower shall not be or become
subject to or bound by any Guaranty Equivalent, or agree, become or remain
liable (contingently or otherwise) to do any of the foregoing, and shall not
permit any other Loan Party to do so, except:
(a) Guaranty Equivalents existing on the Restatement Date and listed in
Schedule 6.04 hereto;
(b) Contingent liabilities arising from the endorsement of negotiable
or other instruments for deposit or collection or similar transactions in
the ordinary course of business;
(c) Indemnities by the Borrower or another Loan Party of the
liabilities of its directors or officers in their capacities as such
pursuant to provisions presently contained in their certificate or articles
of incorporation or by-laws (or other constituent documents) or as permitted
by Law;
(d) Contingent liabilities arising from the Interest Rate Protection
Agreements;
(e) Any Subsidiary Guaranty; and
(f) Indemnities by the Borrower under the Reimbursement Agreement
described in Section 6.03(b) hereof or related documents with respect to the
bond transactions contemplated by such Reimbursement Agreement.
6.05. LOANS, ADVANCES AND INVESTMENTS. The Borrower shall not, and
shall not permit any Loan Party to, at any time make or suffer to exist or
remain outstanding any loan or advance
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to, OR purchase, acquire or own (beneficially or of record) any stock, bonds,
notes or securities of, or any partnership interest (whether general or limited)
in, or any other interest in, OR make any capital contribution to or other
investment in, any other Person, or agree, become or remain liable (contingently
or otherwise) to do any of the foregoing, except:
(a) Loans and investments existing on the Restatement Date and listed
in Schedule 6.05-1997 hereof;
(b) Receivables owing to the Borrower arising from sales of inventory
under usual and customary terms in the ordinary course of business; and
loans and advances extended by the Borrower to subcontractors or suppliers
(excluding subcontractors or suppliers who are Affiliates of the Borrower)
under usual and customary terms in the ordinary course of business;
(c) Advances to officers and employees, other agents and independent
contractors of the Borrower to meet expenses incurred by such persons in the
ordinary course of business or for relocation and in amounts at any time
outstanding not exceeding $50,000 to any one officer or employee and
$500,000 in the aggregate;
(d) Cash Equivalent Investments;
(e) Investments of the Borrower (or, to the extent permitted by
paragraph (f) below, of a Subsidiary of the Borrower) in Subsidiaries,
partnerships or other joint ventures related to the Borrower's steel
production business which are included in the calculations to determine
compliance with Section 6.13 hereof and which in the aggregate, when added
to the aggregate amount paid for all acquisitions by the Borrower of all or
a substantial portion of the properties of another Person, do not exceed an
amount equal to $50,000,000 plus 35% of Cumulative Annual Change in Net
Worth in the case of investments in entities in which the Borrower or a
Subsidiary has an equity interest equal to or greater than 10% of the total
equity interests in the applicable entity and do not exceed an amount equal
to $10,000,000 plus 25% of Cumulative Annual Change in Net Worth in the case
of other investments;
(f) Investments in one or more Subsidiaries of the Borrower at the
times and in the amounts set forth on Exhibit DD-1997 hereto, but only for
so long as the operations of each such Subsidiary are conducted in
accordance with the requirements of such Exhibit and the Agent retains
pursuant to the Security Agreement a first
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perfected security interest in all outstanding shares of capital stock of
each such Subsidiary; and
(g) An investment in IDI and/or in equipment to be owned by the
Borrower which is related to processing product that is intended to be
manufactured by IDI in an aggregate amount not exceeding $30,000,000 and
funded solely with the Net Cash Proceeds of the issuance by the Borrower
after the Restatement Date of equity securities, but only upon execution and
delivery by IDI to the Agent of the IDI Guaranty and the IDI Security
Agreement.
By way of illustration, and without limitation, it is understood that the
Borrower (for example) shall be deemed to have made an advance to an Affiliate
of the Borrower (for example): (x) to the extent that the Borrower transfers any
property to or performs any service for such Affiliate, and (y) to the extent
that the Borrower pays any obligation of such Affiliate. The amount of such
advance shall be deemed to be, in the case of clause (x), the fair value of the
property so transferred or services so performed (but not less than cost), and
in the case of clause (y), the amount so paid by the Borrower.
6.06. DIVIDENDS AND RELATED DISTRIBUTIONS. The Borrower shall not
declare or make any Stock Payment, or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, and shall not permit any
other Loan Party to do so, except as follows:
(a) The Borrower may, if no Event of Default or Potential Default
exists or is continuing or would result from the making of the purchase
described hereinafter, pay up to $5,500,000 in cash to repurchase stock of
the Borrower from any of the individuals employed by the Borrower listed on
Schedule 6.06 hereof, PROVIDED that a minimum aggregate equity interest in
the Borrower of 7.5% shall be owned by the remaining members of the
Borrower's management;
(b) A wholly-owned Subsidiary of the Borrower may pay dividends to the
Borrower; and
(c) The Borrower may, if no Event of Default or Potential Default
exists or is continuing or would result from the payment of the Stock
Payment described hereinafter, from and after the Restatement Date, make
Stock Payments in an aggregate cumulative amount not exceeding cumulative
Net Income for the period from January 1, 1997 through the then most
recently completed fiscal quarter.
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6.07. SALE-LEASEBACKS. Except as part of the Development Package as
described on Schedule 1.01A, the Borrower shall not at any time enter into or
suffer to remain in effect any transaction to which the Borrower is a party
involving the sale, transfer or other disposition by the Borrower of any
property (now owned or hereafter acquired), with a view directly or indirectly
to the leasing back of any part of the same property or any other property used
for the same or a similar purpose or purposes, or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, and shall not permit any
other Loan Party to do so.
6.08. LEASES. Except as part of the Development Package as described on
Schedule 1.01A, the Borrower shall not at any time enter into or suffer to
remain in effect any lease, as lessee, of any property, or agree, become or
remain liable (contingently or otherwise) to do any of the foregoing, or permit
any other Loan Party to do so, except operating leases of data processing
equipment, office equipment, transportation equipment and other manufacturing
equipment or office space used by the lessee in the ordinary course of business,
provided that such leases will not result in the payment or accrual by the
Borrower Group of more than $2,000,000 in the aggregate in any twelve-month
period and no such lease has a term longer than seven years; and provided
further that such leases will not result in the payment or accrual by all Loan
Parties other than the Borrower of more than $100,000 in the aggregate in any
twelve-month period.
6.09. MERGERS, ACQUISITIONS, ETC. The Borrower shall not, and shall not
permit any other Loan Party to, (v) merge with or into or consolidate with any
other Person, except that a Loan Party which is a wholly-owned Subsidiary of the
Borrower may merge with the Borrower, provided that the Borrower shall be the
surviving corporation and no Event of Default or Potential Default shall occur
and be continuing or shall exist at such time or after giving effect to such
transaction, (w) liquidate, wind-up, dissolve or divide, (x) acquire all or any
substantial portion of the properties of any going concern or going line of
business, (y) acquire all or any substantial portion of the properties of any
other Person other than in the ordinary course of business, unless such
acquisition, if the cost thereof were treated as an investment for purposes of
Section 6.05(e) hereof, would not violate Section 6.05(e) or (z) agree, become
or remain liable (contingently or otherwise) to do any of the foregoing.
6.10. DISPOSITIONS OF PROPERTIES. The Borrower shall not, and shall not
permit any other Loan Party to, sell, convey, assign, lease, transfer, abandon
or otherwise dispose of, voluntarily or involuntarily, any of its properties, or
agree,
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become or remain liable (contingently or otherwise) to do any of the foregoing,
except:
(a) The Borrower and any other Loan Party may sell Inventory in the
ordinary course of business;
(b) The Borrower may, for cash, dispose of assets to non-Affiliates in
a maximum aggregate annual amount of $9,000,000, PROVIDED that all of the
Net Cash Proceeds from the sale are used to purchase replacement assets or,
if the disposed assets are not necessary for the efficient operation of its
business, to prepay Term Loans; and
(c) In addition to the asset sales permitted by paragraph (b) above and
notwithstanding the limitations set forth therein, the Borrower may dispose
of assets in a maximum aggregate annual amount of $1,000,000.
6.11. NO PLANS. The Borrower will not, and will not permit any other
Loan Party to, enter into any contract or arrangement pursuant to which any Plan
is maintained for any of its employees.
6.12. DEALINGS WITH AFFILIATES. The Borrower shall not, and shall not
permit any other Loan Party to, enter into or carry out any transaction with
(including, without limitation, purchase or lease property or services from,
sell or lease property or services to, loan or advance to, or enter into, suffer
to remain in existence or amend any contract, agreement or arrangement with) any
Affiliate of the Borrower, directly or indirectly, or agree, become or remain
liable (contingently or otherwise) to do any of the foregoing, except:
(a) Execution and performance of contracts, agreements and arrangements
in existence as of the Restatement Date and set forth in Schedule 6.12-1997
hereof;
(b) Directors, officers and employees of a Loan Party may be
compensated for services rendered in such capacity to such Loan Party
(including without limitation management fees paid by the Borrower to ▇▇▇▇▇
▇▇▇▇▇ and the Designated Managers), provided that such compensation is in
good faith and on terms no less favorable to such Loan Party than those that
could have been obtained in a comparable transaction on an arm's-length
basis from an unrelated Person, and the board of directors of the Borrower
(including a majority of the directors having no direct or indirect interest
in such transaction) approve the same;
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(c) The transactions between the Borrower and IDI described on Exhibit
CC hereto;
(d) Other transactions in the ordinary course of the Borrower's
business with Affiliates in good faith and on terms no less favorable to the
Borrower than those that could have been obtained in a comparable
transaction on an arm's-length basis from an unrelated Person, and, in the
case of any transaction involving consideration of $100,000 or more (other
than such a transaction involving consideration less than $1,000,000 and the
subject Affiliate would not be an Affiliate if the 5% figure appearing in
the penultimate sentence of the definition of "Affiliate" in Section 1.01
hereof were deemed to be 25% in the case of ownership or voting power by
GECC and its Affiliates or by ▇.▇. ▇▇▇▇▇▇▇ and Company and its Affiliates),
as to which the board of directors of such Borrower (including a majority of
the directors having no direct or indirect interest in such transaction)
approve such transaction and determine that such terms are no less favorable
to the Borrower than those that could have been obtained in a comparable
transaction on an arm's-length basis from an unrelated Person; PROVIDED,
that the Borrower shall not enter into any such transaction or series of
related transactions (other than purchases of scrap inventory and sales of
finished goods) having a value in excess of $2,000,000 unless the Agent has
received a copy of the foregoing resolution of such board of directors to
the effect that such transaction is fair to the Borrower from a financial
point of view.
6.13. CAPITAL EXPENDITURES. The Borrower shall not, and shall not
permit any other Loan Party to, make any Capital Expenditures in any fiscal year
in excess of an aggregate amount of $50,000,000 unless the Borrower shall have
furnished to the Agent, with copies for the Lenders, at least 30 days prior to
the making of such Capital Expenditures, projections giving effect to the cost
of such Capital Expenditures which are in form and substance reasonably
satisfactory to the Required Lenders and which demonstrate that the Borrower
will comply with Section 6.01 hereof notwithstanding the making of such Capital
Expenditures.
6.14. LIMITATIONS ON MODIFICATION OF CERTAIN AGREEMENTS AND
INSTRUMENTS. The Borrower shall not amend, modify or supplement, or suffer any
amendment, modification or supplement to, the Stockholders' Agreement among the
stockholders of the Borrower or its certificate of incorporation or by-laws (or
similar constituent documents) except that the Borrower may, without the consent
of the Required Lenders, amend or modify the sections of its certificate of
incorporation or bylaws or
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Stockholders' Agreement listed on Schedule 6.14 hereto and may amend or modify
the Stockholders' Agreement to permit the addition of new stockholders whose
rights thereunder are not greater than the rights of the original stockholders.
6.15. LIMITATION ON OTHER RESTRICTIONS ON LIENS. The Borrower shall
not, and shall not permit any other Loan Party to, enter into, become or remain
subject to any agreement or instrument to which the Borrower or such Loan Party,
as the case may be, is a party or by which it or any of its properties (now
owned or hereafter acquired) may be subject or bound that would prohibit the
grant of any Lien upon any of its properties (now owned or hereafter required),
except:
(a) The Loan Documents;
(b) (i) Restrictions pursuant to non-assignment provisions of any
executory contract or of any lease by the Borrower as lessee, and (ii)
restrictions on granting Liens on property subject to a Permitted Lien for
the benefit of the holder of such Permitted Lien to the extent in existence
on the Restatement Date.
6.16. LIMITATION ON OTHER RESTRICTIONS ON AMENDMENT OF THE LOAN
DOCUMENTS, ETC. The Borrower shall not, and shall not permit any other Loan
Party to, enter into, become or remain subject to any agreement or instrument to
which the Borrower or such Loan Party, as the case may be, is a party or by it
or any of its properties (now owned or hereafter acquired) may be subject or
bound that would prohibit or require the consent of any Person to any amendment,
modification or supplement to any of the Loan Documents, except for the Loan
Documents.
6.17. MAINTENANCE OF BUSINESS. The Borrower shall not change its
primary line of business from that of either constructing, owning and operating
a steel mini-mill or constructing, owning and operating a steel mini-mill and
one or more scrap substitute manufacturing facilities, shall not permit IDI, if
it is organized, to change its primary line of business from that of
constructing, owning and operating one or more scrap substitute manufacturing
facilities.
6.18. SUBSIDIARIES. The Borrower shall not organize, incorporate,
acquire or otherwise suffer to exist any Subsidiaries, except IDI and except for
Subsidiaries acquired as permitted by Section 6.05 hereof.
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ARTICLE VII
DEFAULTS
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7.01. EVENTS OF DEFAULT. An Event of Default shall mean the occurrence
or existence of one or more of the following events or conditions (for any
reason, whether voluntary, involuntary or effected or required by Law):
(a) The Borrower shall fail to pay when due principal of any Loan or
any Letter of Credit Reimbursement Obligation, or shall fail to make any
required cash collateralization of outstanding Letters of Credit.
(b) Any Loan Party shall fail to pay when due interest on any Loan, any
fees, indemnity or expenses, or any other amount due hereunder or under any
other Loan Document and, if such failure is unintentional, such failure
shall have continued for a period of five Business Days.
(c) Any representation or warranty made by any Loan Party in or
pursuant to or in connection with any Loan Document, or deemed made by any
Loan Party in or pursuant to any Loan Document, or any statement made by any
Loan Party in any financial statement, certificate, report (excluding
projections in the Phase I Project Budget and the Phase II Project Budget,
each as defined in the Original Agreement) or exhibit furnished by any Loan
Party to the Agent or any Lender pursuant to or in connection with any Loan
Document, shall prove to have been false or misleading in any material
respect as of the time when made or deemed made (including by omission of
material information necessary to make such representation, warranty or
statement not misleading).
(d) The Borrower or any Loan Party shall default in the performance or
observance of any covenant contained in ARTICLE VI hereof, other than
Section 6.12, or any of the covenants contained in Sections 2.10, 2.16,
5.01(g)(i), 5.09, 5.10, or 5.12 hereof or any Section of the Security
Documents listed on Schedule 7.01(d) hereto.
(e) Any Loan Party shall default in the performance or observance of
any other covenant, agreement or duty under this Agreement or any other Loan
Document and (i) in the case of a default under Section 5.01 hereof (other
than as referred to in subsection (g)(i) thereof) such default shall have
continued for a period of ten days and (ii) in the case of any other default
such default shall have continued for a period of 30 days.
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(f) Any Cross-Default Event shall occur with respect to any
Cross-Default Obligation; PROVIDED, that if a Cross-Default Event would have
occurred with respect to a Cross-Default Obligation but for the grant of a
waiver or similar indulgence, a Cross-Default Event shall nevertheless be
deemed to have occurred if the Borrower gave or agreed to give any fee or
other monetary compensation for such waiver or indulgence. As used herein,
"Cross-Default Obligation" shall mean any Indebtedness of the Borrower in
excess of $2,000,000 in aggregate principal amount, or commitment of any
Person to make a loan or loans to the Borrower in the aggregate principal
amount in excess of $2,000,000. As used herein, "Cross-Default Event" with
respect to a Cross-Default Obligation shall mean the occurrence of any
default, event or condition which causes or which would permit any Person or
Persons to cause or which would with the giving of notice or the passage of
time or both would permit any Person or Persons to cause all or any part of
such Cross-Default Obligation to become due (by acceleration, mandatory
prepayment or repurchase, or otherwise) before its otherwise stated maturity
or to terminate its commitment to make loans to the Borrower, or failure to
pay all or any part of such Cross-Default Obligation at its stated maturity.
(g) One or more judgments for the payment of money shall have been
entered against the Borrower or any other Loan Party, which judgment or
judgments exceed $1,000,000 in the aggregate, and such judgment or judgments
shall have remained undischarged and unstayed for a period of forty-five
consecutive days.
(h) One or more writs or warrants of attachment, garnishment,
execution, distraint or similar process exceeding in value the aggregate
amount of $1,000,000 shall have been issued against the Borrower or any
other Loan Party or any of their respective properties and shall have
remained undischarged and unstayed for a period of forty-five consecutive
days.
(i) Any Governmental Action now or hereafter made by or with any
Governmental Authority in connection with any Loan Document is not obtained
or shall have ceased to be in full force and effect or shall have been
modified or amended or shall have been held to be illegal or invalid, unless
the same could not have a Material Adverse Effect.
(j) Any Security Document shall cease to be in full force and effect,
or any Lien created or purported to be created in any Collateral pursuant to
any Security Document
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(and not released in accordance herewith or therewith) shall fail to be
valid, enforceable and perfected Lien in favor of the Agent for the benefit
of the Lenders and the Agent securing the Obligations, prior to all other
Liens (except for Permitted Liens under Section 6.02(b), (e) or (f)), or any
Loan Party shall assert any of the foregoing.
(k) Any Loan Document shall cease to be in full force and effect, or
any Loan Party shall, or shall purport to, terminate, repudiate, declare
voidable or void or otherwise contest, any Loan Document or any obligation
or liability of any Loan Party thereunder.
(l) The Required Lenders shall have determined in good faith that an
event or condition has occurred which could have a Material Adverse Effect.
(m) Any one or more Pension-Related Events referred to in subsection
(a)(ii) or (b) of the definition of "Pension-Related Event" shall have
occurred; any one or more Pension-Related Events referred to in subsection
(e)(i) of the definition of "Pension-Related Event" shall have occurred and
such event shall not have been cured within fifteen days after the
occurrence thereof; or any one or more other one or more other
Pension-Related Events shall have occurred and the Required Lenders shall
determine in good faith (which determination shall be conclusive) that such
other Pension-Related Events, individually or in the aggregate, could have a
Material Adverse Effect.
(n) Any one or more of the events or conditions set forth in the
following clauses (i) or (ii) shall have occurred in respect of any Loan
Party or any of its Environmental Affiliates, and the Required Lenders shall
determine in good faith that such events or conditions, individually or in
the aggregate, could have a Material Adverse Effect: (i) any past or present
violation of any Environmental Law by such Person, or (ii) existence of any
pending or threatened Environmental Claim against any such Person, or
existence of any past or present acts, omissions, events or circumstances
that could form the basis of any Environmental Claim against any such
Person.
(o) A Change of Control or a Change of Management shall have occurred.
(p) The Borrower or any other Person shall default under the SMS
Documents, the ▇▇▇▇▇▇▇▇ Documents, the OmniSource Documents or any of the
Phase II Project Major Equipment Supply Contracts (as defined in the
Original
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Agreement), and such defaults shall have continued without cure for such a
period as to have a material adverse impact on construction or operation of
the Phase I Project or of the Phase II Project.
(q) Any action or proceeding for the Condemnation (as defined in the
Mortgage) of all or a substantial portion of the properties of the Borrower
or any member of the Borrower Group shall be commenced and continue
undismissed for a period of forty-five days.
(r) Any of the ▇▇▇▇▇▇▇▇ Documents or the OmniSource Documents shall be
materially and adversely amended or shall fail to be in full force and
effect if such amendment or failure could have a Material Adverse Effect.
(s) A proceeding shall have been instituted in respect of the Borrower,
any other Loan Party, ▇▇▇▇▇▇▇▇ or OmniSource
(i) seeking to have an order for relief entered in respect of such
Person, or seeking a declaration or entailing a finding that such
Person is insolvent or a similar declaration or finding, or seeking
dissolution, winding-up, charter revocation or forfeiture, liquidation,
reorganization, arrangement, adjustment, composition or other similar
relief with respect to such Person, its assets or its debts under any
Law relating to bankruptcy, insolvency, relief of debtors or protection
of creditors, termination of legal entities or any other similar Law
now or hereafter in effect, or
(ii) seeking appointment of a receiver, trustee, liquidator,
assignee, sequestrator or other custodian for such Person or for all or
any substantial part of its property
and (A) in the case of the Borrower or any other Loan Party only, such
proceeding shall result in the entry, making or grant of any such order for
relief, declaration, finding, relief or appointment, or such proceeding
shall remain undismissed, undischarged and unstayed for a period of sixty
consecutive days, (B) in the case of ▇▇▇▇▇▇▇▇ or OmniSource only, such
proceeding shall result in the entry, making or grant of any such order for
relief, declaration, finding, relief or appointment, or such proceeding
shall remain undismissed, undischarged and unstayed for a period of sixty
consecutive days and (C) in the case of ▇▇▇▇▇▇▇▇ or OmniSource only, the
Required Lenders shall determine in
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good faith that such event could have a Material Adverse Effect.
(t) The Borrower, any other Loan Party, ▇▇▇▇▇▇▇▇ or OmniSource shall
become insolvent; shall fail to pay, become unable to pay, or state that it
is or will be unable to pay, its debts as they become due; shall voluntarily
suspend transaction of its or his business; shall make a general assignment
for the benefit of creditors; shall institute (or fail to controvert in a
timely and appropriate manner) a proceeding described in Section 7.01(s)(i)
hereof, or (whether or not any such proceeding has been instituted) shall
consent to or acquiesce in any such order for relief, declaration, finding
or relief described therein; shall institute or take corporate action
authorizing the institution of (or fail to controvert in a timely and
appropriate manner) a proceeding described in Section 7.01(s)(ii) hereof, or
(whether or not any such proceeding has been instituted) shall consent to or
acquiesce in any such appointment or to the taking of possession by any such
custodian of all or any substantial part of its or his property; shall
dissolve, wind-up, revoke or forfeit its charter (or other constituent
documents) or liquidate itself or any substantial part of its property;
PROVIDED, however, that, in the case of ▇▇▇▇▇▇▇▇ or OmniSource only, none of
the foregoing events or conditions set forth in this paragraph (w) shall
constitute an Event of Default unless the Required Lenders shall have
determined (which determination shall be conclusive) that such event or
condition could have a Material Adverse Effect.
7.02. CONSEQUENCES OF AN EVENT OF DEFAULT.
(a) If an Event of Default under Section 7.01 hereof (other than an
Event of Default specified in subsection (s) or (t) thereof) shall occur and be
continuing or shall exist, then, in addition to all other rights and remedies
which the Agent or any Lender may have hereunder or under any other Loan
Document, at law, in equity or otherwise, the Lenders shall be under no further
obligation to make Loans and the Issuing Bank shall be under no further
obligation to issue Letters of Credit hereunder, and the Agent shall, upon the
written request of the Required Lenders, by notice to the Borrower, from time to
time do any or all of the following:
(i) Declare the Commitments terminated, whereupon the Commitments will
terminate and any fees hereunder shall be immediately due and payable
without presentment, demand, protest or further notice of any kind, all of
which are
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hereby waived, and an action therefor shall immediately accrue.
(ii) Declare the unpaid principal amount of any or all of the Loans,
interest accrued thereon and all other Obligations (including without
limitation the obligation to cash collateralize outstanding Letters of
Credit) to be immediately due and payable without presentment, demand,
protest or further notice of any kind, all of which are hereby waived, and
an action therefor shall immediately accrue.
(iii) Exercise one or more of the remedies set forth in the Security
Documents.
(b) If an Event of Default specified in subsection (s) or (t) of
Section 7.01 hereof shall occur or exist, then, in addition to all other rights
and remedies which the Agent or any Lender may have hereunder or under any other
Loan Document, at law, in equity or otherwise, the Commitments shall
automatically terminate and the Lenders shall be under no further obligation to
make Loans and the Issuing Bank shall be under no further obligation to issue
Letters of Credit, and the unpaid principal amount of the Loans, interest
accrued thereon and all other Obligations (including without limitation the
obligation to cash collateralize outstanding Letters of Credit) shall become
immediately due and payable without presentment, demand, protest or notice of
any kind, all of which are hereby waived, and an action therefor shall
immediately accrue.
ARTICLE VIII
THE AGENT
---------
8.01. APPOINTMENT. Each Lender Party hereby irrevocably (subject to the
second sentence of Section 8.10 hereof) appoints Mellon to act as Agent for such
Lender Party under this Agreement and the other Loan Documents. Each Lender
Party hereby irrevocably (subject to the second sentence of Section 8.10 hereof)
authorizes the Agent to take such action on behalf of such Lender under the
provisions of this Agreement and the other Loan Documents, and to exercise such
powers and to perform such duties, as are expressly delegated to or required of
the Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto. Mellon hereby agrees to act as Agent on behalf of
the Lender Parties on the terms and conditions set forth in this Agreement and
the other Loan Documents, subject to its right to resign as provided in Section
8.10 hereof. Each Lender Party hereby irrevocably authorizes the Agent to
execute and deliver each of the Loan
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Documents and to accept delivery of such of the other Loan Documents as may not
require execution by the Agent. Each Lender Party agrees that the rights and
remedies granted to the Agent under the Loan Documents shall be exercised
exclusively by the Agent, and that no Lender Party shall have any right
individually to exercise any such right or remedy, except to the extent
expressly provided herein or therein.
8.02. GENERAL NATURE OF AGENT'S DUTIES. Notwithstanding anything to the
contrary elsewhere in this Agreement or in any other Loan Document:
(a) The Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Loan Documents, and no
implied duties or responsibilities on the part of the Agent shall be read
into this Agreement or any Loan Document or shall otherwise exist.
(b) The duties and responsibilities of the Agent under this Agreement
and the other Loan Documents shall be mechanical and administrative in
nature, and the Agent shall not have a fiduciary relationship in respect of
any Lender Party.
(c) The Agent is and shall be solely the agent of the Lender Parties.
The Agent does not assume, and shall not at any time be deemed to have, any
relationship of agency or trust with or for, or any other duty or
responsibility to, the Borrower or any other Person (except only for its
relationship as agent for, and its express duties and responsibilities to,
the Lender Parties as provided in this Agreement and the other Loan
Documents).
(d) The Agent shall be under no obligation to take any action hereunder
or under any other Loan Document if the Agent believes in good faith that
taking such action may conflict with any Law or any provision of this
Agreement or any other Loan Document, or may require the Agent to qualify to
do business in any jurisdiction where it is not then so qualified.
8.03. EXERCISE OF POWERS. The Agent shall take any action of the type
specified in this Agreement or any other Loan Document as being within the
Agent's rights, powers or discretion in accordance with directions from the
Required Lenders (or, to the extent this Agreement or such Loan Document
expressly requires the direction or consent of some other Person or set of
Persons, then instead in accordance with the directions of such other Person or
set of Persons). In the absence of such
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directions, the Agent shall have the authority (but under no circumstances shall
be obligated), in its sole discretion, to take any such action, except to the
extent this Agreement or such Loan Document expressly requires the direction or
consent of the Required Lenders (or some other Person or set of Persons), in
which case the Agent shall not take such action absent such direction or
consent. Any action or inaction pursuant to such direction, discretion or
consent shall be binding on all the Lender Parties. The Agent shall not have any
liability to any Person as a result of (x) the Agent acting or refraining from
acting in accordance with the directions of the Required Lenders (or other
applicable Person or set of Persons), (y) the Agent refraining from acting in
the absence of instructions to act from the Required Lenders (or other
applicable Person or set of Persons), whether or not the Agent has discretionary
power to take such action, or (z) the Agent taking discretionary action it is
authorized to take under this Section (subject, in the case of this clause (z),
to the provisions of Section 8.04(a) hereof).
8.04. GENERAL EXCULPATORY PROVISIONS. Notwithstanding anything to the
contrary elsewhere in this Agreement or any other Loan Document:
(a) The Agent shall not be liable for any action taken or omitted to be
taken by it under or in connection with this Agreement or any other Loan
Document, unless caused by its own gross negligence or willful misconduct.
(b) The Agent shall not be responsible for (i) the execution, delivery,
effectiveness, enforceability, genuineness, validity or adequacy of this
Agreement or any other Loan Document, (ii) any recital, representation,
warranty, document, certificate, report or statement in, provided for in, or
received under or in connection with, this Agreement or any other Loan
Document, (iii) any failure of any Loan Party or any Lender or Issuing Bank
to perform any of their respective obligations under this Agreement or any
other Loan Document, (iv) the existence, validity, enforceability,
perfection, recordation, priority, adequacy or value, now or hereafter, of
any Lien or other direct or indirect security afforded or purported to be
afforded by any of the Loan Documents or otherwise from time to time, (v)
caring for, protecting, insuring, or paying any taxes, charges or
assessments with respect to any Collateral or (vi) whether any Collateral
meets any requirement for eligibility, whether under the requirements of
Section 2.16 hereof or otherwise.
(c) The Agent shall not be under any obligation to ascertain, inquire
or give any notice relating to (i) the
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performance or observance of any of the terms or conditions of this
Agreement or any other Loan Document on the part of any Loan Party, (ii) the
business, operations, condition (financial or otherwise) or prospects of any
Loan Party, the Borrower Group or any other Person, or (iii) except to the
extent set forth in Section 8.05(f) hereof, the existence of any Event of
Default or Potential Default.
(d) The Agent shall not be under any obligation, either initially or on
a continuing basis, to provide any Lender Party with any notices, reports or
information of any nature, whether in its possession presently or hereafter,
except for such notices, reports and other information expressly required by
this Agreement or any other Loan Document to be furnished by the Agent to
such Lender Party.
8.05. ADMINISTRATION BY THE AGENT.
(a) The Agent may rely upon any notice or other communication of any
nature (written or oral, including but not limited to telephone conversations,
whether or not such notice or other communication is made in a manner permitted
or required by this Agreement or any Loan Document) purportedly made by or on
behalf of the proper party or parties, and the Agent shall not have any duty to
verify the identity or authority of any Person giving such notice or other
communication.
(b) The Agent may consult with legal counsel (including, without
limitation, in-house counsel for the Agent or in-house or other counsel for the
Borrower), independent public accountants and any other experts selected by it
from time to time, and the Agent shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts.
(c) The Agent may conclusively rely upon the truth of the statements
and the correctness of the opinions expressed in any certificates or opinions
furnished to the Agent in accordance with the requirements of this Agreement or
any other Loan Document. Whenever the Agent shall deem it necessary or desirable
that a matter be proved or established with respect to any Loan Party or any
Lender or Issuing Bank, such matter may be established by a certificate of the
Borrower or such Lender or Issuing Bank, as the case may be, and the Agent may
conclusively rely upon such certificate (unless other evidence with respect to
such matter is specifically prescribed in this Agreement or another Loan
Document).
(d) The Agent may fail or refuse to take any action unless it shall be
indemnified to its satisfaction from time to
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time against any and all amounts, liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature which may be imposed on, incurred by or asserted against the
Agent by reason of taking or continuing to take any such action.
(e) The Agent may perform any of its duties under this Agreement or any
other Loan Document by or through agents or attorneys-in-fact. The Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected and supervised by it with reasonable care.
(f) The Agent shall not be deemed to have any knowledge or notice of
the occurrence of any Event of Default or Potential Default unless the Agent has
received notice from a Lender or the Borrower referring to this Agreement,
describing such Event of Default or Potential Default, and stating that such
notice is a "notice of default". If the Agent receives such a notice, the Agent
shall give prompt notice thereof to each Lender and Issuing Bank.
8.06. LENDER NOT RELYING ON AGENT OR OTHER LENDERS. Each Lender
acknowledges as follows: (a) Neither the Agent nor any other Lender has made any
representations or warranties to it, and no act taken hereafter by the Agent or
any other Lender shall be deemed to constitute any representation or warranty by
the Agent or such other Lender to it. (b) It has, independently and without
reliance upon the Agent or any other Lender, and based upon such documents and
information as it has deemed appropriate, made its own credit and legal analysis
and decision to enter into this Agreement and the other Loan Documents. (c) It
will, independently and without reliance upon the Agent or any other Lender, and
based upon such documents and information as it shall deem appropriate at the
time, make its own decisions to take or not take action under or in connection
with this Agreement and the other Loan Documents.
8.07. INDEMNIFICATION. Each Lender agrees to reimburse and indemnify
the Agent and its directors, officers, employees and agents (to the extent not
reimbursed by the Borrower and without limitation of the obligations of the
Borrower to do so), Pro Rata, from and against any and all amounts, losses,
liabilities, claims, damages, reasonable expenses, obligations, penalties,
actions, judgments, suits, costs or disbursements of any kind or nature
(including, without limitation, the fees and disbursements of counsel for the
Agent or such other Person in connection with any investigative, administrative
or judicial proceeding commenced or threatened, whether or not the Agent or such
other Person shall be designated a party thereto) that may at any time be
imposed on, incurred by
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or asserted against the Agent or such other Person as a result of, or arising
out of, or in any way related to or by reason of, this Agreement, any other Loan
Document, any transaction from time to time contemplated hereby or thereby, or
any transaction financed in whole or in part or directly or indirectly with the
proceeds of any Loan or Letter of Credit, PROVIDED that no Lender shall be
liable for any portion of such amounts, losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements resulting solely from the gross negligence or willful misconduct
of the Agent or such other Person, as finally determined by a court of competent
jurisdiction. Payments under this Section shall be due and payable on demand,
and to the extent that any Lender fails to pay any such amount on demand, such
amount shall bear interest for each day from the fifth day after the date of
demand until paid (before and after judgment) at a rate per annum (calculated on
the basis of a year of 360 days and actual days elapsed) which shall be equal to
2% plus the Federal Funds Effective Rate.
8.08. AGENT IN ITS INDIVIDUAL CAPACITY. With respect to its Commitments
and the Obligations owing to it, the Agent shall have the same rights and powers
under this Agreement and each other Loan Document as any other Lender and may
exercise the same as though it were not the Agent, and the terms "Issuing Bank,"
"Lenders," "holders of Notes" and like terms shall include the Agent in its
individual capacity as such. The Agent and its affiliates may, without liability
to account, make loans to, accept deposits from, acquire debt or equity
interests in, act as trustee under indentures of, and engage in any other
business with, the Borrower and any stockholder or affiliate of the Borrower, as
though the Agent were not the Agent hereunder.
8.09. HOLDERS OF NOTES. The Agent may deem and treat the Lender which
is payee of a Note as the owner and holder of such Note for all purposes hereof
unless and until a Transfer Supplement with respect to the assignment or
transfer thereof shall have been filed with the Agent in accordance with Section
9.14 hereof. Any authority, direction or consent of any Person who at the time
of giving such authority, direction or consent is shown in the Register as being
a Lender shall be conclusive and binding on each present and subsequent holder,
transferee or assignee of any Note or Notes payable to such Lender or of any
Note or Notes issued in exchange therefor.
8.10. SUCCESSOR AGENT. The Agent may resign at any time by giving 30
days' prior written notice thereof to the Lenders and the Borrower. The Agent
may be removed by the Required Lenders at any time by giving 30 days' prior
written notice thereof to the Agent, the other Lenders and the Borrower. Upon
any such resignation or removal, the Required Lenders shall
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have the right to appoint a successor Agent. If no successor Agent shall have
been so appointed and consented to, and shall have accepted such appointment,
within 90 days after such notice of resignation or removal, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent. Each successor
Agent shall be a commercial bank or trust company organized, or having a branch
or agency organized, under the laws of the United States of America or any State
thereof and having a combined capital and surplus of at least $500,000,000. Upon
the acceptance by a successor Agent of its appointment as Agent hereunder, such
successor Agent shall thereupon succeed to and become vested with all the
properties, rights, powers, privileges and duties of the former Agent, without
further act, deed or conveyance. Upon the effective date of resignation or
removal of a retiring Agent, such Agent shall be discharged from its duties
under this Agreement and the other Loan Documents, but the provisions of this
Agreement shall inure to its benefit as to any actions taken or omitted by it
while it was Agent under this Agreement. If and so long as no successor Agent
shall have been appointed, then any notice or other communication required or
permitted to be given by the Agent shall be sufficiently given if given by the
Required Lenders, all notices or other communications required or permitted to
be given to the Agent shall be given to each Lender, and all payments to be made
to the Agent shall be made directly to the Borrower or Lender for whose account
such payment is made.
8.11. ADDITIONAL AGENTS. If the Agent shall from time to time deem it
necessary or advisable, for its own protection in the performance of its duties
hereunder or in the interest of the Lender Parties, the Agent and the Borrower
shall execute and deliver a supplemental agreement and all other instruments and
agreements necessary or advisable, in the opinion of the Agent, to constitute
another commercial bank or trust company, or one or more other Persons approved
by the Agent, to act as co-agent or separate agent with respect to any part of
the Collateral, with such powers of the Agent as may be provided in such
supplemental agreement, and to vest in such bank, trust company or Person as
such co-Agent or separate agent, as the case may be, any properties, rights,
powers, privileges and duties of the Agent under this Agreement or any other
Loan Document.
8.12. CALCULATIONS. The Agent shall not be liable for any calculation,
apportionment or distribution of payments made by it in good faith. If such
calculation, apportionment or distribution is subsequently determined to have
been made in error, the sole recourse of any Lender Party to whom payment was
due but not made shall be to recover from the other Lender Parties any payment
in excess of the amount to which they are determined to be entitled or, if the
amount due was not paid by the Borrower, to recover such amount from the
Borrower.
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8.13. FUNDING BY AGENT. Unless the Agent shall have been notified in
writing by any Lender not later than 4:00 p.m., Pittsburgh time, on the day
before the day on which Loans are requested by the Borrower to be made that (or,
if the request for a Loan is made by the Borrower on the date such Loan is to be
made, then not later than 11:00 a.m. on such day.) such Lender will not make its
ratable share of such Loans, the Agent may assume that such Lender will make its
ratable share of the Loans, and in reliance upon such assumption the Agent may
(but in no circumstances shall be required to) make available to the Borrower a
corresponding amount. If and to the extent that any Lender fails to make such
payment to the Agent on such date, such Lender shall pay such amount on demand
(or, if such Lender fails to pay such amount on demand, the Borrower shall pay
such amount on demand), together with interest, for the Agent's own account, for
each day from and including the date of the Agent's payment to and including the
date of repayment to the Agent (before and after judgment) at the rate or rates
per annum set forth below. All payments to the Agent under this Section shall be
made to the Agent at its Office in Dollars in funds immediately available at
such Office, without set-off, withholding, counterclaim or other deduction of
any nature. If funds deliverable by any Lender to the Agent or by the Agent to
any Lender are not made available when required hereunder, the party which has
not made such funds available shall pay interest to the other at the Federal
Funds Effective Rate for the first three days such funds are not made available
and 2% in excess of the Federal Funds Effective Rate thereafter.
8.14. CO-AGENTS. The Senior Co-Agents and the Co-Agents shall have no
rights, duties or responsibilities in such capacity hereunder.
ARTICLE IX
MISCELLANEOUS
-------------
9.01. HOLIDAYS. Whenever any payment or action to be made or taken
hereunder or under any other Loan Document shall be stated to be due on a day
which is not a Business Day, such payment or action shall be made or taken on
the next following Business Day and such extension of time shall be included in
computing interest or fees, if any, in connection with such payment or action.
9.02. RECORDS. The unpaid principal amount of the Loans owing to each
Lender, the unpaid interest accrued thereon, the interest rate or rates
applicable to such unpaid principal amount, the duration of such applicability,
each Tranche 1 Lender's Tranche 1 Committed Amount, each Tranche 2 Lender's
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Tranche 2 Committed Amount and the accrued and unpaid Commitment Fees shall at
all times be ascertained from the records of the Agent, which shall be
conclusive absent manifest error. The unpaid Letter of Credit Reimbursement
Obligation, the unpaid interest accrued thereon and the interest rate or rates
applicable thereto shall at all times be ascertained from the records of the
Issuing Bank, which shall be conclusive absent manifest error.
9.03. AMENDMENTS AND WAIVERS. Neither this Agreement nor any Loan
Document may be amended, modified or supplemented except in accordance with the
provisions of this Section. The Agent, the Borrower and, if applicable, any
other Loan Party may from time to time amend, modify or supplement the
provisions of this Agreement or any other Loan Document for the purpose of
amending, adding to, or waiving any provisions thereof, releasing any
Collateral, or changing in any manner the rights and duties of the Borrower or
any Lender Party thereunder. Any such amendment, modification, waiver or
supplement made by Borrower and the Agent in accordance with the provisions of
this Section shall be binding upon the Borrower, each Loan Party and each Lender
Party. The Agent shall enter into such amendments, modifications or supplements
from time to time as directed by the Required Lenders, and only as so directed,
PROVIDED, that no such amendment, modification or supplement may be made which
will:
(a) Increase the Tranche 1 Committed Amount, the Tranche 2 Committed
Amount or the Tranche 3 Committed Amount of any Lender over the amount
thereof then in effect without the consent of all Lenders, or extend the
Tranche 1 Maturity Date, the Tranche 2 Conversion Date, the Tranche 2
Maturity Date or the Tranche 3 Maturity Date without the written consent of
each Lender affected thereby, or amend the proviso to Section 2.17(a) or the
proviso to Section 2.29(b) without the consent of all the Tranche 1 Lenders
or;
(b) Reduce the principal amount of or extend the scheduled final
maturity or time for any scheduled payment of principal of any Loan or
Letter of Credit Reimbursement Obligation, or reduce or increase the rate of
interest or extend or reduce the time for payment of interest borne by any
Loan or Letter of Credit Reimbursement Obligation, or reduce or postpone the
date for payment of any fees, expenses, indemnities or amounts payable under
any Loan Document, without the written consent of each Lender Party affected
thereby;
(c) Change the definition of "Required Lenders" or amend this Section
9.03, without the written consent of all the Lenders;
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(d) Amend or waive any of the provisions of ARTICLE VIII hereof, or
impose additional duties upon the Agent or otherwise adversely affect the
rights, interests or obligations of the Agent, without the written consent
of the Agent;
(e) Release any substantial amount of Collateral or any Guaranty
Equivalent, other than Liens on Collateral, the disposition of which is
expressly permitted under Section 6.10 hereof or any other section of the
Loan Documents and Liens on after-acquired Equipment to the extent such
Equipment is the subject of a purchase money security interest permitted
under Section 6.02(f) hereof, without the written consent of all the
Lenders;
(f) Reduce any Letter of Credit Unreimbursed Draw, or extend the time
for payment by the Borrower of any Letter of Credit Reimbursement
Obligation, without the written consent of each Lender affected thereby;
(g) Amend or waive any of the provisions of Sections 2.17 through 2.26,
or impose additional duties upon the Issuing Bank or otherwise adversely
affect the rights, interests or obligations of the Issuing Bank, without the
written consent of the Issuing Bank;
(h) Change any requirement for the consent of all Lenders without the
written consent of all Lenders or change any requirement for the consent of
all of a category of Lenders (that is, Revolving Credit Lenders, Term
Lenders, Tranche 1 Lenders, Tranche 2 Lenders or Tranche 3 Lenders) without
the written consent of all Lenders in such category; or
(i) Amend or waive any of the provisions of Sections 2.27 through 2.30,
or impose additional duties upon the Swingline Lender or otherwise adversely
affect the rights, interests or obligations of the Swingline Lender, without
the written consent of the Swingline Lender;
and PROVIDED FURTHER, that Transfer Supplements may be entered into in the
manner provided in Section 9.14 hereof. Any such amendment, modification or
supplement must be in writing and shall be effective only to the extent set
forth in such writing. Any Event of Default or Potential Default waived or
consented to in any such amendment, modification or supplement shall be deemed
to be cured and not continuing to the extent and for the period set forth in
such waiver or consent, but no such waiver or
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consent shall extend to any other or subsequent Event of Default or Potential
Default or impair any right consequent thereto.
9.04. NO IMPLIED WAIVER; CUMULATIVE REMEDIES. No course of dealing and
no delay or failure of the Agent or any Lender Party in exercising any right,
power or privilege under this Agreement or any other Loan Document shall affect
any other or future exercise thereof or exercise of any other right, power or
privilege; nor shall any single or partial exercise of any such right, power or
privilege or any abandonment or discontinuance of steps to enforce such a right,
power or privilege preclude any further exercise thereof or of any other right,
power or privilege. The rights and remedies of the Agent and the Lender Parties
under this Agreement and any other Loan Document are cumulative and not
exclusive of any rights or remedies which the Agent or any Lender Party would
otherwise have hereunder or thereunder, at law, in equity or otherwise.
9.05. NOTICES.
(a) Except to the extent otherwise expressly permitted hereunder or
thereunder, all notices, requests, demands, directions and other communications
(collectively "notices") under this Agreement or any Loan Document shall be in
writing (including telexed and telecopied communication) and shall be sent by
first-class mail, or by nationally-recognized overnight courier, or by telex or
telecopier (with confirmation in writing mailed first-class or sent by such an
overnight courier), or by personal delivery. All notices shall be sent to the
applicable party at the address stated on the signature pages hereof or in
accordance with the last unrevoked written direction from such party to the
other parties hereto, in all cases with postage or other charges prepaid. Any
such properly given notice to the Agent or any Lender Party shall be effective
when received. Any such properly given notice to the Borrower shall be effective
on the earliest to occur of receipt, telephone confirmation of receipt of telex
or telecopy communication, one Business Day after delivery to a
nationally-recognized overnight courier, or three Business Days after deposit in
the mail.
(b) Any Lender Party giving any notice to the Borrower or any other
party to a Loan Document shall simultaneously send a copy thereof to the Agent,
and the Agent shall promptly notify the other Lenders of the receipt by it of
any such notice.
(c) The Agent and each Lender Party may rely on any notice (whether or
not such notice is made in a manner permitted or required by this Agreement or
any Loan Document) purportedly made by or on behalf of the Borrower, and neither
the Agent nor
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any Lender Party shall have any duty to verify the identity or authority of any
Person giving such notice.
9.06. EXPENSES; TAXES; INDEMNITY.
(a) The Borrower agrees to pay or cause to be paid and to save the
Agent, the Issuing Bank and each of the Lender Parties harmless against
liability for the payment of all reasonable out-of-pocket costs and expenses
(including but not limited to reasonable fees and expenses of counsel, including
local counsel (but not separate counsel for any Lender other than Mellon in
connection with clause (i) below), auditors, consulting engineers, appraisers,
and all other professional, accounting, evaluation and consulting costs)
incurred by the Agent or any Lender from time to time arising from or relating
to (i) the administration and performance of this Agreement and the other Loan
Documents (including but not limited to collateral management fees and expenses
of field examinations and periodic commercial finance audits of the Borrower),
(ii) any requested amendments, modifications, supplements, waivers or consents
(whether or not ultimately entered into or granted) to this Agreement or any
Loan Document, and (iii) the enforcement or preservation of rights under this
Agreement or any Loan Document (including but not limited to any such costs or
expenses arising from or relating to (A) the creation, perfection or protection
of the Agent's Lien on any Collateral, (B) the protection, collection, lease,
sale, taking possession of, preservation of, or realization on, any Collateral,
including without limitation advances for storage, insurance premiums,
transportation charges, taxes, filing fees and the like, (C) collection or
enforcement of an outstanding Loan, Letter of Credit Reimbursement Obligation or
any other amount owing hereunder or thereunder by the Agent or any Lender Party,
and (D) any litigation, proceeding, dispute, work-out, restructuring or
rescheduling related in any way to this Agreement or the Loan Documents).
(b) The Borrower hereby agrees to pay all stamp, document, transfer,
recording, filing, registration, search, sales and excise fees and taxes and all
similar impositions now or hereafter determined by the Agent or any Lender
Parties to be payable in connection with this Agreement or any other Loan
Documents or any other documents, instruments or transactions pursuant to or in
connection herewith or therewith, and the Borrower agrees to save the Agent and
each Lender Party harmless from and against any and all present or future
claims, liabilities or losses with respect to or resulting from any omission to
pay or delay in paying any such fees, taxes or impositions.
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(c) The Borrower hereby agrees to reimburse and indemnify each of the
Indemnified Parties from and against any and all losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature whatsoever (including, without limitation,
the fees and disbursements of counsel for such Indemnified Party in connection
with any investigative, administrative or judicial proceeding commenced or
threatened, whether or not such Indemnified Party shall be designated a party
thereto) that may at any time be imposed on, asserted against or incurred by
such Indemnified Party as a result of, or arising out of, or in any way related
to or by reason of, this Agreement or any other Loan Document, any transaction
from time to time contemplated hereby or thereby, or any transaction financed in
whole or in part or directly or indirectly with the proceeds of any Loan (and
without in any way limiting the generality of the foregoing, including any
violation or breach of any Environmental Law or any other Law by any Loan Party
or any of its Environmental Affiliates; any Environmental Claim arising out of
the management, use, control, ownership or operation of property by any of such
Persons, including all on-site and off-site activities involving Environmental
Concern Materials; any grant of Collateral; or any exercise by the Agent or any
Lender Party of any of its rights or remedies under this Agreement or any other
Loan Document; any breach of any representation or warranty, covenant or
agreement of any Loan Party); but excluding any such losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements to the extent resulting from the gross negligence or
willful misconduct of such Indemnified Party, as finally determined by a court
of competent jurisdiction. If and to the extent that the foregoing obligations
of the Borrower under this subsection (c), or any other indemnification
obligation of the Borrower hereunder or under any other Loan Document, are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable Law.
9.07. SEVERABILITY. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
9.08. PRIOR UNDERSTANDINGS. This Agreement and the other Loan Documents
supersede all prior and contemporaneous understandings and agreements, whether
written or oral, among the
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parties hereto relating to the transactions provided for herein and therein.
9.09. DURATION; SURVIVAL. All representations and warranties of the
Borrower and each other Loan Party contained herein or in any other in the Loan
Document or made in connection herewith or therewith shall survive the making
of, and shall not be waived by the execution and delivery, of this Agreement or
any other Loan Document, any investigation by or knowledge of the Agent or any
Lender Party, the making of any Loan, the issuance of any Letter of Credit, or
any other event or condition whatever. All covenants and agreements of the
Borrower and each other Loan Party contained herein or in any other Loan
Document shall continue in full force and effect from and after the date hereof
so long as the Borrower may borrow hereunder and until payment in full of all
Obligations. Without limitation, all obligations of the Borrower hereunder or
under any other Loan Document to make payments to or indemnify the Agent or any
Lender shall survive the payment in full of all other Obligations, termination
of the Borrower's right to borrow hereunder, and all other events and conditions
whatever. In addition, all obligations of each Lender to make payments to or
indemnify the Agent or Issuing Bank shall survive the payment in full by the
Borrower of all Obligations, termination of the Borrower's right to borrow
hereunder, and all other events or conditions whatever.
9.10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
9.11. LIMITATION ON PAYMENTS. The parties hereto intend to conform to
all applicable Laws in effect from time to time limiting the maximum rate of
interest that may be charged or collected. Accordingly, notwithstanding any
other provision hereof or of any other Loan Document, the Borrower shall not be
required to make any payment to or for the account of any Lender, and each
Lender shall refund any payment made by the Borrower, to the extent that such
requirement or such failure to refund would violate or conflict with nonwaivable
provisions of applicable Laws limiting the maximum amount of interest which may
be charged or collected by such Lender.
9.12. SET-OFF. The Borrower hereby agrees that, to the fullest extent
permitted by law, if an Event of Default shall have occurred and be continuing
or shall exist and if any Obligation of the Borrower shall be due and payable
(by acceleration or otherwise), each Lender Party shall have the right, without
notice to the Borrower, to set-off against and to
132
appropriate and apply to such Obligation any indebtedness, liability or
obligation of any nature owing to the Borrower by such Lender Party, including
but not limited to all deposits (whether time or demand, general or special,
provisionally credited or finally credited, whether or not evidenced by a
certificate of deposit, and including without limitation accounts in foreign
currencies) now or hereafter maintained by the Borrower with such Lender Party.
Such right shall be absolute and unconditional in all circumstances and, without
limitation, shall exist whether or not such Lender Party or any other Person
shall have given notice or made any demand to the Borrower or any other Person,
whether such indebtedness, obligation or liability owed to the Borrower is
contingent, absolute, matured or unmatured (it being agreed that such Lender
Party may deem such indebtedness, obligation or liability to be then due and
payable at the time of such setoff), and regardless of the existence or adequacy
of any collateral, guaranty or any other security, right or remedy available to
any Lender Party or any other Person. The Borrower hereby agrees that, to the
fullest extent permitted by law, any Participant and any branch, subsidiary or
affiliate of any Lender Party or any Participant shall have the same rights of
set-off as a Lender Party as provided in this Section (regardless of whether
such Participant, branch, subsidiary or affiliate would otherwise be deemed in
privity with or a direct creditor of the Borrower). The rights provided by this
Section are in addition to all other rights of set-off and banker's lien and all
other rights and remedies which any Lender Party (or any such Participant,
branch, subsidiary or affiliate) may otherwise have under this Agreement, any
other Loan Document, at law or in equity, or otherwise, and nothing in this
Agreement or any Loan Document shall be deemed a waiver or prohibition of or
restriction on the rights of set-off or bankers' lien of any such Person.
9.13. SHARING OF COLLECTIONS. The Lenders hereby agree among themselves
that if any Lender shall receive (by voluntary payment, realization upon
security, set-off or from any other source) any amount on account of the Loans,
interest thereon, or any other Obligation contemplated by this Agreement or the
other Loan Documents to be made by the Borrower pro rata to the Tranche 1
Lenders, the Tranche 2 Lenders or the Tranche 3 Lenders, as the case may be (or,
in the case of proceeds of Collateral, as contemplated by the Security
Agreement) in greater proportion than any such amount received by any other
applicable Lender, then the Lender receiving such proportionately greater
payment shall notify each other Lender and the Agent of such receipt, and
equitable adjustment will be made in the manner stated in this Section so that,
in effect, all such excess amounts will be shared ratably among all of the
applicable Lenders. The Lender receiving such excess amount shall purchase
133
(which it shall be deemed to have done simultaneously upon the receipt of such
excess amount) for cash from the other applicable Lenders a participation in the
applicable Obligations owed to such other Lenders in such amount as shall result
in a ratable sharing by all applicable Lenders of such excess amount (and to
such extent the receiving Lender shall be a Participant). If all or any portion
of such excess amount is thereafter recovered from the Lender making such
purchase, such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, together with interest or other amounts, if any,
required by Law to be paid by the Lender making such purchase. The Borrower
hereby consents to and confirms the foregoing arrangements. Each Participant
shall be bound by this Section as fully as if it were a Lender hereunder.
9.14. SUCCESSORS AND ASSIGNS; PARTICIPATIONS; ASSIGNMENTS.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Lender Parties, all future holders of
the Notes, the Agent and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights hereunder or interests
herein without the prior written consent of all the Lenders and the Agent, and
any purported assignment without such consent shall be void.
(b) PARTICIPATIONS. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable Law, at any time
sell participations to one or more commercial banks or other Persons (each a
"Participant") in a portion of its rights and obligations under this Agreement
and the other Loan Documents (including, without limitation, all or a portion of
its Commitments and the Loans owing to it and any Note held by it); PROVIDED,
that
(i) any such participation sold to a Participant which is not a Lender,
an affiliate of a Lender or a Federal Reserve Bank shall be made only with
the consent (which in each case shall not be unreasonably withheld) of the
Borrower and the Agent, unless an Event of Default has occurred and is
continuing, in which case the consent of the Borrower shall not be required,
(ii) any such Lender's obligations under this Agreement and the other
Loan Documents shall remain unchanged,
134
(iii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations,
(iv) the parties hereto shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under
this Agreement and each of the other Loan Documents,
(v) such Participant shall be bound by the provisions of Section 9.13
hereof, and the Lender selling such participation shall obtain from such
Participant a written confirmation of its agreement to be so bound,
(vi) no Participant (unless such Participant is an affiliate of such
Lender, or is itself a Lender) shall be entitled to require such Lender to
take or refrain from taking action under this Agreement or under any other
Loan Document, except that such Lender may agree with such Participant that
such Lender will not, without such Participant's consent, take action of the
type described in subsections (a), (b), (c) or (e) of Section 9.03 hereof,
and
(vii) a Participant shall have the right to vote regarding amendments
to this Agreement only in connection with amendments which effect changes in
the amount of principal, interest rates, fees, maturity and material
releases of Collateral.
The Borrower agrees that any such Participant shall be entitled to the benefits
of Sections 2.13, 2.14, 2.22 and 9.06 with respect to its participation in the
Commitments and the Loans and Letters of Credit outstanding from time to time;
PROVIDED, that no such Participant shall be entitled to receive any greater
amount pursuant to such Sections than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred to
such Participant had no such transfer occurred.
(c) ASSIGNMENTS. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable Law, at any time
assign all or a portion of its rights and obligations under this Agreement and
the other Loan Documents (including, without limitation, all or any portion of
its Commitments and Loans owing to it and any Note held by it) to any Lender,
any affiliate of a Lender or to one or more additional commercial banks or other
Persons (each a "Purchasing Lender"); PROVIDED, that
135
(i) any such assignment to a Purchasing Lender which is not a Lender or
an affiliate of a Lender shall be made only with the consent (which in each
case shall not be unreasonably withheld) of the Borrower, the Agent and, if
the Purchasing Lender is to be a Revolving Credit Lender, the Issuing Bank,
unless an Event of Default has occurred and is continuing or exists, in
which case the consent of the Borrower shall not be required,
(ii) if a Lender makes such an assignment of less than all of its then
remaining rights and obligations under this Agreement and the other Loan
Documents, such assignment shall be in a minimum aggregate principal amount
of $5,000,000 of the Commitments and Loans then outstanding,
(iii) each such assignment shall be of a constant, and not a varying,
percentage of each Commitment of the transferor Lender and of all of the
transferor Lender's rights and obligations under this Agreement and the
other Loan Documents, and each such assignment which transfers any portion
of a Lender's Revolving Credit Commitment must transfer the same percentage
of such Lender's Tranche 1 Commitment and Tranche 2 Commitment;
(iv) each such assignment shall be made pursuant to a Transfer
Supplement in substantially the form of Exhibit C to this Agreement, duly
completed (a "Transfer Supplement").
In order to effect any such assignment, the transferor Lender and the Purchasing
Lender shall execute and deliver to the Agent a duly completed Transfer
Supplement (including the consents required by clause (i) of the preceding
sentence) with respect to such assignment, together with any Note or Notes
subject to such assignment (the "Transferor Lender Notes") and a processing and
recording fee of $2,500; and, upon receipt thereof, the Agent shall accept such
Transfer Supplement. Upon receipt of the Purchase Price Receipt Notice pursuant
to such Transfer Supplement, the Agent shall record such acceptance in the
Register. Upon such execution, delivery, acceptance and recording, from and
after the close of business at the Agent's Office on the Transfer Effective Date
specified in such Transfer Supplement
(x) the Purchasing Lender shall be a party hereto and, to the extent
provided in such Transfer Supplement, shall have the rights and obligations
of a Lender hereunder, and
(y) the transferor Lender thereunder shall be released from its
obligations under this Agreement to the extent so transferred (and, in the
case of an Transfer Supplement
136
covering all or the remaining portion of a transferor Lender's rights and
obligations under this Agreement, such transferor Lender shall cease to be a
party to this Agreement) from and after the Transfer Effective Date.
On or prior to the Transfer Effective Date specified in an Transfer Supplement,
the Borrower, at its expense, shall execute and deliver to the Agent (for
delivery to the Purchasing Lender) new Notes evidencing such Purchasing Lender's
assigned Commitments or Loans and (for delivery to the transferor Lender)
replacement Notes in the principal amount of the Loans or Commitments retained
by the transferor Lender (such Notes to be in exchange for, but not in payment
of, those Notes then held by such transferor Lender). Each such Note shall be
dated the date and be substantially in the form of the predecessor Note. The
Agent shall ▇▇▇▇ the predecessor Notes "exchanged" and deliver them to the
Borrower. Accrued interest and accrued fees shall be paid to the Purchasing
Lender at the same time or times provided in the predecessor Notes and this
Agreement.
(d) REGISTER. The Agent shall maintain at its office a copy of each
Transfer Supplement delivered to it and a register (the "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 from time to time. The
entries in the Register shall be conclusive absent manifest error and the
Borrower, the Agent and the Lenders may treat each person whose name is recorded
in the Register as a Lender hereunder for all purposes of the Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) FINANCIAL AND OTHER INFORMATION. The Borrower authorizes the Agent
and each Lender to disclose to any Participant or Purchasing Lender (each, a
"transferee") and any prospective transferee any and all financial and other
information in such Person's possession concerning the Borrower, any Loan Party
and their affiliates which has been or may be delivered to such Person by or on
behalf of the Borrower in connection with this Agreement or any other Loan
Document or such Person's credit evaluation of the Borrower and affiliates. At
the request of any Lender, the Borrower, at the Borrower's expense, shall
provide to each prospective transferee the conformed copies of documents
referred to in Section 4 of the form of Transfer Supplement.
(f) TRANSFEREE OF DESIGNATED LENDER. The Designated Lender shall notify
the Borrower and the Agent of any transfer of all or part of its rights under
this Agreement and the Borrower shall record such transfer on its books. If the
Designated
137
Lender transfers any of its rights under this Agreement to a
transferee that is organized under the laws of any jurisdiction other than the
United States or any state thereof, the Borrower, in its discretion, or the
Agent, on behalf of the Borrower, may require the transferee to make
representations and covenants similar to those set forth on behalf of the
Designated Lender in Section 2.14(f)(iv) of this Agreement.
9.15. CONFIDENTIALITY. Each of the Agent and the Lenders agree to keep
confidential any information relating to the Borrower received by it pursuant to
or in connection with this Agreement which is (a) trade information which the
Agent and the Lenders reasonably expect that the Borrower would want to keep
confidential, (b) technical information with respect to the Borrower's equipment
or operations, (c) information contained in the contracts described in Schedule
9.15 hereto, (d) financial or environmental information or (e) information which
is clearly marked "CONFIDENTIAL"; PROVIDED, however, that this Section 9.15
shall not be construed to prevent the Agent or any Lender from disclosing such
information (i) to any Affiliate that shall agree to be bound by this obligation
of confidentiality, (ii) upon the order of any court or administrative agency of
competent jurisdiction, (iii) upon the request or demand of any regulatory
agency or authority having jurisdiction over the Agent or such Lender (whether
or not such request or demand has the force of law), (iv) that has been publicly
disclosed, other than from a breach of this provision by the Agent or any
Lender, (v) that has been obtained from any person that is neither a party to
this Agreement nor an Affiliate of any such party, (vi) in connection with the
exercise of any right or remedy hereunder or under any other Loan Document,
(vii) as expressly contemplated by this Agreement or any other Loan Document or
(viii) to any prospective purchaser of all or any part of the interest of any
Lender which shall agree to be bound by the obligation of confidentiality in
this Agreement or the other Loan Documents if such prospective purchaser is a
financial institution or has been consented to by the Borrower, which consent
will not be withheld if such purchaser is not a competitor of the Borrower or an
Affiliate of a competitor of the Borrower.
9.16. GOVERNING LAW; SUBMISSION TO JURISDICTION: WAIVER OF JURY TRIAL;
LIMITATION OF LIABILITY.
(a) GOVERNING LAW. THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS (EXCEPT
TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN DOCUMENTS)
SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES.
138
(b) CERTAIN WAIVERS. THE BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON ARISING
FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY
STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING IN
CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED LITIGATION") MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN
ALLEGHENY COUNTY, PENNSYLVANIA OR NEW YORK COUNTY, NEW YORK, SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW
AGREES THAT IT WILL NOT BRING ANY RELATED LITIGATION IN ANY OTHER FORUM (BUT
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY LENDER PARTY TO
BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM);
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING
OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, WAIVES ANY
CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO ANY RELATED
LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES NOT HAVE
JURISDICTION OVER THE BORROWER;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR CERTIFIED U.S.
MAIL, POSTAGE PREPAID, TO THE BORROWER AT THE ADDRESS FOR NOTICES DESCRIBED
IN SECTION 9.05 HEREOF, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL
CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN
SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER
MANNER PERMITTED BY LAW); AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED LITIGATION.
(c) LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, NO
CLAIM MAY BE MADE BY THE BORROWER AGAINST THE AGENT, ANY LENDER PARTY OR ANY
AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF ANY OF THEM FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF
ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING IN
CONNECTION HEREWITH OR THEREWITH (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY
OTHER THEORY OF LIABILITY). THE BORROWER HEREBY WAIVES, RELEASES AND AGREES NOT
TO ▇▇▇ UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER SUCH CLAIM PRESENTLY EXISTS
OR ARISES HEREAFTER AND WHETHER OR NOT SUCH CLAIM IS KNOWN OR SUSPECTED TO EXIST
IN ITS FAVOR. THIS
139
PARAGRAPH (C) SHALL NOT LIMIT ANY RIGHTS OF THE BORROWER ARISING SOLELY OUT OF
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
[This Space Intentionally Left Blank]
140
9.17. TERMINATION OF AGREEMENT AMONG SECURED LENDERS. The Lenders and
the Agent hereby agree that the Agreement Among Secured Lenders, as defined in
the Original Agreement, is hereby terminated and shall no longer be applicable
to this Agreement, the Loans, the Collateral or the Security Documents.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed and delivered this Agreement as of the date first
above written.
STEEL DYNAMICS, INC.
By /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
141
MELLON BANK, N.A., as Lender and as Agent
By /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
Initial Tranche 1
Committed Amount: $75,000,000.00
Tranche 1
Commitment Percentage: 30.00%
Initial Tranche 2
Committed Amount: $25,000,000.00
Tranche 2
Commitment Percentage: 25.00%
Tranche 3
Committed Amount: $5,000,000.00
Tranche 3
Commitment Percentage: 5.00%
Address for Notices:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, as
Lender and as Senior Co-Agent
By /s/ Moellinger
----------------------------------------
Title: Senior Project Manager
By /s/ ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
Initial Tranche 1
Committed Amount: $0
Tranche 1
Commitment Percentage: 0%
Initial Tranche 2
Committed Amount: $0
Tranche 2
Commitment Percentage: 0%
Tranche 3
Committed Amount: $95,000,000.00
Tranche 3
Commitment Percentage: 95%
Address for Notices:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: 4969 ▇▇▇▇ ▇▇▇▇
Telecopier: 4969 7431 2016
143
BANQUE NATIONALE DE PARIS, as Lender
and as Co-Agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
Initial Tranche 1
Committed Amount: $28,571,428.57
Tranche 1
Commitment Percentage: 11.43%
Initial Tranche 2
Committed Amount: $11,428,571.43
Tranche 2
Commitment Percentage: 11.43%
Tranche 3
Committed Amount: $0
Tranche 3
Commitment Percentage: 0%
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
144
COMERICA BANK, as Lender and as
Senior Co-Agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
Initial Tranche 1
Committed Amount: $35,714,285.71
Tranche 1
Commitment Percentage: 14.29%
Initial Tranche 2
Committed Amount: $14,285,714.29
Tranche 2
Commitment Percentage: 14.29%
Tranche 3
Committed Amount: $0
Tranche 3
Commitment Percentage: 0%
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
145
NBD BANK, N.A., as Lender and as
Co-Agent
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
Initial Tranche 1
Committed Amount: $28,571,428.57
Tranche 1
Commitment Percentage: 11.43%
Initial Tranche 2
Committed Amount: $11,428,571.43
Tranche 2
Commitment Percentage: 11.43%
Tranche 3
Committed Amount: $0
Tranche 3
Commitment Percentage: 0%
Address for Notices:
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
146
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as Lender and as Co-Agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Title: Joint General Manager
Initial Tranche 1
Committed Amount: $25,000,000.00
Tranche 1
Commitment Percentage: 10.00%
Initial Tranche 2
Committed Amount: $15,000,000.00
Tranche 2
Commitment Percentage: 15.00%
Tranche 3
Committed Amount: $0
Tranche 3
Commitment Percentage: 0%
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
147
BANK AUSTRIA AKTIENGESELLSCHAFT, as Lender
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Title: Vice President
Initial Tranche 1
Committed Amount: $17,857,142.86
Tranche 1
Commitment Percentage: 7.14%
Initial Tranche 2
Committed Amount: $7,142,857.14
Tranche 2
Commitment Percentage: 7.14%
Tranche 3
Committed Amount: $0
Tranche 3
Commitment Percentage: 0%
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇ ▇▇▇▇▇ NATIONAL BANK, as Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Title: Vice President
Initial Tranche 1
Committed Amount: $7,142,857.14
Tranche 1
Commitment Percentage: 2.86%
Initial Tranche 2
Committed Amount: $2,857,142.86
Tranche 2
Commitment Percentage: 2.86%
Tranche 3
Committed Amount: $0
Tranche 3
Commitment Percentage: 0%
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, as
Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Title: Vice President
Initial Tranche 1
Committed Amount: $10,714,285.71
Tranche 1
Commitment Percentage: 4.29%
Initial Tranche 2
Committed Amount: $4,285,714.29
Tranche 2
Commitment Percentage: 4.29%
Tranche 3
Committed Amount: $0
Tranche 3
Commitment Percentage: 0%
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
and
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 317-267-
Telecopier: 317-267-
150
▇▇▇▇▇▇ TRUST AND SAVINGS, as Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
Initial Tranche 1
Committed Amount: $10,714,285.71
Tranche 1
Commitment Percentage: 4.29%
Initial Tranche 2
Committed Amount: $4,285,714.29
Tranche 2
Commitment Percentage: 4.29%
Tranche 3
Committed Amount: $0
Tranche 3
Commitment Percentage: 0%
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, N.A.
as Lender
By /s/ ▇▇▇▇▇ ▇. Sammona
----------------------------------------
Title: Vice President
Initial Tranche 1
Committed Amount: $10,714,285.71
Tranche 1
Commitment Percentage: 4.29%
Initial Tranche 2
Committed Amount: $4,285,714.29
Tranche 2
Commitment Percentage: 4.29%
Tranche 3
Committed Amount: $0
Tranche 3
Commitment Percentage: 0%
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇